Opinion
February 27, 1996
Appeal from the Family Court, Bronx County (Marjory Fields, J.).
As petitioner concedes, in light of the Fourth Department's recent decision in Matter of Christina A. ( 216 A.D.2d 928), the Family Court committed reversible error during the course of the fact-finding hearing by granting petitioner's motion, over respondents' objections, to incorporate the non-hearsay testimony of the witnesses at the Family Court Act § 1028 hearing without first determining that such witnesses were unavailable ( see, CPLR 4517). Since the court based its factual findings solely on this prior testimony, the error cannot be deemed harmless, even though the court permitted the parties to call the witnesses for renewed examination and to present additional evidence and testimony.
Concur — Murphy, P.J., Ross, Tom and Mazzarelli, JJ.