| Matter of Cruz v Figueroa |
| 2015 NY Slip Op 07266 [132 AD3d 669] |
| October 7, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Heladia Cruz,Appellant, v David Figueroa, Respondent. |
Helene Bernstein, Brooklyn, N.Y., for appellant.
Joel Borenstein, Brooklyn, N.Y., for respondent.
Karen P. Simmons, Brooklyn, N.Y. (Anna Kou and Barbara H. Dildine of counsel),attorney for the child.
Appeal from an order of disposition of the Family Court, Kings County (Leticia M.Ramirez, J.), dated April 29, 2014. The order of disposition, upon the granting of thefather's motion, made at the close of the mother's case at a fact-finding hearing, forjudgment as a matter of law dismissing a petition by the mother for modification of acustody order, dismissed the petition.
Ordered that the order of disposition is affirmed, without costs or disbursements.
"An order of custody or visitation may be modified only upon a showing that therehas been a subsequent change of circumstances such that modification is required toensure the best interests of the child" (Matter of C.H. v F.M., 130 AD3d 1028, 1028 [2015]; see Vollkommer vVollkommer, 101 AD3d 1108, 1108 [2012]; Matter of James R.O. v Cond-Arnold, 99 AD3d 801, 801[2012]; Matter ofAronowich-Culhane v Fournier, 94 AD3d 1114, 1115 [2012]). In deciding amotion for judgment as a matter of law dismissing a petition for failure to establish aprima facie case, the court must accept the petitioner's evidence as true and afford thepetitioner the benefit of every favorable inference that can reasonably be drawntherefrom (see Matter of C.H. v F.M., 130 AD3d at 1028; Matter of JamesR.O. v Cond-Arnold, 99 AD3d at 801; Matter of Ramroop v Ramsagar, 74 AD3d 1208, 1209[2010]; Matter of David WW. vLaureen QQ., 42 AD3d 685, 686 [2007]; Matter of Kerwin v Kerwin, 39 AD3d 950, 951 [2007]).Here, accepting her evidence as true and affording her the benefit of every reasonableinference, the mother failed to present evidence sufficient to establish a prima facie caseof a change of circumstances which might warrant modification of the underlyingcustody order (see Matter of C.H. v F.M., 130 AD3d at 1028). The Family Court,therefore, properly granted the father's motion, made at the close of the mother's case, forjudgment as a matter of law dismissing the petition for modification of the custodyorder.
"The grant or denial of a motion for 'an adjournment for any purpose is a matterresting within the sound discretion of the trial court' " (Matter of Steven B., 6 NY3d888, 889 [2006], quoting Matter of Anthony M., 63 NY2d 270, 283 [1984];see Matter of Venditto vDavis, 39 AD3d 555 [2007]; Matter of Paulino v Camacho, 36 AD3d 821, 822 [2007])."In making such a determination, the court must [*2]undertake a balanced consideration of all relevant factors"(Matter of Sicurella vEmbro, 31 AD3d 651, 651 [2006]). Under the circumstances of this case, theFamily Court providently exercised its discretion in denying the mother's request for anadjournment (see generallyMatter of Ca'leb R.D. [Mary D.S.], 121 AD3d 890, 891 [2014]; Diamond v Diamante, 57AD3d 826, 827-828 [2008]; Matter of Venditto v Davis, 39 AD3d 555 [2007];Matter of Paulino v Camacho, 36 AD3d at 822).
The mother's contention that she was deprived of the effective assistance of counselis without merit. Viewed in totality, the record shows that the mother receivedmeaningful representation (seeMatter of Dylan Mc. [Michelle M. Mc.], 105 AD3d 1049, 1050 [2013]; Matter of Marra v Hernandez,102 AD3d 699, 700 [2013]; Matter of Rodriguez v Suarez, 93 AD3d 730, 730 [2012]).Rivera, J.P., Roman, LaSalle and Barros, JJ., concur.