D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth DeV. Moeller of counsel), for respondent-appellant.

Adam H. Van Buskirk, Auburn, for petitioner-respondent.

Jill L. Terry, Weedsport, Attorney for the Child.

Appeal from an order of the Family Court, Cayuga County (Thomas G. Leone, J.), entered October 14, 2016, in a proceeding pursuant to Social Services Law § 384-b. The order, among other things, transferred the guardianship and custody of the subject child to petitioner.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this proceeding pursuant to Social Services Law § 384-b, respondent mother appeals from an order that, inter alia, terminated her parental rights with respect to the subject child on the ground of permanent neglect. We affirm.

We reject the mother's contention that reversal is required because petitioner failed to properly notify the child's maternal uncle of the instant proceeding. Even assuming, arguendo, that petitioner failed to fulfill its statutory duty to notify the uncle of the pendency of the proceeding and of the opportunity for becoming a foster parent or for seeking custody of the child (see Social Services Law § 384-a [1-a]; see generally Family Ct Act § 1017 [1] [a]), we conclude that the record establishes that the uncle was aware of the fact that the child was in foster care. Indeed, the uncle filed a custody petition with respect to the child, but that proceeding was dismissed as a result of the uncle's failure to appear and the uncle did not appeal from the order dismissing his petition. Thus, it cannot be said that the uncle was prejudiced by any failure to notify him of this proceeding (see Matter of Elizabeth YY. v Albany County Dept. of Social Servs., 229 AD2d 618, 620-621 [3d Dept 1996]).

We also reject the mother's contention that Family Court erred in determining that she permanently neglected the child. Although the mother participated in some of the services offered by petitioner, petitioner established that the mother's progress was insufficient to warrant the return of the child to her care inasmuch as she failed to " 'address or gain insight into the problems that led to the removal of the child[ ] and continued to prevent the child['s] safe return' " (Matter of Burke H. [Richard H.], 134 AD3d 1499, 1501 [4th Dept 2015]; see Matter of Tiara B. [Torrence B.], 70 AD3d 1307, 1307 [4th Dept 2010], lv denied 14 NY3d 709 [2010]). Contrary to the mother's further contention, the court did not abuse its discretion in terminating the mother's parental rights rather than granting a suspended judgment (see Matter of Jose R., 32 AD3d 1284, 1285 [4th Dept 2006], lv denied 7 NY3d 718 [2006]). The evidence in the record supports the court's determination that termination of the mother's parental rights is in the best interests of the child, and that the mother's progress in addressing the issues that led to the child's removal from her custody was " 'not sufficient to warrant any further prolongation of the child's unsettled familial status' " (Matter of Alexander M. [Michael A.M.], 106 AD3d 1524, 1525 [4th Dept 2013]; see Matter of Joanna P. [Patricia M.], 101 AD3d 1751, 1752 [4th Dept 2012], lv denied 20 NY3d 863 [2013]). Present—Whalen, P.J., Carni, Lindley, DeJoseph and Winslow, JJ.

Ball v Caesar

162 AD3d ?

Caesar, Ball v

162 AD3d ?

2018 NY Slip Op 04894

Ball v Caesar162 AD3d ?

Ball v Caesar

[—– NYS3d —–]

[*2]

Asia Ball, as Parent and Natural Guardian of Infant A.K., Respondent, v Orlando Caesar, Defendant, and Kelli Smith et al., Appellants. Law Office of Daniel R. Archilla, Buffalo (Joan M. Richter of counsel), for defendants-appellants. The Wright Law Firm, LLC, Rochester (Ron F. Wright of counsel), for plaintiff-respondent. HEADNOTES Motor Vehicles Injuries to Passengers Summary Judgment Appeal from an order of the Supreme Court, Monroe County (Evelyn Frazee, J.), entered August 3, 2017. The order denied the motion of defendants Kelli Smith and Kelli's Little One-Z Childcare, Inc. seeking summary judgment dismissing the complaint against them, and granted plaintiff's cross motion for partial summary judgment. It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the cross motion is denied, the motion is granted and the complaint is dismissed against defendants Kelli Smith and Kelli's Little One-Z Childcare, Inc. Memorandum: Plaintiff commenced this action seeking damages for injuries sustained by her infant son in a motor vehicle accident. At the time of the accident, the child was in the care and custody of Kelli Smith and Kelli's Little One-Z Childcare, Inc. (collectively, defendants), and was a passenger in a vehicle owned and operated by Smith. It is undisputed that the accident occurred when Smith's vehicle, which had the right-of-way, entered an intersection and the vehicle of defendant Orlando Caesar struck the side of her vehicle after failing to stop at a stop sign. Supreme Court erred in denying defendants' motion seeking summary judgment dismissing the complaint against them and granting plaintiff's cross motion for summary judgment on the issue of defendants' negligence. Defendants met their initial burden of demonstrating that Smith was not negligent in the operation of her vehicle by submitting evidence establishing that the sole proximate cause of the accident was Caesar's failure to yield the right-of-way at the intersection (see Vehicle and Traffic Law §§ 1142 [a]; 1172 [a]; Rolls v State of New York, 129 AD3d 1638, 1638 [4th Dept 2015]). Defendants also submitted evidence that Smith was traveling at or below the speed limit, she was not distracted, and her vehicle had entered the intersection when Caesar's vehicle ran the stop sign and struck her vehicle (see Jenkins v Alexander, 9 AD3d 286, 287 [1st Dept 2004]). Plaintiff failed to raise a triable issue of fact whether Smith " 'was at fault in the happening of the accident or whether [s]he could have done anything to avoid the collision' " (Wallace v Kuhn, 23 AD3d 1042, 1043 [4th Dept 2005]). The court erred in concluding that defendants breached a duty that they assumed through a consent form, which was signed by plaintiff, that permitted defendants to transport the child "while transporting other children to and from school." Even assuming, arguendo, that defendants breached such a duty by exceeding the scope of plaintiff's consent when Smith transported the child, as noted above, defendants established as a matter of law that Caesar was the sole proximate cause of the accident (see Gallaway v Town of N. Collins, 129 AD3d 1669, 1670 [4th Dept 2015]; Swauger v White, 1 AD3d 918, 919-920 [4th Dept 2003]), and thus they were entitled to summary judgment. Further, we agree with defendants that the court erred in considering plaintiff's contention that defendants were negligent in transporting the child in an improperly installed car seat (see Smith v Kinsey, 50 AD3d 1456, 1458 [4th Dept 2008]; Baker v Keller, 241 AD2d 947, 947 [4th Dept 1997]). In view of our decision, we do not address defendants' contention that the court erred in denying their alternative request to bifurcate the trial on the issues of liability and damages. Present—Whalen, P.J., Carni, Lindley, DeJoseph and Winslow, JJ.