Matter of Norma B. v Sven H.

Matter of Norma B. v Sven H. 2010 NY Slip Op 04717 [74 AD3d 464] June 3, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2010

In the Matter of Norma B., Petitioner,
v
Sven H., Respondent. Simon B., Appellant.

—[*1] Dewey & LeBoeuf LLP, New York (Ryan D. Fahey of counsel), for appellant.

Orders, Family Court, New York County (Tandra L. Dawson, J.), entered on or about March 31, 2008 and on or about September 8, 2008, which, insofar as appealed from, determined after fact-finding and dispositional hearings that the evidence was insufficient to sustain a finding of aggravating circumstances under Family Court Act § 827 (a) (vii), and order, same court and Judge, entered on or about October 16, 2007, which denied petitioner's motion to permit a certified social worker to testify at the fact-finding hearing to out-of-court statements made by the parties' child, or alternatively to permit the child to testify in camera at the fact-finding or dispositional hearing, unanimously affirmed, without costs.

No basis exists to disturb Family Court's findings of credibility (see Yoba v Yoba, 183 AD2d 418 [1992]). To the extent respondent's acts exposed family members to physical injury, Family Court properly found that the acts were not sufficiently contemporaneous with the dispositional hearing to support the requisite statutory element of "immediate and ongoing danger" (see id.; Matter of Ann P. v Nicholas C.P., 44 AD3d 776, 777 [2007]). While Family Court erred in refusing to permit the child to testify in camera at the dispositional hearing, a remand to permit the child to testify in camera would not be warranted since the child's testimony, even if credited, would have involved events not sufficiently contemporaneous to [*2]support a finding of aggravating circumstances. We have considered appellant's other arguments and find them unavailing. Concur—Friedman, J.P., Nardelli, Moskowitz, Freedman and Manzanet-Daniels, JJ.