Kranock v. Ranieri

1105 Appeal from an order of the Family Court, Erie County (Rosalie M.S. Bailey, J.), entered February 26, 2004 in a proceeding seeking modification of a prior order of custody. The order granted the petition and awarded petitioner sole custody of the parties’ son. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Respondent appeals from an order granting a petition seeking sole custody of the parties’ son. We agree with respondent that Family Court erred in admitting in evidence the report of a court-appointed psychologist. The report was not submitted by the psychologist under oath and the psychologist was not present and available for cross-examination, as required by 22 NYCRR 202.16 (g) (2) (see Murtari v Murtari, 249 AD2d 960, 961 [1998], appeal dismissed 92 NY2d 919 [1998], cert denied 525 US 1072 [1999]). We nevertheless conclude that the court’s determination awarding petitioner sole custody is “supported by admissible evidence without consideration of the improperly admitted report” (id.; see Matter of D’Esposito v Kepler, 14 AD3d 509, 510 [2005]). We further conclude that the court’s determination is based upon substantial evidence in the record that the best interests of the child are served by granting custody to petitioner, and therefore the determination should not be disturbed (see Matter of King v King, 251 AD2d 1028, 1029 [1998]; see generally Eschbach v Eschbach, 56 NY2d 167, 171-174 [1982]; Matter of Whitford v Grandinetti, 6 AD3d 1178 [2004]). We have reviewed respondent’s remaining contention and conclude that it is without merit. Present—Scudder, J.P., Kehoe, Martoche, Smith and Hayes, JJ.