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In re Fulmer

Supreme Court of New York, Second Department

September 11, 2013

In the Matter of Rachel Fulmer, appellant,
v.
Michael Buxenbaum, Jr., respondent. (Docket No. V-17775-07)

Judith Ellen Stone, Merrick, N.Y., for appellant.

Karen M. Caggiano, Shirley, N.Y., for respondent.

Elizabeth M. Niemi, Amityville, N.Y., attorney for the child.

WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, SANDRA L. SGROI, JJ.

DECISION & ORDER

In a visitation proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Suffolk County (Lechtrecker, Ct. Atty. Ref.), dated June 15, 2012, as, after a hearing, and upon granting her petition to modify a prior order of the same court dated February 2, 2010, only to the extent of awarding her certain unsupervised visitation with the parties' child, inter alia, denied that branch of her petition which was for additional unsupervised visitation, and prohibited her from telling the child that any man other than the father is the child's biological father.

ORDERED that the order dated June 15, 2010, is affirmed insofar as appealed from, without costs or disbursements.

As a general rule, the law of the case doctrine precludes this Court from reexamining an issue which has been raised and decided against a party on a prior appeal where that party had a full and fair opportunity to address the issue (see People v Evans, 94 N.Y.2d 499; Frankson v Brown & Williamson Tobacco Corp., 67 A.D.3d 213, 217; Allison v Allison, 60 A.D.3d 711; J-Mar Serv. Ctr., Inc. v Mahoney, Connor & Hussey, 45 A.D.3d 809; Lipp v Port Auth. of N.Y. & N.J., 57 A.D.3d 953). Review of the mother's contention regarding the prohibition against telling the child that any man other than the father is the child's biological father is barred by the doctrine of law of the case, as this Court has already decided this exact issue on a prior appeal (see Matter of Buxenbaum v Fulmer, 82 A.D.3d 1223, cert denied _____US_____, 133 S.Ct. 761), and there has been no showing of subsequent evidence or change of law (see Aurora Loan Servs., LLC v Grant, 88 A.D.3d 929; Cinelli Bldrs., Inc. v Ferris, 78 A.D.3d 881; Frankson v Brown & Williamson Tobacco Corp., 67 A.D.3d at 218; Allison v Allison, 60 A.D.3d 711).

A visitation order may be modified upon a showing of sufficient change in circumstances since the entry of the prior order such that modification is warranted to further the child's best interests (see Matter of Taylor v Taylor, 77 A.D.3d 669; Matter of Balgley v Cohen, 73 A.D.3d 1038). The Family Court's determination will not be set aside unless it lacks a sound and substantial basis in the record (see Matter of Haimovici v Haimovici, 73 A.D.3d 1058; Matter of Sinnott-Turner v Kolba, 60 A.D.3d 774, 775).

Contrary to the mother's contention, there was a sound and substantial basis in the record for the Family Court's denial of her request for certain additional visitation (see Matter of Grusz v Simonetti, 91 A.D.3d 645, 646; Matter of Pena v Pena, 68 A.D.3d 1000, 1001; Maloney v Maloney, 208 A.D.2d 603, 604). Moreover, the mother was awarded liberal unsupervised visitation that afforded her a meaningful opportunity to maintain a close relationship with the child (see Matter of Grusz v Simonetti, 91 A.D.3d at 646; Pollack v Pollack, 56 A.D.3d 637, 639).

The mother's remaining contentions are without merit.

MASTRO, J.P., HALL, LOTT and SGROI, JJ., concur.


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