Opinion
2013-03-20
In the Matter of JADA W. (Anonymous). Administration for Children's Services, petitioner-respondent; Ketanya B. (Anonymous), appellant, et al., respondent.
Etta Ibok, Brooklyn, N.Y., for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Deborah A. Brenner of counsel), for petitioner-respondent.
Etta Ibok, Brooklyn, N.Y., for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Deborah A. Brenner of counsel), for petitioner-respondent.
Steven Banks, New York, N.Y. (Tamara A. Steckler and Judith Stern of counsel), attorney for the child.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, and PLUMMER E. LOTT, JJ.
In a child protective proceeding pursuant to Family Court Act article 10, the mother appeals, as limited by her brief, from stated portions of an order of fact-finding and disposition of the Family Court, Kings County (Ambrosio, J.), dated August 3, 2011, which, after fact-finding and dispositional hearings, inter alia, found that she neglected the subject child.
ORDERED that the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.
“When a variance develops between a pleading and proof admitted at the instance or with the acquiescence of a party, such party cannot later claim that he was surprised or prejudiced” ( Murray v. City of New York, 43 N.Y.2d 400, 405, 401 N.Y.S.2d 773, 372 N.E.2d 560). “Under such circumstances, even appellate courts have taken it upon themselves upon review to amend the pleadings to conform to the proof” ( id. at 405, 401 N.Y.S.2d 773, 372 N.E.2d 560;seeCPLR 3025[c]; De Mund v. Martin, 103 A.D.2d 837, 839, 478 N.Y.S.2d 362). Here, the Family Court providently exercised its discretion in effectively conforming the allegations to the proof at the fact-finding hearing by making its finding of neglect based on facts proved at the fact-finding hearing that were not alleged in the petition. Inasmuch as the mother was afforded a sufficient opportunity to defend against the allegations not alleged in the petition, we find that she was not prejudiced ( see Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 23, 444 N.Y.S.2d 571, 429 N.E.2d 90;Matter of Amy H. v. Chautauqua County Dept. of Social Servs., 13 A.D.3d 1048, 1050, 788 N.Y.S.2d 737;Sharkey v. Locust Val. Mar., 96 A.D.2d 1093, 1094, 467 N.Y.S.2d 61).