IN RE: Edward L. BROWN (2008)

In a visitation proceeding pursuant to Family Court Act article 6, the petitioner appeals from an order of the Family Court, Suffolk County (Hoffman, J.), dated September 21, 2007, which dismissed, without a hearing, his motion to adjudicate the respondent in civil contempt of an order of visitation of the same court (Budd, J.) dated April 28, 2006.

ORDERED that the order is affirmed, without costs or disbursements.

 The Family Court properly dismissed, without a hearing, the motion to hold the respondent in civil contempt of an order of visitation.   The burden is on the moving party to demonstrate, by clear and convincing evidence, that the accused party violated a clear and unequivocal court order which the accused party knew was in effect, thereby prejudicing a right of another party to the litigation (see Judiciary Law § 753[A][3];  Matter of McCormick v. Axelrod, 59 N.Y.2d 574, 583, 466 N.Y.S.2d 279, 453 N.E.2d 508;  Matter of Romanello v. Davis, 49 A.D.3d 652, 653, 856 N.Y.S.2d 128;  Vujovic v. Vujovic, 16 A.D.3d 490, 491, 791 N.Y.S.2d 648;  Matter of Laland v. Edmond, 13 A.D.3d 451, 785 N.Y.S.2d 718).  “A hearing is not mandated in every instance where contempt is sought;  it need only be conducted if a factual dispute exists which cannot be resolved on the papers alone” (Jaffe v. Jaffe, 44 A.D.3d 825, 826, 844 N.Y.S.2d 97 [internal citations omitted] ).

 Here, the petitioner offered no evidentiary support for his allegation that the respondent failed to comply with an order of visitation and therefore failed to raise an issue of fact which would necessitate a hearing (see Jaffe v. Jaffe, 44 A.D.3d at 826, 844 N.Y.S.2d 97;  Jafri v. Jafri, 292 A.D.2d 425, 738 N.Y.S.2d 896;  cf. Lesesne v. Lesesne, 292 A.D.2d 510, 739 N.Y.S.2d 295;  McKinley v. McKinley, 79 A.D.2d 603, 433 N.Y.S.2d 498).