Opinion
2001-06479
Submitted December 6, 2002.
December 30, 2002.
In three related child protective proceedings pursuant to Family Court Act article 10, the father appeals from an order of the Family Court, Queens County (Bogacz, J.), dated October 24, 2001, which denied his motion for summary judgment dismissing the petitions and for visitation with the subject children.
Larry S. Bachner, Jamaica, N.Y., for appellant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and Ronald E. Sternberg of counsel), for respondent.
Monica Drinane, New York, N.Y. (Raymond E. Rogers of counsel), Law Guardian for the children.
Before: FRED T. SANTUCCI, J.P., SANDRA J. FEUERSTEIN, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the appeal from so much of the order as denied that branch of the motion which was for visitation is dismissed as academic, without costs or disbursements; and it is further,
ORDERED that the order is affirmed insofar as reviewed, without costs or disbursements.
In light of a subsequent order of the Family Court dated December 13, 2001, allowing visitation, the appeal from so much of the order dated October 21, 2001, as denied visitation has been rendered academic (see Matter of Johannah QQ., 266 A.D.2d 769, 770; Matter of Monsunlola O., 231 A.D.2d 638; Matter of Kevin R., 193 A.D.2d 351, 352). In any event, in view of the admission of abuse of one of the subject children by the father, the suspension of visitation pending a fact-finding hearing was a provident exercise of discretion (see Matter of Shavon G., 185 A.D.2d 339, 340).
These proceedings, pursuant to a second set of petitions alleging abuse by the father, were not barred by the doctrines of res judicata or collateral estoppel. A second petition may properly be brought where it presents subsequent allegations of neglect not covered by the earlier petition (see Matter of Jesus II, 249 A.D.2d 846; Matter of Jean G., 225 A.D.2d 779; Matter of Yan Ping Z., 190 Misc.2d 151, 155).
The Family Court properly denied the father's motion to dismiss the petitions. The out-of-court statements describing sexual abuse by the father require the court to conduct a fact-finding hearing at which the petitioner will have the burden of proving the allegations (see Matter of Christina F., 74 N.Y.2d 532, 535; Matter of Katherine S., 271 A.D.2d 538; Matter of Stefanel Tyesha C., 157 A.D.2d 322, 327).
SANTUCCI, J.P., FEUERSTEIN, LUCIANO and SCHMIDT, JJ., concur.