The Second Department, reversing Family Court, determined petitioner’s motion for summary judgment against mother on the issue of neglect should have been denied:
“[I]n an appropriate case, the Family Court may enter a finding of neglect on a summary judgment motion in lieu of holding a fact-finding hearing upon the petitioner’s prima facie showing of neglect as a matter of law and the respondent’s failure to raise a triable issue of fact in opposition to the motion” … . “Summary judgment, of course, may only be granted in any proceeding when it has been clearly ascertained that there is no triable issue of fact outstanding; issue finding, rather than issue determination, is its function” … .
Here, in support of that branch of its motion which was for summary judgment against the mother on the issue of neglect of the subject child, the petitioner included the evidence submitted at a hearing held pursuant to Family Court Act § 1028. At that hearing, the mother, who is deaf and communicated through a sign language interpreter, gave various explanations for the scratches and other marks on the child’s skin. The mother testified that she had difficulty controlling the child, who has been diagnosed with attention deficit hyperactivity disorder and oppositional defiant disorder, and that she accidentally scratched the child while trying to restrain him. Under these circumstances, the evidence at the hearing revealed triable issues of fact as to whether the mother neglected the child. Matter of Joseph Z. (Yola Z.), 2019 NY Slip Op 04957, Second Dept 6-19-19