In re Jada W.

104 A.D.3d 861, 961 N.Y.S.2d 524

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 20, 2013
• Status: Published

Opinion

In a child protective proceeding pursuant to Family Court Act article 10, the mother appeals, as limited by her brief, from stated portions of an order of fact-finding and disposition of the Family Court, Kangs County (Ambrosio, J.), dated August 3, 2011, which, after fact-finding and dispositional hearings, inter alia, found that she neglected the subject child.

Ordered that the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.

“When a variance develops between a pleading and proof admitted at the instance or with the acquiescence of a party, such party cannot later claim that he was surprised or prejudiced” (Murray v City of New York, 43 NY2d 400, 405 [1977]). “Under such circumstances, even appellate courts have taken it upon themselves upon review to amend the pleadings to conform to the proof” (id. at 405; see CPLR 3025 [c]; De Mund v Martin, 103 AD2d 837, 839 [1984]). Here, the Family Court providently exercised its discretion in effectively conforming the allegations to the proof at the fact-finding hearing by making its finding of neglect based on facts proved at the fact-finding hearing that were not alleged in the petition. Inasmuch as the mother was afforded a sufficient opportunity to defend against the allegations not alleged in the petition, we find that she was not prejudiced (see Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23 [1981]; Matter of Amy H. v Chautauqua County Dept. of Social Servs., 13 AD3d 1048, 1050 [2004]; Sharkey v Locust Val. Mar., 96 AD2d 1093, 1094 [1983]). Skelos, J.E, Leventhal, Hall and Lott, JJ, concur.