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Ronald S. v. Deirdre R.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 26, 2009

IN RE RONALD S., PETITIONER-APPELLANT,
v.
DEIRDRE R., RESPONDENT-RESPONDENT.

Order, Family Court, New York County (Marva A. Burnett, Referee), entered on or about December 20, 2007, which, in a proceeding pursuant to article 6 of the Family Court Act, dismissed without prejudice the petitions for modification of an order of visitation, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Catterson, J.P., McGuire, Moskowitz, DeGrasse, Freedman, JJ.

The petitions for a modification of the order of visitation based on a change of circumstances were properly dismissed since petitioner has not alleged a material change of circumstances, but instead seeks to relitigate old allegations from prior proceedings (see Matter of King v King, 266 Ad2d 546, 547 [1999]). Petitioner was not automatically entitled to a hearing, as he failed to make an evidentiary showing sufficient to warrant it (see e.g. Matter of Timson v Timson, 5 AD3d 691 [2004]). Furthermore, contrary to petitioner's contention, the referee did not deny him visitation without ordering an evidentiary hearing. Rather, she simply refused to modify the visitation order, which remains in effect, in petitioner's favor.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090526

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