Falabella v. Murray

Appellate Division of the Supreme Court of New York

Falabella v. Murray

265 A.D.2d 450, 697 N.Y.S.2d 92, 1999 N.Y. App. Div. LEXIS 10419

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

DecidedOctober 18, 1999

StatusPublished

Cited by6 cases

This text of 265 A.D.2d 450 (Falabella v. Murray) 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

Falabella v. Murray, 265 A.D.2d 450, 697 N.Y.S.2d 92, 1999 N.Y. App. Div. LEXIS 10419 (N.Y. Ct. App. 1999).

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Opinion

—In an action for custody of a minor child, the defendant mother appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (McNulty, J.), dated July 15, 1998, as denied her motion for a new trial on the ground, inter alia, of newly-discovered evidence.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the mother’s contention, the report of her own psychologist does not constitute evidence which was “newly-discovered” within the meaning of CPLR 5015 (a) (2). The mother was aware of the existence of this report before trial, but failed to call her psychologist to testify, with the result that the report was never admitted into evidence. Moreover, the admission of the report, which contained, inter alia, the opinion of the mother’s psychologist that the mother was a “concerned, capable and adequate parent”, would not have produced a different result. Even without the report, the court found that the mother was an adequate parent. Moreover, the report did not address the issue found to be pivotal by the court, namely, which parent, if awarded custody, would foster a healthier relationship between the child and the noncustodial parent.

The mother’s remaining contention is without merit. Bracken, J. P., Friedmann, Goldstein and McGinity, JJ., concur.

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—In an action for custody of a minor child, the defendant mother appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (McNulty, J.), dated July 15, 1998, as denied her motion for a new trial on the ground, inter alia, of newly-discovered evidence.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the mother’s contention, the report of her own psychologist does not constitute evidence which was “newly-discovered” within the meaning of CPLR 5015 (a) (2). The mother was aware of the existence of this report before trial, but failed to call her psychologist to testify, with the result that the report was never admitted into evidence. Moreover, the admission of the report, which contained, inter alia, the opinion of the mother’s psychologist that the mother was a “concerned, capable and adequate parent”, would not have produced a different result. Even without the report, the court found that the mother was an adequate parent. Moreover, the report did not address the issue found to be pivotal by the court, namely, which parent, if awarded custody, would foster a healthier relationship between the child and the noncustodial parent.

The mother’s remaining contention is without merit. Bracken, J. P., Friedmann, Goldstein and McGinity, JJ., concur.

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Bluebook (online)

265 A.D.2d 450, 697 N.Y.S.2d 92, 1999 N.Y. App. Div. LEXIS 10419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/falabella-v-murray-nyappdiv-1999.

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