IN RE: SHANE PATRICK GOLLOGLY (2010)

Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: SHANE PATRICK GOLLOGLY, PETITIONER-APPELLANT, v. HILARY L. THOMPSON, RESPONDENT-RESPONDENT.

CAF 09-00486

Decided: February 11, 2010

PRESENT: SCUDDER, P.J., SMITH, FAHEY, AND LINDLEY, JJ.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (GRAZINA MYERS OF COUNSEL), FOR PETITIONER-APPELLANT. HANDELMAN, WITKOWICZ & LEVITSKY, ROCHESTER (STEVEN M. WITKOWICZ OF COUNSEL), FOR RESPONDENT-RESPONDENT.

MEMORANDUM AND ORDER

MARY P. DAVISON, LAW GUARDIAN, CANANDAIGUA, FOR NATALIE G.

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

Memorandum: Family Court properly dismissed the petition seeking to modify a prior order of custody without conducting a hearing. Petitioner father failed to establish that the child was affected by respondent mother's mental health issues (cf. Matter of Leo v. Leo, 39 AD3d 899, 901-902; Matter of Baker v. Baker, 283 A.D.2d 730, 730-731, lv denied 96 N.Y.2d 720), and he otherwise failed to make a sufficient evidentiary showing to warrant a hearing (see Matter of Wurmlinger v. Freer, 256 A.D.2d 1069; Matter of Lynette L. v. Richard K.A., 210 A.D.2d 1005).

Patricia L. Morgan

Clerk of the Court

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