David T. v. Peter D. T. , 155 A.D.2d 327 ( 1989 )

— Order of the Family Court, New York County (Michael Gage, J.), entered on or about December 16, 1988, which dismissed the Family Court Act article 10 petition of appellant Commissioner of the Department of Social Services of the City of New York for failure to establish, by a preponderance of the evidence, that respondent Peter T. had neglected his child, David, unanimously affirmed, without costs.

The hearing testimony of the complainant charged that Peter T. was holding his child over a garbage can in Tompkins Square Park, which activity appeared to complainant as being neglect within the meaning of Family Court Act § 1012 (f) (i) (B).

However, further testimony controverted that of complainant. Several witnesses corroborated the information produced in interviews which tended to show that the incident complained of was merely roughhousing. Accordingly, the finding by the hearing court that the incident was merely a single incident of roughhousing is supported by the evidence.

Petitioner-appellant has failed to demonstrate, by a preponderance of the evidence (Family Ct Act § 1046 [b] [i]), that the child’s physical, mental or emotional condition was impaired, or placed in imminent danger of becoming impaired, by the improper supervision and guardianship of respondent (Family Ct Act § 1012 [¶] [i] [B]). Concur — Milonas, J. P., Rosenberger, Ellerin and Rubin, JJ.