Ciarelli v. LynchCiarelli v. Lynch
respondent‘s sexual abuse of the child on various dates between January 2000 and July 2003. Following a fact-finding hearing, Family Court sustained the abuse petition.
Respondent now appeals, contending that the child‘s out-of-court statements were not sufficiently corroborated to prove sexual abuse by a preponderance of the evidence. We disagree. A child‘s unsworn, out-of-court statement “may be corroborated by any evidence tending to support its reliability, and a relatively low degree of corroborative evidence is sufficient in abuse proceedings” (Matter of Joshua QQ., 290 AD2d 842, 843 [2002] [citation omitted]). Our standard of review recognizes that the reliability of the corroboration is a determination entrusted in the first instance to Family Court‘s broad discretion (see Matter of Frank Y., 11 AD3d 740, 742 [2004]; Matter of Joshua QQ., supra at 843). Further, it was for Family Court to resolve the credibility issues raised by the conflicting testimony, and its determination will not be disturbed unless clearly unsupported by the evidence (see Matter of Martha Z., 288 AD2d 706, 707 [2001]; Matter of Kathleen OO., 232 AD2d 784, 785 [1996]).
The child‘s consistent, explicit and age-inappropriate knowledge of sexuality as well as the testimony of Sarah Walsh, a senior clinical social worker, corroborated her out-of-court statements. Walsh testified as to behaviors commonly manifested by child victims of abuse. Then, based on the accounts by others of the child‘s statements and behavior, Walsh opined that the child‘s behavior, such as her knowledge of sexual detail and reports of progressively more intrusive contact, was typical and consistent with that of a victim of sexual abuse. In addition, Family Court properly considered respondent‘s concession that sexual contact took place and his unlikely claim that the actual perpetrator was an adult neighbor who had allegedly entered the child‘s bedroom through a window in the middle of the night. Giving due consideration to Family Court‘s assessment of the credibility of the witnesses, we conclude that the court did not abuse its discretion in finding that the child‘s statements were sufficiently corroborated (see Matter of Frank Y., supra at 742). As the evidence was both sufficient and given appropriate weight, we decline to disturb Family Court‘s finding of abuse.
Mercure, J.P., Peters, Spain and Mugglin, JJ., concur. Ordered that the orders are affirmed, without costs.
In 2001, plaintiffs purchased their property from Rhoda Abrams, who had acquired it in 1956. Abrams claimed that upon acquiring the property, she blocked access to an old road leading to defendants’ now otherwise land-locked property until 2001, when defendants began using the road. Plaintiffs commenced this action to quiet title to the old road and asserted that defendants had trespassed on their property. In their bill of particulars, plaintiffs asserted that Abrams had taken steps to adversely possess the road. Defendants counterclaimed, seeking to enjoin plaintiffs from blocking the road and alleging that it was accessible to them as a public highway or, alternatively, via an easement. Following a trial, the jury found for plaintiffs based on an issue that had not been pleaded or litigated, determining that Abrams had purchased the property without actual or constructive notice of any easement, thereby extinguishing the easement. Supreme Court denied defendants’ subsequent motion to set aside the verdict and, thereafter, judgment was entered for plaintiffs.
Upon appeal, defendants assert that Supreme Court committed reversible error in charging the jury that an easement is extinguished when a bona fide purchaser takes title without notice of the easement (see generally Russell v Perrone, 301 AD2d 835, 836 [2003], amended 1 AD3d 789 [2003]), because plaintiffs did not assert extinguishment by conveyance in their pleadings or introduce evidence regarding the theory at trial. Defendants argue that they were unfairly surprised by Supreme Court‘s sua sponte introduction of the issue into the case at the time it charged the jury. They maintain that insertion of the charge in this manner confused the jury, as evidenced by an inconsistency
Although defendants excepted to the charge regarding extinguishment by conveyance on the ground that it was an incorrect statement of the law, a position they have now abandoned, they failed to advance the argument now raised on appeal—that they were surprised by the charge—before the jury retired to consider the verdict (see Bichler v Lilly & Co., 55 NY2d 571, 583-584 [1982]; Ellsworth v Chan, 270 AD2d 811, 811-812 [2000], lv denied 95 NY2d 757 [2000]; Liebgott v City of New York, 213 AD2d 606, 606 [1995]; Nelson v City of New Rochelle, 154 AD2d 661, 661 [1989]; see also 1 Newman, New York Appellate Practice § 2.05 [6], at 2-66-2-67 [2004]). Nor did defendants seek clarification of the verdict despite Supreme Court‘s stated concerns that the verdict was inconsistent and that a new trial might be necessary (see Leonard v Unisys Corp., 238 AD2d 747, 749 [1997]). Thus, defendants failed to preserve the precise issue presented for our review by appropriate request or exception (see
Nevertheless, this Court has the discretion to order a new trial upon an unpreserved error in a jury instruction when that error is “so significant that the jury was prevented from fairly considering the issues at trial” (Pyptiuk v Kramer, 295 AD2d 768, 771 [2002], quoting Kilburn v Acands, Inc., 187 AD2d 988, 989 [1992]; see
We reject, however, defendants’ request that we direct that the new trial be limited in scope (see generally Enden v Nationwide Mut. Ins. Co., 251 AD2d 283, 283 [1998]; Ceravole v Giglio, 186 AD2d 170, 170-171 [1992]) to effectively preclude plaintiffs from amending their pleadings to assert the defenses of extinguishment by conveyance and adverse possession to defendants’ counterclaim. Defendants assert that introduction of these theories would prejudice them by requiring the reopening of discovery. We note, however, that “[m]erely because the amendment [of the pleadings] may require defendants to conduct additional discovery does not, alone, constitute sufficient grounds to justify denial of the motion” (Garrison v Clark Mun. Equip., 239 AD2d 742, 743 [1997]). Thus, we decline to limit the scope of the new trial and leave the decision of whether to allow the amendment of the pleadings to the trial court‘s sound discretion (see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]). Finally, defendants’ remaining contentions are either rendered academic by our decision, unsupported by the record or otherwise lacking in merit.
Cardona, P.J., Carpinello, Mugglin and Lahtinen, JJ., concur. Ordered that the judgment and order are reversed, as a matter of discretion in the interest of justice, motion to set aside the verdict granted, and matter remitted for a new trial, with costs to abide the event.
Mercure, J.
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(如果文档不符合法律意见标准) --- (此处由于没有违反标准，返回完整HTML)respondent‘s sexual abuse of the child on various dates between January 2000 and July 2003. Following a fact-finding hearing, Family Court sustained the abuse petition.
Respondent now appeals, contending that the child‘s out-of-court statements were not sufficiently corroborated to prove sexual abuse by a preponderance of the evidence. We disagree. A child‘s unsworn, out-of-court statement “may be corroborated by any evidence tending to support its reliability, and a relatively low degree of corroborative evidence is sufficient in abuse proceedings” (Matter of Joshua QQ., 290 AD2d 842, 843 [2002] [citation omitted]). Our standard of review recognizes that the reliability of the corroboration is a determination entrusted in the first instance to Family Court‘s broad discretion (see Matter of Frank Y., 11 AD3d 740, 742 [2004]; Matter of Joshua QQ., supra at 843). Further, it was for Family Court to resolve the credibility issues raised by the conflicting testimony, and its determination will not be disturbed unless clearly unsupported by the evidence (see Matter of Martha Z., 288 AD2d 706, 707 [2001]; Matter of Kathleen OO., 232 AD2d 784, 785 [1996]).
The child‘s consistent, explicit and age-inappropriate knowledge of sexuality as well as the testimony of Sarah Walsh, a senior clinical social worker, corroborated her out-of-court statements. Walsh testified as to behaviors commonly manifested by child victims of abuse. Then, based on the accounts by others of the child‘s statements and behavior, Walsh opined that the child‘s behavior, such as her knowledge of sexual detail and reports of progressively more intrusive contact, was typical and consistent with that of a victim of sexual abuse. In addition, Family Court properly considered respondent‘s concession that sexual contact took place and his unlikely claim that the actual perpetrator was an adult neighbor who had allegedly entered the child‘s bedroom through a window in the middle of the night. Giving due consideration to Family Court‘s assessment of the credibility of the witnesses, we conclude that the court did not abuse its discretion in finding that the child‘s statements were sufficiently corroborated (see Matter of Frank Y., supra at 742). As the evidence was both sufficient and given appropriate weight, we decline to disturb Family Court‘s finding of abuse.
Mercure, J.P., Peters, Spain and Mugglin, JJ., concur. Ordered that the orders are affirmed, without costs.
Mercure, J. Appeals (1) from a judgment of the Supreme Court (Malone, Jr., J.), entered October 25, 2004 in Schoharie County, upon a verdict rendered in favor of plaintiffs, and (2) from an order of said court, entered October 19, 2004 in Schoharie County, which denied defendants’ motion to set aside the verdict.
In 2001, plaintiffs purchased their property from Rhoda Abrams, who had acquired it in 1956. Abrams claimed that upon acquiring the property, she blocked access to an old road leading to defendants’ now otherwise land-locked property until 2001, when defendants began using the road. Plaintiffs commenced this action to quiet title to the old road and asserted that defendants had trespassed on their property. In their bill of particulars, plaintiffs asserted that Abrams had taken steps to adversely possess the road. Defendants counterclaimed, seeking to enjoin plaintiffs from blocking the road and alleging that it was accessible to them as a public highway or, alternatively, via an easement. Following a trial, the jury found for plaintiffs based on an issue that had not been pleaded or litigated, determining that Abrams had purchased the property without actual or constructive notice of any easement, thereby extinguishing the easement. Supreme Court denied defendants’ subsequent motion to set aside the verdict and, thereafter, judgment was entered for plaintiffs.
Upon appeal, defendants assert that Supreme Court committed reversible error in charging the jury that an easement is extinguished when a bona fide purchaser takes title without notice of the easement (see generally Russell v Perrone, 301 AD2d 835, 836 [2003], amended 1 AD3d 789 [2003]), because plaintiffs did not assert extinguishment by conveyance in their pleadings or introduce evidence regarding the theory at trial. Defendants argue that they were unfairly surprised by Supreme Court‘s sua sponte introduction of the issue into the case at the time it charged the jury. They maintain that insertion of the charge in this manner confused the jury, as evidenced by an inconsistency in the verdict.* As such, defendants contend that the claimed error is fundamental. We agree.
Although defendants excepted to the charge regarding extinguishment by conveyance on the ground that it was an incorrect statement of the law, a position they have now abandoned, they failed to advance the argument now raised on appeal—that they were surprised by the charge—before the jury retired to consider the verdict (see Bichler v Lilly & Co., 55 NY2d 571, 583-584 [1982]; Ellsworth v Chan, 270 AD2d 811, 811-812 [2000], lv denied 95 NY2d 757 [2000]; Liebgott v City of New York, 213 AD2d 606, 606 [1995]; Nelson v City of New Rochelle, 154 AD2d 661, 661 [1989]; see also 1 Newman, New York Appellate Practice § 2.05 [6], at 2-66-2-67 [2004]). Nor did defendants seek clarification of the verdict despite Supreme Court‘s stated concerns that the verdict was inconsistent and that a new trial might be necessary (see Leonard v Unisys Corp., 238 AD2d 747, 749 [1997]). Thus, defendants failed to preserve the precise issue presented for our review by appropriate request or exception (see
Nevertheless, this Court has the discretion to order a new trial upon an unpreserved error in a jury instruction when that error is “so significant that the jury was prevented from fairly considering the issues at trial” (Pyptiuk v Kramer, 295 AD2d 768, 771 [2002], quoting Kilburn v Acands, Inc., 187 AD2d 988, 989 [1992]; see
We reject, however, defendants’ request that we direct that the new trial be limited in scope (see generally Enden v Nationwide Mut. Ins. Co., 251 AD2d 283, 283 [1998]; Ceravole v Giglio, 186 AD2d 170, 170-171 [1992]) to effectively preclude plaintiffs from amending their pleadings to assert the defenses of extinguishment by conveyance and adverse possession to defendants’ counterclaim. Defendants assert that introduction of these theories would prejudice them by requiring the reopening of discovery. We note, however, that “[m]erely because the amendment [of the pleadings] may require defendants to conduct additional discovery does not, alone, constitute sufficient grounds to justify denial of the motion” (Garrison v Clark Mun. Equip., 239 AD2d 742, 743 [1997]). Thus, we decline to limit the scope of the new trial and leave the decision of whether to allow the amendment of the pleadings to the trial court‘s sound discretion (see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]). Finally, defendants’ remaining contentions are either rendered academic by our decision, unsupported by the record or otherwise lacking in merit.
Cardona, P.J., Carpinello, Mugglin and Lahtinen, JJ., concur. Ordered that the judgment and order are reversed, as a matter of discretion in the interest of justice, motion to set aside the verdict granted, and matter remitted for a new trial, with costs to abide the event.
Mercure, J.