                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 26, 2015                    516363
____________________________________

In the Matter of PATRICK
   ELLER,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

MARYNA ELLER,
                    Respondent.

(And Two Other Related Proceedings.)
____________________________________


Calendar Date:   February 11, 2015

Before:   McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

                             __________


     Albert F. Lawrence, Greenfield, for appellant.

      D.J. & J.A. Cirando, Syracuse (John A. Cirando of counsel),
for respondent.

     Gerald J. Ducharme, Canton, attorney for the child.

                             __________


Egan Jr., J.

      Appeal from an order of the Supreme Court (Rogers, J.),
entered June 29, 2012 in St. Lawrence County, which, among other
things, dismissed petitioner's application, in a proceeding
pursuant to Family Ct Act article 6, to modify a prior order of
custody.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) have one child in common, a son (born in
2004). Pursuant to an October 2008 order, the mother was granted
sole legal custody of the child with visitation to the father.
                               -2-                516363

The father commenced the first of these proceedings in 2010
seeking sole custody of the child based upon allegations of the
mother's unfitness as a parent; in response, the mother cross-
petitioned, seeking supervised visitation for the father, and
thereafter filed a violation petition. Following a combined
hearing on the petitions, Supreme Court, among other things,
dismissed the father's custody petition.1 The father now appeals
[2].2

      We affirm. "An existing custody order will be modified
only if there is a showing of a change in circumstances revealing
a real need for the modification in order to ensure the best
interests of the child[]" (Matter of John O. v Michele O., 103
AD3d 939, 941 [2013] [internal quotation marks and citations
omitted]; see Matter of Cobane v Cobane, 119 AD3d 995, 996
[2014]). The father's claim that the mother is unfit is based
upon allegations that bruises on the child indicated that the
mother had used excessive corporal punishment and that she did
not provide proper medical care for the child's skin rashes, as
well as concerns about the child's hygiene and clothing, his
attendance at school and the fact that the mother has a friend
who is a convicted felon. The mother denied the allegations
regarding the child's bruises, denied a romantic relationship
with the individual in question and testified that she has sought
medical treatment for the child's rashes since 2008. The child's
first grade teacher testified that she had no concerns regarding
his attendance record, that the child came to school clean and
appropriately dressed and that she could not recall ever noticing
any bruises on him. The school nurse similarly testified that
she was unaware of any injuries to the child other than an
incident where he fell on the playground. According deference to
Supreme Court's factual findings and credibility determinations


     1
        Following the hearing, the mother withdrew her cross-
petition seeking supervised visitation.
     2
        To the extent that Supreme Court also found that the
father had violated the October 2008 order, it imposed no
penalty, and the father does not raise any argument with respect
to that issue in his appellate brief.
                              -3-                  516363

(see Matter of Ray v Eastman, 117 AD3d 1114, 1115 [2014]; Matter
of Joseph YY. v Terri YY., 75 AD3d 863, 866 [2010]), we find a
sound and substantial basis in the record to support the court's
determination that the father failed to establish a change in
circumstances such that a modification of custody would be in the
child's best interests.

     McCarthy, J.P., Devine and Clark, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
