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When the trial court in a bench trial does not assess credibilityNovember 3, 2019

Matter of State of New York v Jesus H., 2019 NY Slip Op 07858 (1st Dept. 2019)

(1) ” With regard to the appropriate scope of this Court’s review on this appeal, it is well settled that as to the review of a judgment following a nonjury trial, this Court’s “authority is as [*2]broad as that of the trial court” and that “as to a bench trial [the Appellate Division] may render the judgment it finds warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses” (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983] [internal quotation marks omitted]; Green v William Penn Life Ins. Co. of N.Y., 74 AD3d 570, 571 [1st Dept 2010, Saxe, J., concurring]). “

(2) “Supreme Court is owed no deference in light of its lack of explanation or indication as to why it declined to credit the expert testimony underlying the diagnoses, while crediting the same experts’ diagnosis of ASPD (see e.g. Bernard v State of New York, 34 AD3d 1065, 1067 [3d Dept 2006] [where a trial court “did not resolve issues of credibility, no deference is owed”])

So for the appeals writers in my audience, this case will often give you the standard of review necessary seek reversal in an un-rebutted expert bench trial.

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