Opinion
12-22-2015
Robert M. RUBIN, Plaintiff–Respondent, v. Robin M. RUBIN, Defendant–Appellant.
Fox Horan & Camerini LLP, New York (John R. Horan of counsel), for appellant. Warshaw Burstein, LLP, New York (Eric I. Wrubel of counsel), for respondent.
Fox Horan & Camerini LLP, New York (John R. Horan of counsel), for appellant.Warshaw Burstein, LLP, New York (Eric I. Wrubel of counsel), for respondent.
TOM, J.P., RENWICK, SAXE, and KAPNICK, JJ.
Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered January 30, 2014, which granted plaintiff father's motion to terminate his monthly child support obligation of $4,250, unanimously affirmed, without costs.
Supreme Court properly granted the father's motion for a termination of his child support obligation, based upon his showing of a substantial change in circumstances as a result of a change in the child's residence from defendant mother to him (see e.g. Atlas v. Smily, 117 A.D.3d 471, 984 N.Y.S.2d 592 [1st Dept.2014] ; Domestic Relations Law § 236[B][9][b] ). Contrary to the mother's contention, the court was not required to conduct a hearing, since no triable issues of fact were raised (see Matter of Stern v. Stern, 40 A.D.3d 1108, 838 N.Y.S.2d 576 [2d Dept.2007], lv. denied 9 N.Y.3d 813, 846 N.Y.S.2d 603, 877 N.E.2d 653 [2007] ). Indeed, the mother acknowledged in her opposing affidavit that the child had resided with the father since September 2013, and the 19–year–old child also averred the same in her affidavit. The mother's allegations of the father's undue influence on the child and other allegations pertaining to the child's execution of her affidavit are conclusory and insufficient to warrant a hearing (see David W. v. Julia W., 158 A.D.2d 1, 7–8, 557 N.Y.S.2d 314 [1st Dept.1990] ).
The child's affidavit, based on her personal knowledge of her intent not to return to the mother's home, did not constitute inadmissible hearsay (see e.g. Pintor v. 122 Water Realty, LLC, 90 A.D.3d 449, 451, 933 N.Y.S.2d 679 [1st Dept.2011] ). In contrast, the mother's statements in her affidavit, based on what the child purportedly told her, were properly rejected as inadmissible hearsay and double hearsay (see McGinley v. Mystic W. Realty, Corp., 117 A.D.3d 504, 505, 985 N.Y.S.2d 528 [1st Dept.2014] ; MG W. 100 LLC v. St. Michaels Prot. Episcopal Church, 127 A.D.3d 624, 625, 8 N.Y.S.3d 299 [1st Dept.2015] ).
We have considered the mother's remaining contentions and find them unavailing.