Islamv.Lee

Supreme Court, Appellate Division, Second Department, New York.Mar 26, 2014
982 N.Y.S.2d 772 (N.Y. App. Div. 2014)
982 N.Y.S.2d 772115 A.D.3d 9522014 N.Y. Slip Op. 2045

2014-03-26

In the Matter of Shahan ISLAM, respondent, v. Susan L. LEE, appellant.

Plaine & Katz, LLP, Kew Gardens, N.Y. (Joshua R. Katz of counsel), for appellant. Law Offices of Austin I. Idehen, PLLC, Jamaica, N.Y., for respondent.


Plaine & Katz, LLP, Kew Gardens, N.Y. (Joshua R. Katz of counsel), for appellant. Law Offices of Austin I. Idehen, PLLC, Jamaica, N.Y., for respondent.
Osato Eugene Uzamere, Jamaica, N.Y., attorney for the child.



In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Queens County (Stanton, Ct.Atty.Ref.), dated May 10, 2013, which, upon a decision of the same court, also dated May 10, 2013, made after a hearing, granted the father's petition for sole custody of the parties' child with certain visitation to her.

ORDERED that the order is affirmed, without costs or disbursements.

There is no merit to the mother's contention that the Court Attorney Referee lacked authority to hear and determine the petition, since the record demonstrates that the parties executed a stipulation consenting to such a reference ( see CPLR 4317[a]; Matter of Phelps v. Hunter, 101 A.D.3d 1689, 957 N.Y.S.2d 526;cf. Matter of McClarin v. Valera, 108 A.D.3d 719, 968 N.Y.S.2d 899;Matter of Stewart v. Mosley, 85 A.D.3d 931, 932, 925 N.Y.S.2d 594).

“When determining custody cases, the primary concern is the best interests of the child” ( Salvatore v. Salvatore, 68 A.D.3d 966, 966, 893 N.Y.S.2d 63 [internal quotation marks omitted]; see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Matter of Edwards v. Rothschild, 60 A.D.3d 675, 676, 875 N.Y.S.2d 155). The factors to be considered in determining the custody arrangement that is in the child's best interests include “the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent” (Matter of Miguel R. v. Maria N., 104 A.D.3d 771, 772, 960 N.Y.S.2d 489;see Eschbach v. Eschbach, 56 N.Y.2d at 171–173, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Matter of Mullins v. Riener, 100 A.D.3d 760, 761, 953 N.Y.S.2d 664). “As custody determinations turn in large part on assessments of the credibility, character, temperament, and sincerity of the parties, the Family Court's determination should not be disturbed unless it lacks a sound and substantial basis in the record” (Matter of Khan–Soleil v. Rashad, 111 A.D.3d 728, 729, 978 N.Y.S.2d 226 [internal quotation marks omitted]; see Eschbach v. Eschbach, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Matter of Cornejo v. Salas, 110 A.D.3d 1068, 973 N.Y.S.2d 778).

Contrary to the mother's contention, the Family Court's determination that it was in the child's best interests to award sole custody to the father has a sound and substantial basis in the record. Accordingly, we decline to disturb it ( see Matter of McKoy v. Vatter, 106 A.D.3d 1090, 965 N.Y.S.2d 200;Matter of Guzman v. Pizarro, 102 A.D.3d 964, 965, 958 N.Y.S.2d 491).

“The admissibility and scope of expert testimony is a determination within the discretion of the trial court” ( Galasso v. 400 Exec. Blvd., LLC, 101 A.D.3d 677, 678, 955 N.Y.S.2d 369;see DeLong v. County of Erie, 60 N.Y.2d 296, 307, 469 N.Y.S.2d 611, 457 N.E.2d 717;Christoforatos v. City of New York, 90 A.D.3d 970, 970, 935 N.Y.S.2d 641). Generally, an expert “should be permitted to offer an opinion on an issue which involves a professional or scientific knowledge or skill not within the range of ordinary training or intelligence” ( Shi Pei Fang v. Heng Sang Realty Corp., 38 A.D.3d 520, 521, 835 N.Y.S.2d 194 [internal quotation marks omitted]; see DeLong v. County of Erie, 60 N.Y.2d at 307, 469 N.Y.S.2d 611, 457 N.E.2d 717;Selkowitz v. County of Nassau, 45 N.Y.2d 97, 101–102, 408 N.Y.S.2d 10, 379 N.E.2d 1140). Here, the Family Court did not improvidently exercise its discretion in admitting the testimony of the father's expert. Contrary to the mother's contention, the expert's testimony was “based on facts in the record and his own analysis, not speculation” ( Felicia v. Boro Crescent Corp., 105 A.D.3d 697, 698, 964 N.Y.S.2d 158;see Plainview Water Dist. v. Exxon Mobil Corp., 66 A.D.3d 754, 755, 888 N.Y.S.2d 521).

The mother's remaining contentions are either unpreserved for appellate review or without merit. SKELOS, J.P., DICKERSON, LEVENTHAL and HALL, JJ., concur.