WALKER, IAN v. CARROLL, SUNSHINE

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

501
CAF 14-02288
PRESENT: SMITH, J.P., CENTRA, DEJOSEPH, CURRAN, AND SCUDDER, JJ.

IN THE MATTER OF IAN WALKER,
PETITIONER-RESPONDENT,

V MEMORANDUM AND ORDER

SUNSHINE CARROLL, RESPONDENT-APPELLANT.
(APPEAL NO. 1.)

DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT.

BENNETT SCHECHTER ARCURI & WILL, LLP, BUFFALO (ANDREW F. EMBORSKY OF
COUNSEL), FOR PETITIONER-RESPONDENT.

LYDIA V. EVANS, ATTORNEY FOR THE CHILD, FREDONIA.

Appeal from an order of the Family Court, Chautauqua County
(Judith S. Claire, J.), entered June 24, 2014 in a proceeding pursuant
to Family Court Act article 6. The order, inter alia, awarded
petitioner sole custody of the subject child.

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

Memorandum: In appeal No. 1, respondent mother appeals from an
order that, inter alia, granted petitioner father’s petition seeking
sole custody of the parties’ child. In appeal No. 2, the mother
appeals from an order that denied her motion pursuant to CPLR 4404 (b)
and 5015 (a) to vacate the order that is the subject of appeal No. 1.

Contrary to the mother’s contention in appeal No. 1, “this
proceeding involves an initial court determination with respect to
custody and, [a]lthough the parties’ informal arrangement is a factor
to be considered, [the father] is not required to prove a substantial
change in circumstances in order to warrant a modification thereof”
(Matter of DeNise v DeNise, 129 AD3d 1539, 1539-1540 [internal
quotation marks omitted]). Contrary to the mother’s further
contention, affording great deference to Family Court’s assessment of
witness credibility, we conclude that the court’s determination that
the best interests of the child would be best served by awarding
custody to the father has a sound and substantial basis in the record
(see Matter of Thillman v Mayer, 85 AD3d 1624, 1625). We likewise
affirm the order in appeal No. 2. Even assuming, arguendo, that the
mother’s request for relief under CPLR 4404 (b) was timely pursuant to
CPLR 4405, we conclude that the court did not abuse its discretion in
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CAF 14-02288

denying the motion pursuant to CPLR 4404 (b) and 5015 (a) (see Matter
of Ramsey H. [Benjamin K.], 99 AD3d 1040, 1043, lv denied 20 NY3d 858;
Marine Midland Bank v Cramer, 177 AD2d 1009, 1009, lv dismissed 79
NY2d 915).

Entered: June 10, 2016 Frances E. Cafarell
Clerk of the Court