New York Supreme and/or Appellate Courts Appellate Division, First Department
June 28, 2012
IN RE ANTONIO DWAYNE G., PETITIONER-APPELLANT,
ERICKA MONTE E., RESPONDENT-RESPONDENT.
Matter of Matter of Antonio Dwayne G. v Ericka Monte E.
Decided on June 28, 2012
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.
Mazzarelli, J.P., Catterson, Moskowitz, Manzanet-Daniels, Roman, JJ.
Order, Family Court, New York County (Carol J. Goldstein, Referee), entered on or about August 30, 2010, which, to the extent appealed from as limited by the briefs, granted, without a hearing, respondent mother's motion to dismiss petitioner father's petition to modify an order of custody, unanimously affirmed, with costs. Appeal from order, same court and Referee, entered on or about December 7, 2010, which, to the extent appealed from as limited by the briefs, denied petitioner's application to reargue, unanimously dismissed, without costs, as taken from a non-appealable paper.
Family Court providently exercised its discretion in declining to hold a hearing before it dismissed the petition to modify the existing custody arrangement. A court is not required to conduct a hearing whenever a party moves for a change in custody especially where, as here, the claims are "speculative and frivolous" (David W. v Julia W., 158 AD2d 1, 6 ). Indeed, the record shows that respondent did not medically neglect the child.
To the extent petitioner sought to reargue the motion dismissing his petition, the denial of his application is not appealable (see McCoy v Metropolitan Transp. Auth., 75 AD3d 428, 430 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 28, 2012
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