ARCIDINO v. McCARTHY

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Joseph R. ARCIDINO, Petitioner-Respondent, v. Melanie A. McCARTHY, Respondent-Appellant.

Decided: March 18, 2005

PRESENT:  SCUDDER, J.P., MARTOCHE, PINE, LAWTON, AND HAYES, JJ. Frank H. Hiscock, Legal Aid Society, Syracuse (Robert P. Rickert of Counsel), for Respondent-Appellant. Linda M. Campbell, Syracuse, for Petitioner-Respondent. Judith L. Alderman, Law Guardian, Fayetteville, for Mia A.

 Respondent appeals from an order that, inter alia, required her to return from North Carolina to live in Onondaga County with the parties' child and awarded petitioner sole custody of the child in the event that she failed to do so.   We reject respondent's contention that Family Court abused its discretion in granting petitioner's motion to preclude the testimony of two witnesses who treated the parties' child in North Carolina for behavioral problems and developmental delays.   The court granted petitioner's preclusion motion after respondent failed to comply with an order compelling discovery with respect to those two witnesses.   The court thereafter reserved decision on respondent's motion seeking to vacate the order granting petitioner's preclusion motion until the completion of a court-ordered independent evaluation of the parties and the child.   When respondent refused to bring the child to Syracuse for the evaluation, the court denied respondent's motion.   We conclude that the court properly “impose[d] a sanction commensurate with the particular disobedience [the sanction was] designed to punish, and [went] no further” (Matter of Landrigen v. Landrigen, 173 A.D.2d 1011, 1012, 569 N.Y.S.2d 843).   Furthermore, both respondent and the child's former pediatrician testified with respect to the child's behavioral problems and developmental delays, and the pediatrician testified that, in her opinion, the child would receive more effective treatment in the team-oriented approach utilized by the treatment providers in North Carolina.   Thus, contrary to the contention of respondent, she was not denied the opportunity to present evidence necessary for the court to determine the best interests of the child (cf. Matter of Stukes v. Ryan, 289 A.D.2d 623, 624, 733 N.Y.S.2d 541).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: