| Matter of Maio v DeCrescenzo |
| 2012 NY Slip Op 08127 [100 AD3d 999] |
| November 28, 2012 |
| Appellate Division, Second Department |
| In the Matter of Frank C. Maio, Appellant, v Jennifer A.DeCrescenzo, Respondent. |
—[*1] Donna M. McCabe, East Atlantic Beach, N.Y., for respondent. James E. Flood, Jr., Massapequa, N.Y., attorney for the child.
In a visitation proceeding pursuant to Family Court Act article 6, the father appeals, aslimited by his brief, from so much of an order of the Family Court, Nassau County (Bennett, J.),dated November 30, 2011, as, upon a decision of the same court dated September 9, 2011, madeafter a hearing, denied that branch of his petition which was to modify the visitation provisionsset forth in a so-ordered stipulation dated November 19, 2008, which was incorporated but notmerged into the parties' judgment of divorce dated March 23, 2009, so as to award himunsupervised visitation with the parties' son in Florida.
Ordered that on the Court's own motion, the notice of appeal from the decision datedSeptember 9, 2011, is deemed a premature notice of appeal from the order dated November 30,2011 (see CPLR 5520 [c]); and it is further,
Ordered that the order dated November 30, 2011, is affirmed insofar as appealed from,without costs or disbursements.
Contrary to the father's contention, the Family Court providently exercised its discretion indenying that branch of his petition which was for unsupervised visitation with the parties' son inFlorida. At the time of the filing of the subject petition, the son was three years old and had onlyexperienced supervised visitation with the father for one hour each week in New York. "Theparamount concern in any custody or visitation determination is the best interests of the child,under the totality of the circumstances" (Matter of Boggio v Boggio, 96 AD3d 834, 835 [2012]; seeEschbach v Eschbach, 56 NY2d 167, 171 [1982]; Friederwitzer v Friederwitzer, 55NY2d 89, 94 [1982]; Galanti vKraus, 85 AD3d 723, 724 [2011]; Matter of Alexander v Alexander, 62 AD3d 866, 866-867 [2009]).Here, the father currently has some unsupervised visitation with the son in New York, and it is inthe son's best interests to have gradually increasing unsupervised visitation with the father inNew York (cf. Matter of Aguirre vRomano, 73 AD3d 912, 914-915 [2010]). Mastro, J.P., Rivera, Chambers and Lott, JJ.,concur.