        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1270
CAF 10-02105
PRESENT: SCUDDER, P.J., SMITH, GREEN, GORSKI, AND MARTOCHE, JJ.


IN THE MATTER OF NICHOLAS W., TYLER W.,
AND ETHAN W.
---------------------------------------------
ONTARIO COUNTY DEPARTMENT OF SOCIAL SERVICES     MEMORANDUM AND ORDER
CHILD PROTECTIVE UNIT, PETITIONER-RESPONDENT;

RAYMOND W., RESPONDENT-APPELLANT.


SHIRLEY A. GORMAN, BROCKPORT, FOR RESPONDENT-APPELLANT.

JOHN W. PARK, COUNTY ATTORNEY, CANANDAIGUA (HOLLY A. ADAMS OF
COUNSEL), FOR PETITIONER-RESPONDENT.

CHARLES R. PETERS, ATTORNEY FOR THE CHILD, IONIA, FOR NICHOLAS W.


     Appeal from an order of the Family Court, Ontario County (William
F. Kocher, J.), entered September 22, 2010 in a proceeding pursuant to
Family Court Act article 10. The order, inter alia, adjudged the
child Nicholas W. to be a neglected child.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, petitioner’s motion is
denied and the matter is remitted to Family Court, Ontario County, for
further proceedings in accordance with the following Memorandum:
Petitioner commenced this proceeding pursuant to Family Court Act
article 10 alleging that respondent father neglected his oldest son
and derivatively neglected two other children because he struck his
oldest son in the face. In a criminal proceeding before the same
judge who presided over the proceeding in Family Court, the father
pleaded guilty to assault in the third degree (Penal Law § 120.00 [2]
[reckless assault]), arising from the incident in which he struck his
oldest son. There was no allocution concerning the conduct underlying
the conviction and, when the proceeding on the petition resumed in
Family Court, petitioner moved for summary judgment on the petition
based upon the plea and certificate of conviction in the criminal
matter. The father moved “to dismiss” petitioner’s motion and
requested a fact-finding hearing on the petition. The court denied
the father’s request and granted the motion with respect to the oldest
child. Petitioner subsequently withdrew its allegations of derivative
neglect with respect to the other children. The court thereafter
denied the father’s motion to reargue his opposition to the motion for
summary judgment with respect to the oldest child and entered an order
of fact-finding and disposition adjudicating the oldest son to be a
neglected child.
                                 -2-                          1270
                                                         CAF 10-02105

     We conclude that petitioner failed to meet its burden of
establishing that the acts underlying the conviction of reckless
assault constituted neglect as a matter of law and thus that the
issues in the neglect proceeding were resolved by the father’s guilty
plea (see generally Zuckerman v City of New York, 49 NY2d 557, 562).
Although one incident of excessive corporal punishment may be
sufficient to establish neglect (see Matter of Steven L., 28 AD3d
1093, lv denied 7 NY3d 706), under the circumstances of this case, we
conclude that petitioner failed to establish that the father intended
to hurt his son or that his conduct was a pattern of excessive
corporal punishment (see Matter of Christian O., 51 AD3d 402). We
therefore reverse the order, deny petitioner’s motion and remit the
matter to Family Court for further proceedings on the petition before
a different judge.




Entered:   December 30, 2011                    Frances E. Cafarell
                                                Clerk of the Court
