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
EVIDENCE DID NOT SUPPORT THE FINDING THAT DEFENDANT BREACHED THE CONTRACT TO CREATE A WEBSITE FOR PLAINTIFF, JUDGMENT AFTER A NON-JURY TRIAL REVERSED (SECOND DEPT).
A FAMILY OFFENSE PROCEEDING MAY BE BROUGHT IN THE COUNTY WHERE THE FAMILY MEMBER RESIDES, AS WELL AS IN THE COUNTY WHERE THE OFFENSE OCCURRED (SECOND DEPT). ​
EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS PROPERLY CONSIDERED.
ACQUITTAL ON THE RAPE AND FORCIBLE TOUCHING CHARGES RENDERED THE “ENDANGERING THE WELFARE OF A CHILD” CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).
PLAINTIFF’S INABILITY TO IDENTIFY THE WET SUBSTANCE ON THE STEP WHERE SHE ALLEGEDLY FELL WAS NOT AN INABILITY TO IDENTIFY THE CAUSE OF THE FALL (SECOND DEPT).
DEFENDANT ABUTTING LESSEE DID NOT AFFIRMATIVELY DEMONSTRATE ITS SNOW REMOVAL EFFORTS DID NOT EXACERBATE THE ICE-SNOW CONDITION IN THIS SIDEWALK SLIP AND FALL CASE, SUMMARY JUDGMENT PROPERLY DENIED.
THERE IS A QUESTION OF FACT WHETHER THE “INSANITY” TOLL OF THE STATUTE OF LIMITATIONS APPLIES TO THIS ASSAULT AND FALSE ARREST ACTION AGAINST THE CITY AND POLICE OFFICERS; THE TOLL APPLIES WHEN PERSONS ARE UNABLE TO PROTECT THEIR LEGAL RIGHTS BECAUSE OF AN INABILITY TO FUNCTION IN SOCIETY (SECOND DEPT).
Method of Service of Citation Should Be Calculated to Provide Notice Based Upon Facts Known To Court

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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Even Though the People Indicated They Were Not Ready for Trial After Filing... Arbitrator Exceeded Her Powers to Modify an Award and Failed to Make a “Final...