Kotlyar v. Burshtein

• Decision Date: 10 January 2000
• Citation: 701 N.Y.S.2d 632
• Parties: 2000 N.Y. Slip Op. 599 In the Matter of Marina KOTLYAR, respondent, v. David BURSHTEIN, appellant.
• Court: New York Supreme Court — Appellate Division

Page 632

701 N.Y.S.2d 632

2000 N.Y. Slip Op. 599

In the Matter of Marina KOTLYAR, respondent, v. David BURSHTEIN, appellant.

Supreme Court, Appellate Division,

Second Department, New York.

Jan. 10, 2000.

David Burshtein, Flushing, N.Y., appellant pro se.

Samuel Racer, New York, N.Y., for respondent.

In a support proceeding pursuant to Family Court Act article 4, the father appeals, as limited by his brief, from so much of an order of the Family Court, Queens County (Lubow, J.), dated May 29, 1998, as denied his application for a downward modification of child support.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

As the party seeking a downward modification of the obligation to pay child support, the father had the burden of establishing a substantial change in circumstances (see Matter of Brescia v. Fitts, 56 N.Y.2d 132, 451 N.Y.S.2d 68, 436 N.E.2d 518; Matter of Pancaldo v. Pancaldo, 214 A.D.2d 879, 625 N.Y.S.2d 683). In order to be entitled to an evidentiary hearing on the matter, the father, as the movant, had to show the existence of a material issue of fact (see, Matter of Scholet v. Newell, 229 A.D.2d 621, 644 N.Y.S.2d 858; Trainor v. Trainor, 188 A.D.2d 461, 590 N.Y.S.2d 910).

The father failed to demonstrate the existence of any material issue of fact, and thus failed to establish his entitlement to a hearing (see, Matter of Scholet v. Newell, supra.) He further failed to establish a substantial change in circumstances (see, Matter of Brescia v. Fitts, supra.).

BRACKEN, J.P., S. MILLER, ALTMAN, and LUCIANO, JJ., concur.