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In re Consilio

Supreme Court of New York, Fourth Department

February 14, 2014

IN THE MATTER OF Caryn Consilio, PETITIONER-APPELLANT,
v.
Christopher Terrigino AND MARY E. DODDS, RESPONDENTS-RESPONDENTS.

Appeal from an order of the Family Court, Monroe County (Thomas W. Polito, R.), entered January 29, 2013 in a proceeding pursuant to Family Court Act article 6. The order granted the motion of respondent Christopher Terrigino to dismiss the petition seeking to modify the existing visitation order.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR PETITIONER-APPELLANT.

TREVETT CRISTO SALZER & ANDOLINA P.C., ROCHESTER (ERIC M. DOLAN OF COUNSEL), FOR RESPONDENT-RESPONDENT CHRISTOPHER TERRIGINO.

TANYA J. CONLEY, ATTORNEY FOR THE CHILD, ROCHESTER.

PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, AND VALENTINO, JJ.

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

Memorandum: Petitioner mother appeals from an order granting respondent father's motion to dismiss her petition seeking to modify the existing visitation order. The mother is not aggrieved by Family Court's failure to amend the order to reflect more accurately the intent of the parties inasmuch as the record indicates that the mother opposed any such amendment to the order during the underlying proceedings (see generally CPLR 5511; Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 N.Y.2d 539, 544-545; Matter of Glazier v Brightly, 81 A.D.3d 1197, 1199). Contrary to the mother's further contention, the court properly granted the father's motion to dismiss the petition without a hearing. "A hearing is not automatically required whenever a parent seeks modification of a custody [or visitation] order" (Matter of Wurmlinger v Freer, 256 A.D.2d 1069, 1069) and, here, "the mother failed to make a sufficient evidentiary showing of a change in circumstances to require a hearing' " (Matter of Warrior v Beatman, 70 A.D.3d 1358, 1359, lv denied 14 N.Y.3d 711).


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