In the Matter of Raymond J., a Child Alleged to be Neglected. Commissioner of Social Services, Respondent; Raymond J., Appellant, et al., Respondent

In the Matter of Raymond J., a Child Alleged to be Neglected. Commissioner of Social Services, Respondent; Raymond J., Appellant, et al., Respondent. [638 NYS2d 62] [MAJORITY] —Order of disposition, Family Court, Bronx County (Marjory Fields, J.), entered March 21, 1994, which, inter alia, placed the child with the Commissioner of Social Services for a period of up to 12 months, after a fact-finding determination that respondents neglected the child pursuant to Family Court Act § 1012 (f) (i) (B), unanimously reversed, on the law and the facts, without costs, the order vacated and the matter remanded for a new fact-finding hearing. As petitioner concedes, in light of the Fourth Department’s recent decision in Matter of Christina A. (216 AD2d 928), the Family Court committed reversible error during the course of the fact-finding hearing by granting petitioner’s motion, over respondents’ objections, to incorporate the non-hearsay testimony of the witnesses at the Family Court Act § 1028 hearing without first determining that such witnesses were unavailable (see, CPLR 4517). Since the court based its factual findings solely on this prior testimony, the error cannot be deemed harmless, even though the court permitted the parties to call the witnesses for renewed examination and to present additional evidence and testimony. Concur — Murphy, P. J., Ross, Tom and Mazzarelli, JJ.