In the Matter of Kristen B. and Others, Children Alleged to be Abused. Christina O., Respondent; Commissioner of the Administration for Children's Services et al., Appellants

(May 8, 2001) In the Matter of Kristen B. and Others, Children Alleged to be Abused. Christina O., Respondent; Commissioner of the Administration for Children’s Services et al., Appellants. [724 NYS2d 303] [MAJORITY] —Orders, Family Court, Bronx County (Myrna Martinez-Perez, J.), entered on or about March 30, 1999, which dismissed child abuse petitions after a fact-finding hearing, unanimously affirmed, without costs. Order, same court and Judge, entered on or about January 13, 2000, which denied the Law Guardian’s motion to set aside the March 30, 1999 order for receipt of new evidence, unanimously affirmed, without costs. We see no reason to disturb Family Court’s finding, largely one of credibility, that respondent was not with the child at the time the child sustained her injury. Respondent’s evidence in that regard, in light of all the circumstances, including the absence of testimony from the neighbor who babysat for the child on the day respondent took the child to the hospital, satisfied respondent’s burden of explanation for the injury (see, Matter of Philip M., 82 NY2d 238, 244, 246). The evidence that appellants Commissioner and Law Guardian offer in support of their requests to reopen the hearing was available at the time of the hearing, and, moreover, does not aid in determining when or how the child was injured. Concur — Sullivan, P. J., Wallach, Lerner, Andrias and Buckley, JJ.