protracted hearing in New York

2015Under the circumstances of this case, including the protracted hearing conducted over the course of 44 nonconsecutive days (see 22 NYCRR 202.16 [1]), the delay thereafter in issuing the order after the hearing, and “the pace of the psychological development of the child whose best interest is the primary concern” (Matter of Joseph F. v Patricia F., 32 AD3d 938, 939 [2006]), we find that the record before us is no longer sufficient for determining the ultimate issues presented herein (see Matter of Michael B., 80 NY2d 299, 318 [1992]; Matter of Bosque v Blazejewski-D’Amato, 123 AD3d 704 [2014];

2015Under the circumstances of this case, including the protracted hearing conducted over the course of 44 nonconsecutive days (see 22 NYCRR 202.16 [1]), the delay thereafter in issuing the order after the hearing, and “the pace of the psychological development of the child whose best interest is the primary concern” (Matter of Joseph F. v Patricia F., 32 AD3d 938, 939 [2006]), we find that the record before us is no longer sufficient for determining the ultimate issues presented herein (see Matter of Michael B., 80 NY2d 299, 318 [1992]; Matter of Bosque v Blazejewski-D’Amato, 123 AD3d 704 [2014];

2015Accordingly, the order must be reversed insofar as appealed from and the matter remitted to the Supreme Court, Westchester County, for a re-opened expedited hearing solely to receive an updated forensic mental health evaluation conducted by the same court-appointed expert, Dr. Stephen Paul Herman, if he is available (see Cervera v Bressler, 50 AD3d 837, 838 [2008]; Pudalov v Pudalov, 308 AD2d 524 [2003]), and an in camera examination of the child, now 10 years old.

2015Accordingly, the order must be reversed insofar as appealed from and the matter remitted to the Supreme Court, Westchester County, for a re-opened expedited hearing solely to receive an updated forensic mental health evaluation conducted by the same court-appointed expert, Dr. Stephen Paul Herman, if he is available (see Cervera v Bressler, 50 AD3d 837, 838 [2008]; Pudalov v Pudalov, 308 AD2d 524 [2003]), and an in camera examination of the child, now 10 years old.

2015Under the circumstances of this case, including the protracted hearing conducted over the course of 44 nonconsecutive days (see 22 NYCRR 202.16 [1]), the delay thereafter in issuing the order after the hearing, and “the pace of the psychological development of the child whose best interest is the primary concern” (Matter of Joseph F. v Patricia F., 32 AD3d 938, 939 [2006]), we find that the record before us is no longer sufficient for determining the ultimate issues presented herein (see Matter of Michael B., 80 NY2d 299, 318 [1992]; Matter of Bosque v Blazejewski-D’Amato, 123 AD3d 704 [2014];

2015Under the circumstances of this case, including the protracted hearing conducted over the course of 44 nonconsecutive days (see 22 NYCRR 202.16 [1]), the delay thereafter in issuing the order after the hearing, and “the pace of the psychological development of the child whose best interest is the primary concern” (Matter of Joseph F. v Patricia F., 32 AD3d 938, 939 [2006]), we find that the record before us is no longer sufficient for determining the ultimate issues presented herein (see Matter of Michael B., 80 NY2d 299, 318 [1992]; Matter of Bosque v Blazejewski-D’Amato, 123 AD3d 704 [2014];

2026Notwithstanding our concerns about the court's protracted inquiry into the educational situation of defendant's then-five-year-old son, the delay here was not unreasonable, as it was not excessive and was occasioned by "plausible reasons" that should not trigger a loss of jurisdiction ( see People v Drake , 61 NY2d 359, 366 [1984]; People v Summers , 80 AD3d 520 [1st Dept 2011], lv denied 16 NY3d 863 [2011]).

2026Notwithstanding our concerns about the court's protracted inquiry into the educational situation of defendant's then-five-year-old son, the delay here was not unreasonable, as it was not excessive and was occasioned by "plausible reasons" that should not trigger a loss of jurisdiction ( see People v Drake , 61 NY2d 359, 366 [1984]; People v Summers , 80 AD3d 520 [1st Dept 2011], lv denied 16 NY3d 863 [2011]).

2009The record also supports the court’s decision not to follow the custody recommendation of the court-appointed psychologist since, as fully explained by the court, the persuasive force of the expert’s testimony was diminished by evidence relating to the mother’s rehabilitation and the father’s hostility toward the mother, which evidence was generated after the expert’s interview of the parties, preparation of her report, and testimony about that report early on in this protracted hearing (see Zelnik v Zelnik, 196 AD2d 700 [1993]; Matter of Hopkins v Wilkerson, 255 AD2d 319 [1998]).

2009The record also supports the court’s decision not to follow the custody recommendation of the court-appointed psychologist since, as fully explained by the court, the persuasive force of the expert’s testimony was diminished by evidence relating to the mother’s rehabilitation and the father’s hostility toward the mother, which evidence was generated after the expert’s interview of the parties, preparation of her report, and testimony about that report early on in this protracted hearing (see Zelnik v Zelnik, 196 AD2d 700 [1993]; Matter of Hopkins v Wilkerson, 255 AD2d 319 [1998]).

1956In the Mechanieville School Bist. case (supra) we cited the Erie Co. Water Auth. case (supra), which in turn relied, in part at least, on Matter of City of Rochester (Newn) ( 102 App. Div. 99 ) where the court, while recognizing that section 3375 of the Code of Civil Procedure (now, in substance, Condemnation Law, § 19) constituted the only specific authority for an appeal, said that the general rule applicable to special proceedings should obtain and that jurisdictional objections “ interposed at the threshold of the proceeding ought to be determined before the expense and delay of a protract

1956Appellant cites, also, our decision in Matter of Yaras v. Schenck ( 285 App. Div. 1209 , supra) as supporting a right of appeal.

1928In People v. Klein ( 185 App. Div. 86 ) the court held that the People might not prove at a trial admissions made to a fire marshal upon a previous protracted hearing where “ twelve to twenty witnesses were examined, being confronted with one another.” Though no subpoenas were issued and no witnesses were sworn, the suspected persons were there brought to the hearing “ practically under arrest.” It was conducted formally, and a stenographer took down at least part of the proceedings.