| Matter of Murphy v Woods |
| 2009 NY Slip Op 04469 [63 AD3d 1526] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Maureen M. Murphy, Respondent, v John B.Woods, Appellant. |
—[*1] Susan Basile Janowski, Law Guardian, Liverpool, for Emma R.W.
Appeal from an order of the Family Court, Onondaga County (George M. Raus, Jr., R.),entered February 25, 2008 in a proceeding pursuant to Family Court Act article 6. The order,inter alia, modified the visitation provisions of a prior order.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs and the matter is remitted to Family Court, Onondaga County, for a new hearingon the petition and cross petition in accordance with the following memorandum: Respondentfather appeals from an order that, inter alia, granted the relief sought by petitioner mother andmodified the visitation provisions of a prior order entered upon the stipulation of the parties. Weagree with the father that Family Court erred in permitting a "licensed mental health counselor,"who examined the parties' child and was called as a witness by the mother, to offer an opinionthat was based in part upon his interviews with collateral sources who did not testify at trial.There are two exceptions to the general rule requiring that opinion evidence be based on facts inthe record or on facts personally known to the witness: if the opinion is based upon out-of-courtmaterial "of a kind accepted in the profession as reliable in forming a professional opinion or if itcomes from a witness subject to full cross-examination on the trial" (Hambsch v New YorkCity Tr. Auth., 63 NY2d 723, 726 [1984] [internal quotation marks omitted]). Neitherexception applies in this case. At the fact-finding hearing, the expert testified that materialportions of his opinion were based not only upon his interviews with the parties, but also werebased on his interviews with collateral sources. On the record before us, we are unable todetermine the extent to which the expert relied on those collateral source interviews in forminghis opinion (cf. Matter of Mohammad vMohammad, 23 AD3d 476, 476-477 [2005]). Furthermore, the collateral sources did nottestify at trial, and there was no evidence establishing their reliability (see generallyHambsch, 63 NY2d at 725-726). We cannot conclude that the admission of the expert'sopinion is harmless error because, without the admission of that opinion or the testimony of thecollateral sources, there is insufficient evidence in the record to support the court'sdetermination. We therefore reverse the order and remit the matter to Family Court for a newhearing on the petition and cross petition before a different adjudicator.Present—Martoche, J.P., Smith, Centra, Fahey and Pine, JJ.