L.R. v T.R.
Annotate this CaseDecided on October 20, 2010
Supreme Court, Nassau County
L.R., Plaintiff,
against
T.R., Defendant.
203699-02
The attorneys on this case are as follows:
Attorney for Plaintiff:
Barrocas & Rieger, LLP
100 Quentin Roosevelt Boulevard
Garden City, New York 11530
Attorney for Defendant:
Stanley Hirsch, P.C.
666 Old Country Road, Suite 810
Garden City, New York 11530
Robert A. Ross, J.
This motion and cross motion has been submitted for expedited determination, at the request of the parties as well as the attorney for the children.
The motion seeks, in effect, to reargue/renew the Court's determination after hearing. That decision and order (Ross, J.) dated May 25, 2010, determined that the plaintiff wife had willfully violated the Judgement of Divorce by alienating the children against their father.
The reargument/renewal presented here is predicated upon a claim of "newly discovered evidence" in the form of a forensic report of Dr. William Kaplan. That report was ordered after the May 25, 2010 Decision and Order of this Court, which adjudged the defendant to be in contempt, and also scheduled a hearing on the issue of custody.
CPLR § 2221 (d) provides in pertinent part, that a motion for leave to reargue shall be based upon matters of fact or law overlooked or misapprehended by the court and shall not be based upon any matters of fact not previously offered. Plaintiff seeks to reargue based upon obtaining a forensic report. This Court has not overlooked or misapprehended any matters of fact [*2]- - such report was not even in existence when this Court rendered its decision. (See, In Re Ademoli, 57 AD3d 68). Accordingly, such application to reargue is denied.
CPLR § 2221 (e) provides in pertinent part, that a motion for leave to renew shall be "based upon new facts not offered on the prior motion that would change the prior determination" and shall contain a "reasonable justification for the failure to present such facts on the prior motion" (Yarde v New York City Transit Authority 4 AD3d 353; Rasizzi v NYC School Construction Authority 2010 NY Slip Op 7158 (October 5, 2010)). There are no new matters of fact offered here. The "new information" that purports to be the basis for this application is an unsworn forensic report, (See, CPLR§ 2106; Perdono v Scott 50 AD3d 1115) in the form of an opinion, and which is predicated upon uncorroborated hearsay. To accept such opinion as fact, as urged by the plaintiff, would in effect, improperly preclude cross examination of such opinion and render the report to be treated as fact. (See, Ross v Mandeville 45 AD3d 755, Steinginzky v Gross 46 AD3d 671, Clarke v Limone 40 AD3d 571). Such cannot be countenanced by this Court.
This motion is a circumvention to obtain relief pursuant to CPLR § 4405, which application would have had to have been made within fifteen days after the decision was rendered. This was not done here. Further, given that an appeal has been perfected and that the Court has "no power to grant relief after argument or submission of an appeal from a final judgement/order," this Court is precluded from considering the merits of the plaintiff's motion, as a matter of law. (CPLR § 4405).
For the foregoing reasons, the plaintiff's motion is denied as a matter of fact and law.
The cross-motion seeks to reject the forensic report of Dr. Kaplan predicated upon a variety
of purported professional transgressions of the forensic evaluator.
DISCUSSION
This motion and cross motion have caused the Court to review the report of Dr. Kaplan, absent stipulation of the parties and prior to it being admitted into evidence. A trial court, typically should not review such reports absent stipulation by the parties. (See, Kesseler v Kesseler, 10 NY2d 445; See also, Tippins, T.M., Custody Evaluations, NYLJ, 9/4/03, p.3, c.1.)
A review of the report reflects that the forensic examiner here, went well beyond the scope of the June 25, 2010 Order of Appointment of this Court.
For example, Dr. Kaplan ignored the findings of fact made by this Court and seemingly substituted his own. He relied on details provided by plaintiff's father, who was not a witness at the contempt hearing nor subject to cross- examination, to make an assessment of the defendant's credibility and financial/business practices. By relying on such hearsay in rendering his opinion, Dr. Kaplan belies the role of the court in assessing credibility, while simultaneously tempering and mollifying this Court's determination in finding the plaintiff's conduct to be contemptuous. [*3]This Court's determination, which was made after an extensive hearing conducted over twenty three days of testimony, may only be subject to appellate review - - that authority may not be abrogated to a third party (See, Bourne v Bristow, 66 AD3d 621). Although the utilization of hearsay by the expert, is not in all instances improper, the self-delegation by the forensic examiner to a role of fact finder was neither contained or requested in the Court's Order of Appointment. Moreover, such a practice should not be within the purview of the forensic examiner who was not - - and could not - - undertake that responsibility. (See, Bourne v Bristow, supra; Matter of Kozlowski v Mangialino, 36 AD3d 916).
The opinions of court appointed experts are entitled to some weight, unless contradicted by the record (Young v Young, 212 AD2d 114), or, where based upon inadequate information, or, where based upon a biased and one-sided description of events given by one party, or, where it ignores the significance of the conduct of the parties. (See, Alan G. V Joan G., 104 AD2d 147; Gloria S v Richard B, 80 AD2d 72).
In these respects, too, the report appears to be significantly flawed. Such apparent flaws
include failing to confront the defendant with information obtained from the plaintiff's father;
relying upon such information in formulating his opinion; failing to disclose that the plaintiff's
father was a collateral source; minimizing/mollifying the Court's finding of contempt based upon
the plaintiff's violation of the parental access provisions of the parties' Judgment of Divorce; and
by tempering the plaintiff's false reporting of sexual abuse allegations. Such perceivable flaws
must be considered when determining the probative value of such report and the weight it is to be
afforded. Here, given the viable concerns as to the veracity of such report, the determination
regarding the report's admissibility should be made prior to the hearing regarding custody, so
that, if necessary, a new forensic report may be ordered. (See, Chart v Chart,
215 Ad2d 238).
PRETRIAL HEARING ON ADMISSIBILITY OF FORENSIC REPORT
Under the unique circumstances presented here, where a forensic report in a custody matter is shown to contain multiple demonstrable flaws, a hearing should he held prior to trial, to determine its admissibility. Theuse of voire dire, prior to the custody trial, will determine the admissibility of the report and will afford the Court the opportunity to secure a new opinion, if necessary, as it is otherwise required to consider as a factor in the custody determination. (See, Bayer v Bayer 102 AD2d 879; Bruno v Bruno, 47 AD3d 606). Given all of these considerations, and especially given the court's duty to detail its reasons for accepting or rejecting a forensic report, and its concomitant duty to "become aware of and seek out every bit of relevant evidence" in a custody determination (See, Audobon v Audobon 138AD2d 658), a pretrial hearing regarding the admissibility of such report, and if necessary, the issue of securing a new report, will be scheduled.
For the reasons stated herein, the motion is denied and the cross motion is granted to the extent of ordering a pre-trial hearing on the admissibility of the forensic report and if necessary, the issue of securing a new report in this matter, will be held before me on November 1, 2010.
This constitutes the decision and order of the Court.
DATED: Mineola, NY
October 20, 2010
________________________
Robert A. Ross
J.S.C.
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