Opinion
560 CAF 16–02183
05-04-2018
In the MATTER OF TAKODA G., Emma T., Hannah T., Ava T., and Mia T. Ontario County Department of Social Services Child Protective Unit, Petitioner–Respondent; v. Juan T., Respondent–Appellant.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR RESPONDENT–APPELLANT. GARY L. CURTISS, COUNTY ATTORNEY, CANANDAIGUA (SANDRA J. PACKARD OF COUNSEL), FOR PETITIONER–RESPONDENT. MARYBETH D. BARNET, CANANDAIGUA, ATTORNEY FOR THE CHILDREN.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR RESPONDENT–APPELLANT.
GARY L. CURTISS, COUNTY ATTORNEY, CANANDAIGUA (SANDRA J. PACKARD OF COUNSEL), FOR PETITIONER–RESPONDENT.
MARYBETH D. BARNET, CANANDAIGUA, ATTORNEY FOR THE CHILDREN.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, AND NEMOYER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 10, respondent father appeals from an order granting the motion of petitioner for summary judgment on the petition, which sought a determination that the father neglected the subject children. The contentions in the father's brief in opposition to the motion are raised for the first time on appeal and therefore are not properly before us (see Matter of Paige K. [Jay J.B.], 81 A.D.3d 1284, 1284, 916 N.Y.S.2d 542 [4th Dept. 2011] ). In any event, those contentions lack merit. Petitioner moved for summary judgment following the father's conviction, upon a jury verdict, of criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ) and five counts of endangering the welfare of a child (§ 260.10[1] ) stemming from a physical altercation between the father and the children's mother during which a loaded firearm was fired inside an apartment with the children present. The father does not dispute that he had a full and fair opportunity to litigate the issue of his criminal conduct during the criminal trial, and petitioner's submissions establish that "the allegations of neglect and [the father's] subsequent criminal conviction[ ] ‘arose out of the same incident’ " ( Matter of Tavianna CC. [Maceo CC.], 99 A.D.3d 1132, 1134, 952 N.Y.S.2d 804 [3d Dept. 2012], lv denied 20 N.Y.3d 856, 2013 WL 105356 [2013] ). Contrary to the father's contention, although he was acquitted of other criminal charges, petitioner presented sufficient evidence of the facts underlying the conviction of five counts of endangering the welfare of a child, which established that the children were in actual or imminent danger of physical, emotional or mental impairment as a result of the father's failure to exercise a minimum degree of care (see Family Ct Act § 1012[f][i][B] ; Matter of Blima M. [Samuel M.], 150 A.D.3d 1006, 1008, 55 N.Y.S.3d 123 [2d Dept. 2017] ; Tavianna CC., 99 A.D.3d at 1134, 952 N.Y.S.2d 804 ; cf. Matter of Kaliia F. [Jason F.], 148 A.D.3d 805, 807, 49 N.Y.S.3d 151 [2d Dept. 2017] ). Inasmuch as the father did not submit any opposition to petitioner's prima facie showing and therefore failed to raise a triable issue of fact, the court properly granted the motion (see Matter of Suffolk County Dept. of Social Servs. v. James M., 83 N.Y.2d 178, 183, 608 N.Y.S.2d 940, 630 N.E.2d 636 [1994] ).