| Matter of Davis v Venditto |
| 2007 NY Slip Op 09391 [45 AD3d 837] |
| November 27, 2007 |
| Appellate Division, Second Department |
| In the Matter of Jennifer R. Davis, Respondent, v AnthonyP. Venditto, Appellant. (Proceeding No. 1.) In the Matter of Anthony P. Venditto, Appellant, vJennifer R. Davis, Respondent. (Proceeding No. 2.) |
—[*1] James J. O'Rourke, Hauppauge, N.Y., for respondent. Robert C. Mitchell, Riverhead, N.Y. (Ethan Halpern of counsel), Law Guardian for thechild.
In two related proceedings pursuant to Family Court Act articles 6 and 8, the mother appeals(1) from an order of the Family Court, Suffolk County (Lynaugh, J.), dated December 14, 2006,in proceeding No. 1, which, without a hearing, dismissed her family offense petition for failure tostate a cause of action and vacated a temporary order of protection against the father, (2), aslimited by her brief, from so much of an order of the same court also dated December 14, 2006,in proceeding No. 2, as, without a hearing, dismissed her cross petition to modify a prior order ofcustody and visitation of the same court dated May 27, 2006, inter alia, awarding the father solecustody of the parties' child, and as, sua sponte, directed that all future visitation exchanges of theparties' child take place under the supervision of the Suffolk Supervised Visitation Program, and(3) from another order of the same court also dated December 14, 2006, in proceeding No. 2,which, [*2]among other things, directed the parties to abide bythe rules of the Suffolk Supervised Visitation Program.
Ordered that the appeal from so much of the first order dated December 14, 2006, inproceeding No. 2, as, sua sponte, directed that all future visitation exchanges of the parties' childtake place under the supervision of the Suffolk Supervised Visitation Program, is dismissed,without costs or disbursements, as no appeal lies as of right from an order which does not decidea motion made on notice (see CPLR 5701 [a] [2]), and leave to appeal has not beengranted (see CPLR 5701 [c]); and it is further,
Ordered that the appeal from the second order dated December 14, 2006, in proceeding No.2, is dismissed, without costs or disbursements, as no appeal lies as of right from an order thatdoes not decide a motion made on notice (see CPLR 5701 [a] [2]), and leave to appealhas not been granted (see CPLR 5701 [c]), and, in any event, the appeal has beenrendered academic; and it is further,
Ordered that the order dated December 14, 2006, in proceeding No. 1, is affirmed, withoutcosts or disbursements; and it is further,
Ordered that the first order dated December 14, 2006, in proceeding No. 2, is affirmedinsofar as reviewed, without costs or disbursements.
In a prior decision and order of this Court in these proceedings, this Court affirmed an orderof the Family Court, Suffolk County, dated May 27, 2006, which awarded the father custody ofthe parties' child and granted the mother visitation pursuant to a certain schedule (see Matter of Venditto v Davis, 39AD3d 555 [2007]).
Contrary to the mother's contention, the Family Court properly dismissed her family offensepetition against the father, without a hearing, as the petition was conclusory and failed to allegeconduct by the father that would constitute the offense of harassment in the second degree(see Family Ct Act § 812 [1]; § 832; Penal Law § 240.26 [3]; Matter of Morisseau v Morisseau, 27AD3d 651, 652 [2006]; Matter of Vasciannio v Nedrick, 305 AD2d 420, 421 [2003];Matter of Jones v Roper, 187 AD2d 593 [1992]).
Further, the Family Court also properly determined that the mother failed to make anyevidentiary showing to support her conclusory and nonspecific allegations relating to a change incircumstances that would justify a hearing on the issue of whether awarding custody to her wouldbe in the child's best interests (seeMatter of El-Sheemy v El-Sheemy, 35 AD3d 738, 739 [2006]; Matter of Vasquez-Williams vWilliams, 32 AD3d 859, 859-860 [2006]; Jackson v Jackson, 31 AD3d 386 [2006]; Matter of Grassi v Grassi, 28 AD3d482 [2006]; Engeldrum v Engeldrum, 306 AD2d 242 [2003]).
The mother's remaining contention is without merit. Goldstein, J.P., Skelos, Dillon andMcCarthy, JJ., concur.