THE FOLLOWING PAPERS WERE READ AND CONSIDERED ON THIS MOTION TO REARGUE AND RENEW: PAPERS NUMBERED NOTICE OF MOTION 1 MOTION 1-3 EXHIBITS 1-15
UPON THE FOREGOING PAPERS, IT IS ORDERED THAT THIS MOTION TO REARGUE AND RENEW IS DENIED.
In addition to consideration of the above papers, the Court takes judicial notice of its own file and all prior proceedings in this matter. (See Matter of DSS o/b/o Sulin v. Cronin, 37 AD3d 463 [2nd Dept., 2007]; Matter of Khatibi v. Weill, 8 AD3d 485 [2nd Dept., 2004]; Matter of Terrance L., 276 AD2d 699 [2nd Dept., 2000]).
The attorney for the juvenile has filed a motion to reargue and renew a Decision and Order issued after a hearing on March 14, 2018 by the Hon. Tracy C. MacKenzie. Counsel asserts that "the Court erred in its determination as a matter of fact and law." The entirety of Counsel's argument rests upon the theory that the subject juvenile "was very nervous and not able to communicate effectively or clearly." Motion pg . 1 Counsel submits that the failure of the subject juvenile to testify fully and accurately is a basis for this Court to reconsider its Decision and Order, and that fact supports the assertion that "the Court erred in its determination as a matter of fact and law."
A motion for leave to reargue must be "based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion..." CPLR § 2221(d). A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and shall contain reasonable justification for the failure to present such facts on the prior motion." CPLR § 2221(e);
This Court finds no basis to change the Decision and Order. Counsel opines that the subject juvenile, although afforded a Spanish interpreter throughout the proceedings, was unable to fully answer the questions presented by counsel. Counsel attaches as Exhibit A an affidavit of the subject juvenile wherein his testimony is vastly expanded upon. In presenting these new facts to the Court, counsel fails to present a reasonable justification for the failure to present such facts previously. These "new facts" could not have been considered by the Court as they were not proffered at the hearing. As such, they do not constitute a proper basis for the instant motion.
The Court is not persuaded by the assertion that the juvenile's fluency in his native dialect of Q-eqchi contributed to his inability to testify in a full and comprehensive manner. On October 24, 2017, counsel requested a Spanish language interpreter for his client. The Court provided a Spanish language interpreter at that appearance, and the juvenile utilized said interpreter throughout the proceedings without any mention of deficiencies or issues. Counsel renewed his request for a Spanish language interpreter at the three (3) subsequent court appearances (January 8, January 31, and March 14, 2018), and such an interpreter was provided by the Court. At no time before, during, in between or after any of those appearances did counsel indicate to the Court that his client required an interpreter of a different language or dialect, or that his client was unable to effectively utilize the interpreter. There was no indication at any of the four (4) court appearances that the juvenile had difficulty understanding the proceedings or that counsel was unable to communicate with his client. At no time during the hearing, did counsel give any indication that the juvenile was unable to effectively testify. The Court observed the juvenile throughout the course of each of these proceedings. Throughout each proceeding this Court observed the juvenile utilizing the services of the interpreter effectively in that the juvenile was responsive to questions, did not hesitate with his responses, and appeared to fluently interact with the interpreter. The Court also observed counsel speak directly to the juvenile in the Spanish language. The Court finds it implausible that this matter was pending for six (6) months before counsel recognized that his client was not equipped to testify utilizing a Spanish language interpreter. Accordingly, the motion is denied.
The foregoing shall constitute the decision and order of this Court.
SO ORDERED. DATED: April 20, 2018 Poughkeepsie, NY HON. TRACY C. MACKENZIE JUDGE OF THE FAMILY COURT COUNTY OF DUTCHESS