Schoff v. Hornick

73 A.D.2d 836, 423 N.Y.S.2d 766, 1979 N.Y. App. Div. LEXIS 14729

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 1979
• Status: Published

Opinion

unanimously reversed, without costs, and matter remitted to Supreme Court, Onondaga County, for further proceedings in accordance with the following memorandum: In this custody proceeding between the natural father of the infant and the maternal grandparents, the court received certain reports and evaluations concerning the principals in the case. Some of the reports were held confidential by the court and made a part of the record, while others were not. In arriving at its decision it is apparent that the court placed some reliance upon these reports although in the present state of the record we cannot tell which reports the court used. It is also clear that not all of the reports were made available to counsel. The court erred in holding some reports confidential without the consent of the parties (Matter of Lincoln v Lincoln, 24 NY2d 270, 273; Kesseler v Kesseler, 10 NY2d 445; Di Stafano v Di Stafano, 51 AD2d 885). Use of “professional reports” without an opportunity to explain or rebut material contained in the reports ”entail[s] too many risks of error” (Matter of Lincoln v Lincoln, supra, p 273). The order is reversed and the matter is remitted to Supreme Court, Onondaga County, for further proceedings, at which time all reports and evaluations which were submitted to the Trial Justice are to be made available to all counsel so that they may have the right to deal with the testimony of the psychiatrist and social worker under common-law rules (Matter of Leon R. R., 48 NY2d 117). The court should then make appropriate findings and render a decision based upon the existing record as supplemented by proof, if any (Raysor v Gabbey, 57 AD2d 437). (Appeals from order of Onondaga Supreme Court — custody.) Present — Simons, J. P., Schnepp, Callahan, Doerr and Witmer, JJ.