IN RE: Gary ROSENBERG

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

IN RE: Gary ROSENBERG, respondent, v. Bette ROSENBERG, appellant.

Decided: May 24, 1999

GUY JAMES MANGANO, P.J., WILLIAM D. FRIEDMANN, LEO F. McGINITY and SANDRA J. FEUERSTEIN, JJ. Samuelson, Rieger & Yovino, LLP, Garden City, N.Y. (Anthony Yovino and Wendy B. Samuelson of counsel), for appellant. Stephen Gassman, Garden City, N.Y., for respondent. Alfred Reinharz, Baldwin, N.Y., Law Guardian for Andrew Rosenberg.

In a proceeding pursuant to Family Court Act article 6, the appeal is, by permission, from (1) an order of the Family Court, Nassau County (Pessala, J.), dated June 15, 1998, which, upon the granting of the husband's motion to relieve Alfred Reinharz, Esq., as Law Guardian for the parties' children, vacated a prior order of the same court, dated February 3, 1998, appointing Alfred Reinharz, Esq., as the Law Guardian for the parties' three children, directed that he continue to represent the oldest child, and appointed two new Law Guardians for the parties' two other children, (2) a decision of the same court, dated August 10, 1998, and (3) an order of the same court, dated September 2, 1998, which granted the motion of the husband for temporary custody of the parties' children.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v. Green Const. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718);  and it is further,

ORDERED that the order dated June 15, 1998, is reversed, as a matter of discretion, and the husband's motion is denied;  and it is further,

ORDERED that the order dated September 2, 1998, is reversed, on the law, and the husband's motion for temporary custody of the parties' children is denied;  and it is further,

ORDERED that the appellant is awarded one bill of costs.

 The court improvidently exercised its discretion by directing Alfred Reinharz, Esq., the Law Guardian who had represented all three children, to represent one child and appointing two new Law Guardians to represent the parties' two other children.   There is no evidence in the record that Mr. Reinharz either had a conflict of interest or had failed to diligently represent the best interests of the children (Matter of Zirkind v. Zirkind, 218 A.D.2d 745, 630 N.Y.S.2d 570).

 In seeking a change of custody, the initial burden is on the petitioner to show sufficient evidence of a change of circumstances warranting a hearing (Matter of Miller v. Lee, 225 A.D.2d 778, 639 N.Y.S.2d 852).   Consequently, the failure to adduce any evidence justifying a hearing will result in dismissal of the petition (Matter of Ann C. v. Debra S., 221 A.D.2d 338, 633 N.Y.S.2d 363).   The court erred in failing to dismiss the father's petition to change custody and instead granting the father temporary custody since he did not allege a sufficient change of circumstances to even warrant a hearing on the issue (see, Matter of Ann C. v. Debra S., supra;  cf., LaBombardi v. LaBombardi, 247 A.D.2d 590, 669 N.Y.S.2d 356).

MEMORANDUM BY THE COURT.

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