| Matter of Tyreek A. (Franklyn A.) |
| 2013 NY Slip Op 05062 [108 AD3d 527] |
| July 3, 2013 |
| Appellate Division, Second Department |
| In the Matter of Tyreek A. Administration for Children'sServices, Petitioner; Franklyn A., Respondent. (Proceeding No. 1.) In the Matter ofAlicea A. Administration for Children's Services, Petitioner; Franklyn A., Respondent.(Proceeding No. 2.) In the Matter of Gabrielle A. Administration for Children's Services,Petitioner; Franklyn A., Respondent. (Proceeding No. 3.) In the Matter of Aaliyah A.Administration for Children's Services, Petitioner; Franklyn A., Respondent. (ProceedingNo. 4.) In the Matter of Nicollette B., Appellant. Administration for Children's Services,Respondent; Franklyn A., Respondent. (Proceeding No. 5.) |
—[*1] Robert Gruenspecht, Jamaica, N.Y., for respondent-respondent. Richard L. Herzfeld, P.C., New York, N.Y., for the children Tyreek A. and GabrielleA. Heath J. Goldstein, Fresh Meadows, N.Y., for the child Aaliyah A.
In related child protective proceedings pursuant to Family Court Act article 10, thechild Nicollette B. appeals, as limited by her brief, from so much of an order of theFamily Court, [*2]Queens County (Tally, J.), dated April26, 2012, as, upon the denial of that branch of the petitioner's motion which was forsummary judgment on the petition alleging that the father neglected Nicollette B., andafter a hearing, dismissed that petition.
Ordered that the order is reversed insofar as appealed from, on the law, without costsor disbursements, the petition alleging that the father neglected Nicollette B. is reinstated,that branch of the petitioner's motion which was for summary judgment on that petitionis granted, a finding is made that the father neglected Nicollette B., and the matter isremitted to the Family Court, Queens County, for a dispositional hearing and adisposition thereafter with respect to Nicollette B.
"A determination in a criminal action may be given collateral estoppel effect in aFamily Court proceeding where the identical issue has been resolved, and the defendantin the criminal action had a full and fair opportunity to litigate the issue of his or hercriminal conduct" (Matter ofJavon T., 64 AD3d 608, 608 [2009]; see Matter of Yamillette G. [Marlene M.], 74 AD3d 1066[2010]). Here, the petitioner, the Administration for Children's Services (hereinafterACS), satisfied its burden of establishing that the father's criminal conviction was for anoffense arising out of the same conduct that was alleged in the Family Court Act article10 petition alleging that the father neglected the child Nicollette B. (see Matter of Idhailia P. [PhilipS.P.], 95 AD3d 1333, 1334-1335 [2012]; Matter of Yamillette G. [Marlene M.], 74 AD3d 1066[2010]; Matter of Javon T.,64 AD3d 608 [2009]; seealso Matter of Jewelisbeth JJ. [Emmanuel KK.], 97 AD3d 887 [2012]). Inopposition, the father failed to raise a triable issue of fact (see Matter of SuffolkCounty Dept. of Social Servs. v James M., 83 NY2d 178, 183 [1994];Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Matter of Tavianna CC. [MaceoCC.], 99 AD3d 1132, 1134 [2012]; Matter of Idhailia P. [Philip S.P.], 95 AD3d 1333 [2012]).Thus, the Family Court erred in denying that branch of ACS's motion which was forsummary judgment on the petition alleging that the father neglected Nicollette B.Accordingly, we reinstate that petition, grant that branch of the motion, make a findingthat the father neglected Nicollette B., and remit the matter to the Family Court, QueensCounty, for a dispositional hearing and a disposition thereafter with respect to NicolletteB. Mastro, J.P., Balkin, Hall and Austin, JJ., concur.