Zito v. Pfohl

Appeal from an amended order of Family Court, Onondaga County (Klim, J.), entered January 17, 2002, which dismissed the petition seeking permission to relocate and a change from joint custody to sole custody. It is hereby ordered that the amended order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Family Court properly granted respondent’s motion for judgment as a matter of law pursuant to CPLR 4401 and dismissed the petition. Even accepting as true her proof and affording her “every favorable inference that reasonably could be drawn therefrom” (Matter of Le Blanc v Morrison, 288 AD2d 768, 770), we conclude that petitioner failed to meet her burden of proof on her petition seeking permission to relocate (see Matter of Massaro v English, 262 AD2d 879, 881) and a change from joint custody to sole custody (see Matter of Muzzi v Muzzi, 189 AD2d 1022, 1023). To the extent that Matter of Rivera v Perez (299 AD2d 944) suggests that it is error to grant judgment as a matter of law pursuant to CPLR 4401 on a petition seeking permission to relocate, that case is distinguishable by its facts. Present — Pigott, Jr., P.J., Wisner, Hurlbutt, Scudder and Lawton, JJ.