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Supreme Court, Appellate Division, First Department, New York.

Emanuel STRATAKIS, Plaintiff-Respondent, v. FERNCLIFF MANOR HOME FOR the HANDICAPPED, etc., Defendant-Appellant.

Decided: September 25, 2003

SAXE, J.P., ROSENBERGER, WILLIAMS, LERNER and FRIEDMAN, JJ. Kevin D. Porter, for Plaintiff-Respondent. Silvia C. Souto, for Defendant-Appellant.

Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered on or about July 8, 2002, which denied defendant's motion for summary judgment, unanimously affirmed, without costs.

The motion court properly concluded that there are factual issues as to whether defendant's employees acted in good faith in making reports of sexual abuse against plaintiff so as to be entitled to the statutory immunity provided by Social Services Law § 419.   Plaintiff's allegation that defendant's employees were motivated to file baseless charges against him in retaliation for his numerous and vociferous complaints respecting the care they provided his institutionalized daughter is based on more than mere surmise or speculation (cf.  Kubik v. New York State Dept. of Social Servs., 244 A.D.2d 606, 664 N.Y.S.2d 365;  Van Emrik v. Chemung County Dept. of Social Servs., 220 A.D.2d 952, 953, 632 N.Y.S.2d 712, lv. dismissed 88 N.Y.2d 874, 645 N.Y.S.2d 448, 668 N.E.2d 419).   It is uncontroverted that there were verbal confrontations between plaintiff and the staff at defendant's facility and the record documents the strained relationship between plaintiff and the staff.   The record raises credibility issues that are properly reserved for the trier of fact.