Matter of Gollogly v Thompson
2010 NY Slip Op 01157 [70 AD3d 1373]
February 11, 2010
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 31, 2010


In the Matter of Shane Patrick Gollogly, Appellant, v Hilary L. Thompson, Respondent.

—[*1] Timothy P. Donaher, Public Defender, Rochester (Grazina Myers of counsel), for petitioner-appellant.

Handelman, Witkowicz & Levitsky, Rochester (Steven M. Witkowicz of counsel), for respondent-respondent.

Mary P. Davison, Law Guardian, Canandaigua, for Natalie G.

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.

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.