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In re Tyreek A. (Anonymous)

Supreme Court of New York, Second Department

July 3, 2013

In the Matter of Tyreek A. (Anonymous). Administration for Children's Services, petitioner; and Franklyn A. (Anonymous), respondent. (Proceeding No. 1) In the Matter of Alicea A. (Anonymous). Administration for Children's Services, petitioner; and Franklyn A. (Anonymous), respondent. (Proceeding No. 2) In the Matter of Gabrielle A. (Anonymous). Administration for Children's Services, petitioner; and Franklyn A. (Anonymous), respondent. (Proceeding No. 3) In the Matter of Aaliyah A. (Anonymous). Administration for Children's Services, petitioner; and Franklyn A. (Anonymous), respondent. (Proceeding No. 4) In the Matter of Nicollette B. (Anonymous), appellant. Administration for Children's Services, petitioner- respondent; and Franklyn A. (Anonymous), respondent- respondent. (Proceeding No. 5) Docket Nos. N-27464-09, N-27465-09, N-27466-09, N-27467-09, N-27468-09

Steven Banks, New York, N.Y. (Tamara A. Steckler and Judith Stern of counsel), for appellant.

Robert Gruenspecht, Jamaica, N.Y., for respondent-respondent.

Richard L. Herzfeld, P.C., New York, N.Y., for the children Tyreek A. and Gabrielle A.

Heath J. Goldstein, Fresh Meadows, N.Y., for the child Aaliyah A.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, L. PRISCILLA HALL, LEONARD B. AUSTIN, JJ.

DECISION & ORDER

In related child protective proceedings pursuant to Family Court Act article 10, the child Nicollette B. appeals, as limited by her brief, from so much of an order of the Family Court, Queens County (Tally, J.), dated April 26, 2012, as, upon the denial of that branch of the petitioner's motion which was for summary judgment on the petition alleging that the father neglected Nicollette B., and after a hearing, dismissed that petition.

ORDERED that the order is reversed insofar as appealed from, on the law, without costs or 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 petition is granted, a finding is made that the father neglected Nicollette B., and the matter is remitted to the Family Court, Queens County, for a dispositional hearing and a disposition thereafter with respect to Nicollette B.

"A determination in a criminal action may be given collateral estoppel effect in a Family Court proceeding where the identical issue has been resolved, and the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct" (Matter of Javon T., 64 A.D.3d 608, 608; see Matter of Yamillette G. [ Marlene M. ], 74 A.D.3d 1066). Here, the petitioner, the Administration for Children's Services (hereinafter ACS), satisfied its burden of establishing that the father's criminal conviction was for an offense arising out of the same conduct that was alleged in the Family Court Act article 10 petition alleging that the father neglected the child Nicollette B. (see Matter of Idhailia P. [ Philip S.P. ], 95 A.D.3d 1333, 1334-1335; Matter of Yamillette G. [ Marlene M. ], 74 A.D.3d 1066; Matter of Javon T., 64 A.D.3d 608; see also Matter of Jewelisbeth JJ. [ Emmanuel KK. ], 97 A.D.3d 887). In opposition, the father failed to raise a triable issue of fact (see Matter of Suffolk County Dept. of Social Servs. v James M., 83 N.Y.2d 178, 183; Zuckerman v City of New York, 49 N.Y.2d 557, 562; Matter of Tavianna CC. [ Maceo CC. ], 99 A.D.3d 1132, 1134; Matter of Idhailia P. [ Philip S.P. ], 95 A.D.3d 1333). Thus, the Family Court erred in denying that branch of ACS's motion which was for summary judgment on the petition alleging that the father neglected Nicollette B. Accordingly, we reinstate that petition, grant that branch of the motion, make a finding that the father neglected Nicollette B., and remit the matter to the Family Court, Queens County, for a dispositional hearing and a disposition thereafter with respect to Nicollette B.

MASTRO, J.P., BALKIN, HALL and AUSTIN, JJ., concur.


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