Zima v. Aguirre-Cotliar

21 A.D.3d 828, 800 N.Y.S.2d 845

Opinion

Order, Supreme Court, New York County (Judith J. Gische, J.), entered September 28, 2004, which denied defendant’s application for a change in custody, unanimously affirmed, without costs.

Defendant fails to allege sufficient evidentiary facts to warrant a hearing based on a change in circumstances (see David W. v Julia W., 158 AD2d 1, 6-7 [1990]). The initial custody determination, made after a lengthy bench trial before the same Justice, was amply supported by the evidence, including the testimony of the neutral court-appointed forensic evaluator (see Pedreira v Pedreira, 17 AD3d 213 [2005]), and nothing in defendant’s moving affidavit tends to show that plaintiff has since become unfit or even less fit to continue as the custodial parent (see Obey v Degling, 37 NY2d 768, 770 [1975]; DeArakie v DeArakie, 191 AD2d 217 [1993], Iv dismissed 82 NY2d 802 [1993]). Concur—Sullivan, J.P., Ellerin, Nardelli and Sweeny, JJ.