| Matter of Brandie B. (Barrington B.) |
| 2013 NY Slip Op 05998 [109 AD3d 987] |
| September 25, 2013 |
| Appellate Division, Second Department |
| In the Matter of Brandie B. Administration for Children'sServices, Respondent; Barrington B., Appellant. (Proceeding No. 1.) In the Matter ofBries B. Administration for Children's Services, Respondent; Barrington B., Appellant.(Proceeding No. 2.) In the Matter of Nia-Sarai B. Administration for Children's Services,Respondent; Barrington B., Appellant. (Proceeding No. 3.) In the Matter of Garnet B.Administration for Children's Services, Respondent; Barrington B., Appellant.(Proceeding No. 4.) |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmersand Janet L. Zaleon of counsel), for respondent. Karen P. Simmons, Brooklyn, N.Y. (Barbara H. Dildine of counsel), attorney for thechildren Brandie B. and Bries B. Mark Diamond, New York, N.Y., attorney for the child Nia-Sarai B. Yasmin Daley Duncan, Brooklyn, N.Y., attorney for the child Garnet B.
In four related child protective proceedings pursuant to Family Court Act article 10,the father appeals from an order of disposition of the Family Court, Kings County(Weinstein, J.), [*2]dated February 3, 2012, which, uponan order of the same court (Lim, J.), dated March 31, 2011, granting the petitioner'smotion for summary judgment on the issue of neglect and determining that he neglectedthe children Brandie B. and Bries B. and derivatively neglected the children Nia-Sarai B.and Garnet B., and after a dispositional hearing, inter alia, placed the subject children inthe custody of the Commissioner of Social Services of the City of New York, to reside infoster care with the maternal grandmother until completion of the next permanencyhearing. The appeal from the order of disposition brings up for review the order datedMarch 31, 2011.
Ordered that the order of disposition is reversed, on the law, without costs ordisbursements, the petitioner's motion for summary judgment is denied, the order datedMarch 31, 2011, is modified accordingly, and the matter is remitted to the Family Court,Kings County, for further proceedings consistent herewith.
"Although there is no express provision for a summary judgment procedure in aFamily Court Act article 10 proceeding, the Act does provide that, in such cases, 'theprovisions of the civil practice law and rules shall apply to the extent that they areappropriate to the proceedings involved' " (Matter of Suffolk County Dept. of SocialServs. v James M., 83 NY2d 178, 182 [1994], quoting Family Ct Act § 165[a]). "Summary judgment, of course, may only be granted in any proceeding when it hasbeen clearly ascertained that there is no triable issue of fact outstanding; issue finding,rather than issue determination, is its function" (Matter of Suffolk County Dept. ofSocial Servs. v James M., 83 NY2d at 182). Here, in support of its motion forsummary judgment on the issue of neglect, the petitioner included the evidencesubmitted at a hearing held pursuant to Family Court Act § 1028. At that hearing,the father testified and submitted other evidence on his behalf. Since the evidencesubmitted by the petitioner revealed questions of fact regarding the issue of neglect, thepetitioner failed to establish its prima facie entitlement to judgment as a matter of law.Accordingly, the Family Court erred in granting the petitioner's motion for summaryjudgment on the issue of neglect, and the matter must be remitted to the Family Court,Kings County, for further proceedings on the petitions, including a fact-finding hearing,if warranted (see Matter ofEthan Z. [Zhen C.Z.], 93 AD3d 733, 734 [2012]; Matter of N. Children [AngelaN.], 86 AD3d 572, 573 [2011]). Dillon, J.P., Angiolillo, Leventhal and Lott, JJ.,concur.