FALABELLA v. MURRAY (1999)

In an action for custody of a minor child, the defendant mother appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (McNulty, J.), dated July 15, 1998, as denied her motion for a new trial on the ground, inter alia, of newly-discovered evidence.

ORDERED that the order is affirmed insofar as appealed from, with costs.

Contrary to the mother's contention, the report of her own psychologist does not constitute evidence which was “newly-discovered” within the meaning of CPLR 5015(a)(2).   The mother was aware of the existence of this report before trial, but failed to call her psychologist to testify, with the result that the report was never admitted into evidence.   Moreover, the admission of the report, which contained, inter alia, the opinion of the mother's psychologist that the mother was a “concerned, capable and adequate parent”, would not have produced a different result.   Even without the report, the court found that the mother was an adequate parent.   Moreover, the report did not address the issue found to be pivotal by the court, namely, which parent, if awarded custody, would foster a healthier relationship between the child and the non-custodial parent.

The mother's remaining contention is without merit.

MEMORANDUM BY THE COURT.