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

848
CAF 14-01949
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


IN THE MATTER OF YVETTE NOBLE,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

TROY PARIS, RESPONDENT-RESPONDENT.
-----------------------------------
SUSAN B. MARRIS, ESQ., ATTORNEY FOR
THE CHILD, APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF
COUNSEL), FOR PETITIONER-APPELLANT.

SUSAN B. MARRIS, ATTORNEY FOR THE CHILD, MANLIUS, APPELLANT PRO SE.

LISA H. BLITMAN, SYRACUSE, FOR RESPONDENT-RESPONDENT.


     Appeal from an order of the Family Court, Onondaga County
(Michael L. Hanuszczak, J.), entered October 6, 2014 in a proceeding
pursuant to Family Court Act article 6. The order granted
respondent’s motion to dismiss the petition.

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

     Memorandum: Petitioner mother commenced this proceeding seeking
to modify a prior order pursuant to which respondent father had sole
legal and physical custody of their daughter. The mother and the
Attorney for the Child (AFC) appeal from an order that granted the
father’s motion to dismiss the petition without a hearing, and we
affirm.

     We reject the mother’s contention that Family Court erred in
deciding the father’s motion on the same day that it was filed and
served. Although motion papers generally must be “served at least
eight days before the time at which the motion is noticed to be heard”
(CPLR 2214 [b]; see Family Ct Act § 165 [a]), “[a] court has
discretion to overlook late or defective service of a motion where the
nonmoving party is not prejudiced” (Barnaba-Hohm v St. Joseph’s Hosp.
Health Ctr., 130 AD3d 1482, 1483; see generally CPLR 2214 [c]; Perez v
Perez, 131 AD2d 451, 451). Here, we conclude that the mother was not
prejudiced by the timing of the father’s motion (see generally
Bucklaew v Walters, 75 AD3d 1140, 1141).
                                 -2-                           848
                                                         CAF 14-01949

     We also reject the contention of the mother and the AFC that the
court erred in dismissing the petition without conducting a hearing.
“ ‘A hearing is not automatically required whenever a parent seeks
modification of a custody order’ ” (Matter of Warrior v Beatman, 70
AD3d 1358, 1359, lv denied 14 NY3d 711), and here the mother failed to
“make a sufficient evidentiary showing of a change in circumstances to
require a hearing” (Matter of Di Fiore v Scott, 2 AD3d 1417, 1417-1418
[internal quotation marks omitted]; see Matter of Chrysler v Fabian,
66 AD3d 1446, 1447, lv denied 13 NY3d 715; Matter of Chittick v
Farver, 279 AD2d 673, 675-676; cf. Matter of Christopher B. v Patricia
B., 75 AD3d 871, 872-873).




Entered:   October 7, 2016                     Frances E. Cafarell
                                               Clerk of the Court
