Matter of Enrique S. v Genell M.D.

Matter of Enrique S. v Genell M.D. 2008 NY Slip Op 09286 [56 AD3d 396] November 25, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 7, 2009

In the Matter of Enrique S., Respondent,
v
Genell M.D., Appellant. (And Another Action.)

—[*1] Carol Lipton, Brooklyn, for appellant.

John J. Marafino, Mount Vernon, for respondent.

Karen Simmons, The Children's Law Center, Brooklyn (Janet Neustaetter of counsel), Law Guardian.

Order, Family Court, Bronx County (Tandra L. Dawson, J.), entered on or about May 8, 2006, which, to the extent appealed from as limited by the brief, after a hearing, granted petitioner father's motion for custody of the subject child, unanimously affirmed, without costs.

The determination to award custody to the father was not against the weight of the evidence and was warranted in the best interests of the child by the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167, 172-174 [1982]). The evidence demonstrated, inter alia, that, while respondent mother lacked insight into the child's needs and had never been able to provide a stable residence for her, the father was deeply involved in the child's life and the child flourished in his care.

The court properly rejected the portions of the court-appointed evaluator's testimony and reports that were based upon hearsay and information from unidentified sources (see State of New York ex rel. H.K. v M.S., 187 AD2d 50, 53 [1993], appeal dismissed 81 NY2d 1006 [1993], lv denied 82 NY2d 654 [1993]). Respondent's contentions concerning the evaluator's credentials and methodology are unsupported by the record. [*2]

We have considered respondent's remaining contentions and find them unavailing. Concur—Mazzarelli, J.P., Friedman, Nardelli, Buckley and Freedman, JJ.