In re Alfonzo T.

• Decision Date: 30 December 2010
• Citation: 79 A.D.3d 1724,914 N.Y.S.2d 488
• Parties: In the Matter of ALFONZO T. Onondaga County Department of Social Services, Petitioner-Appellant; Cassie L. and Alfonzo H., Respondents-Respondents.
• Court: New York Supreme Court — Appellate Division

914 N.Y.S.2d 488

79 A.D.3d 1724

In the Matter of ALFONZO T. Onondaga County Department of Social Services, Petitioner-Appellant; Cassie L. and Alfonzo H., Respondents-Respondents.

Supreme Court, Appellate Division, Fourth Department, New York.

Dec. 30, 2010.

Gordon J. Cuffy, County Attorney, Syracuse (Sara J. Langan of Counsel), for Petitioner-Appellant.

Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Respondent-Respondent Cassie L.

PRESENT: SCUDDER, P.J., CARNI, LINDLEY, PINE, AND GORSKI, JJ.

MEMORANDUM:

Petitioner appeals from an order that granted the motion of respondent parents to dismiss the instant neglect petition against them, with prejudice, at the close of petitioner's case. According to the allegations in the petition, the subject child has been neglected by his parents based upon, inter alia, his exposure to a series of domestic violence incidents that occurred between his parents between May 2008 and January 2009. Contrary to petitioner's contention, Family Court did not err in refusing to admit evidence of those domestic violence incidents at the hearing on the petition. As the court properlydetermined, any allegations concerning those incidents were raised or could have been raised in a separate petition previously filed by petitioner against both parents in January 2009, in which petitioner previously had alleged that they neglected the subject child. We determined in petitioner's appeal from the order dismissing that petition that Family Court properly granted that part of the motion of the parents seeking dismissal of the petition against the mother with prejudice on the ground petitioner failed to establish a prima facie case against her, but we agreed with petitioner that the court erred in dismissing the petition against the father " 'insofar as the petition alleges that his 'alcohol abuse impairs his ability to safely care for [the child]' " ( Matter of Alfonzo H., 77 A.D.3d 1410, 1411, 908 N.Y.S.2d 780). Both the previous petition and the instant petition involve the same parties, and both petitions alleged the same theory of neglect, i.e., imminent danger to the subject child due to his exposure to a series of domestic violence incidents that required police intervention occurring between May 2008 and January 2009. Thus, petitioner's present claim that the child was neglected "is grounded on the same ... series of transactions as the prior action," and the court properly excluded on the ground of res judicata not only those discrete incidents of domestic violence that occurred between May 2008 and January 2009 that were previously raised, but also evidence of all such incidents occurring in that time frame ( Fogel v. Oelmann, 7 A.D.3d 485, 486, 776 N.Y.S.2d 76; see generally Smith v. Russell Sage Coll., 54 N.Y.2d 185, 192-193, 445 N.Y.S.2d 68, 429 N.E.2d 746, rearg. denied 55 N.Y.2d 878, 448 N.Y.S.2d 1026, 433 N.E.2d 537; Matter of Reilly v. Reid, 45 N.Y.2d 24, 27, 407 N.Y.S.2d 645, 379 N.E.2d 172). In so concluding, we note that petitioner could have discovered all of these...