Matter of Joseph Bruno v Lorraine Kerr

Matter of Bruno v Kerr 2005 NY Slip Op 00392 [14 AD3d 611] January 24, 2005 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 16, 2005

In the Matter of Joseph Bruno, Appellant,
v
Lorraine Kerr, Respondent, and Mary Ann Day, Respondent.

—[*1]

In a custody proceeding pursuant to Family Court Act article 6, the petitioner, the maternal grandfather of the subject children, appeals from an order of the Family Court, Dutchess County (Sammarco, J.), entered October 31, 2003, which granted the motion of the respondent Mary Ann Day, the paternal aunt of the subject children, to dismiss the petition.

Ordered that the order is affirmed, with one bill of costs.

In support of a petition for a change of child custody, a petitioner must "make a sufficient evidentiary showing to warrant a hearing" (Matter of Ann C. v Debra S., 221 AD2d 338 [1995]; see Matter of Burford v Alzamora, 289 AD2d 236, 236-237 [2001]; Matter of Wolfer v Dame, 207 AD2d 898 [1994]; David W. v Julia W., 158 AD2d 1 [1990]). The Family Court providently exercised its discretion in granting the motion of Mary Ann Day, the paternal aunt of the subject children, to dismiss the petition of the maternal grandfather for sole custody of the subject children. The maternal grandfather failed to make a sufficient evidentiary showing to warrant a hearing, particularly in view of the Family Court's familiarity with the history of the case (see Matter of Burford v Alzamora, supra at 237; see also Matter of Johnson v Semple, 273 AD2d 311, 312 [2000]; Matter of Coutsoukis v Samora, 265 AD2d 482, 483 [1999]; Matter of Rosenberg v Rosenberg, 261 AD2d 623, 624 [1999]; Matter of [*2]Miller v Lee, 225 AD2d 778, 779 [1996]). Prudenti, P.J., H. Miller, Spolzino and Lifson, JJ., concur.