Mary Alice V., Matter of

• Decision Date: 18 December 1995
• Citation: 635 N.Y.S.2d 278,222 A.D.2d 594
• Parties: In the Matter of MARY ALICE V. (Anonymous), a Child Alleged to be Abused. Hugh V. (Anonymous), Jr., Appellant; Commissioner of Social Services, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 278

635 N.Y.S.2d 278

222 A.D.2d 594

In the Matter of MARY ALICE V. (Anonymous), a Child Alleged

to be Abused.

Hugh V. (Anonymous), Jr., Appellant;

Commissioner of Social Services, Respondent.

Supreme Court, Appellate Division,

Second Department.

Dec. 18, 1995.

Benjamin C. Rosenberg, Brooklyn, for appellant.

Paul A. Crotty, Corporation Counsel, New York City (Francis F. Caputo and Michael S. Adler, of counsel), for respondent.

Joan L. Piccirillo, Richmond Hill, Law Guardian for the child.

Before O'BRIEN, J.P., and PIZZUTO, SANTUCCI and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In a child protective proceeding pursuant to Family Court Act article 10, Hugh V., Jr. appeals from an order of the Family Court, Queens County (Fitzmaurice, J.), dated July 23, 1993, which denied his motion to vacate (1) so much of a fact-finding order of the same court, entered July 24, 1992, as found that he had sexually abused his sister, Mary Alice V., and (2) a dispositional order of the same court, entered February 9, 1993, upon the fact-finding order, which, inter alia, directed that an order of protection be entered preventing him from any contact with Mary Alice V.

ORDERED that the order is affirmed, without costs or disbursements.

The appellant contends that he is not a proper party to this child protective proceeding because he was not a person "legally responsible" for his sister Mary Alice V., pursuant to Family Court Act § 1012(a), during the period he allegedly sexually abused her. However, the appellant's contention is not preserved for appellate review because it was never raised in the proceeding (see, Matter of Kagels v. Kagels, 209 A.D.2d 1020, 619 N.Y.S.2d 996; Matter of Vitti v. Vitti, 202 A.D.2d 917, 919, 609 N.Y.S.2d 686). In any event, the appellant's contention is without merit. The definition of a "person legally responsible" under Family Court Act § 1012(g) extends to include the 17-year old appellant, who was found to have sexually abused his 4-year old sister while charged with the responsibility of caring for her in the absence of their mother. The appellant resided in the same household as his sister and he had babysat for his sister on previous occasions. Therefore, we conclude that the appellant was a "person legally responsible" under Family Court Act § 1012 (see generally, Matter of Yolanda D., 218 A.D.2d 648, 630 N.Y.S.2d 537).