| Matter of Nicholas W. (Raymond W.) |
| 2011 NY Slip Op 09694 [90 AD3d 1614] |
| December 30, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Nicholas W. and Others, Infants. Ontario CountyDepartment of Social Services Child Protective Unit, Respondent; Raymond W.,Appellant. |
—[*1] John W. Park, County Attorney, Canandaigua (Holly A. Adams of counsel), forpetitioner-respondent. Charles R. Peters, Attorney for the Child, Ionia, for Nicholas W.
Appeal from an order of the Family Court, Ontario County (William F. Kocher, J.), enteredSeptember 22, 2010 in a proceeding pursuant to Family Court Act article 10. The order, interalia, adjudged the child Nicholas W. to be a neglected child.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, petitioner's motion is denied and the matter is remitted to Family Court, OntarioCounty, for further proceedings in accordance with the following memorandum: Petitionercommenced this proceeding pursuant to Family Court Act article 10 alleging that respondentfather neglected his oldest son and derivatively neglected two other children because he struckhis oldest son in the face. In a criminal proceeding before the same judge who presided over theproceeding in Family Court, the father pleaded guilty to assault in the third degree (Penal Law§ 120.00 [2] [reckless assault]), arising from the incident in which he struck his oldest son.There was no allocution concerning the conduct underlying the conviction and, when theproceeding on the petition resumed in Family Court, petitioner moved for summary judgment onthe petition based upon the plea and certificate of conviction in the criminal matter. The fathermoved "to dismiss" petitioner's motion and requested a fact-finding hearing on the petition. Thecourt denied the father's request and granted the motion with respect to the oldest child.Petitioner subsequently withdrew its allegations of derivative neglect with respect to the otherchildren. The court thereafter denied the father's motion to reargue his opposition to the motionfor summary judgment with respect to the oldest child and entered an order of fact-finding anddisposition adjudicating the oldest son to be a neglected child.
We conclude that petitioner failed to meet its burden of establishing that the acts underlyingthe conviction of reckless assault constituted neglect as a matter of law and thus that the issues inthe neglect proceeding were resolved by the father's guilty plea (see generally [*2]Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).Although one incident of excessive corporal punishment may be sufficient to establish neglect(see Matter of Steven L., 28 AD3d1093 [2006], lv denied 7 NY3d 706 [2006]), under the circumstances of this case,we conclude that petitioner failed to establish that the father intended to hurt his son or that hisconduct was a pattern of excessive corporal punishment (see Matter of Christian O., 51 AD3d 402 [2008]). We thereforereverse the order, deny petitioner's motion and remit the matter to Family Court for furtherproceedings on the petition before a different judge. Present—Scudder, P.J., Smith, Green,Gorski and Martoche, JJ.