MINDY v. STEVE (2007)

Petitioner appeals from an order dismissing, without prejudice, her modification petition seeking custody of her daughter, who, by consent order, has been in the custody of respondent Shirley M., petitioner's mother, since shortly after her birth.   The petition alleged that petitioner moved into suitable housing.   However, at an appearance before Family Court relative to the petition, it was disclosed by a Catholic Charities caseworker, and confirmed by petitioner, that petitioner was seeking to relocate for various reasons including suspected high levels of lead paint in petitioner's current apartment.   Inasmuch as the securing of suitable housing was the only change of circumstances alleged in the petition, the court properly dismissed the petition without prejudice because “[p]etitioner failed to make a sufficient evidentiary showing” to warrant a hearing on her petition (Matter of Lynette L. v. Richard K.A., 210 A.D.2d 1005, 1005, 621 N.Y.S.2d 1009;  see Matter of Di Fiore v. Scott, 2 A.D.3d 1417, 1418, 770 N.Y.S.2d 248;  see also Leisten v. Leisten, 309 A.D.2d 1202, 765 N.Y.S.2d 301).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: