Supreme Court, Appellate Division, Second Department, New York.Feb 18, 2015
1 N.Y.S.3d 849 (N.Y. App. Div. 2015)
1 N.Y.S.3d 849125 A.D.3d 851


In the Matter of Ameena ALI, appellant, v. Roderick S. HINES, respondent.

Del Atwell, East Hampton, N.Y., for appellant.

Del Atwell, East Hampton, N.Y., for appellant.

Appeal from an order of the Family Court, Westchester County (Nilda Morales–Horowitz, J.), dated December 18, 2013. The order, in effect, denied the mother's petition to modify a prior order of that court entered August 1, 2012, upon consent, which set forth her visitation with the subject child, and dismissed the proceeding without prejudice.

ORDERED that the order is affirmed, without costs or disbursements.

Contrary to the appellant's contention, she was not entitled to assigned counsel in her capacity as the petitioner in the instant proceeding to modify her visitation with the subject child (see Matter of Perez v. Richmond, 104 A.D.3d 692, 959 N.Y.S.2d 925 ; Matter of Reiss v. Giraldo, 77 A.D.3d 759, 908 N.Y.S.2d 600 ; Matter of Edwards v. Cade, 33 A.D.3d 1087, 823 N.Y.S.2d 225 ). Further, her petition was properly denied without a hearing. "One who seeks a change in custody or visitation is not automatically entitled to a hearing, but must make a sufficient evidentiary showing of a material change of circumstances to warrant a hearing" (Matter of Palmiotti v. Piscitelli, 100 A.D.3d 637, 638, 953 N.Y.S.2d 255 ; see Magee

v. Magee, 119 A.D.3d 658, 989 N.Y.S.2d 615 ). Here, the petition failed to allege a sufficient change of circumstances between the issuance of the prior order and the filing of the petition (see Matter of Castagnini v. Hyman–Hunt, 123 A.D.3d 926, 996 N.Y.S.2d 922 ). Unsubstantiated and conclusory assertions are insufficient to warrant a hearing.

The appellant's remaining contentions are without merit.

Accordingly, the Family Court properly denied the petition and dismissed the proceeding.