Matter of Jose Luis T. v Carmen A.

2011 NY Slip Op 00548

Decided on February 1, 2011

Appellate Division, First Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 1, 2011
Tom, J.P., Mazzarelli, Renwick, Freedman, Manzanet-Daniels, JJ.
4134 4135






Law Offices of Randall S. Carmel, Syosset (Randall S. Carmel
of counsel), for Carmen A., appellant.
Kenneth M. Tuccillo, Hastings On Hudson, for Juan A.,
appellant.
Michael A. Cardozo, Corporation Counsel, New York (Pamela
Seider Dolgow of counsel), for respondent.
Michael S. Bromberg, Sag Harbor, attorney for the children.

Order of disposition, Family Court, New York County (Rhoda J. Cohen, J.), entered on or about August 13, 2009, which, insofar as appealed from as limited by the briefs, brings up for review a fact-finding determination that the subject children were neglected and derivatively neglected, unanimously reversed, on the law and the facts, without costs, the findings of neglect and derivative neglect vacated, and the petition dismissed.

Petitioner's prima facie evidence showing a single nondisplaced oblique fine-line fracture of the child's femur that would ordinarily not have been sustained except by reason of respondents parents' acts or omissions was sufficiently rebutted by the evidence, not addressed by Family Court, showing that the injury could have occurred accidentally when respondent mother bent down to pick up some garbage while the child was secured against her chest in a "snuggly," and could have been exacerbated during the Barlow-Ortolani procedure performed the same day by the child's pediatrician at a previously scheduled well-child visit (see Matter of Philip M., 82 NY2d 238, 243-245, 246 [1993]; Matter of Christopher Anthony M., 46 AD3d 896 [2007]). In light of this rebuttal evidence and the lack of evidence of other neglect, the finding of neglect was not supported by a preponderance of the evidence (Family Court Act § 1046 [b][I]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 1, 2011

CLERK