DECISION Motion for Summary Judgment The Administration for Children’s Services (hereinafter “ACS”) filed a petition against the respondent mother on or about November 12, 2020. On October 5, 2021, ACS filed a motion for Summary Judgment, requesting a finding against R.M. (hereinafter “RM”) and arguing that there are no genuine issues of material fact. Counsel for RM submitted an Affirmation in Opposition to ACS’ application on October 5, 2020 and the attorney for the children (hereinafter “AFC”), filed an Affirmation in Opposition to ACS’ application on November 15, 2021. The matter stands adjourned to December 21, 2021 in Part 7 for permanency hearing, decision on this motion, and possible fact-finding or disposition. Summary Judgment in Article 10 Matters Summary Judgment is governed by CPLR 3212 and as applied to Family Court by FCA §165(a). In Matter of Suffolk County Dept. of Social Services v. James M., 83 NY2d 178, 182 (1994), the Court of Appeals held that summary judgement is appropriate in Article 10 proceedings. However, the Court cautioned that summary judgment “may only be granted in any proceeding when it has been clearly ascertained that there is no triable issue of fact outstanding.” See also Matter of Michael M. V., 83 NY2d 178, 182 (1994). Furthermore, to sustain one’s burden that there is no material issue of fact, the moving party must submit an affidavit “by a person having knowledge of the facts.” CPLR §3212(b). The rules of evidence are still applicable when a Court is considering the affidavit and any additional evidence submitted by the moving party. If there is a showing that there are no material issues of fact, then “the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact.” Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986). When evaluating whether summary judgment is appropriate, the Court must view the evidence “in the light most favorable to the party opposing the motion, and all reasonable inferences must be resolved in that party’s favor.” Udoh v. Inwood Gardens. Inc., 70 AD3d 563, 565 (1st Dept. 2010). Traditionally, summary judgment in Article 10 cases may be granted where there was a finding in another Court that the allegations happened or where a finding was made for an older child and the derivative allegations are proximate in time to the original finding. In Matter of Michael V., supra, the Trial Court found that the respondent abused one child and neglected another after granting a motion for summary judgment. The basis for granting summary judgment was documentary proof that the respondent had been convicted in Criminal Court of fifteen (15) counts of sodomy in the first degree against the oldest subject child. The Court of Appeals agreed with the Appellate Division and the Family Court that the “appellant’s criminal conviction [was] conclusive proof of the sexual abuse of [the oldest child] and that this in turn supported the finding that [the youngest child] was a neglected child.” Id. at 181. However, in the instant matter, petitioner seeks an order of summary judgment, although there was no adjudication of any related matter from another court. “Over the years, Courts have consistently sustained derivative findings where a respondent’s abuse of the subject child is so closely connected with the care of another child as to indicate that the second child is equally at risk.” In re Marino S., 100 NY2d 361 (2003) citing Dutchess County Dep’t of Social Servs. v. Douglas E., 191 AD2d 694 (2nd Dept. 1993). When evaluating derivative findings for the purpose of summary judgment, the evaluation is “whether the prior conduct is so proximate in time to the current proceedings that it can reasonably be concluded that the condition still exists.” Matter of Jaylhon C. (Candace C.), 170 AD3d 999 (2nd Dept. 2019). In In re Baby Girl S., 174 Misc. 2d 682 (Family Ct., Bronx Cty. 1997), a case relied on by Petitioner, a derivative finding was made via summary judgment, as the disposition order on the older child was issued less than six weeks prior to the birth of the youngest child. This is not applicable to the case at bar, since respondent was never adjudicated in a related judicial proceeding. Here, ACS submits certified and delegated Department of Homeless Service (hereinafter “DHS”) records, affidavits from F.P., the foster father and CPS M.G., and the Oral Report Transmittal (hereinafter “ORT”) to support its position that there is no triable issue of fact. ACS argues that the attached evidence establishes that RM neglected the subject children. However, this is insufficient to establish that there are no triable issues of fact. The DHS records contain references to/include records from other entities, notably the Department of Education and preventive services. In People v. Cratsley, 86 NY2d 81, 90 (1995), the Court held that outside records contained within an organization’s business records are generally inadmissible without further exception or foundation. Those Department of Education records suggest that the subject child J.M.M. may have not been an appropriate caretaker for his brothers. As both the attorney for the children and counsel for RM indicate, as a fifteen-year old, J.M.M.’s adequacy as a babysitter for his brothers is at issue and presents a triable fact. Furthermore, this Court wants to afford counsel the opportunity to cross examine both F.P. and CPS M.G., as this Court does not know if there are extra facts that were not included in their affidavits which could tend to contextualize the situation further. Given that RM may have made admissions, the circumstances and context of those alleged admissions is important information for this Court to have. Finally, Petitioner has not submitted any proof that there is no prior finding of neglect nor any corresponding criminal conviction based on these allegations. Conclusion: Based on the foregoing, this Court finds that the agency has not met their burden and established that there is no triable issue of fact. Therefore, the motion for summary judgment is denied and counsel are directed to be prepared to proceed to fact-finding on the next Court date. PURSUANT TO §1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY (30) DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE (35) DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF COURT, OR THIRTY (30) DAYS AFTER SERVICE BY A PARTY OR ATTORNEY Dated: December 14, 2021
