Matter of Aliyah N. (Alvin N.)

2019 NY Slip Op 2959

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 18, 2019
• Docket: 9025
• Status: Published

Opinion

Matter of Aliyah N. (Alvin N.) (2019 NY Slip Op 02959)

Matter of Aliyah N. (Alvin N.)

2019 NY Slip Op 02959

Decided on April 18, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 18, 2019
Richter, J.P., Manzanet-Daniels, Kahn, Gesmer, Oing, JJ.

9025

[*1]In re Aliyah N., A Dependent Child Under Eighteen Years of Age, etc., Alvin N., Respondent-Appellant, Administration for Children's Services, Petitioner, Leila S., Respondent-Respondent.

The Bronx Defenders, Bronx (Miriam Schachter of counsel), for appellant.

Larry S. Bachner, New York, for respondent.

Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), attorney for the child.

Order, Family Court, Bronx County (Michael R. Milsap, J.), entered on or about April 24, 2018, which denied respondent father's motion to compel petitioner Administration for Children's Services' (ACS) medical expert witness to appear for a deposition, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the motion granted.

The father met his burden of demonstrating special circumstances warranting the grant of his motion to subpoena and depose ACS's expert medical witness, given ACS's failure to oppose the application and its concession that it does not know whether the doctor's testimony at the fact finding hearing will support its allegations of child abuse (see CPLR 3101[d][1][iii]; Falcone v Karagiannis, 93 AD3d 632, 634 [2d Dept 2012]).

The excerpts of the child's medical records provided to the father did not indicate the substance of the expert's expected fact finding testimony, including her expert opinion as to the extent of the child's injuries, her future prognosis, or the facts supporting her conclusion that the child's injuries were non-accidental (see Melendez v Roman Catholic Archdiocese of N.Y., 277 AD2d 64 [1st Dept 2000]; Weinberger v Lensclean Inc., 198 AD2d 58, 59 [1st Dept 1993]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 18, 2019

CLERK