Gollogly v. Thompson

—Appeal from an order of the Family Court, Monroe County (Patricia E. Gallaher, J.), entered December 15, 2008 in a proceeding pursuant to Family Court Act article 6. The order dismissed the petition. It is hereby ordered that the order so appealed from is unanimously affirmed without costs. Memorandum: Family Court properly dismissed the petition seeking to modify a prior order of custody without conducting a hearing. Petitioner father failed to establish that the child was affected by respondent mother’s mental health issues (cf. Matter of Leo v Leo, 39 AD3d 899, 901-902 [2007]; Matter of Baker v Baker, 283 AD2d 730, 730-731 [2001], lv denied 96 NY2d 720 [2001]), and he otherwise failed to make a sufficient evidentiary showing to warrant a hearing (see Matter of Wurmlinger v Freer, 256 AD2d 1069 [1998]; Matter of Lynette L. v Richard K.A., 210 AD2d 1005 [1994]). Present—Scudder, P.J., Smith, Fahey and Lindley, JJ.