Musumeci v. Musumeci

Appellate Division of the Supreme Court of the State of New York

Dec 20, 1999

Versions:267 A.D.2d 365

700 N.Y.S.2d 726

1999 N.Y. App. Div. LEXIS 13166

—In an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Suffolk County (Costello, J.), dated November 23, 1998, as awarded custody of the infant children to the plaintiff wife.

Ordered that the judgment is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings in accordance herewith; and it is further,

Ordered that" pending a new determination, custody of the parties’ infant children shall remain with the wife.

The Supreme Court improperly precluded the defendant from cross-examining the court-appointed forensics expert and from calling his own forensics expert (see, Matter of Friedel v Board of Regents, 296 NY 347; see also, People v Ramistella, 306 NY 379; People v Hill, 161 AD2d 506). Accordingly, the defendant was denied his right to properly present his case on the issue of custody.

The defendant’s remaining contentions raised in his appeals from the intermediate orders are without merit or academic in light of the above determination (see, Musumeci v Musumeci, 267 AD2d 364 [decided herewith]). Santucci, J. P., Joy, Friedmann and Goldstein, JJ., concur.