| Lieberman v Lieberman |
| 2013 NY Slip Op 08052 [112 AD3d 583] |
| December 4, 2013 |
| Appellate Division, Second Department |
| Hannah Lieberman, Appellant, v AdamLieberman, Respondent. |
—[*1] The Edelsteins, Faegenburg & Brown, LLP, New York, N.Y. (Adam Edelstein ofcounsel), for respondent. Cheryl S. Solomon, Brooklyn, N.Y., attorney for the children.
In a matrimonial action, the plaintiff appeals (1), as limited by her brief, from statedportions of an order of the Supreme Court, Kings County (Prus, J.), dated November 30,2011, which, inter alia, denied that branch of her motion which was for a new forensicevaluation by a mental health professional listed in the directory of mental healthprofessionals of the Appellate Division, First and Second Judicial Departments, and (2)from an order of the same court dated December 9, 2011, which denied that branch of thesame motion which was for a mistrial pursuant to CPLR 4402.
Ordered that the order dated November 30, 2011, is affirmed insofar as appealedfrom, without costs or disbursements; and it is further,
Ordered that the order dated December 9, 2011, is affirmed, without costs ordisbursements.
This matrimonial action was commenced on June 26, 2009. Thereafter, the SupremeCourt appointed a mental health expert to evaluate the parties and the subject children.The expert issued his report in December 2009. The trial commenced in June 2010, andthe expert's testimony was completed soon thereafter. On March 31, 2011, before the trialhad been completed, the court granted the motion of the plaintiff's then-attorney to berelieved as the plaintiff's attorney. The court then appointed new counsel to represent theplaintiff. On November 21, 2011, the plaintiff, by her new counsel, moved, inter alia, fora mistrial pursuant to CPLR 4402 or, in the alternative, for a new forensic evaluation bya mental health professional listed in the directory of mental health professionals of theAppellate Division, First and Second Judicial Departments. The Supreme Court deniedthose branches of the motion.
Pursuant to the Rules of the Appellate Division, First Department (22 NYCRR) part[*2]623, and Second Department (22 NYCRR) part 680,a panel of social workers, psychologists, and psychiatrists has been established in theFirst and Second Judicial Departments to assure that the court and the parties have accessto qualified mental health professionals who are available to evaluate the parties andassist the court in reaching an appropriate decision regarding, inter alia, custody andvisitation matters (see 22 NYCRR 623.1, 680.1). A court may appoint a mentalhealth professional from that panel to evaluate adults and children in a case involving,among other things, custody and visitation, or may, upon a finding of good cause setforth in the order of appointment, appoint a mental health professional who is not amember of the panel (see 22 NYCRR 623.5 [a]; 680.5 [a]).
The decision to grant or deny a mistrial is within the sound discretion of the trialcourt (see Frankson v Philip Morris Inc., 31 AD3d 372, 373 [2006]; Chung vShakur, 273 AD2d 340 [2000]; Taylor v Port Auth. of N.Y. & N.J., 202AD2d 414 [1994]). Here, the Supreme Court did not improvidently exercise its discretionin denying that branch of the plaintiff's motion which was for a mistrial pursuant toCPLR 4402, which was based upon her contention that the court erred in appointing aforensic evaluator who was not a member of the panel of mental health professionalspromulgated by the court rules. Under the circumstances of this case, which involvesprotracted proceedings affecting the welfare of children, and a lengthy delay in makingthe motion for a mistrial, the court did not improvidently exercise its discretion indeclining to declare a mistrial (see Matter of Khan v Dolly, 39 AD3d 649 [2007]).
Based upon the foregoing, the Supreme Court properly denied that branch of theplaintiff's motion which was for a new forensic evaluation by a mental healthprofessional listed in the directory of mental health professionals of the AppellateDivision, First and Second Judicial Departments.
The plaintiff's remaining contentions are without merit. Skelos, J.P., Balkin,Leventhal and Sgroi, JJ., concur.
Motion by the respondent on appeals from two orders of the Supreme Court, KingsCounty, dated November 30, 2011, and December 9, 2011, respectively, to dismiss theappeals on the ground that no appeal lies from a trial ruling. By decision and order onmotion of this Court dated April 19, 2013, the motion was held in abeyance and referredto the panel of Justices hearing the appeals for determination upon the argument orsubmission thereof.
Upon the papers filed in support of the motion and no papers having been filed inopposition or in relation thereto, and upon the submission of the appeals, it is
Ordered that the motion is denied. Skelos, J.P., Balkin, Leventhal and Sgroi, JJ.,concur.