Matter of J.W. v M.Y.

[*1] Matter of J.W. v M.Y. 2008 NY Slip Op 50553(U) [19 Misc 3d 1104(A)] Decided on March 12, 2008 Family Court, Nassau County Singer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 12, 2008
Family Court, Nassau County

In the Matter of a Proceeding Under Article 6 of the Family Court Act, J.W., Petitioner,

against

M.Y., Respondent.



V-0000-00/00

Conrad D. Singer, J.

The matter currently before the Court is a motion by petitioner J. W. to, inter alia, reargue and renew the decision of this Court dated December 12, 2007 which, upon oral application of respondent, dismissed petitioner's modification petition for failure to state a cause of action. The respondent submitted opposition to the motion and petitioner submitted a reply. The law guardian did not submit papers either supporting or opposing the relief sought.

Petitioner is represented by Roberta Fox, Esq. Respondent is represented by Douglas Kepanis, Esq. Steven Herman, Esq. was appointed law guardian for the child.

By Corrected Final Order of Custody and Visitation dated April 25, 2006, issued by the Hon. John L. Kase, respondent-mother was granted sole residential and legal custody of the subject child, then five years old, and petitioner was granted certain liberal rights of parenting time. Parenting time terms included two out of every three weekends. On the third week he is to have weeknight parenting time for dinner. This order was entered into on consent of the parties.

At the time the order was agreed to, the respondent and child lived in Queens County, approximately twenty miles from the father's home. In August, 2007, respondent moved to Suffolk County, approximately sixty five miles from her former residence. However, the petitioner-father lives in Nassau County, approximately forty-five miles from respondent's new home, making the net increase in mileage from his home approximately twenty five miles. It is this increase in mileage, and the added inconvenience associated thereto, that formed the basis of respondent's modification petition.

[*2]

RENEWAL AND REARGUMENT

CPLR §2221 (d), (e) and (f) state, respectively:

(d) A motion for leave to reargue:

1. shall be identified specifically as such;

2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and

3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals. (e) A motion for leave to renew:

1. shall be identified specifically as such; 2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and

3. shall contain reasonable justification for the failure to present such facts on the prior motion. (f) A combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought. The court, in determining a combined motion for leave to reargue and leave to renew, shall decide each part of the motion as if it were separately made. If a motion for leave to reargue or leave to renew is granted, the court may adhere to the determination on the original motion or may alter that determination.

RENEWALA motion to renew should assert that new facts have arisen, or the law has changed in such a way that render a change in the court's decision appropriate. Foley v. Roche, 68 AD2d 558 (1st Dept. 1979). Petitioner alleges that new facts have arisen, those facts being contained in a "log of travel times" created by petitioner documenting the length of time it now takes him to travel to and from respondent's home for visitation purposes.

The Court fails to see how this log, which simply specifies the allegations contained in his petition contains "new" information. In the modification petition petitioner describes his change in circumstances as "Respondent-mother has since moved to Center Moriches, Suffolk Co [sic] a 50 mile trip + trip one way. Ride one way has changed from a 15-30 min [sic] trip to a 1-2 hour trip one way". (emphasis supplied).A sample log entry states "Friday afternoon, 12/14/07: Westbury to Center Moriches to Westbury - 2 hrs, 55 mins [sic]".Clearly, the "log" is just a more detailed explanation of what is contained in the petition. A detailed explanation does not constitute new evidence. Stocklas v. Auto Solutions of Glenville, Inc., 9 AD3d 622 (3d Dept. 2004), leave to appeal dismissed in part, denied in part, 4 NY3d 738. Further, even assuming it was considered new evidence, petitioner offers no legitimate explanation why this information, which was known at the time the petition was filed, was not annexed to the petition. Delvecchio v. Bayside Chysler Plymouth Jeep Eagle, Inc., 271 AD2d 636 (2d Dept. 2000). Accordingly, the application for renewal is denied.

REARGUMENT [*3]

A motion to reargue asserts that the Court overlooked or misapprehended facts or law affecting the case. Part of petitioner's argument for reargument rests on mistakes made by this Court's court attorney upon explaining the issues to the Court after conferencing the matter. The two factual mistakes were that the court attorney stated the parties were married and that there were never any previous relocation clauses in any prior orders. The marriage issue was immediately cleared up, and the fact that there were radius clauses in prior temporary orders, one from September 2005 and one from November 2005, is completely irrelevant. Once the final ordered was issued, the temporary orders were superceded and therefore meant nothing. Cucinello v. Cucinello, 234 AD2d 365 (2d Dept. 1996). Regardless, the Court relied neither on the existence of previous radius clauses nor lack thereof in dismissing the petition.

Petitioner also asserts the Court misapplied the law when it dismissed the petition for failure to state a cause of action in that the petition failed to allege a substantial change in circumstances. On this issue, the motion to reargue is granted. While it is unclear whether a twenty-five mile relocation could be considered a "relocation" or a substantial change in circumstances, it does seem clear to the Court that a Tropea analysis would have been appropriate. Tropea v. Tropea, 87 NY2d 727. See Carlson v. Carlson, 249 AD2d 1026 (4th Dept. 1998) (custodial parent moved twenty-five miles away and court performed Tropea analysis).

The Court does disagree with petitioner's position that due process requires that an evidentiary hearing automatically be held. Pignataro v. Davis 8 AD3d 487 (2d Dept. 2004). The Court may make a decision based upon information it gleans from the parties absent an evidentiary hearing. Vangas v. Ladas, 259 AD2d 755 (2d Dept. 1999). Accordingly, the Court will hear oral arguments, using Tropea factors, from counsel specifically on the issue of whether this relocation of twenty-five miles is an actual "relocation" and if so, whether the move is in the child's best interests. After such argument the Court shall determine whether the petition should be dismissed for failure to state a cause of action, or whether an evidentiary hearing should be scheduled.

Therefore, based on the foregoing, it is

ORDERED that the Motion to Renew is denied in its entirety, and it is

ORDERED that the motion to reargue is granted to the extent that the petition is restored to the Court's calendar for the sole purpose of counsel making oral arguments in support of, and against, its merits; and it is

ORDERED that the parties and all counsel are directed to appear for oral arguments on March 21, 2008 at 2:00 p.m.

This constitutes the Decision and Order of the Court.

ENTER

________________________________

Hon. Conrad D. Singer

Judge of the Family Court

Dated: March 12, 2008