IN RE: Joseph D. TROTTI Sr. (2005)

Appeal from an order of the Family Court of Broome County (Connerton, J.), entered September 1, 2004, which dismissed petitioner's application, in a proceeding pursuant to Family Ct. Act article 6, for modification of a prior order of visitation.

Petitioner sought to modify a prior order of visitation which, apparently,¹ afforded him limited visitation with his granddaughter, who was in foster care under a permanency plan for adoption.   Family Court dismissed the petition without a hearing, prompting this appeal.

 Under settled law, a visitation order may be modified only “upon a showing that there has been a subsequent change of circumstances and modification is required” to serve the child's best interests (Family Ct. Act § 467[b][ii];  see Matter of Wilson v. McGlinchey, 2 N.Y.3d 375, 380-381, 779 N.Y.S.2d 159, 811 N.E.2d 526 [2004];  Matter of Crippen v. Keator, 9 A.D.3d 535, 536, 779 N.Y.S.2d 300 [2004] ).   While recognizing that a different standard may be appropriate (see Matter of Wilson v. McGlinchey, 305 A.D.2d 879, 881, 760 N.Y.S.2d 577 [2003], affd. 2 N.Y.3d 375, 381 n. 3, 779 N.Y.S.2d 159, 811 N.E.2d 526), but without deciding the issue, we apply the “change of circumstances” standard to petitioner's request as a grandparent to modify an order of visitation relating to his grandchild.   Here, petitioner's conclusory allegations, including his improved health and the apparent pending adoption of the child, are insufficient to warrant a hearing on his application to modify the current order of visitation.   Accordingly, the petition was properly dismissed without a hearing (see Matter of Ritchie v. Waters, 1 A.D.3d 839, 839-840, 767 N.Y.S.2d 295 [2003];  Matter of Lowe v. Crawford, 265 A.D.2d 621, 622, 695 N.Y.S.2d 772 [1999] ).

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   The prior order of visitation is not in the record on appeal.

SPAIN, J.

CREW III, J.P., PETERS, MUGGLIN and ROSE, JJ., concur.