Matter of Frantrae W.

Matter of Frantrae W. 2007 NY Slip Op 09082 [45 AD3d 412] November 20, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

In the Matter of Frantrae W. and Another, Children Alleged to be Abused and Neglected. Fred W., Appellant; Commissioner of Administration for Children's Services, Respondent, et al., Respondent.

—[*1] Neal D. Futerfas, White Plains, for appellant.

Michael A. Cardozo, Corporation Counsel, New York City (John Hogrogian of counsel), for Commissioner of Administration for Children's Services, respondent.

Lawyers for Children, Inc., New York City (Hal Silverman of counsel), and LeBoeuf, Lamb, Greene & MacRae LLP, New York City (Daphnée Saget Woodley of counsel), Law Guardian for Michelle W.

Tamara A. Steckler, The Legal Aid Society, New York City (John Newbery of counsel), Law Guardian for Frantrae W.

Order, Family Court, New York County (Susan K. Knipps, J.), entered on or about January 24, 2006, which found respondent father to have neglected and abused the children, unanimously affirmed, without costs.

Despite the serious nature of the charges, the Family Court's credibility determinations, based on sharply divergent testimony, are entitled to deference (see Matter of Benjamin L., 9 AD3d 153, 155 [2004]). The record supports the court's findings that appellant abused his older daughter by having sexual intercourse with her in 2003 and 2004. His argument that the older daughter's testimony was received without corroboration is not apt, since the court did not rely exclusively on her out-of-court testimony (see Family Ct Act § 1046 [a] [vi]). In any event, the older daughter's testimony was corroborated by that of a treating social worker, and in certain details by respondent stepmother. The record also supports the court's findings that appellant inflicted excessive corporal punishment on the older daughter.

The older daughter's recantation did not invalidate her original testimony outright (see Matter of Richard SS., 29 AD3d 1118, 1123 [2005]). At most, it raised credibility questions as [*2]to her testimony (see Matter of Kayla N., 41 AD3d 920, 922-923 [2007]), and the record supports the Family Court's resolution of those questions against crediting the recantation or disregarding the original testimony, based on findings that were made after the court carefully evaluated the child's sworn testimony (see Matter of Stephanie R., 21 AD3d 417 [2005]). Appellant's arguments as to the court's evidentiary rulings are without merit. Concur—Lippman, P.J., Mazzarelli, Marlow, Catterson and Kavanagh, JJ.