You are here: / / IN ORDERING A NEW HEARING ON MOTHER’S PETITION TO RELOCATE, THE FIRST...
, ,

IN ORDERING A NEW HEARING ON MOTHER’S PETITION TO RELOCATE, THE FIRST DEPARTMENT NOTED THE INADEQUACY OF THE PROOF PRESENTED BY ASSIGNED COUNSEL AT THE FIRST HEARING AND CONSIDERED “NEW” FACTS WHICH WERE NOT PART OF THE RECORD ON APPEAL (FIRST DEPT). ​

The First Department, reversing Family Court over a detailed and comprehensive dissent, determined mother was entitled to a new hearing on her petition to relocate to North Carolina because her assigned counsel did not adequately present evidence of the financial necessity of the move. The dissent would grant the petition to relocate based on the existing record:

… [A]s the attorney for the child argues on this appeal, the mother’s motion to this Court for a stay pending appeal (a motion this Court granted by order entered November 15, 2022 and continued by order entered April 20, 2023), raised legitimate concerns about the adequacy of representation by her assigned counsel at the fact-finding hearing on her relocation petition. Specifically, … the mother attests that counsel failed to adequately present evidence of the financial necessity that supports her decision to relocate. On account of these omissions, as well as the passage of time and intervening events that have occurred since the court’s September 6, 2022 order, we reverse the court’s denial of the mother’s petition and remand for a new hearing to determine what is in the child’s best interests … . Although the facts warranting a new hearing are outside the record on appeal, given that changed circumstances have particular significance in child custody matters, we take notice of the new facts to the extent they indicate that the record is no longer sufficient to determine the mother’s relocation petition … . Matter of Emily F. v Victor P., 2023 NY Slip Op 04634, First Dept 9-14-23

Practice Point: Here the First Department considered “new” facts which were  not part of the record on appeal in determining there should be a new hearing on mother’s petition to relocate.

 

You might also like
DOCTRINE OF RES IPSA LOQUITUR PRECLUDED SUMMARY JUDGMENT IN THIS ELEVATOR ACCIDENT CASE.
DEFENDANT PROPERTY OWNERS PRESENTED NO EVIDENCE TO DEMONSTRATE WHEN THE STEPS WHERE PLAINTIFF SLIPPED AND FELL WERE LAST INSPECTED OR CLEANED; THEREFORE DEFENDANTS WERE NOT ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT). ​
Published Information Gleaned from Court Submission Privileged
PLAINTIFF, WHO WAS STRUCK BY A FALLING REBAR, WAS NOT REQUIRED TO DEMONSTRATE THE EXACT CIRCUMSTANCES WHICH LED TO THE REBAR FALLING; IT IS ENOUGH THAT THE REBAR SHOULD HAVE BEEN SECURED SUCH THAT IT WOULD NOT FALL; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).
Defamation Action Brought by Judge Against a Reporter Properly Dismissed—Although the Reporter Made Defamatory Statements Which Were Not Privileged, the Judge Failed to Raise a Question of Fact About Malice as a Motivation
PLAINTIFF IN PERSONAL INJURY ACTION NOT REQUIRED TO DISCLOSE (1) FACEBOOK PHOTOGRAPHS SHE DID NOT INTEND TO INTRODUCE AT TRIAL AND (2) INFORMATION ABOUT POST-ACCIDENT MESSAGES.
PETITIONER SOUGHT A TEMPORARY LICENSE PURSUANT TO RPAPL 881 TO ENTER RESPONDENT’S ADJOINING PROPERTY TO INSTALL PROTECTIONS PRIOR TO DEMOLITION WORK ON PETITIONER’S BUILDINGS; RESPONDENT WAS ENTITLED TO FULL INDEMNIFICATION FOR ANY DAMAGE (AS OPPOSED TO INDEMNIFICATION “TO THE EXTENT COVERED BY INSURANCE”) AND TO REASONABLE EXPERT’S AND ATTORNEY’S FEES (SECOND DEPT).
ALTHOUGH DOCUMENTARY EVIDENCE IS ADMISSIBLE NOTWITHSTANDING THE DEAD MAN’S STATUTE, HERE THE DECEDENT’S SIGNATURE ON THE GUARANTY WAS NOT AUTHENTICATED BY SOMEONE OTHER THAN AN INTERESTED WITNESS; THEREFORE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE GUARANTY SHOULD NOT HAVE BEEN GRANTED (FIRST 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

REPORTER WHO INTERVIEWED A MURDER SUSPECT WAS ENTITLED TO A WRIT OF PROHIBITION... DEFENDANT’S ANSWER IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN STRUCK...