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In re Daniel D.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 30, 2008

IN RE DANIEL D. AND ANOTHER, DEPENDENT CHILDREN UNDER THE AGE OF EIGHTEEN YEARS, ETC.,
AND
JOHN D., RESPONDENT-APPELLANT,
COMMISSIONER OF THE ADMINISTRATION FOR CHILDREN'S SERVICES, PETITIONER-RESPONDENT,

Fact-finding order, Supreme Court, New York County (Harold B. Beeler, J.), entered on or about July 13, 2007, finding that respondent-appellant neglected his children, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Friedman, Gonzalez, McGuire, Acosta, JJ.

350353/05

The preponderance of the credible evidence supports the finding, made after a hearing (see Matter of Tammie Z., 66 NY2d 1 [1985]), that respondent subjected his two young children to emotional harm (see Nicholson v Scoppetta, 3 NY3d 357, 370 [2004]) by encouraging them to make false allegations against their maternal grandfather that resulted in repeated and distressing interviews and medical examinations, and by engaging in a campaign to alienate the children from their mother (see Matter of Ramazan U., 303 AD2d 516, 517 [2003]). Respondent's decision not to testify allowed the court "to draw the strongest negative inference" against him (Matter of Devante S. v John H., 51 AD3d 482 [2008] [internal quotation marks omitted]). Supreme Court properly consolidated this child protective proceeding with the divorce/custody action pending before it given its extensive familiarity with the many common factual and legal issues (see e.g. Paul B. S. v Pamela J. S., 70 NY2d 739 [1987]; Kosovsky v Zahl, 52 AD3d 305, 305 [2008]). It was not a violation of CPLR 603 for the court to order consolidation on its own initiative and without a motion having been made, where the court gave all parties an opportunity to be heard (see Nelson v Lundy, 300 AD2d 967, 968 [2002]). We have considered respondent's other arguments and find them without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081230

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