In re Jaquan H. , 737 N.Y.S.2d 905 ( 2002 )

—Appeal from an order of Family Court, Oneida County (Cook, J.), entered July 17, 2001, which, inter alia, dismissed the neglect petition.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied, the amended petition is reinstated and the matter is remitted to Family Court, Oneida County, for further proceedings in accordance with the following Memorandum: Petitioner commenced this proceeding pursuant to Family Court Act article 10, alleging that respondents had neglected their infant son, who has special medical needs that render him extremely vulnerable to respiratory arrest and death and to other lesser complications. Family Court erred in granting respondents’ motion to dismiss the amended petition on the ground that petitioner had failed to establish a prima facie case of neglect (see, Matter of Camara R., 263 AD2d 710, 712-713; Matter of Colleen CC., 232 AD2d 787, 789; Matter of Lisa M., 222 AD2d 1088, 1088-1089; cf., Matter of Anne BB., 202 AD2d 806, 808; see generally, Matter of Chakeeo B.-G., 273 AD2d 915, 915-916). We therefore reverse the order, deny the motion, reinstate the amended petition and remit the matter to Family Court, Oneida County, for a new fact-finding hearing before a different Judge (see, Matter of Michael A., 166 AD2d 898; see also, Matter of Elizabeth G., 255 AD2d 1010, 1012, lv dismissed 93 NY2d 848, lv denied 93 NY2d 814; Matter of Briana R., 236 AD2d 830, 831). Because there must be a new hearing, we need not address the remaining contentions of the parties. We note, however, that petitioner may proceed upon a new or further amended petition and that the matter should be determined based upon the most current allegations and proof concerning the present circumstances of respondents and the child. Present — Hayes, J.P., Hurlbutt, Scudder, Kehoe and Gorski, JJ.