        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

176
CAF 14-01177
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


IN THE MATTER OF JEREMY SALETTA,
PETITIONER-RESPONDENT,

                    V                                MEMORANDUM AND ORDER

JESSICA LYNN VECERE, RESPONDENT-APPELLANT.
------------------------------------------
IN THE MATTER OF JESSICA LYNN VECERE,
PETITIONER-APPELLANT,

                    V

JEREMY SALETTA, RESPONDENT-RESPONDENT.


WILLIAM D. BRODERICK, JR., ELMA, FOR RESPONDENT-APPELLANT AND
PETITIONER-APPELLANT.

MARK LEWIS, CHEEKTOWAGA, FOR PETITIONER-RESPONDENT AND RESPONDENT-
RESPONDENT.

JENNIFER PAULINO, ATTORNEY FOR THE CHILD, BUFFALO.


     Appeal from an order of the Family Court, Erie County (Kevin M.
Carter, J.), entered May 29, 2014 in a proceeding pursuant to Family
Court Act article 6. The order, among other things, awarded Jeremy
Saletta custody of the subject child.

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

     Memorandum: In this proceeding pursuant to Family Court Act
article 6, respondent-petitioner mother appeals from an order awarding
custody of the subject child to petitioner-respondent father. We
reject the mother’s contention that Family Court committed reversible
error in referencing during its bench decision its own out-of-court
observations of the mother. Although we agree with the mother that
such references constituted error (see Silberman v Antar, 236 AD2d
385, 385), we conclude that the error is harmless because the
“decision is fully supported by facts within the record” (Matter of
Treider v Lamora, 44 AD3d 1241, 1243, lv denied 9 NY3d 817; see Matter
of Kayla J. [Michael J.], 74 AD3d 1665, 1668; see also Matter of
Nicole VV., 296 AD2d 608, 613, lv denied 98 NY2d 616). Contrary to
the mother’s further contention, we conclude that the court’s decision
properly set forth the grounds for its determination (see Matter of
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                                                         CAF 14-01177

Jose L.I., 46 NY2d 1024, 1025-1026; Matter of Zarhianna K. [Frank K.],
133 AD3d 1368, 1369; cf. Matter of Rocco v Rocco, 78 AD3d 1670, 1671).

     We further conclude that the court’s determination to award
custody of the subject child to the father is supported by a sound and
substantial basis in the record. It is well settled that “ ‘[a]
concerted effort by one parent to interfere with the other parent’s
contact with the child is so inimical to the best interests of the
child . . . as to, per se, raise a strong probability that [the
interfering parent] is unfit to act as custodial parent’ ” (Matter of
Amanda B. v Anthony B., 13 AD3d 1126, 1127; see Matter of Viscuso v
Viscuso, 129 AD3d 1679, 1681). Here, there is a sound and substantial
basis in the record for the court’s conclusion that the mother
interfered with the father’s relationship with the child by, inter
alia, denying the father access to the child.

     The mother further contends that the court erred in admitting in
evidence status update reports relating to the father’s completion of
a court-ordered drug and alcohol evaluation. While we agree with the
mother that those reports were improperly admitted in evidence
inasmuch as “there was no indication that the records were certified
to comply with CPLR 4518 pursuant to CPLR 3122-a” (Sheridan v
Sheridan, 129 AD3d 1567, 1567), we nonetheless conclude that the error
was harmless “because the record otherwise contains ample admissible
evidence to support the court’s determination” (Matter of Matthews v
Matthews, 72 AD3d 1631, 1632, lv denied 15 NY3d 704).

      Lastly, the mother’s contention that the father failed to
establish the paternity of the child is raised for the first time on
appeal, and therefore, that contention is not properly before us (see
Matter of Voorhees v Talerico, 128 AD3d 1466, 1467, lv denied 25 NY3d
915).




Entered:   March 25, 2016                       Frances E. Cafarell
                                                Clerk of the Court
