The record contains detailed testimony from the two treating physicians who examined the child at each hospital and described the child's extensive injuries. Moreover, other testimony established that the mother twice forcibly squeezed the child's chest, which was consistent with the nonaccidental nature of the child's injuries (see Matter of Eric CC., 237 A.D.2d 655, 656–657, 653 N.Y.S.2d 983 ). Also, inasmuch as the mother declined to testify, “the court [was] permitted to draw the strongest possible negative inference” against her (Matter of Jasmine A., 18 A.D.3d 546, 548, 795 N.Y.S.2d 87 ; see Matter of Kennedie M. [Douglas M.], 89 A.D.3d 1544, 1545, 934 N.Y.S.2d 278, lv. denied 18 N.Y.3d 808, 2012 WL 539274 ).
The record contains detailed testimony from the two treating physicians who examined the child at each hospital and described the child's extensive injuries. Moreover, other testimony established that the mother twice forcibly squeezed the child's chest, which was consistent with the nonaccidental nature of the child's injuries (see Matter of Eric CC., 237 AD2d 655, 656-657). Also, inasmuch as the mother declined to testify, "the court [was] permitted to draw the strongest possible negative inference" against her (Matter of Jasmine A., 18 AD3d 546, 548; see Matter of Kennedie M. [Douglas M.], 89 AD3d 1544, 1545, lv denied 18 NY3d 808).
separate events of trauma. The record also reflects that the mother and the father were Stephen's primary caregivers and that Stephen had lived with them continuously since birth, except for two periods of time before the incident where he had stayed with his paternal grandmother — who also testified. While there is also evidence in the record that the mother's parents and a friend lived in their home during the relevant time period, the record supports the conclusion that these individuals provided only limited care for Stephen and they had not caused Stephen's injuries. Indeed, the severe injuries suffered by Stephen, combined with his young age, sufficiently established that his injuries could not have occurred without an affirmative act of abuse on the part of at least one of his parents ( see Family Ct Act § 1046 [a] [ii]; see e.g. Matter of Chaquill R., 55 AD3d 975, 976, lv denied 11 NY3d 715; Matter of Ashley RR., 30 AD3d 699, 700; Matter of Tanajhia A., 283 AD2d 708, 708-709; Matter of Eric CC. 237 AD2d 655, 656; Matter of Austin J J., 232 AD2d 736, 737). As petitioner established a prima facie case of child abuse, the burden shifted to the mother to rebut this compelling evidence ( see Matter of Brooke OO. [Lawrence OO.], 74 AD3d at 1431; Matter of Chaquill R., 55 AD3d at 976; Matter of Ashley RR., 30 AD3d at 700).
Petitioner established by a preponderance of the evidence respondents' responsibility for the physical abuse of their infant daughter, Dominique B. It was clear from petitioner's proof that the rectal and anal injuries sustained by the child would not have occurred absent an act or omission of respondents, who were caring for the child at the time of her injury (see, Family Court Act § 1046[a][ii]; Matter of Philip M., 82 N.Y.2d 238). In making the abuse determination against respondents with respect to Dominique B., the court properly credited the petitioner's medical experts who found that the child's injuries were the result of sexual abuse, and properly rejected the speculation of respondents and their expert that the injuries were inflicted by emergency room personnel during attempts to resuscitate the child or during other medical procedures (see, Matter of Eric CC., 237 A.D.2d 655, 657; Matter of Jorela L., 222 A.D.2d 282). Although there was evidence that Dominique B.'s death in the near aftermath of the anal and rectal injuries may have been attributable to the enlargement of her heart, petitioner did not have to establish the cause of the child's death, only that she had been abused. In light of the nature and severity of the abuse established with respect to Dominique B., the finding of derivative abuse with respect to Anthony S. was proper, even absent direct evidence of respondents' actual abuse of this second child (see, Family Court Act § 1046[a][I];Matter of Quincy Y., ___ A.D.2d ___, 714 N.Y.S.2d 293).
The lack of privity between KOPELOWITZ and NORTHBROOK clearly demonstrates that the first and second causes of action for breach of contract must be dismissed. (See ArthurGlick Leasing, Inc. v William J. Petzold, Inc. , 51 AD3d 1114 [3d Dept 2008]; Black Car Livery Ins., Inc. v H W Brokerage, Inc. , 28 AD3d 595 [2d Dept 2006]; HDR, Inc. v International Aircraft Parts, Inc., 257 AD2d 603 [2d Dept 1999]; Blank v Noumair, 239 AD2d 534 [2d Dept 1997]; W.H. Brownyard Corp. v American Intern. Group, Inc., 237 AD2d 655 [2d Dept 1997]; National Survival Games of NY v NSG of LI Corp., 169 AD2d 760 [2d Dept 1991]). Further, the May 31, 2007 letter agreement was drafted by plaintiff.
Furthermore, the easement contains an accurate and adequate description of the property. Moreover, the recording of the easement, coupled with the long-term presence of power lines over the property, provided plaintiff with both actual and constructive notice of the existence and location of the easement ( seeMilbrook Hunt, Inc. v. Smith,supra; see alsoGreen v. Mann, 237 A.D.2d 655 N YS.2d [2d Dept 1997]). Notwithstanding plaintiff's assertion to the contrary, the apparent absence of a recorded deed of ownership in the property by Fitzpatrick does not defeat defendant's easement claims.