The Administration for Children's Services (ACS) motion for summary judgment is denied.

AW is the subject children, Tiffany J's and Baron J's mother.

On December 12, 2012 she pleaded guilty in Supreme Court to Assault in the Second [*2]Degree- a D Felony ^[FN1] and Endangering the Welfare of a Child - an A Misdemeanor.^[FN2]

On a motion for summary judgment, facts must be viewed "in the light most favorable to the non-moving party" Vega v. Restani Const. Corp., 18 NY3d 499, 503 (2012). The movant has the burden of making "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." Winegrad v. New York University Medical Center, 64 NY2d 851, 853 (1985).

ACS asserts that Tiffany is an abused child under Family Court Act §1012 (e)(i) and (ii) and as a result, Baron is a derivatively abused child and that aggravated circumstances exist as defined by the Family Court Act and Social Services Law §384-b.

A parent is liable for abuse of her child pursuant to Family Court Act § 1012(e)(i) or (e)(ii), respectively, when either they inflict or allow to be inflicted upon such child, physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ, or create or allow to be created a substantial risk of physical injury to such child by other than accidental means which would likely cause death or serious or protracted disfigurement or protracted impairment of physical or emotional health or protracted loss or the impairment of the function of any bodily organ. In re G.C. Children, 23 Misc 3d. 1134 (A) (NY Family Court, 2009 (Hon. Emily Olshansky))

Petitioner submitted the plea transcript. Ms. W pleaded guilty to Penal Law §120.05 (9) by admitting that she intended to cause an injury and did cause an injury to the subject child. In her admission to Penal Law §260.10, she stated only that she acted in a manner likely to be injurious to the physical or moral welfare of a child under 17 years old.

ACS argues that these admissions by AW remove any factual issues in this action as a matter of law. But Ms. W did not admit and the penal law statutes under which she plead do not require, that the injury to the child's physical, mental or moral welfare place the child at risk of death, serious or protracted disfigurement, protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ.^[FN3]

Ms. W's plea therefore, failed to resolve the factual issues ACS has to prove in its abuse petition. ACS submitted exhibits in support of its motion which detail the charges against Ms. W. Charges are not facts and ACS submits nothing further that would permit summary judgment.

Ms. W did not submit opposition papers to ACS' application. As petitioner failed to establish its entitlement to judgment as a matter of law however, the motion is denied "regardless of the insufficiency of the [or lack of] opposition papers." Nouveau Elevator Industries, Inc v. Glendale Condominium Town and Tower Corp., __Ad3d__, 2013 WL 3198749, 2013 Slip Op. 04787 (2nd Dept, 2013), Winegrad, 64 NY2d at 853.

Accordingly, ACS' motion for summary judgment, declaring Tiffany as an abused child [*3]pursuant to FCA 1012(e)(ii) and (ii)is denied and therefore, requires denial of ACS' motion in its entirety.

This shall constitute the decision and order of the Court.

Dated: June 28, 2013E N T E R

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Steven Z. Mostofsky, J.F.C.