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