Appellate Division of the Supreme Court of New York, Second DepartmentApr 1, 1996
226 A.D.2d 363 (N.Y. App. Div. 1996)
226 A.D.2d 363640 N.Y.S.2d 246

April 1, 1996

Appeal from the Supreme Court, Dutchess County (Beisner, J.).

Ordered that the order is affirmed, with costs.

After the court awarded custody of the parties' son to the mother and custody of the daughter to the father, the father moved to modify that award, contending that the son had expressed a desire to live with him. In an in-camera interview at the recently completed trial, the son had expressed the opposite desire.

The father's motion, whether denominated a motion to renew or a motion to modify pursuant to CPLR 5015 (a) or 4404, was properly denied. The motion was not one for renewal as the father failed to present any additional material facts which existed at the time the prior order was rendered, but were not then known to the father and therefore not made known to the court ( see, Foley v Roche, 68 A.D.2d 558; Matter of Jenna R., 207 A.D.2d 403). Furthermore, even if we were to construe the plaintiff's motion as a motion pursuant to CPLR 4404 (b) or 5015 (a), the court properly denied the motion since the evidence proffered by the husband in support of the motion was not newly discovered ( see, Grossbaum v. Dil-Hill Realty Corp., 58 A.D.2d 593). Balletta, J.P., Sullivan, Joy and Krausman, JJ., concur.