| Matter of N. Children (Angela N.) |
| 2011 NY Slip Op 05961 [86 AD3d 572] |
| July 12, 2011 |
| Appellate Division, Second Department |
| In the Matter of N. Children. Administration for Children'sServices, Respondent; Angela N., Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and JulieSteiner of counsel), for respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler and Selene D'Alessio of counsel),Attorney for the Children.
In a child protective proceeding pursuant to Family Court Act article 10, the mother appealsfrom an order of the Family Court, Kings County (Hamill, J.), dated May 10, 2010, whichgranted the petitioner's motion for summary judgment on the issue of neglect, determined that themother had neglected the subject children, and denied her cross motion for summary judgmentdismissing the petition.
Ordered that the order is modified, on the law, by deleting the provisions thereof granting thepetitioner's motion for summary judgment and determining that the mother had neglected thesubject children, and substituting therefor a provision denying the motion; as so modified, theorder is affirmed, without costs or disbursements.
Contrary to its contention, the petitioner, Administration for Children's Services (hereinafterACS), failed to establish its prima facie entitlement to judgment as a matter of law on the issue ofneglect with respect to the subject children (see Family Ct Act § 1012 [f] [i]). Insupport of its motion, ACS included the evidence submitted at a hearing held pursuant to FamilyCourt Act § 1028 (hereinafter the 1028 hearing). The evidence submitted at the 1028hearing failed to establish that the mother neglected her children. Moreover, most of the evidencesubmitted by ACS at the 1028 hearing was hearsay. Although hearsay evidence is permitted in a1028 hearing, it is not permitted in a fact-finding hearing (see Family Ct Act §1046 [b] [iii]; [c]). Consequently, hearsay evidence cannot be the basis for granting summaryjudgment in lieu of a fact-finding hearing.
The Family Court did not err in denying the mother's cross motion for summary judgmentdismissing the petition. A 1028 hearing occurs prior to discovery (see Sobie, PracticeCommentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 1028, at [*2]265). Under the facts of this case, the parties have not had theopportunity to prepare their cases, and they should be given the opportunity to do so. Rivera, J.P.,Covello, Florio and Lott, JJ., concur.