You are here: / / Court Should Have Taken Judicial Notice of Father’s False Allegations...
, ,

Court Should Have Taken Judicial Notice of Father’s False Allegations in Prior Proceedings in the Same Court/Court Should Not Have Drawn an Adverse Inference from Mother’s Failure to Call a Witness without Informing Mother of Its Intent to Do So

The Second Department, in reversing Family Court finding that mother committed the family offense of assault, determined Family Court should have taken judicial notice of father’s false allegations in custody proceedings in the same court and should not have drawn an adverse inference from the mother’s failure to call a witness without giving mother the opportunity to explain the witness’ absence:

The Family Court improperly rejected the mother’s request that it take judicial notice of the determination in the parties’ prior custody proceeding, in the same court, in which the father admittedly made false allegations. That proceeding, and the court’s findings therein regarding the father, were relevant to the court’s assessment of the father’s credibility in this matter. Accordingly, the court improvidently exercised its discretion in declining to take judicial notice of the prior custody proceeding … .

Additionally, the Family Court erred in drawing a negative inference based on the mother’s failure to call the child’s maternal grandmother as a witness. ” A party is entitled to a missing witness charge when the party establishes that an uncalled witness possessing information on a material issue would be expected to provide noncumulative testimony in favor of the opposing party and is under the control of and available to that party'” … . The court sua sponte drew a negative inference based on the mother’s failure to call the grandmother as a witness, and failed to advise the mother that it intended to do so … . Matter of Spooner-Boyke v Charles, 2015 NY Slip Op 02132, 2nd Dept 3-18-15

 

You might also like
Plaintiff Who Fell From Scaffolding Which Did Not Have Safety Rails Entitled to Summary Judgment on His Labor Law 240(1) Cause of Action
School Employee’s After-Hours Inappropriate Behavior Involving a Student Was Not Proximately Caused by Negligent Supervision/Retention of the Employee or Negligent Supervision of the Student on the Part of the School District
CITY (NYC), NOT ABUTTING LANDOWNERS, RESPONSIBLE FOR MISSING SIDEWALK HYDRANT VALVE COVER PURSUANT TO RULES OF CITY OF NEW YORK DEPARTMENT OF TRANSPORTATION.
ALTHOUGH THE HOME-INSPECTION CONTRACT WAS NOT SIGNED, PLAINTIFF TESTIFIED SHE WAS AWARE OF THE TERMS OF THE CONTRACT AND AGREED TO THEM; THEREFORE THE UNSIGNED CONTRACT WAS ENFORCEABLE AND PLAINTIFF’S FAILURE TO COMPLY WITH THE NOTIFICATION PROVISION ENTITLED DEFENDANT TO SUMMARY JUDGMENT (SECOND DEPT).
POST-DEATH INTEREST ON AN ANNUITY SHOULD NOT BE CALCULATED BY APPLYING THE INTEREST RATE AT THE TIME OF PAYMENT TO THE ENTIRE PERIOD BETWEEN THE DEATH OF THE ANNUITANT (1998) AND THE DATE OF PAYMENT (2012).
PLAINTIFF IN THIS SLIP AND FALL CASE ENTITLED TO SEVERANCE OF THE ACTION AGAINST THE PROPERTY OWNER, WHICH FILED FOR BANKRUPTCY, AND THE SNOW REMOVAL CONTRACTOR (SECOND DEPT).
RULES OF THE CHIEF ADMINISTRATIVE JUDGE CONCERNING THE CONTENTS OF AFFIDAVITS SUBMITTED BY BANK ATTORNEYS IN FORECLOSURE ACTIONS DID NOT EXCEED RULEMAKING POWERS AND MUST BE FOLLOWED.
MAILING THE NOTICE OF FORECLOSURE TO BOTH BORROWERS IN THE SAME ENVELOPE IS A VIOLATION OF RPAPL 1304 REQUIRING DENIAL OF THE BANK’S SUMMARY JUDGMENT MOTION (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Violation of Confrontation Clause Was Harmless Error When the One-Year Statute of Limitations Begins to Run for False Arrest, Malicious...