                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 29, 2015                   520218
________________________________

In the Matter of JOHN
   ARTICOLO,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

DOMENICK GRASSO et al.,
                    Respondents.
________________________________


Calendar Date:   September 14, 2015

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

                             __________


      Kriss, Kriss & Brignola, LLP, Albany (Dominick J. Brignola
of counsel), for appellant.

      Assaf & Siegal, PLLC, Albany (Michael D. Assaf of counsel),
for respondents.

     Christopher J. Obstarczyk, Latham, attorney for the child.

                             __________


Devine, J.

      Appeal from an order of the Family Court of Albany County
(Walsh, J.), entered February 14, 2014, which dismissed
petitioner's application, in a proceeding pursuant to Family Ct
Act article 6, for visitation with respondents' child.

      Petitioner is the maternal grandfather, and respondents are
the parents, of a child born in 2004. The relationship between
the parties deteriorated and, in 2013, petitioner commenced this
proceeding seeking visitation with the child. Following a trial,
which included a Lincoln hearing, respondents conceded "that
conditions exist[ed] which equity would see fit to intervene" and
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that petitioner had standing to seek visitation (Domestic
Relations Law § 72 [1]; see Matter of Rubel v Wilson, 111 AD3d
1065, 1067 [2013]). The parties further agreed that the evidence
adduced at that trial would be used to determine if visitation
would be in the child's best interests. Family Court thereafter
determined that it would not be and dismissed the petition.
Petitioner now appeals.

      Because it is undisputed that petitioner had standing to
seek visitation, "the question . . . becomes whether such
visitation is in the child's best interests" (Matter of Laudadio
v Laudadio, 104 AD3d 1091, 1092 [2013]; see Matter of E.S. v
P.D., 8 NY3d 150, 157 [2007]). In making that inquiry, "neither
the presumed wishes of the child nor the existence of animosity
between the parent and the grandparent[] is a proper reason for
denial of visitation" in isolation (Matter of Johansen v
Lanphear, 95 AD2d 973, 974 [1983]; accord Matter of Stellone v
Kelly, 45 AD3d 1202, 1204 [2007]; see Matter of E.S. v P.D., 8
NY3d at 157). Rather, the best interests inquiry must assess a
variety of factors, including "the nature and extent of the
existing relationship between the grandparent and child,
. . . the basis and reasonableness of the parent's objections,
the grandparent's nurturing skills and attitude toward the
parent, the [attorney for the child's] assessment and the child's
wishes" (Matter of Stellone v Kelly, 45 AD3d at 1204-1205;
see Matter of E.S. v P.D., 8 NY3d at 160-161; Matter of Layton v
Grace, 129 AD3d 1147, 1149 [2015]).

      To that end, notwithstanding a historically fraught
relationship with respondent Deanna Grasso (hereinafter the
mother), petitioner was permitted to and did develop a close
relationship with the child. The situation changed on Halloween
in 2012, and Family Court credited the mother's account of what
had transpired on that day. Specifically, a miscommunication led
petitioner and his wife to believe that they would be able to
visit the child at a set time. Petitioner stopped by to find
that respondents were not home, "felt disrespected," and told the
mother in no uncertain terms that he had no interest in her
explanations and that she was "cut out" of his life. Petitioner
and his wife then attended one of the child's school events two
weeks later, despite the request of respondents that they not do
                              -3-                520218

so. They continued to behave in a confrontational fashion once
there, making a scene to attract the child's attention and
ignoring the directives of school officials by following the
child back to his classroom, where petitioner's wife apparently
became embroiled in an altercation with the child's teacher.
Despite being justifiably hurt and concerned by this behavior,
the mother remained willing to allow petitioner to visit with the
child, provided that the visits occur at respondents' residence
so that she could monitor their interactions. Petitioner
rebuffed those offers and has not seen the child since, choosing
instead to commence the present proceeding to compel visitation
more to his liking.

      It is difficult to draw any conclusion from this proof
other than that petitioner is responsible for escalating a minor
incident into a full-blown family crisis, totally ignoring the
damaging impact his behavior would have on the child and making
no effort to mitigate that impact. Petitioner acknowledged in
his trial testimony that his views on the matter had not changed,
and that he continued to have no interest in visiting the child
at respondents' residence or otherwise respecting their wishes
regarding visitation. As the attorney for the child stated in
his brief, the child sadly, but perhaps inevitably, has become
aware of the reasons for the prolonged absence of petitioner from
his life and now wants nothing to do with petitioner. The
attorneys for the child, both before Family Court and on appeal,
have hewed to their client's wishes and argued that an award of
visitation would not be in the child's best interests. According
due deference to Family Court's assessments of credibility, we
conclude that the foregoing constitutes a sound and substantial
basis for its determination that visitation with petitioner would
not be in the child's best interests (see Matter of Wilson v
McGlinchey, 2 NY3d 375, 381-382 [2004]; Matter of Couse v Couse,
72 AD3d 1231, 1233 [2010]; compare Matter of Rubel v Wilson, 111
AD3d at 1067-1068).

     Egan Jr., J.P., Rose and Clark, JJ., concur.
                        -4-                  520218

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
