Wilensky v. Hon

138 A.D.3d 430, 27 N.Y.S.3d 870

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 5, 2016
• Docket: 309228/10 740 739
• Status: Published

Opinion

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered November 28, 2012, which, inter alia, awarded plaintiff mother primary physical and legal custody of the parties’ children, and order, same court (Matthew Cooper, J.), entered April 4, 2014, which scheduled a hearing on defendant father’s motion to modify custody, adhered to the schedule increasing defendant’s parenting time in an order entered on or about March 19, 2014, and denied plaintiff’s cross motion to vacate the March 19, 2014 order and to strike an expert report, unanimously affirmed to the extent a hearing was scheduled and the appeal otherwise dismissed, without costs, as academic.

The motion court correctly scheduled a hearing on the father’s motion to modify custody based upon an initial showing of a change in circumstances (Matter of Patricia C. v Bruce L., 46 AD3d 399 [1st Dept 2007]). The remainder of these appeals have otherwise been rendered academic by an order of the same court (Matthew F. Cooper, J.), entered on or about December 22, 2014, which, after a hearing, awarded defendant permanent legal and physical custody of the children (see e.g. Matter of Brenda J. v Nicole M., 59 AD3d 299, 300 [1st Dept 2009]; Haggerty v Haggerty, 78 AD3d 998 [2d Dept 2010]; see also Matter of Victoria W., 305 AD2d 126 [1st Dept 2003]).

Concur — Tom, J.P., Friedman, Richter, Gische and Gesmer, JJ.