Opinion
2011-10-25
In the Matter of AQUILLA J. (Anonymous).Administration for Children's Services, respondent;Joseph J. (Anonymous), appellant.
Elliot Green, Brooklyn, N.Y., for appellant.Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Susan Paulson of counsel; Marisa H. Warren on the brief), for respondent.Steven Banks, New York, N.Y. (Tamara A. Steckler and Diane Pazar of counsel), attorney for the child.
In a child protective proceeding pursuant to Family Court Act article 10, the father appeals, as limited by his brief, from stated portions of an “amended” order of fact-finding of the Family Court, Kings County (Grosvenor, J.), dated June 3, 2010.
ORDERED that the “amended” order of fact-finding is affirmed insofar as appealed from, without costs or disbursements.
The petitioner's motion to “amend” a fact-finding order dated June 23, 2009, to provide that the father had abused the subject child, based upon the findings of fact contained in that order that the father committed certain acts pursuant to Family Court Act § 1012(e)(iii), was, in actuality, a motion for resettlement pursuant to CPLR 5019(a) ( see Halloran v. Virginia Chems., 41 N.Y.2d 386, 394, 393 N.Y.S.2d 341, 361 N.E.2d 991; Hernandez v. Willoughby Walk Apts. Corp., 71 A.D.3d 731, 732, 896 N.Y.S.2d 441), and not a motion for reargument pursuant to CPLR 2221. The findings of fact contained in the fact-finding order dated June 23, 2009, supported the conclusion that the father committed acts defined in Family Court Act § 1012(e)(iii), which refers to child abuse of a sexual nature. Therefore, the change was of form, not of substance ( see Kiker v. Nassau County, 85 N.Y.2d 879, 881, 626 N.Y.S.2d 55, 649 N.E.2d 1199).
Since the motion was not for reargument, the provisions of CPLR 2221(d)(3) were inapplicable. Moreover, since the father was not prejudiced by the delay in moving for, in effect, resettlement of the original fact-finding order, consideration of the motion was not barred by the doctrine of laches ( see Kiker v. Nassau County, 85 N.Y.2d at 882, 626 N.Y.S.2d 55, 649 N.E.2d 1199; Rodriguez v. Long Is. Coll. Hosp., 289 A.D.2d 556, 735 N.Y.S.2d 611).
DILLON, J.P., BALKIN, ENG and COHEN, JJ., concur.