Opinion
1234 CAF 16-01310.
11-09-2017
In the Matter of Richard B. DEVITA and Constance J. Devita, Petitioners–Respondents, v. Marie L. DEVITA, Respondent–Appellant. (Appeal No. 1.).
Denis A. Kitchen, Jr., Williamsville, for Respondent–Appellant. Michael W. Cole, Alden, for Petitioners–Respondents. Jessica N. Mussell, Attorney for the Child, Buffalo.
Denis A. Kitchen, Jr., Williamsville, for Respondent–Appellant.
Michael W. Cole, Alden, for Petitioners–Respondents.
Jessica N. Mussell, Attorney for the Child, Buffalo.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM:
In appeal No. 1, respondent mother appeals from an order that granted sole custody of her daughter to petitioners, the child's maternal grandparents (grandparents). In appeal No. 2, the mother appeals from an order that granted sole custody of her two sons to the grandparents. We reject the mother's contention in both appeals that Family Court should have sua sponte transferred venue from Erie County to Monroe County. The grandparents and the children all resided in Erie County at the commencement of these proceedings, and thus venue in Erie County was proper (see CPLR 503[a] ; Family Ct. Act § 165 ; Matter of Hudson v. Villa, 204 A.D.2d 1033, 1033, 614 N.Y.S.2d 960 [4th Dept.1994] ). The mother did not move for a change in venue to Monroe County, where she lived (see CPLR 510 ), and thus she did not set forth any good cause for such a change (see Family Ct. Act § 174 ; see generally Matter of Bonnell v. Rodgers, 106 A.D.3d 1515, 1515, 966 N.Y.S.2d 316 [4th Dept.2013], lv. denied 21 N.Y.3d 864, 2013 WL 4790632 [2013] ).
Contrary to the mother's contention in both appeals, the court did not abuse its discretion in denying her request for an adjournment of the hearing (see Matter of Sanchez v. Alvarez, 151 A.D.3d 1869, 1869, 58 N.Y.S.3d 786 [4th Dept.2017] ; Matter of VanSkiver v. Clancy, 128 A.D.3d 1408, 1408, 7 N.Y.S.3d 805 [4th Dept.2015] ). We reject the mother's further contention in both appeals that she received ineffective assistance of counsel. With respect to counsel's failure to move for a change in venue, we note that " ‘[t]here is no denial of effective assistance of counsel ... arising from a failure to make a motion or argument that has little or no chance of success' " ( Matter of Lundyn S. [Al–Rahim S.], 144 A.D.3d 1511, 1512, 41 N.Y.S.3d 343 [4th Dept.2016], lv. denied 29 N.Y.3d 901, 2017 WL 1094667 [2017] ). The mother "did not demonstrate the absence of strategy or other legitimate explanations for counsel's alleged shortcomings" ( VanSkiver, 128 A.D.3d at 1408, 7 N.Y.S.3d 805 [internal quotation marks omitted] ), and we conclude that she received effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.