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

719
CAF 15-01139
PRESENT: WHALEN, P.J., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


IN THE MATTER OF DOUGLAS MACHADO,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CHANDRA TANOURY, RESPONDENT-RESPONDENT.
(APPEAL NO. 1.)


KOSLOSKY & KOSLOSKY, UTICA (WILLIAM L. KOSLOSKY OF COUNSEL), FOR
PETITIONER-APPELLANT.

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

MICHELE E. DETRAGLIA, ATTORNEY FOR THE CHILD, UTICA.


     Appeal from an order of the Family Court, Oneida County (Randal
B. Caldwell, J.), entered May 5, 2015 in a proceeding pursuant to
Family Court Act article 6. The order granted the motion of
respondent to dismiss the petition.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is denied
and the petition is reinstated.

     Memorandum: In this proceeding to modify a prior consent order
regarding custody and visitation of the parties’ child, petitioner
father appeals from two orders. We dismiss the appeal from the order
in appeal No. 2 because that order is duplicative of the order in
appeal No. 1 (see Matter of Chendo O., 175 AD2d 635, 635; see
generally Reading v Fabiano [appeal No. 2], 126 AD3d 1523, 1524). We
agree with the father in appeal No. 1 that Family Court erred in
summarily dismissing his petition to expand his visitation with the
child from 10 hours every two weeks to one overnight visit every two
weeks. “ ‘To survive a motion to dismiss, a petition seeking to
modify a prior order of custody and visitation must contain factual
allegations of a change in circumstances warranting modification to
ensure the best interests of the child’ ” (Matter of Gelling v McNabb,
126 AD3d 1487, 1487). On a motion to dismiss a pleading for facial
insufficiency, the court must give the pleading a liberal
construction, accept the facts alleged therein as true, accord the
nonmoving party the benefit of every favorable inference, and
determine only whether the facts fit within a cognizable legal theory
(see Leon v Martinez, 84 NY2d 83, 87-88; Matter of McBride v
Springsteen-El, 106 AD3d 1402, 1402). Here, we conclude that the
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                                                         CAF 15-01139

father has adequately alleged a change in circumstances warranting a
modification of the existing consent order with respect to visitation
in the best interests of the child, namely, that respondent mother
had, since the parties’ agreement to the consent order, repeatedly
reneged on her promises, made both before and since the agreement to
the consent order, to allow the father to have overnight visitation
with the child (see Gelling, 126 AD3d at 1487-1488).




Entered:   September 30, 2016                   Frances E. Cafarell
                                                Clerk of the Court
