Opinion Evidence - Admissibility of Expert Testimony - Basis for Admission of Expert Opinion
The Court of Appeals described the circumstances in which the testimony of an "expert" witness is admissible:
"It may be broadly stated as a general proposition that there are two classes of cases in which expert testimony is admissible. To the one class belong those cases in which the conclusions to be drawn by the jury depend upon the existence of facts which are not common knowledge and which are peculiarly within the knowledge of men whose experience or study enables them to speak with authority upon the subject. If in such cases, the jury with all the facts before them can form a conclusion thereon, it is their sole province to do so. In the other class we find those cases in which the conclusions to be drawn from the facts stated, as well as knowledge of the facts themselves, depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence. In such cases, not only the facts but the conclusions to which they lead, may be testified to by qualified experts." [1]
Formerly, where an expert had personal knowledge of facts not contained in the record, he had to testify to those facts before an opinion was rendered so that the jury may evaluate the worth of that opinion. The common law tradition required that the opinion of an expert witness be elicited by means of a hypothetical question. The expert was told to assume various facts and then to give an opinion on the basis of those assumptions. Under CPLR 4515, use of the hypothetical question is no longer mandatory. The option to use the hypothetical question lies with counsel unless the court decides to require it in the interests of an orderly presentation of the evidence. CPLR 4515 relaxes the timing as to disclosure of the factual basis of the expert's opinion. The witness may state his opinion and reasons without first specifying the data upon which it is based. If the data are not specified prior to the expert's announcement of his or her opinion, they may be disclosed during the balance of the direct testimony. Alternatively, the rule permits the basis of the opinion to be withheld entirely until cross-examination, at which time the expert may be required to specify the data and other criteria supporting the opinion. In many cases, of course, the proponent of the expert testimony will want to establish the basis of the opinion during direct testimony in order to bolster the credibility of the witness. In any event, the judge has the authority to require that the basis of the opinion be specified during the direct testimony. [2]
In Wagman v. Bradshaw,[3] the Appellate Division stated the rule as follows: “It is well-settled that, to be admissible, opinion evidence must be based on one of the following: first, personal knowledge of the facts upon which the opinion rests; second, where the expert does not have personal knowledge of the facts upon which the opinion rests, the opinion may be based upon facts and material in evidence, real or testimonial; third, material not in evidence provided that the out-of-court material is derived from a witness subject to full cross-examination; and fourth, material not in evidence provided the out-of-court material is of the kind accepted in the profession as a basis in forming an opinion and the out-of-court material is accompanied by evidence establishing its reliability. Thus, the type of material upon which reliance is placed must be 'accepted in the profession as reliable' as the basis for a professional conclusion. Thus, it is not sufficient that the witness on the stand customarily relies upon the material. Only if that is common practice with the professional community from which the witness hails is the first prong of the professional test met. Second, even though the entire profession from which the witness on the stand hails relies upon hearsay material of a given type, the court must make a determination, based upon independent evidence, that the particular material utilized by the witness is, in fact, reliable.”
An expert witness may base his or her opinion, in part, on data that has not been introduced in evidence if it is of a type that is accepted in the expert's profession as reliable. The Court of Appeals has held [4] that if such out-of-court material consists of scientific methods or procedures, the reliability standard of the "Frye test" must be met.[5] In People v Angelo, [6] the trial court was held to have ruled properly in disallowing a psychiatrist from expressing an opinion concerning the defendant's mental condition where he relied, in part, on the results of a polygraph test that were not in evidence. Defendant made no showing, either in a Frye hearing or through relevant literature, of the polygraph’s reliability in this context.
In Hambsch v. New York City Transit Authority[7] the Court of Appeals stated this requirement quite explicitly: In order to qualify for the 'professional reliability' exception, there must be evidence establishing the reliability of the out of court material.[8]
An appraiser's bald opinions represent nothing but conclusory estimates and are entitled to no probative weight. [9] An appraiser's report is not entitled to any probative weight where it contains only conclusory estimates and fails to reflect adjustments which were made.[10]
The testimony of a psychiatric expert is admissible where the expert opinion is primarily based upon direct knowledge derived from the expert's psychiatric interviews of the parties and their children, alone and in combination. [11]
It is proper to allow a child's psychologist to testify concerning certain out-of-court statements made by the child, where those statements are offered to show the child's state of mind rather than to establish the truth of the matter asserted. [12]
It is proper to preclude a proposed expert witness from testifying where his proposed testimony is irrelevant to the issue before the court and is not based upon facts in evidence.[13]
An expert's opinion regarding a child's physical and mental condition post-2002 was hearsay, where it was based on documents that were not admitted into evidence at the hearing, and was thus inadmissible.[14]
[1] Dougherty v. Milliken, 163 N.Y. 527.
[2] Mandel v. Geloso, 206 A.D.2d 699, 614 N.Y.S.2d 645.
[3] 292 AD2d 84, 86-87, 739 N.Y.S.2d 421 (2d Dept. 2002); see also Jemmott v Lazofsky, 5 A.D.3d 558, 772 N.Y.S.2d 840) (2d Dept., 2004).
[4] People v. Angelo, 88 N.Y.2d 217, 644 N.Y.S.2d 460, 666 N.E.2d 1333 (1988).
[5] See Frye v. United States, C.A. (D.C.Cir.) 1923, 293 F. 1013 (scientific evidence is admissible only if it is generally accepted as reliable in the relevant scientific community).
In Matter of Bethany F, 85 A.D.3d 1588, 925 N.Y.S.2d 737 (4 Dept, 2011) the Appellate Division held that Family Court did not abuse its discretion in denying the respondents motion for a Frye hearing with respect to the admissibility of validation testimony of a court-appointed mental health counselor. "Once a scientific procedure has been proved reliable, a Frye inquiry need not be conducted each time such evidence is offered and courts may take judicial notice of its reliability, and other courts in New York State have admitted validation testimony of experts who have utilized the Sgroi method. The court-appointed counselor testified at the hearing that the Sgroi method was used by "all" counselors in the field to validate allegations of sexual abuse. Inasmuch as a Frye hearing is required only where a party seeks to introduce testimony on a novel topic, and there was no indication in the record that the methods used by the court-appointed counselor to validate the allegations of sexual abuse in this case were novel, the father's motion for a Frye hearing was properly denied.
[6] 88 N.Y.2d 217, 644 N.Y.S.2d 460, 666 N.E.2d 1333 (1988).
[7] 63 NY2d 723, 480 N.Y.S.2d 195 (1984).
[8] In Jill S. v Steven S, 43 AD3d 724, 842 N.Y.S.2d 401 (1st Dept.,2007) the Appellate Division held that the Magistrate appropriately exercised his discretion in precluding petitioner's expert witness, inasmuch as the proposed testimony was irrelevant and not based on facts in evidence. Although the expert proposed to testify regarding the circumstances under which the child had left respondent's home in Ohio, she admitted that she had not re-evaluated the child since the parties' divorce proceeding three years earlier. Her proposed testimony was irrelevant to the issue of whether respondent's conduct sufficiently warranted the exercise of personal jurisdiction over him in the proceeding. The issue of whether respondent's conduct caused the child to flee Ohio was a question of fact, to which the child herself testified, and did not require an expert opinion. The expert’s opinion regarding the child's physical and mental condition post-2002 was hearsay, based on documents that were not admitted into evidence at the hearing, and was thus inadmissible.
In Murphy v Woods, 63 A.D.3d 1526, 879 N.Y.S.2d 648 (4th Dept, 2009) the Appellate Division held that Family Court erred in permitting a “licensed mental health counselor,” who examined the parties' child and was called as a witness by the mother, to offer an opinion that was based in part upon his interviews with collateral sources who did not testify at trial. There are two exceptions to the general rule requiring that opinion evidence be based on facts in the record or on facts personally known to the witness: if the opinion is based upon out-of-court material “of a kind accepted in the profession as reliable in forming a professional opinion or if it comes from a witness subject to full cross-examination on the trial” (citing Hambsch v New York City Tr. Auth., 63 NY2d 723, 726 [1984]). Neither exception applied in this case. At the fact-finding hearing, the expert testified that material portions of his opinion were based not only upon his interviews with the parties, but also were based on his interviews with collateral sources. On the record the Court was unable to determine the extent to which the expert relied on those collateral source interviews in forming his opinion. Furthermore, the collateral sources did not testify at trial, and there was no evidence establishing their reliability. It could not conclude that the admission of the expert's opinion was harmless error because, without the admission of that opinion or the testimony of the collateral sources, there was insufficient evidence in the record to support the court's determination. It reversed and remitted for a new hearing.
In Matter of Anthony WW, 86 A.D.3d 654, 927 N.Y.S.2d 407 (3d Dept., 2011) licensed psychologists who examined respondent, in their reports and in their trial testimony, made reference to statements about respondent attributed to other witnesses who did not testify at trial, none of which was admitted into evidence or was otherwise qualified for admission pursuant to a recognized exception to the rule against hearsay. Danser testified that, in forming his opinion, he relied on his interview with respondent, as well as the results of various psychological tests that he performed on him. Danser also reviewed records that petitioner had on file regarding respondent, including case, progress and supervision notes, all of which were compiled during a four-year period beginning in 2003, as well as documents describing mental health treatment that respondent received during this time period. While Danser did not testify that this evidence was commonly relied upon in his profession to perform such an evaluation, Family Court determined that it was proper for him to refer to it, because some of this evidence was contained in the trial testimony given by other witnesses or in records that had been properly admitted into evidence at trial. However, the court did acknowledge that some of the references in Danser's report should not have been admitted and, for that reason, directed that a section of his report, entitled "Review of Records," be stricken because it referred to evidence that had not been admitted at trial. Significantly, Danser was never asked what impact this redacted evidence had on his evaluation of respondent and what effect, if any, it had on his opinion regarding respondent's mental condition. Similar issues existed with Liotta's report and testimony, both of which were admitted into evidence at trial. When he was first retained to perform his evaluation, Liotta was provided with petitioner's complete file on respondent. Later, he was asked to return the file and then, pursuant to a court order, was provided with a limited record to review. Liotta was also directed to limit his review to the records provided and not base his evaluation on respondent's fitness as a parent on statements made by the mother about respondent or on any collateral interviews that he may have conducted with other individuals regarding respondent. However, it was clear from the content of his report, as well as his testimony at trial, that Liotta, in forming his final opinion regarding respondent's fitness as a parent, relied on observations of respondent made by his eldest son's mental health provider as well as on statements made by the mother about respondent. In addition, Liotta's interviews with respondent's caseworker and his current mental heath therapist were referenced in his report and obviously played a role in the opinion that he ultimately offered regarding respondent's mental illness and its impact on his ability to be a parent. Like Danser, Liotta was never asked if this evidence was normally relied on within his profession as appropriate for the performance of such an evaluation and, while some of it was redacted, including any reference to his interview with the mental health therapist, Liotta was never asked what impact this evidence had in formulating his final opinion as to respondent's fitness as a parent. As a result, a proper foundation was not laid for the admission of the testimony of either psychologist or their reports.
[9] County Dollar Corp. v. City of Yonkers, 97 A.D.2d 469, 467 N.Y.S.2d 666 (2 Dept., 1983).
[10] Matter of New York City Transit Authority, 160 A.D.2d 705, 553 N.Y.S.2d 785 (2 Dept., 1990).
[11] Balsz v. A & T Bus Co., 252 A.D.2d 458 [1998] (Testimony of the expert was admissible since the expert opinion was primarily based upon direct knowledge derived from the expert's psychiatric interviews of the parties and their children, alone and in combination).
[12] Matter of Noemi D, 43 A.D.3d 1303, 842 N.Y.S.2d 808 (4 Dept. 2007) (citing People v. Tosca, 98 N.Y.2d 660; People v. Felder, 37 N.Y.2d 779, 780-781; Matter of Mateo v. Tuttle, 26 AD3d 731, 732).
[13] Jill S. v Steven S, 43 AD3d 724, 842 N.Y.S.2d 401 (1st Dept.,2007) (Magistrate appropriately exercised his discretion in precluding petitioner's expert witness, inasmuch as the proposed testimony was irrelevant and not based on facts in evidence. Although the expert proposed to testify regarding the circumstances under which the child had left respondent's home in Ohio, she admitted that she had not re-evaluated the child since the parties' divorce proceeding three years earlier. Her proposed testimony was irrelevant to the issue of whether respondent's conduct sufficiently warranted the exercise of personal jurisdiction over him in the proceeding. The issue of whether respondent's conduct caused the child to flee Ohio was a question of fact, to which the child herself testified, and did not require an expert opinion.
[14] Jill S. v Steven S, 43 AD3d 724, 842 N.Y.S.2d 401 (1st Dept., 2007).
The Court of Appeals described the circumstances in which the testimony of an "expert" witness is admissible:
"It may be broadly stated as a general proposition that there are two classes of cases in which expert testimony is admissible. To the one class belong those cases in which the conclusions to be drawn by the jury depend upon the existence of facts which are not common knowledge and which are peculiarly within the knowledge of men whose experience or study enables them to speak with authority upon the subject. If in such cases, the jury with all the facts before them can form a conclusion thereon, it is their sole province to do so. In the other class we find those cases in which the conclusions to be drawn from the facts stated, as well as knowledge of the facts themselves, depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence. In such cases, not only the facts but the conclusions to which they lead, may be testified to by qualified experts." [1]
Formerly, where an expert had personal knowledge of facts not contained in the record, he had to testify to those facts before an opinion was rendered so that the jury may evaluate the worth of that opinion. The common law tradition required that the opinion of an expert witness be elicited by means of a hypothetical question. The expert was told to assume various facts and then to give an opinion on the basis of those assumptions. Under CPLR 4515, use of the hypothetical question is no longer mandatory. The option to use the hypothetical question lies with counsel unless the court decides to require it in the interests of an orderly presentation of the evidence. CPLR 4515 relaxes the timing as to disclosure of the factual basis of the expert's opinion. The witness may state his opinion and reasons without first specifying the data upon which it is based. If the data are not specified prior to the expert's announcement of his or her opinion, they may be disclosed during the balance of the direct testimony. Alternatively, the rule permits the basis of the opinion to be withheld entirely until cross-examination, at which time the expert may be required to specify the data and other criteria supporting the opinion. In many cases, of course, the proponent of the expert testimony will want to establish the basis of the opinion during direct testimony in order to bolster the credibility of the witness. In any event, the judge has the authority to require that the basis of the opinion be specified during the direct testimony. [2]
In Wagman v. Bradshaw,[3] the Appellate Division stated the rule as follows: “It is well-settled that, to be admissible, opinion evidence must be based on one of the following: first, personal knowledge of the facts upon which the opinion rests; second, where the expert does not have personal knowledge of the facts upon which the opinion rests, the opinion may be based upon facts and material in evidence, real or testimonial; third, material not in evidence provided that the out-of-court material is derived from a witness subject to full cross-examination; and fourth, material not in evidence provided the out-of-court material is of the kind accepted in the profession as a basis in forming an opinion and the out-of-court material is accompanied by evidence establishing its reliability. Thus, the type of material upon which reliance is placed must be 'accepted in the profession as reliable' as the basis for a professional conclusion. Thus, it is not sufficient that the witness on the stand customarily relies upon the material. Only if that is common practice with the professional community from which the witness hails is the first prong of the professional test met. Second, even though the entire profession from which the witness on the stand hails relies upon hearsay material of a given type, the court must make a determination, based upon independent evidence, that the particular material utilized by the witness is, in fact, reliable.”
An expert witness may base his or her opinion, in part, on data that has not been introduced in evidence if it is of a type that is accepted in the expert's profession as reliable. The Court of Appeals has held [4] that if such out-of-court material consists of scientific methods or procedures, the reliability standard of the "Frye test" must be met.[5] In People v Angelo, [6] the trial court was held to have ruled properly in disallowing a psychiatrist from expressing an opinion concerning the defendant's mental condition where he relied, in part, on the results of a polygraph test that were not in evidence. Defendant made no showing, either in a Frye hearing or through relevant literature, of the polygraph’s reliability in this context.
In Hambsch v. New York City Transit Authority[7] the Court of Appeals stated this requirement quite explicitly: In order to qualify for the 'professional reliability' exception, there must be evidence establishing the reliability of the out of court material.[8]
An appraiser's bald opinions represent nothing but conclusory estimates and are entitled to no probative weight. [9] An appraiser's report is not entitled to any probative weight where it contains only conclusory estimates and fails to reflect adjustments which were made.[10]
The testimony of a psychiatric expert is admissible where the expert opinion is primarily based upon direct knowledge derived from the expert's psychiatric interviews of the parties and their children, alone and in combination. [11]
It is proper to allow a child's psychologist to testify concerning certain out-of-court statements made by the child, where those statements are offered to show the child's state of mind rather than to establish the truth of the matter asserted. [12]
It is proper to preclude a proposed expert witness from testifying where his proposed testimony is irrelevant to the issue before the court and is not based upon facts in evidence.[13]
An expert's opinion regarding a child's physical and mental condition post-2002 was hearsay, where it was based on documents that were not admitted into evidence at the hearing, and was thus inadmissible.[14]
[1] Dougherty v. Milliken, 163 N.Y. 527.
[2] Mandel v. Geloso, 206 A.D.2d 699, 614 N.Y.S.2d 645.
[3] 292 AD2d 84, 86-87, 739 N.Y.S.2d 421 (2d Dept. 2002); see also Jemmott v Lazofsky, 5 A.D.3d 558, 772 N.Y.S.2d 840) (2d Dept., 2004).
[4] People v. Angelo, 88 N.Y.2d 217, 644 N.Y.S.2d 460, 666 N.E.2d 1333 (1988).
[5] See Frye v. United States, C.A. (D.C.Cir.) 1923, 293 F. 1013 (scientific evidence is admissible only if it is generally accepted as reliable in the relevant scientific community).
In Matter of Bethany F, 85 A.D.3d 1588, 925 N.Y.S.2d 737 (4 Dept, 2011) the Appellate Division held that Family Court did not abuse its discretion in denying the respondents motion for a Frye hearing with respect to the admissibility of validation testimony of a court-appointed mental health counselor. "Once a scientific procedure has been proved reliable, a Frye inquiry need not be conducted each time such evidence is offered and courts may take judicial notice of its reliability, and other courts in New York State have admitted validation testimony of experts who have utilized the Sgroi method. The court-appointed counselor testified at the hearing that the Sgroi method was used by "all" counselors in the field to validate allegations of sexual abuse. Inasmuch as a Frye hearing is required only where a party seeks to introduce testimony on a novel topic, and there was no indication in the record that the methods used by the court-appointed counselor to validate the allegations of sexual abuse in this case were novel, the father's motion for a Frye hearing was properly denied.
[6] 88 N.Y.2d 217, 644 N.Y.S.2d 460, 666 N.E.2d 1333 (1988).
[7] 63 NY2d 723, 480 N.Y.S.2d 195 (1984).
[8] In Jill S. v Steven S, 43 AD3d 724, 842 N.Y.S.2d 401 (1st Dept.,2007) the Appellate Division held that the Magistrate appropriately exercised his discretion in precluding petitioner's expert witness, inasmuch as the proposed testimony was irrelevant and not based on facts in evidence. Although the expert proposed to testify regarding the circumstances under which the child had left respondent's home in Ohio, she admitted that she had not re-evaluated the child since the parties' divorce proceeding three years earlier. Her proposed testimony was irrelevant to the issue of whether respondent's conduct sufficiently warranted the exercise of personal jurisdiction over him in the proceeding. The issue of whether respondent's conduct caused the child to flee Ohio was a question of fact, to which the child herself testified, and did not require an expert opinion. The expert’s opinion regarding the child's physical and mental condition post-2002 was hearsay, based on documents that were not admitted into evidence at the hearing, and was thus inadmissible.
In Murphy v Woods, 63 A.D.3d 1526, 879 N.Y.S.2d 648 (4th Dept, 2009) the Appellate Division held that Family Court erred in permitting a “licensed mental health counselor,” who examined the parties' child and was called as a witness by the mother, to offer an opinion that was based in part upon his interviews with collateral sources who did not testify at trial. There are two exceptions to the general rule requiring that opinion evidence be based on facts in the record or on facts personally known to the witness: if the opinion is based upon out-of-court material “of a kind accepted in the profession as reliable in forming a professional opinion or if it comes from a witness subject to full cross-examination on the trial” (citing Hambsch v New York City Tr. Auth., 63 NY2d 723, 726 [1984]). Neither exception applied in this case. At the fact-finding hearing, the expert testified that material portions of his opinion were based not only upon his interviews with the parties, but also were based on his interviews with collateral sources. On the record the Court was unable to determine the extent to which the expert relied on those collateral source interviews in forming his opinion. Furthermore, the collateral sources did not testify at trial, and there was no evidence establishing their reliability. It could not conclude that the admission of the expert's opinion was harmless error because, without the admission of that opinion or the testimony of the collateral sources, there was insufficient evidence in the record to support the court's determination. It reversed and remitted for a new hearing.
In Matter of Anthony WW, 86 A.D.3d 654, 927 N.Y.S.2d 407 (3d Dept., 2011) licensed psychologists who examined respondent, in their reports and in their trial testimony, made reference to statements about respondent attributed to other witnesses who did not testify at trial, none of which was admitted into evidence or was otherwise qualified for admission pursuant to a recognized exception to the rule against hearsay. Danser testified that, in forming his opinion, he relied on his interview with respondent, as well as the results of various psychological tests that he performed on him. Danser also reviewed records that petitioner had on file regarding respondent, including case, progress and supervision notes, all of which were compiled during a four-year period beginning in 2003, as well as documents describing mental health treatment that respondent received during this time period. While Danser did not testify that this evidence was commonly relied upon in his profession to perform such an evaluation, Family Court determined that it was proper for him to refer to it, because some of this evidence was contained in the trial testimony given by other witnesses or in records that had been properly admitted into evidence at trial. However, the court did acknowledge that some of the references in Danser's report should not have been admitted and, for that reason, directed that a section of his report, entitled "Review of Records," be stricken because it referred to evidence that had not been admitted at trial. Significantly, Danser was never asked what impact this redacted evidence had on his evaluation of respondent and what effect, if any, it had on his opinion regarding respondent's mental condition. Similar issues existed with Liotta's report and testimony, both of which were admitted into evidence at trial. When he was first retained to perform his evaluation, Liotta was provided with petitioner's complete file on respondent. Later, he was asked to return the file and then, pursuant to a court order, was provided with a limited record to review. Liotta was also directed to limit his review to the records provided and not base his evaluation on respondent's fitness as a parent on statements made by the mother about respondent or on any collateral interviews that he may have conducted with other individuals regarding respondent. However, it was clear from the content of his report, as well as his testimony at trial, that Liotta, in forming his final opinion regarding respondent's fitness as a parent, relied on observations of respondent made by his eldest son's mental health provider as well as on statements made by the mother about respondent. In addition, Liotta's interviews with respondent's caseworker and his current mental heath therapist were referenced in his report and obviously played a role in the opinion that he ultimately offered regarding respondent's mental illness and its impact on his ability to be a parent. Like Danser, Liotta was never asked if this evidence was normally relied on within his profession as appropriate for the performance of such an evaluation and, while some of it was redacted, including any reference to his interview with the mental health therapist, Liotta was never asked what impact this evidence had in formulating his final opinion as to respondent's fitness as a parent. As a result, a proper foundation was not laid for the admission of the testimony of either psychologist or their reports.
[9] County Dollar Corp. v. City of Yonkers, 97 A.D.2d 469, 467 N.Y.S.2d 666 (2 Dept., 1983).
[10] Matter of New York City Transit Authority, 160 A.D.2d 705, 553 N.Y.S.2d 785 (2 Dept., 1990).
[11] Balsz v. A & T Bus Co., 252 A.D.2d 458 [1998] (Testimony of the expert was admissible since the expert opinion was primarily based upon direct knowledge derived from the expert's psychiatric interviews of the parties and their children, alone and in combination).
[12] Matter of Noemi D, 43 A.D.3d 1303, 842 N.Y.S.2d 808 (4 Dept. 2007) (citing People v. Tosca, 98 N.Y.2d 660; People v. Felder, 37 N.Y.2d 779, 780-781; Matter of Mateo v. Tuttle, 26 AD3d 731, 732).
[13] Jill S. v Steven S, 43 AD3d 724, 842 N.Y.S.2d 401 (1st Dept.,2007) (Magistrate appropriately exercised his discretion in precluding petitioner's expert witness, inasmuch as the proposed testimony was irrelevant and not based on facts in evidence. Although the expert proposed to testify regarding the circumstances under which the child had left respondent's home in Ohio, she admitted that she had not re-evaluated the child since the parties' divorce proceeding three years earlier. Her proposed testimony was irrelevant to the issue of whether respondent's conduct sufficiently warranted the exercise of personal jurisdiction over him in the proceeding. The issue of whether respondent's conduct caused the child to flee Ohio was a question of fact, to which the child herself testified, and did not require an expert opinion.
[14] Jill S. v Steven S, 43 AD3d 724, 842 N.Y.S.2d 401 (1st Dept., 2007).
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