IN RE: Benjamin SZE–BIN W. (2014)

IN RE: Benjamin SZE–BIN W., Petitioner–Respondent, v. KERRY S.W., Respondent–Appellant.

Decided: November 18, 2014

TOM, J.P., RENWICK, ANDRIAS, DeGRASSE, KAPNICK, JJ.

Preston Stutman & Partners, P.C., New York (Robert M. Preston of counsel), for appellant. Bressler Amery & Ross, P.C., New York (Kenneth M. Moltner of counsel), for respondent. Daniel X. Robinson, New York, attorney for the child.

Order, Family Court, New York County (Adetokunbo Fasanya, J.), entered on or about April 23, 2014, which denied respondent's motion to dismiss the petition for modification of custody, unanimously reversed, on the law, without costs, the motion granted, and the petition dismissed.

Petitioner, the noncustodial parent, failed to make the required evidentiary showing of a change in circumstances to warrant a hearing on the petition (see Matter of Patricia C. v. Bruce L., 46 AD3d 399 [1st Dept 2007] ). His submission of an online listing showing that respondent advertised an apartment for rent in her building is not evidence that respondent's residence was being used as a hotel and that, as a result, the child was dispossessed of and denied access to his living space in the apartment. Nor do petitioner's allegations that respondent hired a babysitter who scratched the child, and was fired almost two years before the petition was filed, constitute evidence of a substantial change of circumstances.

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