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

566
CAF 15-00264
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.


IN THE MATTER OF LINDSAY A. ESPOSITO,
PETITIONER-APPELLANT,

                    V                               MEMORANDUM AND ORDER

MATTHEW E. MAGILL, RESPONDENT-RESPONDENT.


CHARLES J. GREENBERG, AMHERST, FOR PETITIONER-APPELLANT.

THE WARD FIRM, PLLC, LIVERPOOL (MATTHEW E. WARD OF COUNSEL), FOR
RESPONDENT-RESPONDENT.

FARES A. RUMI, ATTORNEY FOR THE CHILD, ROCHESTER.


     Appeal from an order of the Family Court, Genesee County (Eric R.
Adams, J.), entered January 12, 2015 in proceedings pursuant to Family
Court Act article 6. The order dismissed the petition dated September
8, 2014.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motion and dismissing
the petition dated August 15, 2014, and as modified the order is
affirmed without costs.

     Memorandum: On August 15, 2014, petitioner mother commenced this
proceeding pursuant to Family Court Act article 6 seeking to modify
the custody and visitation provisions of a stipulated order
(hereafter, first petition). On September 8, 2014, the mother brought
a second modification petition alleging, inter alia, that her driving
had been restricted by her doctor and requesting that respondent
father be ordered to meet her at a location closer to her residence to
exchange the child for visitation (hereafter, second petition).
Thereafter, the father filed a motion to dismiss the first petition on
the ground that the mother had failed to allege a substantial change
in circumstances. In a memorandum decision, Family Court granted that
relief and also dismissed the second petition. The court’s order,
however, referenced only the dismissal of the second petition. The
mother appeals.

     As a preliminary matter, we note that where, as here, there is a
conflict between the decision and order, the decision controls (see
Matter of Edward V., 204 AD2d 1060, 1061), and the order “must be
modified to conform to the decision” (Waul v State of New York, 27
AD3d 1114, 1115; see CPLR 5019 [a]). We therefore modify the order by
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                                                         CAF 15-00264

granting the motion seeking to dismiss the first petition. We further
note that the mother does not address the second petition on appeal,
and that she has thus abandoned any contentions related thereto (see
Ciesinski v Town of Aurora, 202 AD2d 984, 984).

      Contrary to the mother’s contention, the court properly granted
the father’s motion to dismiss the first petition without a hearing.
“ ‘A hearing is not automatically required whenever a parent seeks
modification of a custody [or visitation] order’ ” (Matter of Consilio
v Terrigino, 114 AD3d 1248, 1248). Here, the mother “ ‘failed to make
a sufficient evidentiary showing of a change in circumstances to
require a hearing’ ” (Matter of Fowler v VanGee, 136 AD3d 1320, 1320;
see Matter of Warrior v Beatman, 70 AD3d 1358, 1359, lv denied 14 NY3d
711).




Entered:   June 17, 2016                       Frances E. Cafarell
                                               Clerk of the Court
