Opinion
May 8, 2001.
Orders, Family Court, Bronx County (Myrna Martinez-Perez, J.), entered on or about March 30, 1999, which dismissed child abuse petitions after a fact-finding hearing, unanimously affirmed, without costs. Order, same court and Judge, entered on or about January 13, 2000, which denied the Law Guardian's motion to set aside the March 30, 1999 order for receipt of new evidence, unanimously affirmed, without costs.
Leslie A. Abbey, for respondent-respondent.
Fay Ng, for petitioner-appellant.
Leslie A. Abbey, for appellant.
Before: Sullivan, P.J., Wallach, Lerner, Andrias, Buckley, JJ.
We see no reason to disturb Family Court's finding, largely one of credibility, that respondent was not with the child at the time the child sustained her injury. Respondent's evidence in that regard, in light of all the circumstances, including the absence of testimony from the neighbor who babysat for the child on the day respondent took the child to the hospital, satisfied respondent's burden of explanation for the injury (see, Matter of Philip M., 82 N.Y.2d 238, 244, 246). The evidence that appellants Commissioner and Law Guardian offer in support of their requests to reopen the hearing was available at the time of the hearing, and, moreover, does not aid in determining when or how the child was injured.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.