Humberstone v. Wheaton, 21 A.D.3d 1416 (N.Y. App. Div. 2005). · Go Syfert
Humberstone v. Wheaton, 21 A.D.3d 1416 (N.Y. App. Div. 2005). Cases Citing This Book View Copy Cite
14 citation events (14 in the last 25 years) across 3 distinct courts.
Strongest positive: S.P. v. M.P. (nyappdiv, 2022-07-08)
Top citers, strongest first. 9 distinct citers. How cited ↗
discussed Cited as authority (rule) S.P. v. M.P.
N.Y. App. Div. · 2022 · confidence medium
In addition, the court properly precluded testimony of a child protective services caseworker and the admission in evidence of the related investigatory file because the mother failed to establish the applicability of a statutory provision allowing her to introduce the unfounded child protective service reports or testimony concerning those reports ( see Matter of Brown v Simon , 123 AD3d 1120, 1122 [2d Dept 2014], lv denied 25 NY3d 902 [2015]; Matter of Brockington v Alexander , 26 AD3d 884, 885 [4th Dept 2006]; Matter of Humberstone v Wheaton , 21 AD3d 1416, 1417 [4th Dept 2005]).
discussed Cited as authority (rule) Estate of Kathryn Essig v. Essig
N.Y. App. Div. · 2021 · confidence medium
Defendant waived that contention inasmuch as defendant's counsel stated that he had no objection to the bank statements being admitted in evidence ( see Matter of Humberstone v Wheaton , 21 AD3d 1416, 1417 [4th Dept 2005]; see also Matter of Cuttino v New York State Comptroller , 80 AD3d 1067, 1068 [3d Dept 2011]).
discussed Cited as authority (rule) Morrissey v. Morrissey
N.Y. App. Div. · 2015 · confidence medium
In any event, even assuming, arguendo, that the court erred in transferring temporary custody to the father, we conclude that reversal is not required because the court “subsequently conducted the requisite evidentiary hearing, and the record of that hearing fully supports the court’s determination following the hearing” (Matter of Humberstone v Wheaton, 21 AD3d 1416, 1418 [2005]; see Matter of Ward v Ward, 89 AD3d at 1519 ).
discussed Cited as authority (rule) Morrissey v. Morrissey
N.Y. App. Div. · 2015 · confidence medium
In any event, even assuming, arguendo, that the court erred in transferring temporary custody to the father, we conclude that reversal is not required because the court “subsequently conducted the requisite evidentiary hearing, and the record of that hearing fully supports the court’s determination following the hearing” (Matter of Humberstone v Wheaton, 21 AD3d 1416, 1418 [2005]; see Matter of Ward v Ward, 89 AD3d at 1519 ).
discussed Cited as authority (rule) Matter of Brown v. Simon
N.Y. App. Div. · 2014 · confidence medium
Similarly, the mother did not establish the applicability of a statutory provision that would allow her to introduce the entire case record of the CPS investigation (see Family Court Act § 651-a; see also Social Services Law §' 422 [5] [b] [i]; Matter of Brockington v Alexander, 26 AD3d 884, 885 [2006]; Matter of Humberstone v Wheaton, 21 AD3d 1416, 1417 [2005]).
discussed Cited as authority (rule) Ward v. Ward
N.Y. App. Div. · 2011 · confidence medium
In any event, even assuming, arguendo, that the court erred in transferring temporary custody to the father, we conclude that reversal of the order in appeal No. 1 is not required because the court “subsequently conducted the requisite evidentiary hearing, and the record of that hearing fully supports the court’s determination following the hearing” (Matter of Humberstone v Wheaton, 21 AD3d 1416, 1418 [2005]; see Matter of Darryl B.W. v Sharon M.W, 49 AD3d 1246 [2008]).
discussed Cited as authority (rule) D.M. v. J.E.M. (2×)
N.Y.C. Fam. Ct. · 2009 · confidence medium
In Matter of Humberstone v Wheaton ( 21 AD3d 1416, 1417 [2005]), the Appellate Division, Fourth Department, held, it was not error for the trial court to deny admission into evidence of an unfounded report of sexual abuse of the parties’ daughter sought by the respondent in that case as the respondent did not fall within any statutory provision allowing respondent to introduce an unfounded report into evidence.
discussed Cited as authority (rule) Darryl B.W. v. Sharon M.W.
N.Y. App. Div. · 2008 · confidence medium
Nevertheless, the error does not require reversal inasmuch as the JHO “subsequently conducted the requisite evidentiary hearing, and the record of that hearing fully supports the [JHO’s] determination following the hearing” (Matter of Humberstone v Wheaton, 21 AD3d 1416, 1418 [2005]; see generally Matter of Westfall v Westfall, 28 AD3d 1229, 1230 [2006], lv denied 7 NY3d 706 [2006]; Matter of Booth v Booth, 8 AD3d 1104, 1104-1105 [2004], lv denied 3 NY3d 607 [2004]).
cited Cited "see" Chadwick v. Gioia
N.Y. App. Div. · 2006 · signal: see · confidence high
Hosp., 278 AD2d 827 , 828 [2000], lv denied 96 NY2d 710 [2001]; Sandoval v Stanley Works & Tools Div., 261 AD2d 885 [1999]; see generally Matter of Humberstone v Wheaton, 21 AD3d 1416, 1417 [2005]).
Retrieving the full opinion text from the archive…
In the Matter of Timothy Humberstone
v.
Amy Wheaton
Appellate Division of the Supreme Court of the State of New York.
Sep 30, 2005.
21 A.D.3d 1416
Cited by 12 opinions  |  Published

[*1417] Appeal from an order of the Family Court, Monroe County (John J. Rivoli, J.), entered June 24, 2004 in a proceeding pursuant to Family Court Act article 6. The order awarded sole custody and physical residence of the parties’ children to petitioner, with visitation to respondent under specified conditions.

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 in a proceeding pursuant to Family Court Act article 6 that awarded sole custody and physical residence of the parties’ children to petitioner, with visitation to respondent under specified conditions. Contrary to the contention of respondent, she did not fall within any statutory provision allowing her to introduce into evidence an unfounded report of sexual abuse of the parties’ daughter (see Family Ct Act § 651-a; see also Social Services Law § 422 [5] [b] [i], [ii]; cf. Matter of Youngok Lim v Sangbom Lyi, 299 AD2d 763, 766-767 [2002]), and Family Court did not err in refusing to admit the report in evidence. Because the unfounded report was inadmissible, the court also did not err in refusing to permit its author to testify with respect to it. Respondent waived her present contention concerning the admissibility of an “evaluation team report” for one of her husband’s children from a previous marriage inasmuch as her attorney stated that she had no objection to that report when it was admitted in evidence (cf. Matter of Genevieve P., 11 AD3d 927 [2004]; see generally Custom Topsoil, Inc. v City of Buffalo, 12 AD3d 1162, 1163 [2004]). We reject respondent’s further contention that the testimony of a school guidance counselor concerning communications made to her by the child who was the subject of the “evaluation team report” should have been stricken from the record. Although respondent contends that the testimony should have been stricken because the child did not authorize the disclosure of those communications pursuant to CPLR 4508, the record establishes that the school guidance counselor was not a certified social worker. Thus, CPLR 4508 does not apply herein (cf. Perry v Fiumano, 61 AD2d 512, 516-517 [1978]). Furthermore, the court did not abuse its discretion in refusing to order psychological evaluations of all of the parties after the hearing was well under way (see Matter of Gray v Jones, 251 AD2d 765, 767 [1998]).

Finally, although the court erred in awarding temporary[*1418] custody of the parties’ children to petitioner without conducting an evidentiary hearing, that error does not warrant reversal of the order on appeal. The court subsequently conducted the requisite evidentiary hearing, and the record of that hearing fully supports the court’s determination following the hearing (see Matter of Smith v Patrowski, 226 AD2d 1073 [1996]; see also Cucinello v Cucinello, 234 AD2d 365, 366 [1996]). Present—Green, J.P., Hurlbutt, Scudder, Gorski and Lawton, JJ.