
    In the Matter of Devon B. and Others, Infants. Jefferson County Department of Social Services, Respondent; Angie Y., Respondent, and James W.M., Appellant.
    (Appeal No. 1.)
    [829 NYS2d 793]
   Appeal from an order of the Family Court, Jefferson County (Peter A. Schwerzmann, J.), entered February 3, 2005 in a proceeding pursuant to Family Court Act article 10. The order granted petitioner’s motion for summary judgment determining that respondent James W.M. abused the three children of his girlfriend.

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, and the matter is remitted to Family Court, Jefferson County, for further proceedings on the petition.

Memorandum: James WM. (respondent) appeals from an order granting petitioner’s motion for summary judgment determining that respondent abused the three children of his girlfriend pursuant to Family Court Act § 1012 (e) (ii). We agree with respondent that Family Court erred in granting petitioner’s motion. Petitioner failed to meet its initial burden of establishing as a matter of law that respondent was a “person legally responsible” for the care of the children within the meaning of section 1012 (a) and (g); a triable issue of fact remains on that point, requiring denial of petitioner’s motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Matter of Patricia YY. v Albany County Dept. of Social Servs., 238 AD2d 672, 673 [1997]). Present—Scudder, EJ., Hurlbutt, Smith, Lunn and Green, JJ.  