Opinion
9025
04-18-2019
IN RE ALIYAH N., a Dependent Child Under Eighteen Years of Age, etc., Alvin N., Respondent–Appellant, v. Administration for Children's Services, Petitioner, Leila S., Respondent–Respondent.
The Bronx Defenders, Bronx (Miriam Schachter of counsel), for appellant. Larry S. Bachner, New York, for respondent. Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), attorney for the child.
The Bronx Defenders, Bronx (Miriam Schachter of counsel), for appellant.
Larry S. Bachner, New York, for respondent.
Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), attorney for the child.
Richter, J.P., Manzanet–Daniels, Kahn, Gesmer, Oing, JJ.
Order, Family Court, Bronx County (Michael R. Milsap, J.), entered on or about April 24, 2018, which denied respondent father's motion to compel petitioner Administration for Children's Services' (ACS) medical expert witness to appear for a deposition, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the motion granted.
The father met his burden of demonstrating special circumstances warranting the grant of his motion to subpoena and depose ACS's expert medical witness, given ACS's failure to oppose the application and its concession that it does not know whether the doctor's testimony at the fact finding hearing will support its allegations of child abuse (see CPLR 3101[d][1][iii] ; Falcone v. Karagiannis, 93 A.D.3d 632, 634, 939 N.Y.S.2d 561 [2d Dept. 2012] ).
The excerpts of the child's medical records provided to the father did not indicate the substance of the expert's expected fact finding testimony, including her expert opinion as to the extent of the child's injuries, her future prognosis, or the facts supporting her conclusion that the child's injuries were non-accidental (see Melendez v. Roman Catholic Archdiocese of N.Y. , 277 A.D.2d 64, 717 N.Y.S.2d 518 [1st Dept. 2000] ; Weinberger v. Lensclean Inc. , 198 A.D.2d 58, 59, 603 N.Y.S.2d 148 [1st Dept. 1993] ).