| Matter of Giovanni S. (Jasmin A.) |
| 2012 NY Slip Op 06220 [98 AD3d 1054] |
| September 19, 2012 |
| Appellate Division, Second Department |
| In the Matter of Giovanni S., an Infant. Administration forChildren's Services, Respondent; Jasmin A., Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow andEllen Ravitch of counsel), for respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler and Diane Pazar of counsel), attorneyfor the child.
In a child protective proceeding pursuant to Family Court Act article 10, the mother appealsfrom a fact-finding order of the Family Court, Kings County (Grosvenor, J.), dated June 29,2010, which, upon a decision of the same court dated June 29, 2010, made after a fact-findinghearing at which only the petitioner presented evidence, in effect, denied her motion to dismissthe petition, granted the petitioner's cross motion for summary judgment on the petition, andfound that she had neglected the subject child.
Ordered that the fact-finding order is modified, on the law, by deleting the provision thereofgranting the petitioner's cross motion for summary judgment on the petition, and substitutingtherefor a provision denying the cross motion, and deleting the finding that the mother hadneglected the subject child; as so modified, the fact-finding order is affirmed, without costs ordisbursements, and the matter is remitted to the Family Court, Kings County, for a continuedfact-finding hearing and a new determination; and it is further,
Ordered that pending final determination of the petition, the subject child shall remain in thecustody of the father.
The fact-finding hearing in this child protective proceeding was held on two dates, October28, 2009, and June 3, 2010. The petitioner, the Administration for Children's Services(hereinafter the ACS), adduced the testimony of a police detective involved in an undercover"buy and bust" operation, who arrested the mother after receiving a radio transmission fromundercover officers describing two suspects involved in the sale of narcotics. The detectivetestified that the mother fit the description of one of the suspects, described, inter alia, as awoman pushing a baby carriage with a baby inside. Upon arresting the mother, the detectiverecovered 10 glassine envelopes of heroin from a diaper bag placed on the bottom part of thebaby carriage; the subject [*2]seven-month-old infant was in thetop part of the carriage. In addition, the ACS established with a certificate of disposition that themother was subsequently convicted, upon her plea of guilty, of attempted criminal possession ofa controlled substance in the fifth degree with intent to sell (see Penal Law§§ 110.00, 220.06 [1]). The court precluded the ACS from adducing evidence of themother's past misdemeanor convictions prior to the birth of the subject child, but ruled that theevidence could be used for impeachment purposes if the mother were to testify. The court tookjudicial notice of prior Family Court dispositions against the mother with respect to otherchildren.
At the commencement of the proceedings on June 3, 2010, the attorney for the motherindicated that the mother anticipated testifying at the hearing. However, after the ACS rested itscase, the mother's attorney noted that there was insufficient time remaining in the day for themother to present testimony and requested leave to file a written motion to dismiss on the groundthat the ACS had failed to present a prima facie case. In granting that request, the Family CourtJudge noted that, due to his retirement, his last day on the bench would be June 30, 2010, andtherefore, a mistrial would be ordered in the event that the mother's motion to dismiss wasdenied.
In her written motion, the mother contended that the evidence presented by the ACS did notestablish that she sold drugs to the undercover officer, who did not testify, and the evidence thatshe possessed heroin did not establish her participation in the sale; in any event, such possessiondid not establish actual or potential harm to the child sufficient to support a finding of neglect.The ACS opposed the motion and cross-moved for summary judgment on the petition,contending that the evidence adduced at the hearing eliminated all triable issues and establishedas a matter of law that the mother neglected the child. The mother opposed the cross motion onthe merits without interposing any objection to the procedure employed by the ACS in filing asummary judgment motion mid-hearing, nor did she indicate that she wished to testify or that thefact-finding hearing must be continued. The Family Court denied the mother's motion andgranted the cross motion, finding that the mother neglected the subject child. The mother appeals,and we modify.
The Family Court properly denied the mother's motion to dismiss the petition. Viewing theevidence in the light most favorable to the ACS and affording it the benefit of every inferencewhich could be reasonably drawn from the evidence (see Matter of Christian Q., 32 AD3d 669, 670 [2006]), the ACSpresented a prima facie case of neglect (see Family Ct Act § 1012 [f] [i] [B]; Matter of Evan E. [Lasheen E.], 95AD3d 1114 [2012]; Matter of PaulJ., 6 AD3d 709 [2004]).
However, the Supreme Court improperly granted the ACS's cross motion for summaryjudgment on the petition under the facts and circumstances of this case. Although there is noexpress provision for summary judgment procedure in a Family Court Act article 10 proceeding,the act does provide that "the provisions of the civil practice law and rules shall apply to theextent that they are appropriate to the proceedings involved" (Family Ct Act § 165 [a]).Therefore, in an appropriate case, the Family Court may enter a finding of neglect on a summaryjudgment motion in lieu of holding a fact-finding hearing upon the petitioner's prima facieshowing of neglect as a matter of law and the respondent's failure to raise a triable issue of fact inopposition to the motion (see Matter of Suffolk County Dept. of Social Servs. v JamesM., 83 NY2d 178, 182-183 [1994]).
Here, however, the ACS submitted an untimely cross motion for summary judgment in themidst of the fact-finding hearing after presenting its case and prior to the mother presenting acase or resting her case. Moreover, even if the ACS's motion is deemed analogous to a motion forjudgment during trial, such a motion should have been denied as premature, since such motionsmust be made "after the close of the evidence presented by an opposing party with respect to [thesubject] cause of action or issue" (CPLR 4401). Although, in opposition to the cross motion, themother did not actively seek continuation of the fact-finding hearing or object on the ground thatthe cross motion was procedurally improper or untimely, we do not deem these contentionswaived in light of the Family Court Judge's imminent retirement and statements implying that itwas impossible for the mother to present a case. We conclude, therefore, that the Family Courtshould have denied the ACS's motion outright as untimely and procedurally improperirrespective of its merit, since the mother had not been given the opportunity to present a case atthe fact-finding hearing (cf. Matter ofEthan Z. [Zhen C.Z.], 93 AD3d 733 [2012]). Accordingly we remit the matter to theFamily Court, Kings County, for a continued fact-finding hearing and a new determination.Angiolillo, J.P., Belen, Roman and Sgroi, JJ., concur.