In re Neal

75 A.D.2d 741, 427 N.Y.S.2d 432, 1980 N.Y. App. Div. LEXIS 11279

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 6, 1980
• Status: Published

Opinions

Appeal from order of Family Court, New York County, dated June 14, 1979, denying petitioner’s motion for the appointment of a physician and a certified psychologist, and dismissing allegations of the petition as to mental retardation: leave to appeal from said order to this court is granted to petitioner; and on such appeal, the order is modified, on the law, to the extent of reversing so much of the order as strikes the allegation as to mental retardation, and the matter is remanded for further proceedings in accordance with the memorandum herein, and is otherwise afiirmed, without costs. The facts are sufficiently set forth in the dissenting memorandum. We agree with the dissenters that appeal does not lie from the order as of right but only by leave. However, we think that in this case involving the welfare of a child, which has already been pending since 1978, it is better to determine the important substantive issue now rather than reserving it for determination on a subsequent appeal after a final determination in the Family Court. Accordingly, we grant leave to petitioner to appeal. We modify the order appealed from to the extent of reversing the dismissal of the second cause of action on the ground of collateral estoppel. In our view, collateral estoppel should not be applied in the present case. In the earlier action, Judge Kaplan of the Family Court at the fact-finding stage dismissed the claim based on the mother’s mental illness but found that the child, Michael, involved in that case, was a permanently neglected child because the mother was unable to plan for the child, and directed a dispositional hearing. As the court was finding that the child was permanently neglected and directing a dispositional hearing, the determination that the mother was not mentally retarded was not necessary to the decision. Collateral estoppel applies only to determinations "that were essential to the decision.” (Yates v United States, 354 US 298, 336.) "The court found something not essential, or at all events not yet shown to be essential, to a decision of the issues. Such a finding is not controlling in a later litigation. The rule is that a judgment does not work an estoppel as to unessential facts, even though put in issue by the pleadings and directly decided”. (Silberstein v Silberstein, 218 NY 525, 528; see Karameros v Luther, 279 NY 87, 91; 5 Weinstein-Korn-Miller, NY Civ Frac, par 5011.28.) It seems particularly inappropriate to apply collateral estoppel to the determination as to the mother’s illness in connection with the present case involving the child Y’Anique since, as respondent states, Judge Kaplan having made a finding of permanent neglect on the ground that the mother was unable to plan for the child, the issue of mental retardation of the mother "was academic. One finding was sufficient.” It does not follow that the whole issue of the mother’s mental condition must be retried de novo. The witnesses on this issue have been heard and cross-examined. To the extent that that issue has already been tried, it makes no sense to repeat the evidence. The Court of Appeals has warned the trial courts "that the hearsay doctrine has been too restrictively applied to exclude otherwise reliable evidence”. (People v Arnold, 34 NY2d 548, 549.) We would permit the use of the prior record in connection with the case relating to the child Y’Anique. If no additional evidence is introduced, the trial court, as a matter of comity analogous to the law of the case may find as Judge Kaplan did in the first case, in which event the appellate court would have the same power to review as it would have had on the appeal from such a finding in a first judgment. But, if on the hearing either side offers additional evidence, the trial court should consider that evidence along with the old record and render an appropriate factual determination. Whether petitioner’s request for the appointment of a physician or psychologist should be granted is a matter which we leave to the discretion of the Family Court Judge. Concur —Sullivan, Lupiano and Silverman, JJ.