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Enrique S. v. Genell M.D.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


November 25, 2008

IN RE ENRIQUE S., PETITIONER-RESPONDENT,
v.
GENELL M.D., RESPONDENT-APPELLANT. [AND ANOTHER ACTION]

Order, Family Court, Bronx County (Tandra L. Dawson, J.), entered on or about May 8, 2006, which, to the extent appealed from as limited by the brief, after a hearing, granted petitioner father's motion for custody of the subject child, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Friedman, Nardelli, Buckley, Freedman, JJ.

The determination to award custody to the father was not against the weight of the evidence and was warranted in the best interests of the child by the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167, 172-174 [1982]). The evidence demonstrated, inter alia, that, while respondent mother lacked insight into the child's needs and had never been able to provide a stable residence for her, the father was deeply involved in the child's life and the child flourished in his care.

The court properly rejected the portions of the court-appointed evaluator's testimony and reports that were based upon hearsay and information from unidentified sources (see State of New York ex rel. H.K. v M.S., 187 AD2d 50, 53 [1993], appeal dismissed 81 NY2d 1006 [1993], lv denied 82 NY2d 654 [1993]). Respondent's contentions concerning the evaluator's credentials and methodology are unsupported by the record.

We have considered respondent's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081125

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