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

1202
CAF 11-01551
PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO, AND MARTOCHE, JJ.


IN THE MATTER OF JOSHUA BURRELL,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ANGELA D. BURRELL, RESPONDENT-APPELLANT.


CARA A. WALDMAN, FAIRPORT, FOR RESPONDENT-APPELLANT.

CULLEY, MARKS, TANENBAUM & PEZZULO, LLP, ROCHESTER (JON E. BONAVILLA
OF COUNSEL), FOR PETITIONER-RESPONDENT.

WENDY S. SISSON, ATTORNEY FOR THE CHILD, GENESEO, FOR BRIANNA B.


     Appeal from an order of the Family Court, Steuben County (Peter
C. Bradstreet, J.), entered July 8, 2011 in a proceeding pursuant to
Family Court Act article 6. The order, among other things, awarded
petitioner primary physical custody of the subject child.

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

     Memorandum: Respondent mother appeals from an order awarding
petitioner father primary physical custody of the parties’ child. We
agree with Family Court that the father established the requisite
change in circumstances to warrant an inquiry into whether the best
interests of the child would be served by modifying the existing
custody arrangement (see Matter of Simonds v Kirkland, 67 AD3d 1481,
1482). The father established that the mother left the child without
adult supervision on several occasions late at night while she ran
errands and that the child had indicated to both parents that she had
been touched sexually or otherwise inappropriately by her half
brother. Although we note that the statement of the child to her
parents that she was touched sexually or otherwise inappropriately by
her half brother was not corroborated (cf. Matter of Nikki O. v
William N., 64 AD3d 938, 938-939, lv dismissed 13 NY3d 825), the
mother admitted that, upon hearing that statement, she enrolled the
child’s half brother in counseling. In our view, the mother’s conduct
in leaving the child without adult supervision late at night while she
ran errands, coupled with the child’s statement of the touching by the
half brother, constituted the necessary change in circumstances. We
further conclude that the court properly considered the totality of
the circumstances in determining that it was in the best interests of
the child for the father to have primary physical custody (see
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                                                        CAF 11-01551

generally Eschbach v Eschbach, 56 NY2d 167, 171-174; Matter of
Brothers v Chapman, 83 AD3d 1598, 1598-1599, lv denied 17 NY3d 707).




Entered:   November 16, 2012                   Frances E. Cafarell
                                               Clerk of the Court
