Caputo-Desiderio v. Desiderio

Appellate Division of the Supreme Court of New York

Caputo-Desiderio v. Desiderio

232 A.D.2d 600, 648 N.Y.S.2d 1005, 1996 N.Y. App. Div. LEXIS 11319

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 28, 1996

StatusPublished

This text of 232 A.D.2d 600 (Caputo-Desiderio v. Desiderio) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Caputo-Desiderio v. Desiderio, 232 A.D.2d 600, 648 N.Y.S.2d 1005, 1996 N.Y. App. Div. LEXIS 11319 (N.Y. Ct. App. 1996).

Pincite

Opinion

—In a matrimonial action in which the parties were divorced by judgment dated April 14, 1994, the plaintiff former wife appeals from an order of the Supreme Court, Suffolk County (Lifson, J.), entered August 7, 1995, which, after a hearing, (1) denied her motion for permission to relocate to Florida with the parties’ infant children, (2) granted the defendant’s cross motion to enjoin the proposed move, and (3) directed the plaintiff not to remove the children from the State of New York.

Ordered that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for a reopened hearing and new determination consistent herewith.

In reaching the determination under review, the Supreme Court relied upon the "exceptional circumstances” test (see, Leslie v Leslie, 180 AD2d 620) which has since been abrogated by the Court of Appeals in favor of a case-by-case analysis "with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child” (Matter of Tropea v Tropea, 87 NY2d 727, 739). Accordingly, the matter must be remitted to the Supreme Court for a new determination, based upon the hearing evidence already adduced and any further relevant evidence which the parties may wish to submit at a reopened hearing. Thompson, J. P., Pizzuto, Goldstein and Luciano, JJ., concur.

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—In a matrimonial action in which the parties were divorced by judgment dated April 14, 1994, the plaintiff former wife appeals from an order of the Supreme Court, Suffolk County (Lifson, J.), entered August 7, 1995, which, after a hearing, (1) denied her motion for permission to relocate to Florida with the parties’ infant children, (2) granted the defendant’s cross motion to enjoin the proposed move, and (3) directed the plaintiff not to remove the children from the State of New York.

Ordered that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for a reopened hearing and new determination consistent herewith.

In reaching the determination under review, the Supreme Court relied upon the "exceptional circumstances” test (see, Leslie v Leslie, 180 AD2d 620) which has since been abrogated by the Court of Appeals in favor of a case-by-case analysis "with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child” (Matter of Tropea v Tropea, 87 NY2d 727, 739). Accordingly, the matter must be remitted to the Supreme Court for a new determination, based upon the hearing evidence already adduced and any further relevant evidence which the parties may wish to submit at a reopened hearing. Thompson, J. P., Pizzuto, Goldstein and Luciano, JJ., concur.

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Bluebook (online)

232 A.D.2d 600, 648 N.Y.S.2d 1005, 1996 N.Y. App. Div. LEXIS 11319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caputo-desiderio-v-desiderio-nyappdiv-1996.

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