Matter of Susan B. v Charles M.

Matter of Susan B. v Charles M. 2009 NY Slip Op 08136 [67 AD3d 488] November 12, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

In the Matter of Susan B., Respondent,
v
Charles M., Appellant.

—[*1] Nancy Botwinik, New York, for appellant.

Amanda Norejko, New York, for respondent.

Karen P. Simmons, The Children's Law Center, Brooklyn (Barbara H. Dildine of counsel), Law Guardian.

Order, Supreme Court, Bronx County (Diane Kiesel, J.), entered on or about April 24, 2008, which granted the mother's petition to modify a prior order governing respondent father's visitation of their child, unanimously affirmed, without costs.

The original order directed respondent not to consume alcohol while with the child. We defer to the more recent determination of the nisi prius court (see Eschbach v Eschbach, 56 NY2d 167, 173 [1982]), which was supported by the testimony of two police officers that respondent arrived at the designated location for exchange of the child in a state of intoxication. Such conduct constituted a change in circumstances warranting modification, in the child's best interests, to a more restrictive visitation schedule (see Matter of Kelley v VanDee, 61 AD3d 1281 [2009]). Concur—Gonzalez, P.J., Andrias, Saxe, Renwick and Manzanet-Daniels, JJ.