Freihofner v Freihofner

Freihofner v Freihofner 2006 NY Slip Op 07142 [33 AD3d 585] October 3, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2006

Lisa Freihofner, Appellant,
v
Gregory Freihofner, Respondent.

—[*1]In an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Westchester County (Montagnino, Ct Atty Ref), dated February 8, 2005, which, upon a decision of the same court dated December 6, 2004, made after a hearing, inter alia, awarded residential custody of the parties' youngest child to the defendant.

Ordered that the order is affirmed, with costs.

The hearing court's determination to award the defendant residential custody of the parties' youngest child, keeping him in the same household with one of his older brothers, has a sound and substantial basis in the record (see Neuman v Neuman, 19 AD3d 383, 383-384 [2005]; Janecka v Franklin, 150 AD2d 755, 756 [1989]; Keating v Keating, 147 AD2d 675, 677 [1989]), and is in best interests of the youngest child (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]).

The plaintiff's remaining contentions have either been rendered academic in light of our determination, or are without merit.

Motion by the appellant on an appeal from an order of the Supreme Court, Westchester County, dated December 6, 2004, inter alia, to strike the brief filed by Michele Bermel, Esq., Law Guardian for one of the parties' children who is not the subject of the appeal, on the ground, inter alia, that it refers to improper material. By decision and order on motion of this Court dated May 31, 2006, that branch of the motion which was to strike the brief was held in abeyance and referred to the Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the argument of the appeal, it is

Ordered that the branch of the motion which is to strike the brief filed by Michele Bermel, Esq., is granted on the ground that it refers to improper material, and the brief has not been considered in the determination of the appeal. Florio, J.P., Goldstein, Mastro and Fisher, JJ., concur.