        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1032
CAF 13-00616
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


IN THE MATTER OF MARK B. MILLER,
PETITIONER-APPELLANT,

                    V                              MEMORANDUM AND ORDER

CHIVON PEDERSON, RESPONDENT-RESPONDENT.
---------------------------------------
IN THE MATTER OF MARK B. MILLER,
PETITIONER-APPELLANT,
AND SUSAN MILLER, PETITIONER,

                    V

CHIVON PEDERSON, RESPONDENT-RESPONDENT.


ABBIE GOLDBAS, UTICA, FOR PETITIONER-APPELLANT.

JOHN G. KOSLOSKY, ATTORNEY FOR THE CHILD, UTICA.


     Appeal from an order of the Family Court, Herkimer County (John
H. Crandall, A.J.), entered January 8, 2013 in a proceeding pursuant
to Family Court Act article 6. The order dismissed the petitions.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Contrary to petitioner father’s contention, Family
Court properly denied his petitions seeking to modify a prior order of
custody and visitation by providing, inter alia, increased visitation
with his son. The son is in the custody of respondent mother. “ ‘An
order of visitation cannot be modified unless there has been a
sufficient change in circumstances since the entry of the prior order
[that], if not addressed, would have an adverse effect on the
[child’s] best interests’ ” (Matter of Neeley v Ferris, 63 AD3d 1258,
1259), and here the father failed to demonstrate such a change in
circumstances.

     The record does not support the father’s further contention that
the court drew a negative inference against him based on his failure
to testify, and acted improperly in doing so. Indeed, the court
merely noted in its decision that the father “did not testify in
support of the subject petitions,” and there is no indication in the
                                 -2-                          1032
                                                         CAF 13-00616

record that the court drew a negative inference against the father.




Entered:   October 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
