| Matter of Davis v Pignataro |
| 2012 NY Slip Op 05523 [97 AD3d 677] |
| July 11, 2012 |
| Appellate Division, Second Department |
| In the Matter of Glen Davis, Appellant, v Lisa Pignataro,Respondent. (Proceeding No. 1.) In the Matter of Lisa Pignataro, Respondent, v Glen Davis,Appellant. (Proceeding No. 2.) |
—[*1] Ruskin Moscou Faltischek, P.C., Uniondale, N.Y. (Matthew F. Didora of counsel), forrespondent. Janis A. Parazzelli, Floral Park, N.Y., attorney for the child.
In related child custody and visitation proceedings pursuant to Family Court Act article 6, thefather appeals from an order of the Supreme Court, Nassau County (St. George, J.), dated May12, 2011, which, after a hearing, denied his petitions, inter alia, to modify a custody andvisitation order of the same court (Zimmerman, J.) dated February 19, 2010, and granted themother's petition to modify the order dated February 19, 2010, so as to award the mother solelegal custody of the subject child and award him only supervised, therapeutic visitation until hecompletes a parenting workshop.
Ordered that the order dated May 12, 2011, is affirmed, without costs or disbursements.
" 'In order to modify an existing custody or visitation arrangement, there must be a showingthat there has been a change in circumstances such that modification is required to protect thebest interests of the child' " (Matter ofPeralta v Irrizary, 76 AD3d 561, 562 [2010], quoting Matter of Arduino v Ayuso, 70 AD3d682, 682 [2010]). " 'The best interests of the child are determined by a review of the totalityof the circumstances' " (Matter ofJackson v Coleman, 94 AD3d 762, 763 [2012], quoting Matter of Skeete v Hamilton, 78 AD3d1187, 1188 [2010]; see Matter ofSolovay v Solovay, 94 AD3d 898 [2012], lv denied 19 NY3d 808 [2012]). "Since any custody determination depends to a very greatextent upon the hearing court's assessment of the credibility of the witnesses and of the character,temperament, and sincerity of the parties, its findings are generally accorded great respect andwill not be disturbed unless they lack a sound and substantial basis in the record" (Matter of Chabotte v Faella, 77 AD3d749, 749-750 [2010] [internal quotation marks omitted]).
Here, contrary to the father's arguments, the Supreme Court properly considered the [*2]totality of the circumstances, and its determination was supportedby a sound and substantial basis in the record. Thus, the court's determination will not bedisturbed (see Matter of Solovay vSolovay, 94 AD3d 898 [2012]; Matter of Jackson v Coleman, 94 AD3d 762 [2012]; Neuman v Neuman, 19 AD3d 383,384 [2005]; Maloney v Maloney, 208 AD2d 603, 603 [1994]).
Moreover, there is no merit to the father's contention that the Supreme Court was unfairlybiased against him. "The inquiry on appeal is limited to whether the judge's bias, if any, unjustlyaffected the result to the detriment of the complaining party" (Schwartzberg v Kingsbridge Hgts. Care Ctr., Inc., 28 AD3d 465,466 [2006]; see State Div. of Human Rights v Merchants Mut. Ins. Co., 59 AD2d 1054,1056 [1977]). Here, the record contains no evidence of such bias (see Hoey v Rawlings, 51 AD3d868, 869 [2008]; Lorenzo v Mass,Inc., 31 AD3d 616, 617 [2006]). Rivera, J.P., Florio, Eng and Roman, JJ., concur.