                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: October 20, 2016                    521191
________________________________

In the Matter of ROBERT OO.,
                    Appellant,
      v                                      MEMORANDUM AND ORDER

SHERRELL PP.,
                    Respondent.
________________________________


Calendar Date:    September 7, 2016

Before:    Peters, P.J., McCarthy, Garry, Rose and Mulvey, JJ.

                              __________


      Colwell Colwell & Petroccione, Albany (Brett A. Engel of
counsel), for appellant.

      Bailey, Kelleher & Johnson, Albany (Monique B. McBride of
counsel), for respondent.

     Paige E. Crable, Albany, attorney for the children.

                              __________


Rose, J.

      Appeal from an order of the Family Court of Albany County
(Maney, J.), entered October 28, 2014, which, in a proceeding
pursuant to Family Ct Act article 6, granted respondent's motion
for summary judgment dismissing the petition.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the unmarried parents of a son (born
in 2007), a daughter (born in 2008) and twins (born in 2009).
Pursuant to a February 2013 order entered on consent, the parties
shared joint legal custody and the mother had primary physical
custody, with a schedule of parenting time for the father. In
March 2014, the father commenced this modification proceeding
seeking, among other things, primary physical custody of the
                              -2-                521191

children. In support of his request, the father alleged that the
mother, among other things, did not properly supervise the
children and used excessive corporal punishment.

      The mother moved to dismiss the petition for failure to
state a cause of action. In support of her motion, the mother
attached a letter from the Office of Children and Family Services
stating that allegations of abuse or maltreatment against her had
been determined to be unfounded. She also proffered a report
prepared by a child protective services caseworker for the Albany
County Department for Children, Youth and Families (hereinafter
the report) that concluded that there were no current safety
concerns (see Family Ct Act § 1034). After the father responded
and opposed the motion, Family Court notified the parties that it
was treating the motion as one for summary judgment and provided
them with time to submit additional proof (see CPLR 3211 [c];
Family Ct Act § 165 [a]). The court thereafter granted the
mother's motion, finding that she had met her burden of
establishing the absence of triable issues of fact regarding the
existence of a change in circumstances and that the father had
failed to raise an issue of fact in opposition. The father now
appeals.

      It is well settled that a motion for summary judgment may
be utilized in a Family Ct Act article 6 proceeding (see Matter
of Daniels v Lushia, 101 AD3d 1405, 1406 n 2 [2012]; Matter of
Wiltsey v Wiltsey, 294 AD2d 638, 639 [2002]), but such a motion
should be granted only when "there are no material facts disputed
sufficiently to warrant a trial" (Matter of Liz WW. v Shakeria
XX., 128 AD3d 1118, 1120-1121 [2015] [internal quotation marks
and citations omitted], lv dismissed 25 NY3d 1195 [2015];
see Matter of Ryan v Nolan, 134 AD3d 1259, 1262-1263 [2015]). In
a custody modification proceeding, the controlling "material
fact" is whether or not there is a change in circumstances so as
to warrant an inquiry into whether the best interests of the
children would be served by modifying the existing custody
arrangement (see Matter of La Bier v La Bier, 291 AD2d 730, 731
[2002], lv dismissed 98 NY2d 671 [2002]; see also Matter of Tara
AA. v Matthew BB., 139 AD3d 1136, 1137 [2016]; Matter of Schmitz
v Schmitz, 139 AD3d 1123, 1123 [2016]).
                              -3-                521191

      In our view, Family Court erred in concluding that the
mother met her initial summary judgment burden. Although the
report, which was the result of a Family Ct Act § 1034
investigation, concludes that there were no current safety
concerns, the inquiry sought to be addressed by the report –
namely, whether a Family Ct Act article 10 proceeding should be
initiated (see Family Ct Act § 1034 [1] [a]) – is a separate and
distinct inquiry from the one at issue here. Significantly, the
report confirms that one of the subject children and the mother's
12-year-old daughter, who is unrelated to the father, disclosed
that the mother hits them with "her hand or a belt." The report
further reveals that the mother's 12-year-old daughter would
"sometimes watch the children overnight when [the] mother goes to
work." In addition, one of the subject children reported that he
had been left home alone and that, on one occasion, the mother's
12-year-old daughter threw another one of the subject children up
in the air "to be mean." In doing so, she accidentally dropped
the child and, as a result, the child suffered a broken leg.
Based upon these allegations, we find that the mother failed to
establish the absence of triable issues of fact as to whether
there has been a change in circumstances so as to warrant an
inquiry into whether the best interests of the children would be
served by modifying the existing custody arrangement and, thus,
an evidentiary hearing is warranted (compare Matter of Ryan v
Nolan, 134 AD3d at 1262-1263; Matter of La Bier v La Bier, 291
AD2d at 732-733).

     Peters, P.J., McCarthy, Garry and Mulvey, JJ., concur.
                              -4-                  521191

      ORDERED that the order is reversed, on the law, without
costs, motion denied and matter remitted to the Family Court of
Albany County for further proceedings not inconsistent with this
Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
