NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
November 12, 2009
SUSAN B., PETITIONER-RESPONDENT,
CHARLES M., RESPONDENT-APPELLANT.
Order, Supreme Court, Bronx County (Diane Kiesel, J.), entered on or about April 24, 2008, which granted the mother's petition to modify a prior order governing respondent father's visitation of their child, 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.
Gonzalez, P.J., Andrias, Saxe, Renwick, Manzanet-Daniels, JJ.
In re Proceeding for Custody/Visitation.
The original order directed respondent not to consume alcohol while with the child. We defer to the more recent determination of the nisi prius court (see Eschbach v Eschbach, 56 NY2d 167, 173 ), which was supported by the testimony of two police officers that respondent arrived at the designated location for exchange of the child in a state of intoxication. Such conduct constituted a change in circumstances warranting modification, in the child's best interests, to a more restrictive visitation schedule (see Matter of Kelley v VanDee, 61 AD3d 1281 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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