Opinion
Argued June 9, 2000.
July 17, 2000.
In three related child protective proceedings pursuant to Family Court Act article 10, the petitioner appeals from three orders (one as to each child) of the Family Court, Kings County (Lopez-Torres, J.), all dated October 12, 1999, which dismissed the petitions.
Michael D. Hess, Corporation Counsel, New York, N.Y. (Elizabeth I. Freedman, Pamela Seider Dolgow, and John Hogrogian of counsel), for appellant.
Cheryl Ife Griffin, Brooklyn, N.Y., for respondent Urselin J.
Pauline E. Braun, Valley Stream, N.Y., for respondent Anthonya J.
Edward W. Yuskevich, Rockville Centre, N.Y., Law Guardian for Anthony J. and Alicea J.
Philip J. Devereaux, New York, N.Y., Law Guardian for Anthea J.
Before: LAWRENCE J. BRACKEN, J.P., FRED T. SANTUCCI, LEO F. McGINITY, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the orders are reversed, as a matter of discretion, without costs or disbursements, the petitions are reinstated, and the matter is remitted for a new determination following a new fact-finding hearing.
Contrary to the petitioner's contention, it failed to establish a prima facie case on its three petitions (see, Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723, 726; Nuzzo v. Castellano, 254 A.D.2d 265). However, the matter should be remitted for new fact-finding hearings so that the medical records of the subject child Anthonya can be subpoenaed from SUNY-Downstate Hospital (see, Family Ct Act § 153, 1048[a]; Matter of T. Children, 123 A.D.2d 390, Matter of Dara R., 119 A.D.2d 579; Matter of Lahrick L., 118 A.D.2d 709). During the fact-finding hearing, Anthonya's doctor testified that he had prescribed antibiotics for treating chlamydia after receiving test results from that hospital, and that he based his diagnosis of sexual abuse on medical records from that hospital. Accordingly, it was incumbent upon the Family Court to determine, at the least, if the alleged records existed.