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Gollogly v. Thompson

NEW YORK SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT


February 11, 2010

IN THE MATTER OF SHANE PATRICK GOLLOGLY, APPELLANT,
v.
HILARY L. THOMPSON, RESPONDENT.

Appeal from an order of the Family Court, Monroe County (Patricia E. Gallaher, J.), entered December 15, 2008 in a proceeding pursuant to Family Court Act article 6. The order dismissed the petition.

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

As corrected through Wednesday, March 31, 2010

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum

Family Court properly dismissed the petition seeking to modify a prior order of custody without conducting a hearing. Petitioner father failed to establish that the child was affected by respondent mother's mental health issues (cf. Matter of Leo v Leo, 39 AD3d 899, 901-902 [2007]; Matter of Baker v Baker, 283 AD2d 730, 730-731 [2001], lv denied 96 NY2d 720 [2001]), and he otherwise failed to make a sufficient evidentiary showing to warrant a hearing (see Matter of Wurmlinger v Freer, 256 AD2d 1069 [1998]; Matter of Lynette L. v Richard K.A., 210 AD2d 1005 [1994]).

Present---Scudder, P.J., Smith, Fahey and Lindley, JJ.

20100211

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