Devon S. v. B–s

• Decision Date: 08 March 2011
• Parties: DEVON S., Petitioner,v.AUNDREA B.–S., Respondent.
• Court: New York Family Court

32 Misc.3d 341
924 N.Y.S.2d 233
267 Ed. Law Rep. 805
2011 N.Y. Slip Op. 21163

DEVON S., Petitioner,
v.
AUNDREA B.–S., Respondent.

Family Court, Kings County, New York.

March 8, 2011.

[924 N.Y.S.2d 235]

Megan J. Hickey, Esq. of Hughes Hubbard & Reed LLP, appeared in support of the motion.

[924 N.Y.S.2d 236]

Stella Arsenakos, Esq. appeared in opposition to the motion.Hilarie Chacker, Esq., The Children's Law Center, appeared in opposition to the motion.ANN E. O'SHEA, J.

Upon consideration of the foregoing cited papers, [32 Misc.3d 342] respondent's motion to preclude the admission of records produced by Tangier Smith Elementary School is granted except to the extent indicated below. The reasons for the decision are set forth below.

In this proceeding, petitioner-father (“father”) seeks custody of the parties' son, N.S., in modification of a prior order of this court, which awarded custody to respondent-mother (“Mother”). The father and mother were both represented by counsel, and an attorney was assigned to represent N.S. (“the Attorney for the Child” or “the AFC,” or “the child's attorney”). After the father and mother rested, the AFC presented her witnesses. At the conclusion of their testimony, the AFC informed the Court and counsel that she intended to submit records respecting N.S. subpoenaed but not yet received from Tangier Smith Elementary School (“Tangier” or “the school”), the school in which N.S. is presently enrolled for the 2010–2011 school year, and, except for those documents, she rested. The AFC was directed to provide copies of the school records to counsel for the father and mother once she received them, and I ruled that, subject to objection by the mother or father, the records would be admitted into evidence. After receiving and reviewing the records, the attorneys for the mother filed the instant motion to preclude their admission on the grounds that the records are inadmissible hearsay. The AFC and the father [32 Misc.3d 343] argue the documents in question are business records admissible under CPLR 4518.

At the outset, it cannot be gainsaid that a child's academic and social progress in school and the relative capacity of each parent to foster the child's intellectual development are often major considerations in custody disputes ( see, e.g., Porges v. Porges, 63 A.D.2d 712, 405 N.Y.S.2d 115 [2d Dept.1978] ), and evidence bearing on those issues is certainly relevant. The question presented here is not whether evidence pertaining to those issues is relevant and important; it is how such evidence must be presented in court. It is that question which is addressed in this decision.

Hearsay is a statement made out of court offered for the truth of the fact asserted in the statement ( see, e.g., People v. Goldstein, 6 N.Y.3d 119, 127, 810 N.Y.S.2d 100, 843 N.E.2d 727 [2005]; People v. Huertas, 75 N.Y.2d 487, 491–92, 554 N.Y.S.2d 444, 553 N.E.2d 992 [1990] ). Hearsay evidence as a general rule is inadmissible as a matter of due process and fundamental fairness, because the party against whom the hearsay statement is offered would otherwise be denied the opportunity to cross-examine the absent declarant to test his or her credibility or capacity to observe, remember or relate ( see People v. Settles, 46 N.Y.2d 154, 166, 412 N.Y.S.2d 874, 385 N.E.2d 612 [1978] ). New York is relatively strict in applying the hearsay rule to exclude oral and written statements and even nonverbal conduct intended as an assertion ( People v. Charles, 137 Misc.2d 111, 519 N.Y.S.2d 921 (Sup.Ct. Kings County [1987] ) ).

There are a number of exceptions to the rule, which permit the admission of hearsay if the proponent demonstrates that the evidence is reliable

[924 N.Y.S.2d 237]

( Nucci v. Proper, 95 N.Y.2d 597, 602, 721 N.Y.S.2d 593, 744 N.E.2d 128 [2001] ). One such exception applies to business records made in the regular course of business that are offered for the truth of their contents. The “business-records” exception is codified in CPLR 4518(a), which provides in relevant part:

“Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.”

The exception is premised on the notion that “records systematically made for the conduct of a business as a business are [32 Misc.3d 344] inherently trustworthy because they are routine reflections of day-to-day operations and because the entrant's obligation is to have them truthful and accurate for purposes of the conduct of the enterprise....” ( People v. Kennedy, 68 N.Y.2d 569, 578, 510 N.Y.S.2d 853, 503 N.E.2d 501 [1986] ).

Before such records may be admitted, the proponent must establish specific foundational facts: “ first, that the record be made in the regular course of business—essentially, that it reflect a routine, regularly conducted business activity, and that it be needed and relied on in the performance of the functions of the business; second, that it be the regular course of such business to make the record (a double requirement of regularity)—essentially, that the record be made pursuant to established procedures for the routine, habitual, systematic making of such a record; and third, that the record be made at or about the time of the event being recorded—essentially, that recollection be fairly accurate and the habit or routine of making the entries assured” ( id. at 579–80, 510 N.Y.S.2d 853, 503 N.E.2d 501).

The School Records In General

The documents in question include records from two different schools: Tangier Smith Elementary School (“Tangier”), the school N.S. currently attends, and Southeast Elementary School (“Southeast”), the school N.S. attended...