Opinion
July 7, 1988
Appeal from the Erie County Family Court, Notaro, J.
Present — Callahan, J.P., Doerr, Green, Lawton and Davis, JJ.
Order unanimously reversed on the law without costs, and matter remitted to Erie County Family Court for further proceedings, in accordance with the following memorandum: In this child abuse proceeding, Family Court's failure to set forth the reasons for its decision to dismiss the petition, as required by Family Court Act § 1051 (c), requires remittal for further proceedings (Matter of Erika M., 97 A.D.2d 847; see also, Giordano v Giordano, 93 A.D.2d 310, affd after remand 96 A.D.2d 653). Since the Judge who presided at the abuse hearing died prior to rendering his decision, the court's decision was based on a review of the lifeless pages of the transcript without the distinct advantage of seeing and hearing the witnesses (see, Matter of Irene O., 38 N.Y.2d 776). We, therefore, remit for a new hearing before a different Judge. Additionally, in making its decision the trial court should consider whether a preponderance of the evidence supports a finding of either abuse or neglect (see, Matter of Maria A., 118 A.D.2d 641).