Opinion
2013-06240, Docket Nos. V-14157-11, V-14303-11.
10-15-2014
In the Matter of Edyta MONASTERSKA, appellant, v. James M. BURNS, respondent. (Proceeding No. 1) In the Matter of James M. Burns, respondent, v. Edyta Monasterska, appellant, (Proceeding No. 2).
Joseph A. Solow, Hauppauge, N.Y., for appellant. Sari M. Friedman, P.C., Garden City, N.Y. (Megan M. Tomlin of counsel), for respondent. Beth A. Rosenthal, North Babylon, N.Y., attorney for the child.
Joseph A. Solow, Hauppauge, N.Y., for appellant.
Sari M. Friedman, P.C., Garden City, N.Y. (Megan M. Tomlin of counsel), for respondent. Beth A. Rosenthal, North Babylon, N.Y., attorney for the child.
MARK C. DILLON, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and BETSY BARROS, JJ.
Opinion
In related proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Suffolk County (Lechtrecker, Ct.Atty.Ref.), dated May 8, 2013, which, without a hearing, denied her motion pursuant to CPLR 5015(a)(2) to vacate an order of the same court dated February 10, 2012, awarding the father sole legal and physical custody of the parties' child or, in the alternative, to modify that order so as to award her sole legal and physical custody of the parties' child.
ORDERED that the order dated May 8, 2013, is affirmed, without costs or disbursements.
The Supreme Court properly denied that branch of the mother's motion which was pursuant to CPLR 5015(a)(2) to vacate the order dated February 10, 2012, awarding the father sole legal and physical custody of the parties' child, on the ground of newly discovered evidence. The letters from the New York State Office of Children & Family Services that the mother relied on were not in existence at the time of the Family Court's custody determination. As such, they do not meet the criteria for newly discovered evidence pursuant to CPLR 5015(a)(2). Specifically, the evidence must be in existence at the time of the original order or judgment, but undiscoverable with due diligence (see Davi v. Occhino, 116 A.D.3d 651, 653, 983 N.Y.S.2d 573 ; Coastal Sheet Metal Corp. v. RJR Mech. Inc., 85 A.D.3d 420, 923 N.Y.S.2d 841 ; Matter of Ayodele Ademoli J., 57 A.D.3d 668, 669, 870 N.Y.S.2d 68 ). In any event, the mother failed to demonstrate that said evidence “would probably have produced a different result” (CPLR 5015[a][2] ; see Gooden v. Gooden, 117 A.D.3d 902, 985 N.Y.S.2d 921 ; Welz v. Welz, 83 A.D.3d 696, 696–697, 919 N.Y.S.2d 889 ).
The Supreme Court also properly denied that branch of the mother's motion which was to modify the custody order so as to award her sole legal and physical custody of the parties' child. “A noncustodial parent seeking a change of custody is not entitled to a hearing without making some evidentiary showing sufficient to warrant a hearing” (Matter of Lopez v. Infante, 55 A.D.3d 837, 838, 866 N.Y.S.2d 295 ; see Matter of Olds v. Binyard, 64 A.D.3d 658, 659, 882 N.Y.S.2d 495 ; Jean v. Jean, 59 A.D.3d 599, 600, 875 N.Y.S.2d 88 ; Matter of Bauman v. Abbate, 48 A.D.3d 679, 680, 850 N.Y.S.2d 921 ). Here, the mother failed to make the requisite showing to warrant a hearing.