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

1055
CAF 13-01255
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


IN THE MATTER OF SONYA GELSTER,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

TERRY BURNS, RESPONDENT-RESPONDENT.
(APPEAL NO. 1.)


DENIS A. KITCHEN, WILLIAMSVILLE, FOR PETITIONER-APPELLANT.

DOMINIC PAUL CANDINO, BUFFALO (JASON C. HENSKEE OF COUNSEL), FOR
RESPONDENT-RESPONDENT.

MARY ANNE CONNELL, ATTORNEY FOR THE CHILD, BUFFALO.


     Appeal from an order of the Family Court, Erie County (Paul G.
Buchanan, J.), entered June 21, 2013 in a proceeding pursuant to
Family Court Act article 6. The order dismissed the petition of Sonya
Gelster for modification of an order of custody and visitation.

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

     Memorandum: In appeal No. 1, Sonya Gelster, the petitioner in
appeal No. 1 and the respondent in appeal No. 2 (hereafter, mother),
appeals from an order granting the motion of Terry Burns, the
respondent in appeal No. 1 and the petitioner in appeal No. 2
(hereafter, father), to dismiss her petition at the close of her
proof. In her petition, the mother sought to modify a prior consent
order, pursuant to which the parties had joint custody of the parties’
son and the father had primary physical placement of him, by granting
sole custody of the parties’ son to her. In appeal No. 2, the mother
appeals from an order granting the father’s petition seeking to modify
the prior consent order by granting sole custody to him.

     We agree with the mother in appeal No. 1 that Family Court erred
in dismissing the petition at that juncture of the proceeding.
“Where, as here, ‘a respondent moves to dismiss a modification
proceeding at the conclusion of the petitioner’s proof, the court must
accept as true the petitioner’s proof and afford the petitioner every
favorable inference that could be reasonably drawn therefrom’ ”
(Matter of Walters v Francisco, 63 AD3d 1610, 1611). Accepting the
mother’s proof as true, we conclude that she established that she
successfully completed a substance abuse program and thus, in
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                                                         CAF 13-01255

accordance with a provision in the prior consent order, she satisfied
the requisite significant change of circumstances to permit the court
to consider whether a change of custody is in the best interests of
the child (see generally Matter of Moore v Moore, 78 AD3d 1630, 1630-
1631, lv denied 16 NY3d 704). Further, the mother and the child’s
maternal grandmother testified with respect to, inter alia, the marked
change in the child’s demeanor and behavior since residing with the
father, and the mother presented evidence of a significant bruise on
the child’s back, which she believed was inconsistent with the child’s
explanation for the bruise. We therefore conclude that the court
erred in failing to “ ‘afford the [mother] every favorable inference
that could be reasonably drawn’ ” from the evidence presented by her
(Walters, 63 AD3d at 1611).

     Although the court erred in granting the father’s motion to
dismiss at the close of the mother’s proof, here, the father presented
evidence, on his petition, that refuted the mother’s evidence, and the
mother had an opportunity to cross-examine the father’s witnesses (cf.
Matter of David WW. v Laureen QQ., 42 AD3d 685, 686). “ ‘Our
authority in determinations of custody is as broad as that of Family
Court’ ” (Matter of Howell v Lovell, 103 AD3d 1229, 1231) and, based
upon our review of the entire record, we conclude that the mother
failed to establish that it was in the best interests of the child to
award sole custody to her (see generally Matter of Brandyn P., 278
AD2d 533, 535). The father presented evidence that the mother had
made numerous unfounded reports of alleged physical abuse of the child
both to Child Protective Services and to the police. The father also
presented evidence from a neighbor, who is a mandated reporter and who
had a close relationship with the child, regarding the child’s
demeanor and behavior while living at the father’s house. We
therefore affirm the order denying the mother’s petition in appeal No.
1.

     We likewise affirm the order in appeal No. 2. The father
testified that the parties are unable to communicate without acrimony,
and that they communicate only through the maternal grandmother, or by
letters carried by the child, or by counsel. The father’s evidence
mirrored the mother’s evidence in that respect. Thus, the record
supports the court’s determination in appeal No. 2 that the
acrimonious relationship of the parties warranted a change from joint
custody to sole custody and that the best interests of the child would
be served by awarding sole custody to the father (see Matter of
Leonard v Leonard, 109 AD3d 126, 128; Matter of Dube v Dube, 259 AD2d
1041, 1041). We have reviewed the mother’s remaining contention in
appeal No. 2 and conclude that it is without merit.




Entered:   November 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
