IN RE: Alan PEDERSON (2001)

In this child protective proceeding (Family Court Act Art. 10), petitioner, New York City Administration for Children's Services, moves for an order compelling respondents to submit to pretrial dental examinations in which dental molds or impressions of respondents' teeth would be made (see People v. Middleton, 54 N.Y.2d 42, 429 N.E.2d 100, 444 N.Y.S.2d 581 (1981)).   For the following reasons, the motion is granted.

The verified petition alleges, among other things, that:  (i) respondents' three-year-old son was found during a medical examination to have adult human bite marks on his right shoulder;  (ii) the child had been in respondents' care and custody;  (iii) respondents offered no explanation for the bite marks;  and (iv) respondents should each be held responsible for the condition of the child under the statutory res ipsa loquitur presumption (Family Court Act § 1046(a)(ii);  see generally Matter of Philip M., 82 N.Y.2d 238, 624 N.E.2d 168, 604 N.Y.S.2d 40 (1993)).   As such, respondents' dental impressions are “in controversy” (CPLR § 3121(a)) and may be compelled as a matter of pretrial discovery (Matter of M. Children, 171 Misc.2d 838, 656 N.Y.S.2d 119 (Fam.Ct.1997)).

Further, petitioner has established “probable cause that the [dental] evidence is reasonably related to establishing the allegations” set forth in the petition and that obtaining the evidence does not present an “unreasonable intrusion or risk of serious physical injury” to respondents (Family Court Act § 1038-a;  People v. Middleton, supra ).

PHILIP C. SEGAL, J.