IN RE: Gary L. LIANO

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

IN RE: Gary L. LIANO, appellant, v. Darlene M. BELL, respondent.

Decided: March 24, 2009

REINALDO E. RIVERA, J.P., DAVID S. RITTER, JOSEPH COVELLO, and DANIEL D. ANGIOLILLO, JJ. Sheila Callahan O'Donnell, Cornwall, N.Y., for appellant. McAdam & Fallon, Walden, N.Y. (John J. Fallon of counsel), for respondent.

In a child support proceeding pursuant to Family Court Act article 4, the father appeals, as limited by his brief, from so much of an order of the Family Court, Orange County (Bivona, J.), entered October 8, 2008, as denied his objections to so much of an order of the same court (Krahulik, S.M.), entered June 9, 2008, as, after a hearing, dismissed his petition for a downward modification of his child support obligation.

ORDERED that the order is affirmed insofar as appealed from, with costs.

Although a petition for downward modification of child support may be granted when a party loses his or her job due to an injury, it may be denied when the moving party has the ability to provide support through some other type of employment (see Matter of Davis v. Davis, 13 A.D.3d 623, 624, 787 N.Y.S.2d 113;  Matter of McCarthy v. McCarthy, 2 A.D.3d 735, 769 N.Y.S.2d 590).   Here, although there was sufficient evidence to establish that the father was currently physically unable to return to his work as a police officer, there was no medical evidence that he was also unable to perform other work.   Also, the father failed to present a clear picture of his current financial situation, as he did not present any proof of income from his disability pension, as there had not yet been a final determination of benefits (see Matter of Moran v. Moran, 56 A.D.3d 675, 676, 869 N.Y.S.2d 107).   Accordingly, the father was not entitled to a downward modification of child support at this juncture.

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