Opinion
Index No.: E2021-478
09-23-2022
MICHAEL N. individually and as Natural Parent and Guardian of A.N., Plaintiffs, v. MONTGOMERY COUNTY DEPARTMENT OF SOCIAL SERVICES, Michael McMahon in both his individual capacity and as Commissioner of the Montgomery County Department of Social Service, the County of Montgomery, Thomas Lippie in both his individual capacity and as Deputy Commissioner of the Montgomery County Department of Social Services, Michelle Russo in both her individual capacity and as Director of the Montgomery County Department of Social Services, Kristen Cornell in both her individual capacity and as an agent/caseworker of the Montgomery County Department of Social Services, Bridgette Bonilla in both her individual capacity and as an agent/caseworker of the Montgomery County Department of Social Services, Bridgette Hughes in both her individual capacity and as an agent/caseworker of the Montgomery County Department of Social Services, Kendall Lee in both her individual capacity and as an agent/caseworker of the Montgomery County Department of Social Services, Shelbi Lewis in both her individual capacity and as an agent/caseworker of the Montgomery County Department of Social Services, Adam G. Giangreco, Esq. in both his individual capacity and as Counsel to and for the Montgomery County Department of Social Services, Meghan M. Manion, Esq. in both her individual capacity and as Counsel to and for the Montgomery County Department of Social Services and John Doe, Peter Doe, and Jane Doe, all of those names being fictitious, but being listed as potential Defendants, and the actual names of which will be inserted in subsequent proceedings, but for present purposes comprise caseworkers and/or employees of the Montgomery County Department of Social Services and the County of Montgomery, Defendants.
For Defendants: Timothy J. Lambrecht, Esq., Syracuse, The Wladis Law Firm, P.C. For Plaintiffs: Adam P. Grogan, Esq., Albany, Tully Rinckey PLLC
For Defendants: Timothy J. Lambrecht, Esq., Syracuse, The Wladis Law Firm, P.C.
For Plaintiffs: Adam P. Grogan, Esq., Albany, Tully Rinckey PLLC
Rebecca A. Slezak, J. On or about July 19, 2021, Defendants, by and through their attorneys, The Wladis Law Firm, P.C., Timothy J. Lambrecht, Esq., of counsel, filed a motion pursuant to Civil Practice Law and Rules ("CPLR") §§ 3211 (a) (1, 3 & 7) seeking an order dismissing the Complaint upon documentary evidence, lack of capacity, failure to state a cause of action, and such other and further relief this Court deems just and proper. In support of their motion Defendants filed a Notice of Motion to Dismiss Plaintiffs’ Complaint dated and filed on July 19, 2021; Affirmation of Timothy J. Lambrecht, Esq. in Support of Defendants’ Motion to Dismiss with annexed Exhibits A through G, sworn to on the 19th day of July 2021; and Memorandum of Law in Support of Defendants’ Motion to Dismiss Plaintiffs’ Complaint dated July 19, 2021.
On or about August 17, 2021, plaintiffs, Michael N., individually and as natural parent and guardian of AE, his daughter, by and through their attorneys, Tully Rinckey PLLC, Adam P. Grogan, Esq., of counsel filed a Memorandum of Law in Opposition to Defendants’ Motion to Dismiss dated August 17, 2021. Annexed to the Plaintiffs’ memorandum were Exhibits A through J. The filing was confusing as Exhibit E was purported to be an Affirmation of Adam P. Grogan, Esq., but the document uploaded to the New York State Courts Electronic Filing database ("NYSCEF") was actually a Certification of Montgomery County Department of Social Services Records sworn to by Michael McMahon and notarized by Adam G. Giangreco, Esq. on August 12, 2019. No Affirmation sworn to by Adam P. Grogan, Esq. was filed on or about August 17, 2021.
Defendants filed their Defendants’ Reply Memorandum of Law in Further Support of its Motion to Dismiss Plaintiffs’ Complaint on August 17, 2021. The Court in reviewing the voluminous papers submitted could not reconcile the various references to an Affirmation sworn to by Mr. Grogan. The enormous volume of e-filed papers was also difficult to review in only an electronic format. On October 15, 2021 the Court directed counsel to provide paper submissions to Chambers and an oral argument was scheduled to occur on December 17, 2021.
On October 22, 2021, in response to the Court's request for paper submissions, Mr. Grogan submitted his memorandum of law with two Exhibits C, one being thirty pages of confidential caseworker notes not uploaded to NYSCEF, the other being the Notice of Claim that was uploaded as Exhibit C to NYSCEF; and Exhibit E consisting of an Affirmation to Clarify Pleadings sworn to by him on October 22, 2021. The caseworker notes and the October 22, 2021 affirmation were missing the NYSCEF timestamp indicating the date of filing. The paper documents provided to the Court appeared to evidence that Plaintiffs’ counsel simply added an Exhibit C and replaced Exhibit E in the hard copy submitted to Chambers without any actual indication that the caseworker notes and clarifying affidavit had not been in the original document filed in August. In addition, Plaintiffs’ counsel did not provide the paper copy to, or advise by letter on notice to Defendants’ counsel, that an additional Exhibit C was added or that Exhibit E was different from the e-filed documents in August.
On November 16, 2021, Mr. Lambrecht filed a letter seeking a conference. He stated that on or about November 8, 2022 his office was provided an electronic copy of the submission provided to Chambers on October 22, 2021. In the submissions was an Affirmation to Clarify Proceedings dated November 8, 2021 and he raised concern over the confidential nature of the additional Exhibit C and requested these caseworker notes be sealed if they were on NYSCEF. Mr. Lambrecht objected to the submission of documents that had never been seen by him, and the affirmation was dated after the return date of the motion and dated after the deadline to provide paper copies to the Court. There was an additional objection made to the public filing of confidential records which were the DSS case notes attached as Exhibit C. The Court sealed the confidential records, as it was unclear if the records were filed at the County Clerk's Office, and scheduled a conference on November 19, 2021 via Microsoft Teams regarding the late filing of documents by Mr. Grogan.
On November 19, 2021, Mr. Lambrecht appeared with Meghan M. Manion, Esq. on behalf of Defendants, and Andrea Ennis, Esq. appeared in behalf of Mr. Grogan for Plaintiffs. During this conference it was determined that the clarifying affirmation of Mr. Grogan dated October 22, 2021 and November 8, 2021 was the same document. Ms. Ennis stated the law office of Tully Rinckey PLLC uses a function on their Word processing system that auto fills in the date on Word processed documents. Ms. Ennis advised this function is usually not an issue because the firm saves final documents created in Word in PDF format which eliminates the auto fill function. Unfortunately, the conversion to PDF never occurred causing each printing of the document to auto fill the date. The clarifying affirmation, no matter what date or format, had not been filed on August 17, 2021 due to "law office failure" and the incorrect document was uploaded as Exhibit E. There was no explanation for the additional Exhibit C other than it was a mistake. Ms. Ennis had no response or explanation as to why her office had not notified everyone that this mistake had occurred, or why her firm instead chose to simply insert the caseworker notes as Exhibit C and replace Exhibit E with the working copy provided to the Court.
Mr. Lambrecht requested permission to file a formal motion to strike the caseworker notes and Affirmation to Clarify Pleadings as being a late submission after the return date. The Court granted the Defendants permission to file a motion to strike. A date was set for oral argument regarding both the motion to dismiss and the motion to strike on Thursday, February 24, 2022 at 1:00 PM to be held in person.
On January 6, 2022, Defendants filed a Notice of Motion to Strike Plaintiffs’ Counsel's Affirmation to Clarify Pleadings and the caseworker notes. In support of the motion to strike, Defendants filed the Affirmation of Timothy J. Lambrecht, Esq. in Support of Defendants’ Motion to Strike Plaintiffs’ Counsel's Affirmation to Clarify Pleadings with annexed Exhibits A through D, sworn to the 6th day of January 2022; and a Memorandum of Law in Support of Defendants’ Motion to Strike Plaintiffs’ Counsel's Affirmation to Clarify Pleadings dated January 6, 2022. On February 11, 2022, Plaintiffs filed a Memorandum in Opposition to Defendants’ Motion to Strike Plaintiffs’ Counsel's Affirmation to Clarify Pleadings with annexed Exhibits 1 through 5 dated February 11, 2022.
The oral argument was held on February 24, 2022. Ryan McCall, Esq. appeared in behalf of Mr. Grogan for Plaintiffs because apparently Mr. Grogan was conducting depositions in another matter. Mr. Lambrecht appeared with Adam G. Giangreco, Esq. on behalf of Defendants. Mr. McCall was under the impression the oral argument was limited to the motion to strike. He was unable to argue the motion to dismiss, and simply rested on the papers submitted. Defendants argued both motions in accord with this Court's letter order dated and signed November 22, 2021. It is unclear why Mr. Grogan failed to understand both motions were being argued on February 24, 2022, as clearly stated in the letter order issued three months prior. He also was not available for the argument itself despite the fact that the date was scheduled with his office on the November 19, 2021 Microsoft Teams conference and Ms. Ennis specifically took his schedule of availability into account.
FACTUAL BACKGROUND
This case arises from a Family Court Article 10 proceeding that was commenced by the Montgomery County Department of Social Services ("Department") against Plaintiff Michael N. By way of background, Exhibits D & I annexed to the Memorandum of Law in Opposition to Defendants’ Motion to Dismiss show that underlying Family Court proceedings were commenced on July 20, 2018, when the Department filed a pre-petition application pursuant to Family Court Act § 1029 seeking a Temporary Order of Protection ("TOP") requiring Plaintiff Michael N. to stay away from, and refrain from communicating with, his daughter AE. The TOP was issued by Montgomery County Family Court on an ex parte basis. The Department filed its application pursuant to Family Court Act § 1029 based upon a hotline call to the State Central Registry wherein the caller alleged Plaintiff Michael N. was suspected of sexually abusing his daughter, and the subsequent investigation commenced after the hotline call. As part of the investigation, the Department had two Child Protective caseworkers interview the daughter, and based upon their interview, an abuse petition was filed on or about July 26, 2018, prior to the ten-day expiration date of the TOP. The abuse petition alleged that Plaintiff Michael N. sexually abused his daughter. In addition to the abuse petition, the child's mother filed a modification of custody petition on July 27, 2018, which petition was held in abeyance until the abuse proceedings were concluded. Multiple other custody petitions were filed by the parents during the proceedings, and those petitions resulted in the Decision and Order attached as Exhibit D to Plaintiff's Memorandum in Opposition.
Exhibit D is the Decision and Order signed by Hon. Richard B. Meyer, Family Court Judge on October 14, 2020 and entered in the Montgomery County Family Court Clerk's Office on October 14, 2020, resolving the custody petitions filed by the mother, Tiffany KK., and the father Michael KK. Exhibit I is the Final Decision and Order signed by Hon. Richard B. Meyer, Family Court Judge on February 10, 2020 and entered in the Montgomery County Family Court Clerk's Office on February 10, 2020, resolving the abuse petition filed by the Montgomery County Department of Social Services. Exhibit I is the final decision on the underlying abuse case that this action is based upon.
Based upon the record before this Court, and specifically Exhibits D & I referenced above, it is known that in May 2018, just prior to the abuse proceedings being commenced, the parties had settled various custody and family offense petitions, in Fulton County Family Court before the Hon. Richard B. Meyer. Judge Meyer's superseding order of custody and parenting time, made on consent, was to take effect in July 2018. Plaintiff Michael N. alleges the timing of the abuse petitions is suspect due to the fact that the superseding order was about to grant him joint legal and physical custody with the mother, after years of litigating custody and his access to his daughter. The issuance of the TOP and subsequent abuse petition stopped Judge Meyer's 2018 superseding order of custody and parenting time from taking effect.
The abuse and custody proceedings commenced in July 2018 were assigned to Hon. Jill Polk. Judge Polk ordered a forensic evaluation and after only a few appearances, she recused on the matter. Hon. J. Gerard McAuliffe, Jr. was then assigned to the abuse and custody matters. On April 5, 2019, Judge McAuliffe modified the TOP issued in July 2018 to allow Plaintiff Michael N. the ability to exercise some minimal parenting time with his daughter. On or about May 30, 2019, based upon the two reports filed by the forensic psychologist appointed by Judge Polk, Judge McAuliffe granted Plaintiff Michale N.’s motion to modify the full stay away TOP to allow the father unsupervised contact with his daughter, over the objection of the Department and the mother. In response to Judge McAuliffe modifying the TOP the Department filed a motion in the Appellate Division, Third Department seeking permission to appeal the issuance of the refrain from only TOP, and to temporarily re-instate the full stay away TOP issued in July 2018. Based upon the Department's motion, the Appellate Division, Third Department issued a Decision and Order dated and entered on June 28, 2019 requiring the April 5, 2019 stay away TOP with limited contact be reinstated and directing the briefing schedule to perfect the interlocutory appeal. It is noted that Judge Meyer states in his final decision resolving the abuse petition in favor of Plaintiff Michael N. that the Appellate Division, Third Department reinstated a full stay away TOP. It is not clarified by Plaintiffs’ filings what exactly his contact was with his daughter, other than he had to stay away, but it does appear that he may have had the opportunity to have supervised contact. It is clear from this lawsuit, however, that the father/daughter relationship was severely restricted for a twenty-month period.
It is noted that Judge Polk recused approximately eight months after the abuse petition was filed with little or no progress made in the abuse proceedings. It is unclear why the case was taking so long to resolve.
The Court takes judicial notice of the Decision and Order issued by the Appellate Division, Third Department on June 28, 2019 (see CPLR § 4511 ). The Temporary Orders of Protection were never made a part of the record before this Court, so the only understanding of the contents is gleaned from the Decision and Orders annexed as Exhibits D & I to Plaintiffs’ memorandum in opposition and the Appellate Division, Third Department decisions.
Plaintiff Michael N. argues in his complaint that the Department used inappropriate information in its motion before the Appellate Division, Third Department, in furtherance of its campaign against him. On November 27, 2019, the Appellate Division, Third Department issued a final decision with regard to the interlocutory appeal regarding the modified TOP. The Appellate Division, Third Department held Judge McAuliffe abused his discretion by modifying the TOP based upon an "untested" forensic psychologist's report. The TOP was not modified or vacated by the Appellate Division.
The Court takes judicial notice of the Memorandum and Order issued by the Appellate Division, Third Department on November 27, 2019 (see CPLR § 4511 ).
Judge McAuliffe commenced the trial on the abuse petition on July 16, 2019. During the first day of testimony, Plaintiff Michael N. moved for Judge McAuliffe to recuse. After a brief conference, Judge McAuliffe did recuse at the request of the father. The proceedings were reassigned to Judge Meyer. Judge Meyer reviewed the transcript of the proceedings on July 16, 2019 and heard several additional days of testimony. On February 10, 2020, Judge Meyer issued a Final Decision and Order dismissing the abuse petition. During the entire twenty-month period the abuse petition was pending, with the exception of a period of time between May 30, 2019 and the Appellate Division, Third Department temporary order issued in June, 2019 reinstating the full stay away TOP, Plaintiff Michael N.’s contact with his daughter was severely restricted. With the dismissal of the abuse proceedings the TOP was vacated and Plaintiffs had regular contact again.
The trial on the mother's modification of custody petition and various other custody petitions filed by the parties, was held after the abuse proceedings were concluded. On October 14, 2020, Judge Meyer issued a Decision and Order resolving the pending custody and parenting time petitions. He awarded the parties shared legal and physical custody of the daughter. With respect to the legal custody, Judge Meyer delineated specific decision-making powers to each parent, requiring them to work together. Judge Meyer also held the "mother willfully violated the clear and unequivocal court orders awarding the father weekend parenting time in March and April 2020" and sanctioned her with two consecutive commitments to the Saratoga County Jail, which sentences were suspended provided she complies with the superseding order of custody he issued in October 2020.
The Saratoga County Jail was used as that is the county of residence for the mother.
Plaintiff Michael N. has now filed the above captioned action against the various Defendants for various torts and constitutional torts arising out of the filing and prosecution of the abuse proceedings commenced in July 2018 in the Montgomery County Family Court. He brings the suit on behalf of himself and as the natural parent and guardian of his daughter. Based upon the prosecution of the abuse proceedings, Plaintiffs have alleged eleven separate causes of action (it is noted that the complaint lists the last cause of action as "twelfth" but there is no stated "ninth" cause of action (see Complaint annexed to Affirmation of Timothy J. Lambrecht, Esq., in Support of Defendants’ Motion to Dismiss, at Exhibit A)). Plaintiffs allege Defendants interfered with the father's parental rights to rear his child without interference from the State, and further interfered with the daughter's right to be reared by her father. Plaintiffs allege in sum that Defendants filing and prosecuting a petition pursuant to Family Court Act Article 10 alleging he sexually abused his daughter, and the Temporary Orders of Protection issued during the pendency of the Family Court matter requiring him to stay away from, and have no contact with his daughter constituted and resulted in the following causes of action:
(1) interfered with the Plaintiffs’ respective liberty interests;
(2) violated the Plaintiffs’ rights against unlawful searches and seizures as protected by the Fourth, amendment to the United States Constitution;
(3) violated Social Services Law § 384-b (7) (a) ;
(4) took actions which constituted unlawful imprisonment causing injury to Plaintiffs;
(5) violated Plaintiffs’ rights to due process as protected by the United States Constitution and New York State Constitution;
(6) violated Plaintiffs’ rights to privacy as protected by the First, Fourth, Fifth and Fourteenth amendments to the United States Constitution and New York State Constitution;
(7) Defendants breached their duties in a manner that constituted gross negligence causing injury to Plaintiffs;
(8) Defendants failed to provide proper supervision and training constituting gross negligence and injury to the Plaintiffs;
(9) Defendants fabricated allegations of sexual abuse, refusing to retract the petition constituting malicious prosecution and injury to Plaintiffs;
(10) Defendants acted under color of state law to deprive Plaintiffs of their federal constitutional rights to due process, privacy, liberty raise a child without State interference, equal protection, and protection against unlawful searches and seizures, in violation of 42 USC § 1983 ; and
(11) Defendants fabricated false allegations of abuse without any reasonable basis and refused to withdraw the petition violating Plaintiffs’ rights to equal protection under the law.
(See Complaint annexed to Affirmation of Timothy J. Lambrecht, Esq., in Support of Defendants’ Motion to Dismiss, at Exhibit A.)
Plaintiff Michael N. argues that the Department lacked any rational basis to seek the pre-petition TOP, to file the abuse petition against him, or to prosecute the abuse petition. He argues that the whole process of the Article 10 proceedings against him constitute a violation of his and his daughter's constitutional rights to be free of State interference in the parent/child relationship. He is notably not seeking to overturn or appeal the underlying dismissal of the abuse petition. Rather he is seeking redress because he alleges the filing and prosecution of the abuse petition itself rises to the level of a constitutional violation for which he and his daughter must be compensated.
In support of his complaint, he argues the Department had no credible evidence of abuse based upon a therapist's hotline call that the daughter was being sexually abused. He argues the statements of the child were fanciful and lacked any connection to sexual abuse, and the Defendants completely ignored the facts and circumstances in their pursuit to prosecute the case and continue to keep the father and daughter separated. He argues the caseworkers lacked sufficient training and supervision causing their interview of the child, which formed the basis of the abuse case against him, to be wholly based on coercive and suggestive questioning. Plaintiffs allege the Defendants were fully aware of the inappropriate nature of the interview and underlying process associated with the abuse petition and refused to withdraw the action. They argue the Defendants added false allegations to their records and refused to cease the prosecution despite the evidence that the interview was inappropriate resulting in fantastical and utterly unreliable statements from the child. They argue in the face of the reports of the neutral court appointed forensic evaluator the Defendants continued prosecution of the abuse petition and such actions were without any rational basis and in violation of the Plaintiffs’ constitutional rights to be parent and child, without interference from the State. Plaintiffs appear to argue the fact that the abuse case was dismissed in its entirety evidences that Defendants’ collective actions in filing and prosecuting this case must be deemed a violation of the Plaintiffs’ rights. Plaintiffs are not collaterally attacking the final outcome of the proceedings with which they agreed, eliminating any concern by the Court that this action is inappropriately seeking an appeal of the Family Court proceedings in this Court. Instead, Plaintiffs are seeking damages based upon the alleged malfeasance of the Defendants in filing and prosecuting the abuse petition which they argue constituted a policy of violating the Plaintiffs’ collective rights.
Defendants have moved to dismiss the Complaint on the basis that even if true, the complaint fails to state a cause of action for which relief may be granted. Alternatively Defendants argue that the Complaint is defeated by the underlying action, which is based upon child protective statutes, and the Department cannot be liable for its actions in carrying out its mandated obligation to protect children. The Defendants further argue that Plaintiff Michael N. has no standing to bring this action on behalf of his daughter. They raise capacity issues with his bringing the lawsuit for the daughter and with regard to suing the Department separately as it is a division of the County and cannot sue or be sued separate and apart from the municipality of which it is a department. Defendants also raise immunity and argue the Complaint fails to state the actions of each Defendant with sufficient specificity to provide the proper notice to Defendants.
APPLICABLE LAW
On a motion to dismiss pursuant to CPLR § 3211, a court must "afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference" ( EBC I, Inc. v. Goldman Sachs & Co. , 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26 [2005] ; Crepin v. Fogarty , 59 A.D.3d 837, 838, 874 N.Y.S.2d 278 [3d Dept. 2009] ). Whether Plaintiff will ultimately be successful on his or her claim is not part of the analysis in determining if the complaint is able to withstand a motion to dismiss ( Crepin , 59 A.D.3d at 838, 874 N.Y.S.2d 278 ; see also Leon v. Martinez , 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ["On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see , CPLR 3026 ). We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( Morone v. Morone, 50 N.Y.2d 481, 484, 429 N.Y.S.2d 592, 413 N.E.2d 1154 ; Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634, 389 N.Y.S.2d 314, 357 N.E.2d 970 )"]).
"A motion to dismiss under CPLR 3211 (a) (1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law ( Goshen v. Mut. Life Ins. Co. of New York , 98 N.Y.2d 314, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002] )" (Hon. Mark C. Dillon, Supplementary Practice Commentaries, McKinney's Cons Laws, Book 7B, CPLR C3211:10, 2020 Cumulative Pocket Part p. 2). To meet the high standard of this section, the documentary evidence must be "unambiguous, authentic, and undeniable" ( Gulfstream v. Cortland , 165 A.D.3d 1430, 1433, 87 N.Y.S.3d 343, 2018 N.Y. Slip Op. 07018 [3d Dept. 2018], citing Granada v. Palomino , 78 A.D.3d 996, 997, 913 N.Y.S.2d 668, 2010 N.Y. Slip Op. 08699 [2d Dept. 2010] [internal quotations omitted]). The documents proffered also must resolve any outstanding factual issues presented by the complaint such that no cause of action may be stated.
The types of documents that may be used to refute Plaintiff's cause of action are limited to "mortgages, deed[s], contracts, and any other papers, the contents of which are essentially undeniable" ( Koziatek v. SJB Dev. Inc. , 172 A.D.3d 1486, 1487, 99 N.Y.S.3d 480 [3d Dept. 2019] ). Judicial records may also be accepted as documentary evidence to defeat a complaint (Hon. John R. Higgitt, Practice Commentaries, McKinney's Cons Laws, Book 7B, CPLR C3211:10, p. 26; see also CPLR § 4511 [d] [codifying the power of a court to take judicial notice of cases]; Matter of Julian P. (Colleen Q.) , 129 A.D.3d 1222, 1225, 11 N.Y.S.3d 699 [3d Dept. 2015] [" ‘[a] court may take judicial notice of prior judicial proceedings though in a different court and involving different parties’ [ Matter of Justin EE. , 153 A.D.2d 772, 774, 544 N.Y.S.2d 892 [1989], lv denied 75 N.Y.2d 704, 552 N.Y.S.2d 109, 551 N.E.2d 602 [1990] ]"]).
A motion to dismiss based upon CPLR § 3211 (a) (3) requires Defendant to show that Plaintiff lacks the capacity to sue (Civ. Prac. L. & R. § 3211 (a) (3) ). It is paramount that a party bringing a suit must have both capacity and standing to do so. The reasoning in Community v. Schaffer offers a clear distinction of the two concepts:
... [T]he concept of capacity is often confused with the concept of standing, but the two legal doctrines are not interchangeable (see, Matter of Pooler v. Public Serv. Commn., 58 A.D.2d 940, 397 N.Y.S.2d 425, affd. on mem. below 43 N.Y.2d 750, 401 N.Y.S.2d 1009, 372 N.E.2d 797 ; see also,
Matter of Association of Bds. of Visitors of N.Y. State Facilities for Mentally Disabled v. Prevost, 98 A.D.2d 260, 471 N.Y.S.2d 342 ). "Standing" is an element of the larger question of "justiciability" (see, Society of Plastics Indus.[, Inc.] v. County of Suffolk, 77 N.Y.2d 761, 769, 570 N.Y.S.2d 778, 573 N.E.2d 1034 ; Matter of Dairylea Coop.[, Inc.] v. Walkley, 38 N.Y.2d 6, 9, 377 N.Y.S.2d 451, 339 N.E.2d 865 ). The various tests that have been devised to determine standing are designed to ensure that the party seeking relief has a sufficiently cognizable stake in the outcome so as to "cast[ ] the dispute ‘in a form traditionally capable of judicial resolution’ " ( Society of Plastics Indus. v. County of Suffolk, supra, 77 N.Y.2d at 772–773, 570 N.Y.S.2d 778, 573 N.E.2d 1034, quoting Schlesinger v. Reservists to Stop War, 418 U.S. 208, 220–221, 94 S.Ct. 2925, 2932, 41 L.Ed.2d 706 ; see, Schieffelin v. Komfort, 212 N.Y. 520, 530, 106 N.E. 675 ). Often informed by considerations of public policy ( Society of Plastics Indus. v. County of Suffolk, supra, 77 N.Y.2d at 769, 570 N.Y.S.2d 778, 573 N.E.2d 1034 ), the standing analysis is, at its foundation, aimed at advancing the judiciary's self-imposed policy of restraint, which precludes the issuance of advisory opinions (see generally, Cuomo v. Long Is. Light. Co., 71 N.Y.2d 349, 354, 525 N.Y.S.2d 828, 520 N.E.2d 546 ).
"Capacity," in contrast, concerns a litigant's power to appear and bring its grievance before the court. The concept of a lack of capacity, which has also occasionally been intermingled with the analytically distinct concept of a failure to state a cause of action, does not admit of precise or comprehensive definition (see, Ward v. Petrie, 157 N.Y. 301, 51 N.E. 1002 ; 4 Weinstein—Korn—Miller, N.Y.Civ.Prac. ¶ 3211.17). Capacity, or the lack thereof, sometimes depends purely upon a litigant's status. A natural person's status as an infant, an adjudicated incompetent or, formerly, a felony prisoner, for example, could disqualify that individual from seeking relief in court (see, Kittinger v. Churchill Evangelistic Assn., 239 App.Div. 253, 267 N.Y.S. 719 ; Garner v. Garner, 59 Misc. 2d 29, 297 N.Y.S.2d 463 ;
CPLR 1201 ; but see, Civil Rights Law § 79[2] ; § 79–a[2] [removing disqualification of felony prisoners to sue in court]). Additionally, the capacity question has often arisen in connection with controversies involving trustees (see, Siegel, N.Y.Prac. § 261 [2d ed]).
( 84 N.Y.2d 148, 154-156, 615 N.Y.S.2d 644, 639 N.E.2d 1 [1994] ). An infant, meaning a child less than the age of eighteen, has no capacity to sue on her own (Civ. Prac. L. & R. § 1201 ). However, an infant may appear and sue by "the guardian of his property, or if there is no such guardian, by a parent having legal custody...." (id. ).
A similar issue to capacity arises when bringing a lawsuit against a subdivision of a municipal corporation, such as the Department of Social Services. Since a department of a municipality lacks its own legal identity, suing the municipality and its department is redundant (see Hall v. City of White Plains , 185 F. Supp. 2d 293, 303 [S.D.N.Y. 2002] ["Under New York law, departments which are merely administrative arms of a municipality, do not have a legal identity separate and apart from the municipality and cannot sue or be sued. See Fanelli v. Town of Harrison , 46 F. Supp. 2d 254 (S.D.N.Y. 1999) ; Baker v. Willett , 42 F. Supp. 2d 192, 197 (N.D.N.Y. 1999) (‘A police department cannot sue or be sued because it does not exist separate and apart from the municipality and does not have its own legal identity’); Manning v. County of Westchester , 1995 U.S. Dist. LEXIS 201, 93-Civ-3366, 1995 WL 12579 at *2 (S.D.N.Y. Jan. 5, 1995) (removing the Westchester County Police Department as a named defendant where the County of Westchester, as the real party in interest, was already a named defendant); Wilson v. City of New York , 800 F. Supp. 1098, 1101 (E.D.N.Y. 1992) (dismissing claim against New York City Police Department because the City of New York was the proper party in interest)"]). It is not necessary, or possible, to sue an administrative arm of a municipality ( Hall , 185 F. Supp. 2d at 303 ; Hoisington v. County of Sullivan , 55 F. Supp. 2d 212, 214 (1999) ; see also Gen. Constr. L. § 65 ; Matter of World Trade Ctr. Lower Manhattan Disaster Site Litigation , 30 N.Y.3d 377, 67 N.Y.S.3d 547, 89 N.E.3d 1227 [2017] [answering certified question from Second Circuit regarding capacity to sue by public benefit corporation]). In essence a claim against the County of Montgomery regarding the acts of its Department of Social Services is sufficient to allow redress by the injured party for acts of the said Department. No separate action exists against the Department. CPLR § 3211 (a) (7) states in part that "[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that: the pleading fails to state a cause of action" (Civ. Prac. L. & R. § 3211 [a] [7] ). The practice commentaries under CPLR § 3211 advise of two distinct ways in which a complaint fails to state a cause of action, to wit:
[U]nder CPLR 3211(a)(7), the failure-to-state-a-cause-of-action tool, dismissal can eventuate for either a pleading defect or because an allegation material to a facially-sufficient complaint has been bested by evidence. See Lubonty v. U.S. Bank National Association , 159 A.D.3d 962, 74 N.Y.S.3d 279 (2d Dep't 2018) ("By showing [with evidence] that a material fact as claimed by the plaintiff was not a fact at all, [the defendant] established its entitlement to dismissal of the action pursuant to CPLR 3211(a)(7)")
(John R. Higgitt, 2018 Supp Practice Commentary, McKinney's Cons Law of NY, Book 7B, CPLR 3211:21, 2020 Cumulative Pocket Part p. 26). " ‘And, absent conversion of a CPLR 3211(a) motion into one for summary judgment (see subdivision [c]),’ this Court is of the opinion that parties should be ‘allowed to assume that the focus of the court's inquiry is on the sufficiency of the pleading and not on the merits’ " (John R. Higgitt, Practice Commentaries, McKinney's Cons Law of NY, Book 7B, CPLR 3211:23, p. 53). "A construction of paragraph 7 that limits its role to a pleading motion is consistent with the legislative history of the CPLR (Higgitt, CPLR 3211[a][7]: Demurrer or Merits-Testing Device? , 73 Alb.L.Rev. 99 at 102 ), and the plain language of that paragraph (‘the pleading fails to state a cause of action’)" (Higgitt, Practice Commentaries, CPLR C3211:23 at 52).
When moving to dismiss for failure to state a cause of action, a defendant may argue that, even if true, the allegations do not state a cognizable claim, or move to dismiss by rebutting the factual claims of Plaintiff. Regardless of which type of CPLR 3211 (a) (7) motion is made, it is a fundamental rule of decision that on a motion to dismiss pursuant to CPLR § 3211 (a) (7), the pleadings must be given a liberal construction, the allegations must be accepted as true, and the plaintiff must be accorded every possible favorable inference (see Chanko v. Am. Broad. Companies Inc. , 27 N.Y.3d 46, 52, 29 N.Y.S.3d 879, 49 N.E.3d 1171 [2016] ).
In the context of discussing a motion to dismiss pursuant to CPLR § 3211 (a) (7), it is imperative that the Court address the pleading requirement set forth in the CPLR. New York is a notice pleading state, allowing for generalized allegations in a complaint (see generally Civ. Prac. L. & R. § 3013). CPLR § 3013 holds that "[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense" (Civ. Prac. L. & R. § 3013 ). Additionally, the Appellate Division, Third Department stressed that "[w]hen examining the facial sufficiency of the complaint, it must be construed liberally, and any technical defects may be ignored in the absence of prejudice to the opposing party" ( 12 Baker Hill Road, Inc. v. Miranti , 130 A.D.3d 1425, 1426, 14 N.Y.S.3d 787 [3d Dept. 2015] ). The first requirement of the pleading is to give notice "to the other side of what the pleader's grievance is" (Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3013:2, p. 158-59). The second requirement is to plead all the material elements of the cause of action (see generally Connors, Practice Commentaries at C3013:3; see also Mid-Hudson Valley v. Quartararo , 155 A.D.3d 1218, 64 N.Y.S.3d 389 [3d Dept. 2017] [holding, "[W]hile a recitation of the elements of a cause of action may meet that component of CPLR 3013 requiring that the statements in a pleading provide notice of ‘the material elements of [each] cause of action’, the statute also requires that the pleading's statements be ‘sufficiently particular to give the court and parties notice of the transactions, occurrences or series of transactions or occurrences, intended to be proved’ ( CPLR 3013 [emphasis added]; cf. Matter of Garraway v. Fischer , 106 A.D.3d 1301, 1301, 964 N.Y.S.2d 777 [2013], lv denied 21 N.Y.3d 864, 2013 WL 4711108 [2013] ; Eklund v. Pinkey , 27 A.D.3d 878, 879, 810 N.Y.S.2d 547 [2006] )"]).
Additionally, remedies for sloppy pleadings exist short of dismissal pursuant to CPLR § 3211 (a) (7), including, but not limited to, a motion under CPLR § 3024 to correct the pleadings or subsequent discovery mechanisms under Article 31 (see generally Connors, Practice Commentaries at C3013:7; C3013:8). In fact, "[t]he decline in the significance of the pleadings has been in inverse proportion to the rise in the use of pretrial disclosure," which is how the drafters of the CPLR intended it to be (Id. at C3013:8, p. 164). Bills of particular are also available to amplify the pleadings, as the Appellate Division, Third Department held in Resio v. Rhulen :
Defendants’ purported desire to know the specific
allegations as to each defendant can be sought via a demand for a bill of particulars and disclosure. Indeed, disclosure will undoubtedly result in a refining of the action. The lack of exact specificity at this procedural juncture, however, is not a ground for dismissal (see Bazak Intl. Corp. v. Mast Indus., supra ; Foley v. D'Agostino, supra ; see also EBC I, Inc. v. Goldman, Sachs & Co. , 5 N.Y.3d 11, 19-22, 799 N.Y.S.2d 170, 832 N.E.2d 26 [2005] ).... Under the liberal standard for assessing the sufficiency of a cause of action (see EBC I, Inc. v. Goldman, Sachs & Co., supra at 19, 799 N.Y.S.2d 170, 832 N.E.2d 26 ; Leon v. Martinez , 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ), plaintiff's sixth cause of action is adequate and defendants’ desire for more details can be pursued in discovery
( Serio v. Rhulen , 24 A.D.3d 1092, 1094-1095, 806 N.Y.S.2d 283 [3d Dept. 2005] ).
In contrast, if the allegations in a complaint are vague and conclusory it is susceptible to a dismissal for failure to state a cause of action ( Weimer v. City of Johnstown , 249 A.D.2d 608, 610, 670 N.Y.S.2d 624 [3d Dept 1998] ["plaintiff's vague and conclusory allegations and expressions of hope that discovery, if and when conducted, might provide some factual support for his cause of action under 42 USC § 1983 provide an insufficient basis for failing to dismiss a patently defective cause of action"]; see also MacLauchlin v. Village of St. Johnsville , 235 A.D.2d 702, 703, 652 N.Y.S.2d 149 [3d Dept 1997] [" ‘[i]t is well settled that, where a municipality makes a quasi-judicial or discretionary determination involving the "exercise of reasoned judgment which could typically produce different acceptable results", it will be absolutely immune from liability for its conduct, regardless of the reasonableness or propriety of such conduct’ ( Hahn v. City of Rensselaer, 166 A.D.2d 795, 796, 563 N.Y.S.2d 155, quoting Tango v. Tulevech, 61 N.Y.2d 34, 41, 471 N.Y.S.2d 73, 459 N.E.2d 182 ). Having concluded that defendants were empowered to make the determination that the premises were ‘in imminent danger to life and safety as a result of structural instability, fire, explosion or other hazardous situation’ (9 NYCRR 1153.1 [a]), it necessarily follows that they were authorized to communicate their determination to the parties with the greatest stake in the matter, i.e., the tenants residing in the premises."]; F.F. v. State of New York , 194 A.D.3d 80, 83-84, 143 N.Y.S.3d 734 [3d Dept. 2021] ["However, ‘the favorable treatment accorded to a plaintiff's complaint is not limitless and, as such, conclusory allegations — claims consisting of bare legal conclusions with no factual specificity — are insufficient to survive a motion to dismiss’ ( Rodriguez v. Jacoby & Meyers, LLP , 126 A.D.3d 1183, 1185, 3 N.Y.S.3d 793 [2015] [internal quotation marks and citations omitted], lv denied 25 N.Y.3d 912, 2015 WL 3952245 [2015] )"]). Affidavits submitted to supplement or clarify a pleading also cannot simply repeat the allegations of the complaint, as vague conclusions cannot supplement or support vague conclusions (see Eklund v. Pinkey , 27 A.D.3d 878, 879, 810 N.Y.S.2d 547 [3d Dept 2006] ["William's own affidavit provides no support, as it merely states that the complaint alleges conversion of corporate assets and then admits that he does not ‘know exactly what the defendants expected to accomplish at the [corporate] meeting which they called.’ Plaintiffs were required to set forth more than vague and conclusory allegations of conversion and such charges had to be supported by factual assertions of specific wrongdoing (see Weimer v. City of Johnstown , 249 A.D.2d 608, 610, 670 N.Y.S.2d 624 [1998], lv denied 92 N.Y.2d 806, 677 N.Y.S.2d 781, 700 N.E.2d 320 [1998] ; Confidence Transp. v.Buck , 218 A.D.2d 837, 840, 630 N.Y.S.2d 804 [1995] )"]). A complaint cannot be self-refuting ( Koziatek v. SJB Dev. Inc. , 172 A.D.3d 1486, 99 N.Y.S.3d 480 [3d Dept 2019] ["the complaint cannot also conclusively refute itself" [citations omitted]]). If an attorney's affidavit is submitted in opposition to a motion to dismiss on the basis of CPLR § 3211 (a) (1), it may only be to submit documentary evidence, in admissible form, in support of the complaint and in opposition to the motion ( Ganje v. Yusuf , 133 A.D.3d 954, 956-957, 19 N.Y.S.3d 355 [3d Dept. 2019] [" ‘Materials that clearly qualify as documentary evidence include documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable’ ( Midorimatsu, Inc. v. Hui Fat Co ., 99 A.D.3d 680, 682, 951 N.Y.S.2d 570 [2012], lv dismissed 22 N.Y.3d 1036, 981 N.Y.S.2d 350, 4 N.E.3d 361 [2013] [internal quotation marks and citations omitted]). To that end, an attorney's affidavit may serve ‘as a vehicle for the submission of documentary evidence’ ( Gihon, LLC v. 501 Second St., LLC, 103 A.D.3d 840, 842, 962 N.Y.S.2d 238 [2013]; see Furlender v. Sichenzia Ross Friedman Ference LLP , 79 A.D.3d 470, 470, 912 N.Y.S.2d 204 [2010] )"]). "A complaint is required to contain statements of sufficient particularity to give the court and the parties notice of the transactions and occurrences intended to be proved, along with the material elements of each cause of action ( CPLR 3013 )" ( Melito v. Interboro-Mutual Indem. Ins. Co. , 73 A.D.2d 819, 423 N.Y.S.2d 742 [4th Dept. 1979] ).
"It is beyond cavil that ‘[s]tatments in a pleading shall be sufficiently particular to give the court and parties notice of the transactions [or] occurrences
... intended to be proved and the material elements of each cause of action or defense’ ( CPLR 3013 ). ‘Under New York rules of procedure, conclusory averments of wrongdoing are insufficient to sustain a complaint unless supported by allegations of ultimate facts’ ( Muka v. Greene County , 101 A.D.2d 965, 477 N.Y.S.2d 444, lv denied 63 N.Y.2d 610, 484 N.Y.S.2d 1023, 473 N.E.2d 767 ; see Melito Interboro-Mutual Indem. Ins. Co. , 73 A.D.2d 819, 820, 423 N.Y.S.2d 742 )." ( Vanscoy v. Namic USA Corp. , 234 A.D.2d 680, 681-682, 650 N.Y.S.2d 877 [1996] ).
In matters where there are multiple defendants, vague and generalized allegations of tortious behavior does not meet the pleading requirements of CPLR § 3013 ( Aetna Casualty & Surety Co. v. Merchants Mutual Insurance Co. , 84 A.D.2d 736, 444 N.Y.S.2d 79 [1st Dept. 1981] ). "[E]ach defendant is entitled to notice of the material elements of each cause of action, specified as to the precise conduct charged to a particular defendant" ( Rabinowitz v. Salvatore Grosso & Avnet Elecs ., 2022 WL 452988, 2020 N.Y. Misc. LEXIS 16772 at p. 3 [Sup. Ct. Suff. County 2020]citing Aetna Casualty & Surety Co. , 84 A.D.2d 736, 444 N.Y.S.2d 79 ; Parsons Construction, Inc. v. WIFI Construction, LLC , 2020 N.Y. Slip Op. 32490 [U], 2020 WL 4386247 [Sup. Ct. Queens County 2020] ).
Turning to the substance of Plaintiffs claims, a cause of action pursuant to 42 USC § 1983 requires plaintiff to show a deprivation of a constitutional right ( Cornejo v. Bell , 592 F.3d 121, 127 [2d Cir. 2010] ; Tenenbaum v. Williams , 193 F.3d 581, 596-597 [2d Cir. 1999] ). A cause of action pursuant to 42 USC § 1983 only provides a mechanism to redress deprivations of constitutional rights it does not create a separate cause of action ( Cornejo , 592 F.3d at 127 ).
Parental rights are recognized as a protected liberty interest:
"The Fourteenth Amendment provides that no State shall ‘deprive any person of life, liberty, or property, without due process of law.’ We have long recognized that the Amendment's Due Process Clause, like its Fifth Amendment counterpart, ‘guarantees more than fair process.’ Washington v. Glucksberg , 521 U.S. 702, 719, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997). The Clause also includes a substantive component that ‘provides heightened protection against government interference with certain fundamental rights and liberty interests.’ 521 U.S. at 720, 117 S.Ct. 2258 ; see also Reno v. Flores , 507 U.S. 292, 301-302, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993).
"The liberty interest at issue in this case — the interest of parents in the care, custody, and control of
their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago in Meyer v. Nebraska , 262 U.S. 390, 399, 401, 43 S. Ct. 625, 67 L. Ed. 1042 (1923), we held that the ‘liberty’ protected by the Due Process Clause includes the right of parents to ‘establish a home and bring up children’ and ‘to control the education of their own.’ Two years later, in
Pierce v. Society of Sisters , 268 U.S. 510, 534-535, 45 S. Ct. 571, 69 L. Ed. 1070 (1925), we again held that the ‘liberty of parents and guardians’ includes the right ‘to direct the upbringing and education of children under their control.’ We explained in Pierce that ‘the child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.’ 268 U.S. at 535, 45 S.Ct. 571. We returned to the subject in Prince v. Massachusetts , 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. ‘It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’ 321 U.S. at 166, 64 S.Ct. 438.
"In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See , e.g. , Stanley v. Illinois , 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972) (‘It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children "comes to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements" ’ (citation omitted)); Wisconsin v. Yoder , 406 U.S. 205, 232, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972) (‘The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition’); Quilloin v. Walcott , 434 U.S. 246, 255, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978) (‘We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected’); Parham v. J. R. , 442 U.S. 584, 602, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979) (‘Our jurisprudence historically
has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course’); Santosky v. Kramer , 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) (discussing ‘the fundamental liberty interest of natural parents in the care, custody, and management of their child’); Glucksberg , supra , at 720, 117 S. Ct. 2258 (‘In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the right ... to direct the education and upbringing of one's children’ (citing Meyer and Pierce )). In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. ( Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 [2000] ).
The removal of children from their parents implicates the Fourth Amendment rights of children and parents ( Southerland v. City of New York , 680 F.3d 127, 142 [2d Cir. 2011] ; Tenenbaum , 193 F.3d at 596-597 ; Nicholson v. Scoppetta , 3 N.Y.3d 357, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004] ). Even though parental rights, are protected, and removal of children does implicate the Fourth Amendment, not every removal or restriction of parental rights leads to an impermissible violation of the Fourth Amendment ( Kia P. v. McIntyre , 235 F.3d 749, 759 [2d Cir. 2000] ["The State also has ‘a profound interest in the welfare of the child.’ Tenenbaum , 193 F.3d at 593-94. The question then is: What procedures must be afforded to a parent when the coercive power of the State seeks to separate them?"]; Schweitzer v. Crofton , 935 F. Supp. 2d 527 [E.D.N.Y. 2013] ; P.C. v. Conn. Dep't of Children & Families , 662 F. Supp. 2d [Conn. D. 2009] ; see generally Nicholson , 3 N.Y.2d 357, 787 N.Y.S.2d 196, 820 N.E.2d 840 [discussing removal process under Family Court Act Article 10 and balancing needed to determine if removal is in child's best interests and not violation of Fourth Amendment rights implicated by removal]).
It must be noted here that a parent cannot assert a Fourth Amendment violation if the removal of the child was pursuant to a court order ( Kia P. v. McIntyre , 235 F.3d 749, 761-762 [2d Cir. 1999] ; Hunter v. Child Protective Servs., 2021 WL 2368024 *14, 2021 U.S. Dist. LEXIS 96982 *45 [W.D.N.Y. 2021] ). "Further while a Fourth Amendment claim may be brought by a parent on behalf of a child, parents do not have their own Fourth Amendment right to be free from a child's court-approved removal " ( Hunter , 2021 WL 2368024 at *14, 2021 U.S. Dist. LEXIS, *45, citing Southerland v. City of New York , 680 F.3d 127, 143 [2d Cir. 2011] [emphasis added]). A parent may only have a Fourth Amendment claim if the removal was unconstitutional because of a procedural and/or substantive due process violation ( Southerland , 680 F.3d at 142 ).
To properly analyze the applicable law and determine whether a removal or TOP restricting a parent's access to a child, and the subsequent abuse proceeding violated Plaintiff's rights and his daughter's rights to be free of interference from the State, it is necessary to review the procedure for investigating and prosecuting neglect and abuse proceedings. Social Services Law §§ 411 - 428 codifies how to report suspected child abuse and maltreatment, and how such reports shall be investigated and handled by the State Central Registrar and local departments of social services (Soc. Serv. L. §§ 411, et seq. ). The statute codifies certain individuals as "mandated reporters" who are required to report suspected child abuse or maltreatment, but specifically states "any person may make such a report if such person has reasonable cause to suspect that a child is an abused or maltreated child" (Soc. Serv. L. §§ 413 & 414). Social workers, licensed mental health counselors, licensed behavioral analysts and certified behavioral analyst assistants are included in the extensive list of "mandated reporters" who are people required to report suspected child abuse or neglect (Soc. Serv. L. § 413). The initial report in the underlying abuse proceedings against Mr. Michael N. was made by a licensed clinical mental health counselor, Claire Berry. Ms. Berry, therefore, is deemed a mandated reporter under Social Services Law § 413 (id. ).
In the event a report is made to the State Central Registrar's hotline, there is a protocol for the State Central Registrar to advise the local department in the appropriate jurisdiction where the report was made, requiring the local department to investigate the report (Soc. Serv. L. §§ 422 & 423; 18 NYCRR § 432.3 ). Social Services Law § 423 (6) places "particular emphasis" on cases involving child sexual abuse (Soc. Serv. L. § 423). The local departments of social services are given discretion to determine what services to offer to a family or alternatively to determine whether court action is necessary to protect a child's life or health ( 18 NYCRR § 432.3 ). Because Mr. Michael N. resided in the County of Montgomery, State of New York, at the time of the hotline call that led to the underlying Family Court proceedings, the local department of social services involved in the investigation and prosecution of the abuse proceedings was the Montgomery County Department of Social Services.
When an investigation is commenced, the local department may determine that imminent risk to the child's life or health exists requiring the child to be removed without a court order ( Fam. Ct. Act § 1024 ; Nicholson v. Scoppetta , 3 N.Y.3d 357, 787 N.Y.S.2d 196, 820 N.E.2d 840 [answering certified Second Circuit federal appeals court questions regarding neglect, and what constitutes imminent risk, which would allow a child to be the subject of an emergency removal pursuant to Family Court Act § 1024 ]). Emergency removals are only warranted if a local department determines that imminent danger to the child's life or health exists and there is insufficient time to seek and obtain a court order ( Fam. Ct. Act § 1024 ). Under limited exigent circumstances an agency may remove a child without due process—i.e. , without a court proceeding on notice to the parent seeking permission to remove the child ( Schweitzer v. Crofton , 935 F. Supp. 2d 527, 545-546 [E.D.N.Y. 2013] ; see Nicholson , 3 N.Y.2d at 369, 787 N.Y.S.2d 196, 820 N.E.2d 840 [" ‘Imminent danger’ reflects the Legislature's judgment that a finding of neglect may be appropriate even when a child has not actually been harmed; ‘imminent danger of impairment to a child is an independent and separate ground on which a neglect finding may be based’ ( Dante M. v. Denise J. , 87 N.Y.2d 73, 79, 637 N.Y.S.2d 666, 661 N.E.2d 138 ). Imminent danger, however, must be near or impending, not merely possible"]). If circumstances exist allowing an emergency removal to occur pursuant to Family Court Act § 1024, the local department of social services must file a petition in the appropriate Family Court the next day Court is in session, and the Family Court must schedule a hearing within one day of filing the petition to determine if the child should remain in care or returned to the parent during the pendency of the proceedings ( Fam. Ct. Act §§ 1024 & 1027 ). In all other instances where the local department is seeking to restrict a parent's access to a child, or remove a child from the home, the local department must file either a pre-petition application seeking: (1) the issuance of a court ordered removal or (2) the issuance of a TOP either removing the alleged offending parent from the household or restricting said parent's contact with his or her child ( Fam. Ct. Act §§ 1022, 1027 & 1029 ). Removal orders and pre-petition TOPs may be sought ex parte with a subsequent court appearance, on notice to the parents, occurring thereafter ( Fam. Ct Act §§ 1022 & 1029 ). Alternatively, a petition may be filed and a subsequent removal order or TOP issued at the first appearance where the parents are present and able to be heard ( Fam. Ct Act § 1027 ). The Court of Appeals in Nicholson v. Scopetta , in answering the Second Circuit's concerns with Fourth Amendment violations presented by emergency removals conducted by an agency, held a court reviewing such agency action must:
Upon such a hearing, if the court finds that removal is necessary to avoid imminent risk to the child's life or health, it is required to remove or continue the removal and remand the child to a place approved by the agency ( Family Ct Act § 1027 [b] [i] ). In undertaking this inquiry, the statute also requires the court to consider and determine whether continuation in the child's home would be contrary to the best interests of the child (id. ).
....
Importantly, in 1988, the Legislature added the "best interests" requirement
to the statute, as well as the requirement that reasonable efforts be made "to prevent or eliminate the need for removal of the child from the home" (L 1988, ch 478, § 5). These changes were apparently necessary to comport with federal requirements under title IV-E of the Social Security Act ( 42 USC §§ 670 - 679b ), which mandated that federal "foster care maintenance payments may be made on behalf of otherwise eligible children who were removed from the home of a specified relative pursuant to a voluntary placement agreement, or as the result of a ‘judicial determination to the effect that continuation therein would be contrary to the welfare of the child and ... that reasonable efforts [to prevent the need for removal] have been made’ " (Policy Interpretation Question of US Dept of Health & Human Servs, May 3, 1986, Bill Jacket, L 1988, ch 478, at 32-33).
....
Additionally, the court must specifically consider whether imminent risk to the child might be eliminated by other means, such as issuing a temporary order of protection or providing services to the victim ( Family Ct Act § 1027 [b] [iii] , [iv] ). The Committee Bill Memorandum supporting this legislation explains the intent that "[w]here one
parent is abusive but the child may safely reside at home with the other parent, the abuser should be removed. This will spare children the trauma of removal and placement in foster care" (Mem of Children and Families Standing Comm, Bill Jacket, L 1989, ch 727, at 7).
....
These legislative concerns were met, for example, in ( Matter of Naomi R ., 296 A.D.2d 503, 745 N.Y.S.2d 485 [2d Dept. 2002] ), where, following a hearing pursuant to section 1027, Family Court issued a temporary order of protection against a father, excluding him from the home, on the ground that he allegedly sexually abused one of his four children. Evidence established that the father's return to the home, even under the mother's supervision, would present an imminent risk to the health and safety of all of the children. Thus, pending a full fact-finding hearing, Family Court took the step of maintaining the integrity of the family unit and instead removed the abuser.
( 3 N.Y.2d at 376-379, 787 N.Y.S.2d 196, 820 N.E.2d 840.) In the event an agency determines imminent risk exists, and it does not have time to seek a court order, it may remove the child and file a petition the next day court is in session (Soc. Servs. L. § 424; Fam. Ct Act § 1024 ). Such agency action taken without prior court approval will then be subject to review by the Court, and the affected parent shall have an opportunity to be heard at a preliminary hearing ( Fam. Ct Act § 1024 & 1027 ). The determinations made by an agency as to which course of action to pursue while investigating a hotline call is deemed to be a discretionary act (Soc. Serv. L. §§ 422 & 423; 18 NYCRR § 423.3 ).
Local department officials have an array of choices when conducting an investigation of suspected child abuse or maltreatment and in determining what services, if any, are required (Soc. Serv. L. § 424). The local department officials may find that the report is not indicated, i.e. , no credible evidence exists to support that the suspected abuse or maltreatment occurred resulting in the report being "unfounded" (id. ). In the alternative they may find some credible evidence exists, and indicate the report for abuse or maltreatment, in other words, the report is "founded" (id. ). The "some credible evidence" standard is used at the initial stages of an investigation, but a petition alleging neglect or abuse is only sustained if Petitioner meets the higher standard of "preponderance of the evidence" ( Nils TT v. New York State Dep't of Soc. Servs. , 221 A.D.2d 874, 875-875, 634 N.Y.S.2d 778 [3d Dep't 1995] ; Soc. Servs. L. § 422 [8]; Fam. Ct. Act § 10). The difference between the two standards is eloquently described by the Second Circuit in Valmonte v. Bane :
The standard for determining if a report of suspected child abuse or maltreatment should be "indicated" was whether the investigator finds "some credible evidence" that the reported abuse or maltreatment occurred. This standard changed, effective January 1, 2022, and now the social services department investigator is charged with determining whether "there is a fair preponderance of the evidence that the alleged abuse or maltreatment occurred" (Soc. Serv. L. § 422 [5]). The underlying abuse case in the above captioned matter was commenced in 2019 and the applicable standard is whether "some credible evidence" existed to support a finding that sexual abuse occurred.
The "some credible evidence" standard does not require the factfinder to weigh conflicting evidence, merely requiring the local DSS to present the bare minimum of material credible evidence to support the allegations against the subject. In contrast, the "fair preponderance" standard allows for the balancing of evidence from both sides, and gives the subject the opportunity to contest the evidence and testimony presented by the local DSS. As the Supreme Court has noted, the preponderance of the evidence standard indicates that the litigants should share the risk of error, Santosky , 455 U.S. at 755, 102 S.Ct. 1388, rather than have one litigant bear the brunt of the risk. Under the instant statutory scheme, however, the individual, not the state, bears the risk.
( 18 F.3d 992, 1004 [2d Cir. 1994] ).
In the event an investigation results in a report being founded, the local department is then charged with determining if no services are required; services should be offered to the family; or alternatively, if court action is required ( id. ). When making determinations regarding the family's needs, the local department officials must also decide if an emergency removal of the child is warranted, or if the issuance of a TOP is necessary. At the same time, the local department officials must decide if there is sufficient time to seek a court order for either a removal or issuance of a TOP requiring a parent or other person legally responsible to be removed from the home and/or to have limited or no contact with the subject child ( Fam. Ct. Act §§ 1022, 1024, 1027 & 1029 ). If a Court order is obtained, the local department of social services officials are entitled to absolute immunity for any actions taken to carry out the valid order ( Matter of Alex LL. v. Dep't of Soc. Servs. of Albany County , 60 A.D.3d 199, 207-208, 872 N.Y.S.2d 569 [2009] ; Schweitzer v. Crofton , 935 F. Supp. 2d 527 [E.D.N.Y. 2013] ; P.C. v. Conn. Dep't of Children & Families , 662 F. Supp. 2d 218 ). The issuance of a court ordered TOP is also proof that probable cause exists for the actions of the local department of social services investigating an allegation of neglect or abuse ( Butler v. Ratner , 210 A.D.2d 691, 693-694, 619 N.Y.S.2d 871 [3d Dep't 1994] ["Significantly, the issuance of a temporary injunction or similar judicial recognition of the merit of the underlying case creates a presumption of probable cause and places upon the plaintiff the burden of pleading facts sufficient to overcome it (see , Hornstein v. Wolf , 67 N.Y.2d 721, 499 N.Y.S.2d 938, 490 N.E.2d 857 ; Burt v. Smith , supra )"]). In the event a local department of social services caseworker or official, acting in good faith, opts to remove a child by an emergency removal, or alternatively, obtains either a pre-petition order of removal pursuant to Family Court Act § 1022, or obtains a TOP pursuant to Family Court Act § 1029, the caseworker or official is entitled to "immunity from any liability, civil or criminal, that might otherwise result by reason of such actions" (Soc. Serv. L. § 419; see Moore v. Melesky , 14 A.D.3d 757, 759, 788 N.Y.S.2d 679 [3d Dept 2005] ["We note, however, that Social Services Law § 419 affords immunity to those who investigate suspected child abuse where ‘they act within the scope of their employment and do not engage in willful misconduct or gross negligence’ [ Van Emrik v. Chemung County Dept. of Social Servs. , 220 A.D.2d 952, 953, 632 N.Y.S.2d 712 [1995], lv dismissed 88 N.Y.2d 874, 668 N.E.2d 419, 645 N.Y.S.2d 448 [1996] ]"]; see generally Schweitzer v. Crofton , 935 F. Supp. 2d 527, 549 [E.D.N.Y. 2013] ["Once such ‘court confirmation of the basis for removal’ is obtained, ‘any liability for the continuation of the allegedly wrongful separation of parent and child can no longer be attributed to the officer who removed the child.’ [quoting Southerland , 680 F.3d at 153 [quoting Nicholson v. Scoppetta , 344 F.3d 154, 172 ] [citation and internal quotation marks omitted]]]); Blanchard 2012 U.S. Dist. LEXIS 168075 at *7; Phillips v. City of New York , 453 F. Supp. 2d 690, 717 [2006] ). The immunity afforded to officials acting without a court order is "a qualified good faith immunity" ( La Belle v. County of St. Lawrence , 85 A.D.2d 759, 760-761, 445 N.Y.S.2d 275 [1981] ; see also Matter of Alex LL. v. Dep't of Soc. Servs. of Albany County , 60 A.D.3d at 208, 872 N.Y.S.2d 569 ["Qualified immunity protects government officials from liability for damages when performing discretionary duties ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known’ ( Harlow v. Fitzgerald , 457 U.S. at 818, 102 S.Ct. 2727 ; see van Emrik v. Chemung County Dept. of Social Servs. , 911 F.2d 863, 865-866 [2d Cir. 1990] ). ‘The two parts of this inquiry are whether plaintiff suffered a constitutional violation at the hands of [Romeling or Boyko] and, if so, whether the constitutional right was clearly established at the time so that any reasonable [caseworker] would clearly recognize that his or her conduct was unlawful in that situation’ ( Colao v. Mills , 39 A.D.3d 1048, 1050, 834 N.Y.S.2d 375 [2007] [citation omitted]; see Saucier v. Katz , 533 U.S. 194, 201-202, 121 S. Ct. 2151, 150 L. Ed. 2d 272 [2001] ). While Romeling and Boyko may have violated a constitutional right of plaintiff, namely, the fundamental liberty interest of a parent in the care and custody of his or her child (see Santosky v. Kramer , 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 [1982] ; United States v. Myers , 426 F.3d 117, 125 [2d Cir. 2005] ; Kia P. v. McIntyre , 235 F.3d 749, 758 [2d Cir. 2000], cert denied 534 U.S. 820, 122 S. Ct. 51, 151 L. Ed. 2d 21 [2001] ), the fact that it is clearly established in a general sense ‘ "that a parent's interest in the custody of a child [is] a constitutionally protected liberty interest subject to due process protection" ’ ( Wilkinson ex rel. Wilkinson v. Russell , 182 F.3d 89, 103 [2d Cir. 1999], cert denied 528 U.S. 1155, 120 S. Ct. 1160, 145 L. Ed. 2d 1072 [2000], quoting Cecere v. City of New York , 967 F.2d 826, 829 [2d Cir. 1992] ; see Santosky v. Kramer , 455 U.S. at 753, 102 S.Ct. 1388 ) does not end our inquiry. Rather, ‘ " ‘the right the official is alleged to have violated must have been "clearly established" in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he [or she] is doing violates that right’ " ’ ( Brosseau v. Haugen , 543 U.S. 194, 198-199, 125 S. Ct. 596, 160 L. Ed. 2d 583 [2004], quoting Anderson v. Creighton , 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523 [1987] ). Thus, the salient question is whether the state of the law put Boyko and Romeling on notice that their conduct was clearly unconstitutional (see Hope v. Pelzer , 536 U.S. 730, 741, 122 S. Ct. 2508, 153 L. Ed. 2d 666 [2002] ; Saucier v. Katz , 533 U.S. at 202, 121 S.Ct. 2151 )"]). The local department of social services officials are presumed to act in good faith, and only if their actions are the result of ‘willful misconduct or gross negligence’ will liability result (Soc. Serv. L. § 419). Qualified immunity applies if caseworkers are acting within the scope of employment, with authority to act, and objectively reasonably believe that their acts did not violate protected rights ( Moore v. Melesky , 14 A.D.3d 757, 760, 788 N.Y.S.2d 679 [3d Dept. 2005] ["Here, DSS and its workers were authorized and obligated by statute to investigate the allegations of child abuse and safeguard the child's welfare (see Social Services Law § 397 [2] [a] ). Given this authority, the father's shared physical custody and the absence of factual allegations evidencing a violation of Family Ct Act article 10, no rational finder of fact could conclude that it was not objectively reasonable for defendants to believe that arranging for the child to remain with her father during their investigation was the least intrusive way to satisfy their obligation to safeguard the child (see Robison v. Via , supra at 919 )"]). Caseworkers are entitled to statutory qualified immunity under Social Services Law § 419 when acting in good faith, and punitive damages are disallowed if acting within the scope of their employment ( La Belle v. County of St. Lawrence , 85.A.D.2d 759, 760-761, 445 N.Y.S.2d 275 [3d Dept. 1981] ["It is the public policy of the State to protect children who have even the appearance of being mistreated (see Social Services Law, §§ 411 - 428 )."]). Furthermore, if the officials are simply following a Court order, and the affected parent has the right to seek to vacate and/or modify the temporary order, no liability exists for their actions that are in conformance with a mandate from the Court ( Fam. Ct. Act §§ 1027, 1028 & 1061 ; Soc. Serv. L. § 419; see Matter of Alex LL. , 60 A.D.3d at 207, 872 N.Y.S.2d 569 ["In any event, agency officials are absolutely immune for actions taken to carry out facially valid court orders [see Bush v. Rauch , 38 F.3d 842, 847 [6th Cir. 1994] ; Coverdell v. Department of Social & Health Servs., State of Wash. , 834 F.2d 758, 764-765 [1987] ].]").
A government employee sued in her individual capacity for damages arising out of her performance of discretionary functions is entitled to qualified immunity where it was objectively reasonable to believe that her acts did not violate clearly established federally protected rights (see, e.g., Anderson v. Creighton , 483 U.S. 635, 639-40, 107 S.Ct. 3034, 97 L.Ed.2d 523 [1987] ; Malley v. Briggs , 475 U.S. 335, 345, 106 S.Ct. 1092, 89 L.Ed.2d 271 [1986] ; Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 [1982] ; Robison v. Via , 821 F.2d 913, 920 [2d Cir. 1987] ). The qualified immunity may be upheld as a matter of law when the evidence is such that, even when viewed in the light most favorable to the plaintiffs and with all permissible inferences drawn in their favor, no rational jury could fail to conclude that it was objectively reasonable for the defendant to believe she was acting in a fashion that did not violate such a right. (See, e.g., Robison , 821 F.2d at 920 [denying the application of absolute immunity to child protective caseworkers, but affirming they are entitled to qualified immunity with regard to decisions made during an investigation of child neglect or abuse]).
Counsel responsible for prosecuting petitions for neglect and abuse are entitled to the same absolute immunity accorded to criminal court prosecutors ( Cornejo v. Bell , 592 F.3d 121, 128 [2d Cir. 2010] ["Of particular relevance here, we have held that an attorney for a county Department of Social Services who ‘initiates and prosecutes child protective orders and represents the interests of the Department and the County in Family Court’ is entitled to absolute immunity. Walden v. Wishengrad , 745 F.2d 149, 152 [2d Cir. 1984]"]; see also B.S. v. Somerset County , 704 F.3d 250, 261 [3d Cir. 2013] ["The purpose of according absolute immunity to such officials is to ensure that they ‘can perform their respective functions without harassment or intimidation.’ Butz , 438 U.S. at 512....Although conferring absolute immunity obliges courts to sometimes deny relief to those ‘with valid claims against dishonest or malicious government officials,’ Snell v. Tunnell , 920 F.2d 673, 687 (10th Cir. 1990), the underlying logic is that it is ultimately ‘better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation,’ Yarris[v. County of Delaware] , 465 F.3d [129,] 135 [(2006)] (citations and internal quotation marks omitted)"]). The United States Supreme Court held in Imbler v. Pachtman :
"The common-law rule of immunity is thus well settled. We now must determine whether the same considerations of public policy that underlie the common-law rule likewise countenance absolute immunity under § 1983. We think they do.
"If a prosecutor had only a qualified immunity, the threat of § 1983 suits would undermine performance of his duties no less than would the threat of common-law suits for malicious prosecution. A prosecutor is duty bound to exercise his best judgment both in deciding which suits to bring and in conducting them in court. The public trust of the prosecutor's office would suffer if he were constrained in making every decision by the consequences in terms of his own potential liability in a suit for damages. Such suits could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State's
advocate. Cf. Bradley v. Fisher, 80 U.S. 335 , 13 Wall. 335, 348, 20 L.Ed. 646 ; Pierson v. Ray , 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288. Further, if the prosecutor could be made to answer in court each time such a person charged him with wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the criminal law.
"Moreover, suits that survived the pleadings would pose substantial danger of liability even to the honest prosecutor. The prosecutor's possible knowledge of a witness’ falsehoods, the materiality of evidence not revealed to the defense, the propriety of a closing argument, and—ultimately in every case—the likelihood that prosecutorial misconduct so infected a trial as to deny due process, are typical of issues with which judges struggle in actions for post-trial relief, sometimes to differing conclusions. The presentation of such issues in a § 1983 action often would require a virtual retrial of the criminal offense in a new forum, and the resolution of some technical issues by the lay jury. It is fair to say, we think, that the honest prosecutor would face greater difficulty in meeting the standards of qualified immunity than other executive or administrative officials.
Frequently acting under serious constraints of time and even information, a prosecutor inevitably makes many decisions that could engender colorable claims of constitutional deprivation. Defending these decisions, often years after they were made, could impose unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials. Cf. Bradley v. Fisher , supra, at 349.
"The affording of only a qualified immunity to the prosecutor also could have an adverse effect upon the functioning of the criminal justice system. Attaining the system's goal of accurately determining guilt or innocence requires that both the prosecution and the defense have wide discretion in the conduct of the trial and the presentation of evidence. The veracity of witnesses in criminal cases frequently is subject to doubt before and after they testify, as is illustrated by the history of this case. If prosecutors were hampered in exercising their judgment as to the use of such witnesses by concern about resulting personal liability, the triers of fact in criminal cases often would be denied relevant
evidence.
"The ultimate fairness of the operation of the system itself could be weakened by subjecting prosecutors to § 1983 liability. Various post-trial procedures are available to determine whether an accused has received a fair trial. These procedures include the remedial powers of the trial judge, appellate review, and state and federal post-conviction collateral remedies. In all of these the attention of the reviewing judge or tribunal is focused primarily on whether there was a fair trial under law. This focus should not be blurred by even the subconscious knowledge that a post-trial decision in favor of the accused might result in the prosecutor's being called upon to respond in damages for his error or mistaken judgment.
"We conclude that the considerations outlined above dictate the same absolute immunity under § 1983 that the prosecutor enjoys at common law. To be sure, this immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of qualifying a prosecutor's immunity would disserve the broader public interest. It would prevent the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system. Moreover, it often would prejudice defendants in criminal cases by skewing post-conviction judicial decisions that should be made with the sole purpose of insuring justice. With the issue thus framed, we find ourselves in agreement with Judge Learned Hand, who wrote of the prosecutor's immunity from actions for malicious prosecution:
" ‘As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.’ Gregoire v. Biddle , 177 F. 2d 579, 581 (C.A.2 1949), cert. denied , 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950).
"See Yaselli v. Goff , 12 F. 2d 396, 404 ; cf. Wood v. Strickland , 420 U.S. 308, 320, 95 S.Ct. 992, 43 L.Ed.2d 214.
"We emphasize that the immunity of prosecutors from liability in suits under § 1983 does not leave the public powerless to deter misconduct or to punish that which occurs. This Court has never suggested that the policy considerations which compel civil immunity for certain
governmental officials also place them beyond the reach of the criminal law. Even judges, cloaked with absolute civil immunity for centuries, could be punished criminally for willful deprivations of constitutional rights on the strength of 18 U.S.C. § 242, 28 the criminal analog of § 1983. O'Shea v. Littleton , 414 U.S. 488, 503, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) ; cf. Gravel v. United States , 408 U.S. 606, 627, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). The prosecutor would fare no better for his willful acts. Moreover, a prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers. These checks undermine the argument that the imposition of civil liability is the only way to insure that prosecutors are mindful of the constitutional rights of persons accused of crime.
"IV
"It remains to delineate the boundaries of our holding. As noted, supra , at 416, the Court of Appeals emphasized that each of respondent's challenged activities was an ‘integral part of the judicial process.’ 500 F. 2d 1301, 1302. The purpose of the Court of Appeals’ focus upon the functional nature of the activities rather than respondent's status was to distinguish and leave standing those cases, in its Circuit and in some others, which hold that a prosecutor engaged in certain investigative activities enjoys, not the absolute immunity associated with the judicial process, but only a good-faith defense comparable to the policeman's See Pierson v. Ray , 386 U.S. at 557, 87 S.Ct. 1213. We agree with the Court of Appeals that respondent's activities were intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force. We have no occasion to consider whether like or similar reasons require immunity for those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative
officer rather than that of advocate. We hold only that in initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under § 1983. The judgment of the Court of Appeals for the Ninth Circuit accordingly is Affirmed. "
( 424 U.S. 409, 427-431, 96 S.Ct. 984, 47 L.Ed.2d 128 [1976] ). The immunity afforded to prosecutors in pursuing a case in Court also includes actions "undertaken with an improper state of mind or improper motive" ( Shmueli v. City of New York , 424 F.3d 231, 237 [2d Cir. 2005] ). Prosecutors, therefore, are shielded by the doctrine of absolute immunity from liability for monetary damages with respect to those prosecutorial activities associated with the judicial phase of a case ( Anilao v. Spota , 27 F.4th 855, 865 [2d Cir. 2022] ["So ‘[e]ven if a prosecutor may lose his absolute immunity for prosecutorial acts for which he has no colorable claim of authority,’ it is not lost ‘immediately upon crossing the technical bounds of the power conferred on him by local law,’ or ‘simply because he acted in excess of his authority.’ Lerwill v. Joslin , 712 F.2d 435, 439 ; see Ashelman v. Pope, 793 F.2d 1072, 1076-77 (9th Cir. 1986) (en banc) (unanimously holding that prosecutor was entitled to absolute immunity after overruling prior Ninth Circuit holding that prosecutor who ‘files charges he or she knows to be baseless ... is acting outside the scope of his or her authority and thus lacks immunity’ (quotation marks omitted)). Instead, ‘absolute immunity must be denied’ only where there is both the absence of all authority (because, for example, no statute authorizes the prosecutor's conduct) and the absence of any doubt that the challenged action falls well outside the scope of prosecutorial authority. Bernard v. County of Suffolk, 356 F.3d 495, 504 (2d Cir. 2004). In the vast majority of cases ‘the laws do authorize prosecution for the charged crimes,’ id. (emphasis added), and if the charging decision or other act is within the prosecutor's jurisdiction as a judicial officer, then absolute immunity attaches to their actions ‘regardless of any allegations’ that their ‘actions were undertaken with an improper state of mind or improper motive,’ Shmueli , 424 F.3d at 237. Prosecutors thus have absolute immunity in a § 1983 action even if it turns out that ‘state law did not empower [them] to bring the charges,’ so long as ‘they have at least a semblance of jurisdiction’ that does not run far afield of their job description. Barr , 810 F.3d at 361 (declining to adopt ‘a holding that a prosecutor is without absolute immunity the moment he strays beyond his jurisdictional limits,’ because doing so would ‘do violence to [the] spirit’ of the doctrine)"]). Such immunity even extends to a prosecutor who presents false testimony ( id. at 864 ; see Dory v. Ryan , 25 F.3d 81, 83 ["Absolute immunity will apply to a prosecutor's conduct that is ‘intimately associated with the judicial phase of the criminal process,’ but not to a prosecutor's acts of investigation or administration. Id. at 2614. The application of immunity is not limited to the duties a prosecutor performs in the courtroom. See id. at 2615. Significantly, the Court clarified the holding in Imbler v. Pachtman , 424 U.S. 409, 430 n.32, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976) that efforts ‘to control the presentation of [a] witness’ testimony’ are within the function of the prosecutor. Buckley , 113 S. Ct. at 2615. The Court in Buckley stated: We have not retreated ... from the principle that acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State , are entitled to the protections of absolute immunity. Those acts must include the professional evaluation of the evidence assembled by the police and appropriate preparation for its presentation at trial or before a grand jury after a decision to seek an indictment has been made. Id. (emphasis added). This language indicates that absolute immunity protects a prosecutor from § 1983 liability for virtually all acts, regardless of motivation, associated with his function as an advocate. This would even include, for purposes of this case, allegedly conspiring to present false evidence at a criminal trial. The fact that such a conspiracy is certainly not something that is properly within the role of a prosecutor is immaterial, because ‘the immunity attaches to his function, not to the manner in which he performed it.’ Barrett v. United States , 798 F.2d 565, 573 (2d Cir. 1986) ; see also Daloia v. Rose , 849 F.2d 74, 75 (2d Cir. 1988) (per curiam ) (holding without discussing San Filippo that prosecutor was immune from § 1983 liability for knowingly presenting false testimony). As much as the idea of a prosecutor conspiring to falsify evidence disturbs us—and we must note that there is nothing—absolutely nothing—but an unsubstantiated affidavit eight years after the event to accuse prosecutor Ryan—we recognize that there is a greater societal goal in protecting the judicial process by preventing perpetual suits against prosecutors for the performance of their duties. See Imbler , 424 U.S. at 426-428, 96 S.Ct. 984"]).
Municipalities are not liable for the actions of their employees ( Monell v. Dep't of Social Servs. , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 [1978] ). A municipality is liable under 42 USC § 1983 if it has an official policy or custom that violates a person's constitutionally protected rights ( id. ). Supervisors are only liable if they are personally involved in the actions of the offending employee ( Wright v. Smith , 21 F.3d 496, 501, [2d Cir. 1994] ["It is well settled in this Circuit that ‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.’ Moffitt v. Town of Brookfield , 950 F.2d 880, 885 (2d Cir. 1991) ; McKinnon v. Patterson , 568 F.2d 930, 934 (2d Cir. 1977), cert. denied , 434 U.S. 1087, 98 S. Ct. 1282, 55 L. Ed. 2d 792 (1978) ; see also Johnson v. Glick , 481 F.2d 1028, 1034 (2d Cir.) (‘The rule in this circuit is that when monetary damages are sought under § 1983, the general doctrine of respondeat superior does not suffice and a showing of some personal responsibility of the defendant is required.’), cert. denied , 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973). As the District Court properly noted, a defendant who occupies a supervisory position may be found personally involved in the deprivation of a plaintiff's constitutionally protected liberty interests in several ways: The defendant may have directly participated in the infraction .... A supervisory official, after learning of the violation through a report or appeal, may have failed to remedy the wrong .... A supervisory official may be liable because he or she created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue .... Lastly, a supervisory official may be personally liable if he or she was grossly negligent in managing subordinates who caused the unlawful condition or event .... Williams v. Smith , 781 F.2d 319, 323-24 (2d Cir. 1986) (citations omitted). In addition, supervisory liability may be imposed where an official demonstrates "gross negligence" or "deliberate indifference" to the constitutional rights of inmates by failing to act on information indicating that unconstitutional practices are taking place. McCann v. Coughlin , 698 F.2d 112, 125 (1983) ; see also Meriwether v. Coughlin , 879 F.2d 1037, 1048 (2d Cir. 1989)"]; see also P.C. v. Conn. Dep't of Children & Families , 662 F. Supp. 2d 218, 226-227 [Conn. D. 2009] ["With respect to Hamilton, there is no mention of Hamilton in plaintiffs’ pleadings or briefings other than the fact that Hamilton is the current Commissioner of DCF. Because plaintiffs offer no evidence which would establish Hamilton's personal involvement in the actions that are alleged to have caused the deprivation of rights at issue in this case, Hamilton is entitled to summary judgment on plaintiffs’ section 1983 claims for damages. An official cannot be held liable merely because he or she occupies a high position in a government agency hierarchy. See Colon v. Coughlin , 58 F.3d 865, 874 (2d Cir. 1995)" [footnote omitted] [emphasis added]]). "A municipal agency may not be held liable under § 1983 for the isolated unconstitutional acts of its employees" ( Sorlucco v. New York City Police Dep't , 971 F.2d 864, 870 [2d Cir. 1992] ).
A failure to provide proper training or supervision can lead to municipal liability if the lack of training rises to the level of it being an official policy or custom ( Johnson v. Kings County DA's Office , 308 A.D.2d 278, 293-295, 763 N.Y.S.2d 635 [2d Dept. 2001] ["In Walker v. City of New York (supra ), the Second Circuit traced the development of the ‘failure to train theory’ under 42 USC § 1983. The Second Circuit explained that after Monell v. Department of Social Servs. of City of N.Y. (supra ), the Supreme Court in City of Oklahoma City v. Tuttle , 471 U.S. 808, 105 S. Ct. 2427, 85 L. Ed. 2d 791 (1985), Pembaur v. Cincinnati ,475 U.S. 469, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986), and St. Louis v. Praprotnik , 485 U.S. 112, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1988) sought to address some of the issues left unresolved in Monell , such as what is a government policy or custom, and who is a policymaker for purposes of 42 USC § 1983. The Second Circuit explained that the ‘combination of [ Tuttle , Pembaur , and Praprotnik ] necessarily molds many § 1983 claims against municipalities into "failure to train" or "failure to supervise" claims. It is only by casting claims in this way that plaintiffs can link an actual decision by a high level municipal official to the challenged incident’ ( Walker v. City of New York , supra at 297 )"]; see also Fehring v. County of Suffolk , 2020 WL 3422388 at *5, 2020 N.Y. Misc. LEXIS 2720 at *12-*13 [discussing failure to train and a single incident cannot "suffice to show a municipal policy"] [Sup. Ct. Suff. Cty. 2020] ). The actions need not be an official policy or custom but must be so persistent and widespread that they are accepted as having the force of law ( Surlucco , 971 F.2d at 870-871 ).
"Municipal liability may be premised on a failure to train employees if inadequate training ‘reflects deliberate indifference to the constitutional rights of its inhabitants.’ City of Canton v. Harris , 489 U.S. 378, 392, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989). To prove deliberate indifference, plaintiff must show: (1) ‘that a policymaker knows to a moral certainty that ... employees will confront a given situation’; (2) ‘that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult
or that there is a history of employees mishandling the situation’; and (3) ‘that the wrong choice by the ... employee will frequently cause the deprivation of a citizen's constitutional rights.’ Walker v. City of New York , 974 F.2d 293, 297-98 (2d Cir. 1992) (internal quotation marks omitted)....
"[A] ‘governmental "custom" ’ may sometimes constitute official policy. Monell v. Dep't of Soc. Servs. , 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). To ‘generate municipal liability,’ however, the ‘discriminatory practices of [municipal] officials’ must be ‘persistent and widespread,’ ‘so permanent and well settled as to constitute a custom or usage with the force of law,’ and ‘so manifest as to imply the constructive acquiescence of senior policy-making officials.’ Sorlucco v. New York City Police Dep't , 971 F.2d 864, 870-71 (2d Cir. 1992) (internal quotation marks omitted)....
"Finally, ‘[w]here a plaintiff seeks to hold a municipality liable for a single decision by a municipal policymaker, the plaintiff must show that the official had final policymaking power.’ Roe v. City of Waterbury , 542 F.3d 31, 37 (2d Cir. 2008) (citation, internal quotation marks, and brackets omitted). ‘Whether the official in question possessed final policymaking authority is a legal question, which is to be answered on the basis of state law.’ Jeffes v. Barnes , 208 F.3d 49, 57 (2d Cir. 2000) (citations omitted)." ( Prince v. County of Nassau , 563 Fed. Appx. 13, 16-17 [2014].)
The unconstitutional actions must be "so manifest as to imply constructive acquiescence of senior policy-making officials" ( Sorlucco , 971 F.2d at 871, citing St. Louis v. Praprotnik , 485 U.S. 112, 130, 108 S.Ct. 915, 99 L.Ed.2d 107 [1988] ).
Plaintiffs’ Complaint raises two distinct violations regarding "due process" rights, that require separate analysis. First is the issue of deprivation of a constitutional right on the basis of lack of procedural due process. Procedural due process is the proverbial "notice and right to be heard" allowing a person an opportunity to meaningfully dispute government actions regarding the loss or curtailment of a constitutionally protected right ( Villanueva v. City of New York , 2010 WL 1654162, p. 8–10, 2010 U.S. Dist. LEXIS 38703, p. 25-29 ; see generally Armstrong v. Manzo , 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 [1965] ["A fundamental requirement of due process is ‘the opportunity to be heard.’ Grannis v. Ordean , 234 U.S. 385, 394, 34 S.Ct. 779, 58 L.Ed. 1363. It is an opportunity which must be granted at a meaningful time and in a meaningful manner"]).
"Thus, a claimed violation of procedural due process involves a two-step analysis: (1) the court examines whether the State deprived plaintiff of a constitutionally protected interest, and (2) if so, the court determines whether the procedures surrounding that deprivation were constitutionally adequate (see Schakur v. Selsky , 391 F.3d 106, 118 [2d Cir. 2004] )." ( Jones v. County of Suffolk , 236 F. Supp. 3d 688, 693 [E.D.N.Y. 2017] ).
If all the process that is due is afforded to a litigant, no claim for violation may be had (see Hunter v. Child Protective Servs ., 2021 WL 2368024 *12, 2021 U.S. Dist. LEXIS 96982, *35-36 [W.D.N.Y. 2021] [holding that proper emergency removal followed by "timely and independent judicial decisions" shows plaintiff was afforded all of her procedural due process]; see also Graham v. City of New York , 869 F. Supp. 2d 337, 349-351 [E.D.N.Y. 2012] ["Procedural due process is designed to reduce the possibility that the government will infringe on protected interests unnecessarily. Kia P ., 235 F.3d at 759 (‘ "[P]rocedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases." ’) (quoting Mathews v. Eldridge , 424 U.S. 319, 344, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) ). To determine whether there have been sufficient procedural protections before an individual is deprived of a liberty interest, courts rely on the test stated in Mathews v. Eldridge , assessing: 1) ‘the private interest that will be affected by the official action;’ 2) ‘the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;’ and 3) ‘the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.’ 424 U.S. at 335, 96 S.Ct. 893. ‘As a general rule ... before parents may be deprived of the care, custody or management of their children without their consent, due process—ordinarily a court proceeding resulting in an order [approving,] permitting[, or ordering] removal—must be accorded to them.’ Tenenbaum , 193 F.3d at 593 (citing Stanley v. Illinois , 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972). Similar process is due when the government action substantially restricts a non-custodial parent's relationship with the child. The proceedings in this case complied with due process. Graham was present at the Family Court hearing when it issued the first temporary order of protection denying him contact with JGR. At that hearing, he was represented by counsel who could have argued that such an order was unnecessary. Pl.’s Aff. Ex. C (Family Court Docket Entry for May 11, 2006). He was free to appeal the temporary order of protection, yet failed to do so. Additional process would not have produced a different result"]). The right to notice and the opportunity to be heard may be delayed in certain circumstances when imminent risk is determined to exist, or a pre-petition application is filed on an ex parte basis ( Fam. Ct. Act §§ 1024, 1022 & 1029 ; Soc. Servs. L. § 424; Nicholson v. Scoppetta , 3 N.Y.3d 357, 787 N.Y.S.2d 196, 820 N.E.2d 840 ; see also Robison , 821 F.3d at 922 ["In addition, it was and is clear that there is a sufficient emergency to warrant officials’ taking custody without a prior hearing if a child is immediately threatened with harm or is bereft of adequate care or supervision. See Duchesne v. Sugarman , 566 F.2d [817,] 825-26 (parent was in psychiatric ward and there was no one to take care of children). It is not necessary, for emergency circumstances to exist, that the child be harmed in the presence of the officials or that the alleged abuser be present at the time of the taking. Rather, it is sufficient if the officials have been presented with evidence of serious ongoing abuse and therefore have reason to fear imminent recurrence. See Lossman v. Pekarske , 707 F.2d [288,] 291-92 (due process not violated by taking of custody without a prior hearing when witnesses had told officials that parent constantly beat and threatened to kill the children, and kept loaded guns in the house); cf. Myers v. Morris , 810 F.2d [1437,] 1461-63 (no clearly established violation of due process in summarily removing children when officials arguably had probable cause for arresting one or both parents for molestation of other children). Further, the officials need not defer action merely on account of a parent's protestations of innocence or promises of future protection if they have evidence that that parent has been unwilling or unable to assure the children's safety and well-being in the past. See Lossman v. Pekarske , 707 F.2d at 292 (‘It would have been irresponsible for [the officials] to have left the children in [the father's] custody whatever he might have told them.’)"]).
In contrast, substantive due process requires a determination of whether the State's actions were arbitrary and capricious and actionable, or alternatively rational and non-actionable ( Jones, 236 F. Supp. 3d at 699 [" ‘In order to establish a violation of a right to substantive due process, [after demonstrating that it was denied a valid property interest,] a plaintiff must demonstrate not only government action but also that the government action was "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience" ’ Pena[v. DePrisco], 432 F.3d at 112 (quoting [County of Sacramento v.]Lewis , 523 U.S. [833,] 847 n. 8, 118 S.Ct. 1708 ). To satisfy this standard, a plaintiff must show that the government decision it challenges ‘was arbitrary or irrational or motivated by bad faith.’ Rosa R. v. Connelly , 889 F.2d 435, 439 (2d Cir. 1989)"]). Substantive due process violations exist when the action is so egregious "even were it accompanied by full procedural protection" it could not stand ( Villanueva , 2010 WL 1654162 at 10, 2010 U.S. Dist. Lexis 38703 at 29-30 ; see Emerson v. City of New York , 740 F. Supp. 2d 385, 391 [S.D.N.Y. 2010] ["Thus, to prevail on a constitutional claim against a caseworker, a plaintiff must demonstrate that the caseworker's actions were ‘shocking, arbitrary, and egregious.’ See Shapiro v. Kronfeld No. 00 Civ. 6286 , 2004 U.S. Dist. Lexis 23807. 2004 WL 2698889, at *16 (S.D.N.Y. Nov. 24, 2004) (quoting Anthony v. City of New York , 339 F.3d 129, 143 (2d Cir. 2003) )"]). Substantive due process is a protection against arbitrary government actions not an enumerated right in the constitution—and conduct constituting a violation of this protection must be so outrageous as to shock the conscience.
" ‘Unlike procedural due process, substantive due process comes into play when, regardless of the procedures followed, a governmental decision or action violates a fundamental right and no overridingly important state interest justifies that infringement. See Daniels v. Williams , 474 U.S. 327, 331, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986) (Substantive due process rights bar ‘certain government actions regardless of the fairness of the procedures used to implement them....’
Marcel v. United States , 2011 U.S. Dist. LEXIS 156517, 2012 WL 5463926, at *4 (E.D.N.Y. 2012)appeal dismissed No. 12-5001 (2d Cir. 2013), reconsideration denied , 2012 U.S. Dist. LEXIS 184536, 2012 WL 6720771 (E.D.N.Y. 2012). See Joyner by Lowry v. Dumpson , 712 F.2d 770, 777 (2d Cir. 1983). In the context of substantive due process claims relating to children, ‘a plaintiff must demonstrate that his separation from his children was "so shocking, arbitrary, and egregious that the Due Process Clause would not countenance it even were it accompanied by full procedural protection."
’ Marcel , 2011 U.S. Dist. LEXIS 156517, 2012 WL 5463926 at *4quoting Anthony v. City of New York , 339 F.3d 129, 143 (2d Cir. 2003)" (Pineda v. Dep't of Children & Families , 2016 U.S. Dist. LEXIS 174268, *8-9 [D. Mass. 2016]; (see Daniels v. Williams , 474 U.S. 327, 331-332, 106 S.Ct. 662, 88 L.Ed.2d 662 [1986] ["The Due Process Clause of the Fourteenth amendment provides: ‘[Nor] shall any State deprive any person of life, liberty, or property, without due process of law.’ Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property. E. g., Davidson v. New Orleans , 96 U.S. 97, 24 L.Ed. 616 (1877) (assessment of real estate); Rochin v. California , 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (stomach pumping); Bell v. Burson , 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) (suspension of driver's license); Ingraham v. Wright , 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) (paddling student); Hudson v. Palmer , 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (intentional destruction of inmate's property). No decision of this Court before Parratt supported the view that negligent conduct by a state official, even though causing injury, constitutes a deprivation under the Due Process Clause. This history reflects the traditional and common-sense notion that the Due Process Clause, like its forebear in the Magna Carta, see Corwin, The Doctrine of Due Process of Law Before the Civil War, 24 Harv. L. Rev. 366, 368 (1911), was ‘ "intended to secure the individual from the arbitrary exercise of the powers of government," ’ Hurtado v. California , 110 U.S. 516, 527, 4 S.Ct. 292, 28 L.Ed. 232 (1884) (quoting Bank of Columbia v. Okely , 17 U.S. 235, 4 Wheat. 235, 244, 4 L.Ed. 559 (1819) ). See also Wolff v. McDonnell , 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (‘The touchstone of due process is protection of the individual against arbitrary action of government, Dent v. West Virginia , 129 U.S. 114, 123, 9 S.Ct. 231, 32 L.Ed. 623 (1889) ’); Parratt , supra , at 549 (Powell, J., concurring in result). By requiring the government to follow appropriate procedures when its agents decide to ‘deprive any person of life, liberty, or property,’ the Due Process Clause promotes fairness in such decisions. And by barring certain government actions regardless of the fairness of the procedures used to implement them, e.g., Rochin , supra , it serves to prevent
governmental power from being ‘used for purposes of oppression,’ Murray v. Hoboken Land & Improvement Co. , 18 How. 272, 277, 59 U.S. 272, 15 L.Ed. 372 (1855) (discussing Due Process Clause of Fifth Amendment)"]).
Plaintiffs allege that their right to equal protection under the law was violated. An equal protection violation is typically based upon allegations that a government actor discriminated against plaintiff based upon race, nationality or gender ( Trombley v. O'Neill , 929 F. Supp. 2d 81, 96 [N.D.N.Y. 2013] ). If the discrimination is alleged not to be based upon a recognized protected class but rather a "class of one" plaintiff must show disparate treatment from other similarly situated persons ( id. ; citing Willowbrook v. Olech , 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 [2000] ).
"The Second Circuit has held that the equal protection clause ‘directs state actors to treat similarly situated people alike.’ See Giano v. Senkowski , 54 F.3d 1050, 1057 (2d Cir. 1995). To prove a violation of this clause, a plaintiff is required to prove "purposeful discrimination directed at an identifiable or suspect class." See id. (citations omitted)" ( Daniel H. v. City of New York , 115 F. Supp. 2d 423, 429, [2d Cir. 2000] ).
In reviewing the above captioned case, it was alleged that the father sexually abused his daughter. The Family Court issued a TOP to restrict his access to his daughter during the proceedings which ultimately dismissed the abuse petition. This Court refuses to recognize alleged sexually abusive parents as an "identifiable or suspect class" who are intended to be covered by the equal protection clause (see Storck v. Suffolk County Dep't of Soc. Servs. , 62 F. Supp. 2d 927, 942-943 [refusing to recognize "Munchausen mothers" as a class based distinction] [E.D.N.Y. 1999] ; see also Bray v. Alexandria Women's Health Clinic , 506 U.S. 263, 269-270, 113 S.Ct. 753, 122 L.Ed.2d 34 [1993] ["In Geduldig v. Aiello , 417 U.S. 484, 94 S. Ct. 2485, 41 L. Ed. 2d 256 (1974), we rejected the claim that a state disability insurance system that denied coverage to certain disabilities resulting from pregnancy discriminated on the basis of sex in violation of the Equal Protection Clause of the Fourteenth Amendment ‘While it is true,’ we said, ‘that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification.’ Id. , at 496, n. 20, 94 S.Ct. 2485. We reached a similar conclusion in Personnel Administrator of Mass. v. Feeney , 442 U.S. 256, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979), sustaining against an Equal Protection Clause challenge a Massachusetts law giving employment preference to military veterans, a class which in Massachusetts was over 98% male, id., at 270, 99 S. Ct. 2282. ‘ "Discriminatory purpose," ’ we said, ‘implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part "because of," not merely "in spite of," its adverse effects upon an identifiable group.’ Id. , at 279, 99 S. Ct. 2282 (citation omitted). The same principle applies to the ‘class-based, invidiously discriminatory animus’ requirement of § 1985 (3). Moreover, two of our cases deal specifically with the disfavoring of abortion, and establish conclusively that it is not ipso facto sex discrimination. In Maher v. Roe , 432 U.S. 464, 97 S. Ct. 2376, 53 L. Ed. 2d 484 (1977), and Harris v. McRae , 448 U.S. 297, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980), we held that the constitutional test applicable to government abortion-funding restrictions is not the heightened-scrutiny standard that our cases demand for sex-based discrimination, see Craig v. Boren , 429 U.S. 190, 197-199, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), but the ordinary rationality standard. See Maher , supra , at 470-471, 478, 97 S. Ct. 2376 ; Harris , supra , at 322-324, 100 S. Ct. 2671. The nature of the ‘invidiously discriminatory animus’ Griffin had in mind is suggested both by the language used in that phrase (‘invidious ... tending to excite odium, ill will, or envy; likely to give offense; esp., unjustly and irritatingly discriminating,’ Webster's Second International Dictionary 1306 (1954)) and by the company in which the phrase is found (‘there must be some racial, or perhaps otherwise class-based , invidiously discriminatory animus,’ [Griffin v. Breckenridge ,] 403 U.S. [88,] 102, 91 S.Ct. 1790 (emphasis added)). Whether one agrees or disagrees with the goal of preventing abortion, that goal in itself (apart from the use of unlawful means to achieve it, which is not relevant to our discussion of animus) does not remotely qualify for such harsh description, and for such derogatory association with racism. To the contrary, we have said that ‘a value judgment favoring childbirth over abortion’ is proper and reasonable enough to be implemented by the allocation of public funds, see Maher , supra , at 474, 97 S. Ct. 2376, and Congress itself has, with our approval, discriminated against abortion in its provision of financial support for medical procedures, see Harris , supra , at 325, 100 S. Ct. 2671. This is not the stuff out of which a § 1985 (3) ‘invidiously discriminatory animus’ is created" [footnotes omitted]]). In order to succeed, therefore, Plaintiffs in this matter must show that they were treated differently than similarly situated families involved in a Child Protective proceeding based upon sexual abuse and there is no rational basis for the disparate treatment ( Willowbrook , 528 U.S. at 564, 120 S.Ct. 1073 ). Alternatively, if Plaintiff Michael N. believes men are discriminated against in Family Court proceedings, placing him in a suspect class based upon gender, he needs more than a bald statement that men are treated differently in Family Court to allege he suffered simply based on his gender. He must allege invidiously discriminatory animus towards him because he is male ( Bray , 506 U.S. at 269-270, 113 S.Ct. 753 ).
In order to recover under a statute that does not "expressly confer a private right of action on individuals pursuing civil relief" a plaintiff must show that such a right of action " ‘may fairly be implied’ " by the statute ( Hammer v. Am. Kennel Club , 1 N.Y.3d 294, 299, 771 N.Y.S.2d 493, 803 N.E.2d 766 [2003] ). The Court of Appeals in Hammer v. Am. Kennel Club , provided a mechanism to assess whether a statute may be interpreted to infer a private right of action:
"This inquiry entails consideration of three factors: ‘(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme’ ( Carrier v. Salvation Army, 88 N.Y.2d 298, 302 [644 N.Y.S.2d 678, 667 N.E.2d 328 (1996)] ). In assessing whether a private right of action can be implied, we have acknowledged that
" ‘the Legislature has both the right and the authority to select the methods to be used in effectuating its goals, as well as to choose the goals themselves. Thus, regardless of its consistency with the basic legislative goal, a private right of action should not be judicially sanctioned if it is incompatible with the enforcement mechanism chosen by the Legislature or with some other aspect of the over-all statutory scheme’ ( Sheehy[v. Big Flats Community Day, Inc.] , 73 N.Y.2d [629], 634-635 [543 N.Y.S.2d 18, 541 N.E.2d 18 (1989)] ; see Hoxie's Painting Co. v. Cato-Meridian Cent. Scholl [School] Dist. , 76 N.Y.2d 207, 212 [556 N.E.2d 1087, 557 N.Y.S.2d 280] [1990] )." ( Id. )
Whether a private right of action would be compatible with the over-all legislative scheme is the most important factor to analyze ( id. ; Carrier v. Salvation Army , 88 N.Y.3d 298, 304, 644 N.Y.S.2d 678, 667 N.E.2d 328 [1996] ; Brian Hoxie's Painting Co. v. Cato-Meridian Cent. School Dist. , 76 N.Y.2d 207, 212, 557 N.Y.S.2d 280, 556 N.E.2d 1087 [1990] ; see also Mark G. v. Sabol , 93 N.Y.2d 710, 720, 695 N.Y.S.2d 730, 717 N.E.2d 1067 ["[T]he third factor—the one this Court has deemed the most critical—is not satisfied" [citation omitted]]). Where a comprehensive enforcement scheme is created, and no private right of action was included, the Courts are loathe to infer a private right of action which the Legislature did not create (see McLean v. City of New York , 12 N.Y.3d 194, 200-201, 878 N.Y.S.2d 238, 905 N.E.2d 1167 [2009] [holding Social Services Law § 390 does not confer a private of action]; Mark G. , 93 N.Y.2d at 720-721, 695 N.Y.S.2d 730, 717 N.E.2d 1067 [holding Title 4 of Article 6 of the Social Services Law does not confer a private right of action]; cf. Negrin v. Norwest Mtge., Inc. , 263 A.D.2d 39, 47-48, 700 N.Y.S.2d 184 [2d Dept. 1999] ["To be certain, a private right of action will generally be found not to exist where the Legislature has otherwise provided for public enforcement of the law (see, e.g., Carrier v. Salvation Army, supra ; Sheehy v. Big Flats Community Day, supra ; Americana Petroleum Corp. v. Northville Indus. Corp., supra ; see also, McDonald v. Cook , 252 A.D.2d 302, 681 N.Y.S.2d 900 ; Larson v. Albany Med. Ctr ., 252 A.D.2d 936, 676 N.Y.S.2d 293 ). However, there is no regulatory agency that would otherwise enforce compliance with Real Property Law § 274-a. Thus, the recognition of a private right of action would do no harm to the legislative scheme"]). Social Services Law § 384-b was specifically enacted to provide a mechanism to ensure children in foster care are either reunited with their birth family, or alternatively, freed for adoption (Soc. Servs. L. § 384-b [1] [a]). The statute includes a statement of intent:
"It is the intent of the legislature in enacting this section to provide procedures not only assuring that the rights of the birth parent are protected, but also, where positive, nurturing parent-child relationships no longer exist, furthering the best interests, needs, and rights of the child by terminating parental rights and freeing the child for adoption." ( Social Services Law § 384-b [1].)
In reviewing the three factors outlined by the Court of Appeals to determine if a statute infers a private right of action, namely: " ‘(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme’ " it is clear that Social Services Law § 384-b does not ( Hammer , 1 N.Y.3d at 299, 771 N.Y.S.2d 493, 803 N.E.2d 766 ). First, the whole purpose of Social Services Law § 384-b is to create a procedure for terminating parental rights (Soc. Servs. L. § 384-b [1] [a]). The stance of the underlying Family Court proceedings upon which this case is premised, was simply an Article 10 petition to determine if the father neglected or abused the daughter, who was never removed from her home or placed in foster care. The provisions of Social Services Law § 384-b never applied to this case, and the Plaintiffs were not, nor were they ever, part of the class of persons covered by the statute. Second, even if the Court were to find the provisions of Social Services Law § 384-b were applicable, recognizing a private right of action would not promote the legislative purpose of the statute. The most critical factor, therefore, is missing. This statute, and the portion relied upon by Petitioner Michael N., simply requires the Department to show the diligent efforts it made to reunite the family, or alternatively, why such efforts should be dispensed with for the protection of the child, once a petition to terminate parental rights has been filed. Failure to comply with Section 384-b [1] [a] would simply result in the dismissal of the petition to terminate parental rights. Third, the legislative scheme as noted in the stated intent of the statute is to reduce the time a child remains in foster care. The intent is to either provide services to the family to reunite, or alternatively free the child for adoption to allow the child to have a nurturing, positive parent-child relationship with an adoptive family. The father's attempt to sue under the statute is a gross mischaracterization of its purpose.
Furthermore, a local department of social services is not required to provide preventive services to a family that is not under its supervision, unless and until it is determined the child is at risk of being placed without the provision of such services, or the child is in fact in placement (Soc. Servs. L. § 409; 18 NYCRR §§ 430.8, 430.9 & 432.2 ; see also Grant v. Cuomo , 130 A.D.2d 154, 518 N.Y.S.2d 105 [1987] [refusing to issue writ of mandamus requiring department to provide preventive services as such decision is discretionary, not mandatory]; cf. Fam. Ct. Act §§ 1039 [c] & 1052 [allowing a Family Court judge to place a parent under the Department's supervision and require services to be provided, upon adjudication and disposition of a petition for neglect or abuse]). In the above captioned matter, the subject child was never at risk of placement in foster care, and the father was never adjudicated to have abused or neglected the child. There was no requirement to provide services. The Department and the father were required to follow the TOP issued by the Family Court, which provided for the limited or no contact between the parent and a child NOT in foster care. Even if the statute were deemed to infer a private right of action, which it does not, the Plaintiffs could not avail themselves of this statute as it does not apply to the facts of the above captioned matter.
Plaintiff alleges causes of action for "unlawful imprisonment", malicious prosecution and gross negligence. This Court is unaware of any known cause of action for "unlawful imprisonment", and it is presumed that the plaintiff means false imprisonment. The elements that must be proved for false imprisonment are: (1) the defendant intended to confine plaintiff; (2) the plaintiff was conscious of the confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged ( Torres v. Jones , 26 N.Y.3d 742, 759, 27 N.Y.S.3d 468, 47 N.E.3d 747 [2016] ; Broughton v. State , 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 335 N.E.2d 310 [1975] ). Probable cause is a complete defense to a claim of false imprisonment as actions to detain pursuant to probable cause or a court order are deemed privileged ( Torres , 26 N.Y.3d at 759, 27 N.Y.S.3d 468, 47 N.E.3d 747 ; Davis v. Syracuse , 66 N.Y.2d 840, 842, 498 N.Y.S.2d 355, 489 N.E.2d 242 [1985] ; Broughton , 37 N.Y.2d at 456, 373 N.Y.S.2d 87, 335 N.E.2d 310 ; Dagan v. Brookdale Hosp. Medical Ctr. , 202 A.D.2d 385, 386, 608 N.Y.S.2d 682 [2d Dept. 1994] ).
" ‘Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed" by the suspected individual, and probable cause must be judged under the totality of the circumstances. ( Torres , 26 N.Y.3d at 759, 27 N.Y.S.3d 468, 47 N.E.3d 747, quoting People v. Bigelow , 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985] ).
To meet the confinement element, it is noted that the person does need to be confined to an actual jail or prison it means their freedom of movement has been restrained ( Torres , 26 N.Y.3d at 759, 27 N.Y.S.3d 468, 47 N.E.3d 747 ; cf. Weiss v. Hotung , 26 A.D.3d 855, 809 N.Y.S.2d 376 [4th Dept. 2006] [issuing a criminal summons in lieu of an arrest is not a confinement]; Ellenville v. Searles , 235 A.D.2d 692, 652 N.Y.S.2d 151 [3d Dept. 1997] [holding a brief traffic stop for service of process is not a confinement]; Bass v. Saratoga Harness Racing Ass'n , 286 App. Div. 934, 143 N.Y.S.2d 31 [3d Dept. 1955] [requesting plaintiff leave premises not deemed a confinement]).
The elements for a cause action for malicious prosecution are: (1) a judicial proceeding initiated and continued by defendant; (2) that terminates in favor of plaintiff; (3) brought without probable cause; and (4) with malice ( Torres , 26 N.Y.3d at 760, 27 N.Y.S.3d 468, 47 N.E.3d 747 ; Perryman v. Saranac Lake , 41 A.D.3d 1080, 1081, 839 N.Y.S.2d 290 [3d Dept. 2007] ). If the underlying case is civil in nature, plaintiff must also show a fifth element of special injury ( Engel v. CBS, Inc. , 93 N.Y.2d 195, 204-205, 689 N.Y.S.2d 411, 711 N.E.2d 626 [1999] ["Dispelling rumors of the special injury requirement's demise, however, does not resolve the question of what can amount to such an added grievance. In making this determination, we keep in mind that set against the great concerns of providing open access to courts and circumventing ad infinitum litigation is yet another concern, that the courts cannot be made forums for oppression and harassment (see , Burt v. Smith , supra , 181 N.Y. at 5, 73 N.E. 495 ). In striking the balance between these concerns, we also remain mindful of the role played by the other elements of a malicious prosecution claim. To succeed, the plaintiff must prove malice, or as the Restatement defines it, a purpose other than the adjudication of a claim, and must further prove an entire lack of probable cause in the prior proceeding ( Restatement [Second] of Torts § 674 ; see , Burt v.Smith , supra , at 5-6, 73 N.E. 495 ). This, as we have noted, is no easy feat (Ferguson v Arnow , supra ). These other elements of a malicious prosecution claim thus work to alleviate the fear of retaliation in bringing novel suits as well as to block an endless series of malicious prosecution claims. Moreover, the current formulation of the special injury requirement contains anachronistic features. Gone are the days of the writ of ne exeat (let him not depart), which allowed a civil plaintiff the right to restrict the party sued in equity to the jurisdiction (see , Civil Rights Law § 23 ). More notably, arrest as a general provisional remedy in a civil action was abolished in 1979 (see , L 1979, ch 409, § 1, repealing CPLR 6101 - 6119 ; see also , Parson's former NY Code of Civ Pro § 549 [June 1, 1893] [listing the many civil actions giving rights to arrest]). To limit the special injury standard in wrongful civil proceedings to ‘interference with person’ in the sense of an arrest, provides a mold that the law would seldom fill. Empty standards do little to sustain important public policies. This leads naturally to the conclusion that burdens substantially equivalent to those imposed by provisional remedies are enough. Actual imposition of a provisional remedy need not occur, and a highly substantial and identifiable interference with person, property, or business will suffice (see , e.g. , Groat v. Town Bd. , 73 A.D.2d 426, 426 N.Y.S.2d 339 ). Since the role that the special injury requirement fulfills is that of a buffer to insure against retaliatory malicious prosecution claims and unending litigation, we are satisfied that a verifiable burden substantially equivalent to the provisional remedy effect can amount to special injury. Put another way, what is "special" about special injury is that the defendant must abide some concrete harm that is considerably more cumbersome than the physical, psychological or financial demands of defending a lawsuit. This standard strikes the balance required between discouraging excess litigation on the one hand and prohibiting the malicious use of the courts on the other"]). Again, as with false imprisonment the existence of probable cause to bring and pursue a lawsuit is a defense to malicious prosecution, even if plaintiff ultimately succeeds ( Perryman , 41 A.D.3d at 1082, 839 N.Y.S.2d 290 ). The Appellate Division, Third Department instructs that:
" ‘[p]robable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty’ ( Colon v. City of New York , supra at 82 [citations omitted]). ‘Because "obviously less in the way of grounds for belief will be required to justify a reasonable [person] in bringing a civil rather than a criminal suit," when the underlying action is civil in nature the want of probable cause must be patent’ ( Butler v. Ratner , supra at 693 , quoting Prosser and Keeton, Torts § 120, at 893 [5th ed] [citations omitted])." ( Fink v. Shawangunk Conservancy, Inc. , 15 A.D.3d 754, 755, 790 N.Y.S.2d 249 [3d Dept. 2005].)
Plaintiffs have alleged that the actions taken by the Department to investigate and commence the underlying neglect and abuse case constituted gross negligence. Social Services Law presumes that the caseworkers and employees of local social service departments act in good faith ( Van Emrik , 220 A.D.2d at 953, 632 N.Y.S.2d 712 ["As it has been stated, ‘only a persuasive showing of bad faith will permit ... an action [alleging a violation of a plaintiff's rights] to proceed to trial’ ( Satler v. Larsen , 131 A.D.2d 125, 126, 520 N.Y.S.2d 378 ). The goal of establishing a child protective service capable of investigating cases of alleged abuse swiftly and competently is intended to be encouraged and protected by the immunity granted under Social Services Law § 419 (see , William M. v. Laub , supra )"]). Plaintiffs must rebut the presumption of good faith, by showing it is not objectively reasonable for the employees to believe their actions did not violate plaintiffs’ constitutional rights ( Moore , 14 A.D.3d at 760-761, 788 N.Y.S.2d 679 ). It is also the caseworkers’ responsibility to investigate sexual abuse and to make discretionary determinations during the investigation to determine the "least intrusive way to safeguard the child" ( id ., citing Robison , 821 F.2d at 919 ). Local social service departments are required to keep progress notes of each case until it is closed ( 18 NYCRR §§ 428.5 [a] & 441.7). The notes "must be made as contemporaneously as possible with the occurrence of the event or the receipt of the information which is to be recorded" ( 18 NYCRR § 428.5 [a]). The applicable regulations regarding how notes are to be recorded and maintained are very detailed, and it is clear that the regulations include the use of handwritten notes and logs for caseworkers to later transcribe into the computer notes ( 18 NYCRR § 428.5 [d] ["Progress notes need not include clinical notes, daily logs or other written material created by service providers who act in roles other than caseworker, child protective services monitor, case planner or case manager."]). Inadmissibility of case notes due to the hearsay nature of the information recorded, is not the equivalent of the falsification of records. Inadmissible hearsay includes information recorded in the case notes from an informant, who has no duty to report, who reports information anyway to a Department employee ( Matter of A. E. (Michael E.) , 66 Misc. 3d 549, 551-553, 116 N.Y.S.3d 505 [Family Court Mont. County 2019] ). Such information is deemed hearsay as a matter of law ( id. ). Information that is not recorded contemporaneously is exempt from the business record exception which requires the record: "[be] made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter." (Civ. Prac. L. & R § 4518.) Once again, the failure to meet the business record exception does not mean that a record is false, it simply is deemed hearsay as a matter of law, and therefore, inadmissible ( Matter of A. E. (Michael E.) , 66 Misc. 3d at 551-553, 116 N.Y.S.3d 505 ).
Finally, with regard to the motion to strike Pursuant to Title 22 of the New York Administrative Code, Section 202.5-bb (c), all document filing and service in an action that has been commenced electronically according to the mandatory electronic filing requirement, shall be by electronic means (see 22 NY ADC 202.5-bb [c]). CPLR § 2005 permits courts to exercise their discretion in the interests of justice, to excuse delay or default resulting from law office failure. CPLR § 2004 permits courts to extend the time fixed by statute, upon such terms as may be just and upon good cause shown, whether the application is made before or after the expiration of the time fixed (see CPLR §§ 2004 ; 2005). Additionally, the Court of Appeals has held that law office failure can qualify as "good cause" under CPLR § 2004 (see Tewari v. Tsoutsouras , 75 N.Y.2d 1, 550 N.Y.S.2d 572, 549 N.E.2d 1143 [1989] ; see also Malta v. 801-803 , 70 Misc. 3d 1201(A), 2020 WL 7485175 [Supt. Ct., New York Co., 2020] [permitting a late reply to be filed due to law office failure, where the delay was short and in the absence of any indication of prejudice]). Lastly, the Third Department has held delays should be excused where there is no demonstrable prejudice, relying on the policy for preference in favor of resolving disputes on the merits (see Cerrone v. Fasulo , 245 A.D.2d 793, 1997 N.Y. Slip Op. 10849, 665 N.Y.S.2d 761 [3d Dept. 1997] ). LEGAL ANALYSIS AND CONCLUSIONS OF LAW
This case alleges that the Department violated the Plaintiffs various constitutional rights and subjected them to tortious behaviors by initiating a Child Protective Services Investigation and subsequently filing an abuse petition pursuant to Article 10 of the Family Court Act in Montgomery County Family Court. The abuse petition alleged Plaintiff Michael N. sexually abused his daughter, the infant Plaintiff AE. In lieu of an Answer, Defendants filed a motion to dismiss this action.
In addition, Defendants filed a motion to strike Plaintiff's Exhibit C consisting of thirty pages of confidential caseworker notes and Exhibit E consisting of an Affirmation to Clarify Pleadings sworn to by Adam P. Grogan, Esq. The date the Affirmation to Clarify Pleadings was signed is unknown as it was not uploaded to NYSCEF and two separate versions exist one with the date of October 22, 2021, and the other with the date of November 8, 2021. Plaintiffs’ counsel argues the documents existed at the time they filed their opposition to the pending motion to dismiss, and they fully intended to upload these documents, but by mistake the wrong Exhibits were uploaded to NYSCEF. Apparently, the exhibits for this motion were confused with other legal matters concerning Plaintiff Michael N., which mistake was only discovered when the Court asked for working copies because the Court could not locate on the NYSCEF system the Exhibits referenced in Plaintiffs’ opposition papers. The Court will address the motion to strike first, then determine the motion to dismiss. Motion to Strike
Defendants state that the majority of the Exhibits submitted in the working copy were not uploaded to NYSCEF and are therefore not part of the record before this Court. The Court has compared the uploaded Exhibits with the working copy Exhibits and it is clear something went wrong.
Exhibits uploaded to NYSCEF on August 18, 2021 :
Exhibit A-Summons With Notice dated May 6, 2021 & undated Complaint in the above captioned matter;
Exhibit B-Decision and Order signed by Hon. Diane N. Freestone and entered in the Saratoga County Clerk's Office on June 24, 2021 granting Defendants motion to change venue;
Exhibit C-Notice of Claim sworn to by Michael N. on May 1, 2020;
Exhibit D-Job Description regarding the Montgomery County Attorney;
Exhibit E-Certification of Montgomery County Department of Social Services Records sworn to by Michael McMahon sworn to on August 12, 2019;
Exhibit F-Civil Service History and Payroll Record regarding Shelbi R. Lewis;
Exhibit G-Job Description regarding Montgomery County Director of Financial Management;
Exhibit H-Attorney Affidavit sworn to by Adam G. Giangreco, Esq. on the sworn to April 2, 2019 with exhibits annexed thereto;
Exhibit I-Final Decision and Order signed by Hon. Richard B. Meyer on February 10, 2020 dismissing the underlying abuse petition; and
Exhibit J-Transcript of the 50-h hearing of Michael N., Jr. dated October 9, 2020;
Compared with the Exhibits annexed to working copy received in Chambers October 22, 2021:
Exhibit A-Memorandum of Law in Support of Defendants’ Motion to Dismiss Plaintiffs’ Complaint;
Exhibit B-Certification of Montgomery County Department of Social Services Records sworn to by Michael McMahon sworn to on August 12, 2019;
Exhibit C[1]-Thirty-Two pages of Montgomery County Department of Social Services Progress notes regarding the underlying abuse investigation and prosecution;
Exhibit C[2]-Notice of Claim sworn to by Michael N. on May 1, 2020;
Exhibit D-Decision and Order signed by Hon. Richard B. Meyer on October 14, 2020 resolving the parties’ custody and parenting time petitions;
Exhibit E-Affirmation to Clarify Pleadings sworn to by Adam P. Grogan, Esq. on October 22, 2021;
Exhibit F-Undated Complaint in the above captioned matter;
Exhibit G-Notice of Claim sworn to by Michael N. on May 1, 2020;
Exhibit H-Attorney Affidavit sworn to by Adam G. Giangreco, Esq. on the sworn to April 2, 2019 with exhibits annexed thereto;
Exhibit I-Final Decision and Order signed by Hon. Richard B. Meyer on February 10, 2020 dismissing
the underlying abuse petition; and
Exhibit J-Transcript of the 50-h hearing of Michael N., Jr. dated October 9, 2020;
Plaintiffs admittedly failed to upload and file the documents marked as Exhibits C and E to the Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion to Dismiss on NYSCEF. Defendants’ counsel is correct in stating that the majority of the Exhibits were not provided to him before the return date of the motion. It is noted that Defendants focus in its motion to strike is pointed mainly at the progress notes Exhibit C[1] and the Affirmation to Clarify Pleadings new Exhibit E. The decision on the custody matter is irrelevant to this proceeding, and its addition is of no moment. The other documents were included, but as the incorrect Exhibit.
The Plaintiffs’ memorandum refers to the document uploaded as Exhibit E as a supplemental affidavit clarifying the points of the Complaint signed by Adam P. Grogan, Esq. , but the document actually uploaded to NYSCEF was a Certification of Montgomery County Department of Social Services Records sworn to by Michael McMahon and notarized by Adam G. Giangreco, Esq. on August 12, 2019. The certification incorrectly uploaded as Exhibit E was meant to be part of Plaintiffs’ arguments that the Department "falsified" caseworker notes and so the certification is also referenced in Plaintiffs’ opposition. The caseworker notes are referenced, but they were not part of the opposition uploaded to NYSCEF, which was not surprising as they are confidential by statute (Soc. Servs. L. § 442 [12]). The mistakes with the NYSCEF filing were confusing to the Court and must have been caught by the Plaintiffs’ attorneys when working copies were requested, as the correct documents, which the NYSCEF filings had descriptions of, but were not uploaded, replaced the incorrect exhibits. Namely Exhibits A through G were changed, and the progress notes and the Affirmation to Clarify Pleadings sworn to by Attorney Grogan, were simply inserted as Exhibits C[1] and E, respectively. The progress notes generated by the Department which are in conformance with the requirements of 18 NYCRR § 428.5, were added to the working copy provided to the Court as Exhibit C, but the Notice of Claim was also left in as Exhibit C, which is why the Court has designated them as C[1] and C[2]. Plaintiffs’ counsel failed to notify the Court or opposing counsel of the original mistake, and failed to provide a hard copy with the corrected Exhibits to opposing counsel for almost two weeks. Once Defendants’ counsel observed the PDF version of the working copy and the fact that the Exhibits switched, they objected. In addition to the wholesale change of the Exhibits, Defendants further objected to the Affirmation to Clarify Pleadings because the date of the affirmation November 8, 2022, was beyond the return date of August 24, 2021. Defendants further objected to the progress notes being included as they are confidential requiring them to be sealed. Neither the progress notes or the clarifying affidavit were discussed in Defendants’ reply because they were never provided to counsel. It is hard to comprehend that Mr. Grogan would simply substitute the correct documents, without even attempting to ask for permission to correct the clearly incorrect filing or offer to allow opposing counsel an opportunity to be heard on whether such substitution should be permitted. In his opposition to the motion to strike Attorney Grogan argues he had COVID-19 and was out of the office when his assistant uploaded the documents to NYSCEF. The underlying Family Court decision was being appealed and apparently appellate documents were confused with the Exhibits in this action as well as the Exhibits used to oppose the Defendant's prior motion to change the original venue from Saratoga County to Montgomery County. What is clear, however, is that the entire working copy, with the exception of the newly added Exhibits bears the NYSCEF timestamp in the upper right-hand corner of each page (which some do have a date prior to 8/17/2021 indicating they were uploaded previously). This clearly infers that Plaintiffs’ counsel had knowledge that the wrong Exhibits were uploaded, and Exhibits C[1] and E were never uploaded, but he did not make any attempt to notify the Court or opposing counsel. He further argues there is no prejudice to opposing counsel as the error was simply law office failure. It is unclear how such a stealth substitution would NOT be prejudicial to opposing counsel who had no knowledge of the substitution, nor any ability to address the two previously undisclosed documents in their reply papers filed BEFORE the working copies were requested and served. It may have been law office failure to upload the wrong document in August 2021, but it was law office deception to substitute the correct document in October 2021. The entire judicial system is based upon notice and a right to be heard—which is noted to be part of the allegations asserted by Plaintiffs in this very action as having been denied to him. The actions taken by Attorney Grogan are not excusable. Plaintiffs’ counsel apparently did not think this substitution would be noticed or if noticed, would be accepted without any opposition. It is clear from the metadata that the Affirmation to Clarify Pleadings was indeed created August 16, 2021, but the failure to upload this document to NYSCEF, or to notify opposing counsel once the mistake was discovered, is not truly addressed by Plaintiff's counsel, leaving the question of whether Attorney Grogan purposefully left his opponent without any ability to respond to the clarifying affidavit, or progress notes. Law office failure does not eliminate prejudice, and it is only excused if it does not result in prejudice to the opposing party, and a reasonable excuse is offered to the Court (Civ. Prac. L. & R. §§ 2004 & 2005 ). Defendants also correctly state that the record in an e-filed matter consists only of the documents filed on NYSCEF, and to date, the record on file in the County Clerk's Office does not include the substituted Exhibits C & E.
It is true that Defendants could have easily asked for more time to respond to the newly filed document and instead asked for time to file a motion to strike. Any prejudice could have been addressed by responding to the documents on the merits, and the matter would have been delayed by either an adjournment to respond or the filing of a motion to strike.
In reviewing the Affirmation to Clarify Pleadings it does not actually clarify or amend the conclusory allegations in the Complaint. The affirmation is signed by counsel, who despite his attesting to having knowledge of the lawsuit, has no personal knowledge of the events or facts alleged in the Complaint. Furthermore, his affirmation is not being used as a vehicle to submit documents in admissible form, it is being submitted as a "supplemental pleading" to clarify the legal theory of Plaintiffs’ case. The affirmation is not asserting any factual allegations, but rather it is rife with conclusory, non-factual statements and legal conclusions Attorney Grogan appears to want this Court to make. The affirmation is simply insufficient to achieve its stated goal of clarifying the Complaint, which is also woefully devoid of facts, and is rife with vague and conclusory statements.
It is also unclear why the progress notes are being submitted as proof they were falsified. The progress notes, in compliance with 18 NYCRR § 428.5 began when the hotline call was made and continued until the case was closed. The progress notes, which were for a case involving a child not in foster care, were also made "as contemporaneously as possible with the occurrence" and included:
"(1) descriptions of contacts with children and parent(s) receiving services, including missed or cancelled appointments, and the reasons therefor;
"(2) actions taken in the investigation or family assessment response for a reported case of child abuse or maltreatment, including emergency and/or controlling interventions taken, and descriptions of collateral contacts and other activities relating to the collecting of information needed to formulate an assessment and/or assist with making a determination regarding the report of abuse or maltreatment, and descriptions of family and collateral contacts and other activities relating to the provision of a family assessment response; provided, however, the name or other information identifying the reporter and/or the source of a report of suspected child abuse or maltreatment, as well as the agency, institution, organization, and/or program with which such person(s) is associated, must be recorded in the manner specified by OCFS;
"(3) efforts made to engage the family members in the development of the service plan or the completion of a family led assessment guide, their level or degree of participation in the process and the family and children's reactions to services;
"(4) referrals and communications with other service providers involved in the case, and information received from specialized rehabilitative and supportive service providers concerning casework contact activities with a child and/or family receiving preventive and/or protective services;
"(5) referrals and communications with the local probation department regarding a child in the case;
"(6) description of contacts with educational/vocational personnel on behalf of the child, including, but not limited to, contacts made with school personnel in accordance with sections 430.11(c)(1)(i) and 430.12(c)(4) of this Title;
"(7) court hearings or other legal activities;
"(8) significant events such as births, marriages, and divorces; and
"(9) documentation of caseworker/supervisor conferences, including a description of the nature of the discussions and any required follow-up activities." ( 18 NYCRR § 428.5 [c] [1-9]).
The required notes clearly are meant to run with the progress of the investigation and court proceedings and are required to be running notes that span the entire timeframe the case is open. The progress notes offered by Plaintiffs in support of their opposition show in the heading at each entry: the date of the incident; the date the notes are being entered; the author of the entry; location or type of contact; the purpose of the contact, if any; other participants, if any; and the actual description of the events or action taken by the Department. The progress notes offered by Plaintiffs include many entries that were made months after the initial hotline call as the case continued for almost two years, and there is significant delay between other recorded incidents and the entry date of the computer note. However, the delayed entry is not evidence that a caseworker fabricated the progress notes, rather it is simply a non-contemporaneous note, which affects the admissibility of the note as a business record. Judge Meyer did not allow the notes to be entered into evidence because the notes were not contemporaneous, one element of allowing business records to be excepted from the hearsay rule. No finding was made as to whether the matters recorded were true or false. Plaintiffs’ counsel fails to articulate how the notes are fabricated or false. The notes are not evidence of anything relevant to the motion to dismiss or the underlying Complaint, it is merely speculation that the notes are fabricated because they were entered in the computer several months after the noted incident date for the note. Progress notes per the regulation "need not include clinical notes, daily logs or other written material created by service providers who act in roles other than caseworkers, child protective services monitor or case manager" ( 18 NYCRR § 428.5 [d]). The computer notes are generated from the handwritten materials or memory of the caseworker, and therefore, the lag in entry cannot be equated with false entry. It can, however, and did, bar the Department from being able to enter the notes into the record of the underlying abuse matter. It is also noted that the hearsay exception attempted to be used by the Department in the underlying abuse matter requires every person involved in the note's creation to have a duty to report ( In re Leon R.R. , 48 N.Y.2d 117, 421 N.Y.S.2d 863, 397 N.E.2d 374 [1979] ; Johnson v. Lutz , 253 N.Y. 124, 170 N.E. 517 [1930] ). Plaintiffs’ conclusion that the records were not admissible because they were falsified is not reasonable under the circumstances.
The Court finds that the progress notes are the work product of the Department. No prejudice can result from offering the notes in support of Plaintiffs case, and the Department is familiar with its own documents. The Affirmation to Clarify Pleadings is a nullity as it fails to accomplish its stated purpose. It is not prejudicial because it is not stating known facts, it is explaining how Plaintiff would like the Court to interpret the actions taken by Defendants. Attorney Grogan's affidavit simply expresses factual inferences without stating the underlying facts on which the inference is based, furthermore, he has no ability to state the facts because he has no personal knowledge. His entire affidavit is merely conclusory, and is a nullity because it has no legal effect. The Court finds that the motion to strike was unnecessary as the documents sought to be stricken are so void of legal authority. The motion to strike is denied as moot. The Court will accept the documents with the proviso that the documents fail to supplement the Complaint or bolster Plaintiffs’ arguments. To the contrary, they either are without any effect at best, or they support the Defendants’ motion to dismiss at worst. Therefore, the Court shall deny the motion to strike and allow the documents to be included in the record. It is noted that the record will require the progress notes to be uploaded (the Affirmation to Clarify Pleadings is included in Defendants’ motion to strike) and sealed.
Motion to Dismiss
This case when distilled down to its core elements presents a rather simple fact pattern. The underlying sexual abuse investigation and Family Court proceedings was commenced by a hotline call to the State Central Registrar by a mandated reporter. The State Central Registrar sent the report of suspected child abuse to the local department of social services, which commenced an investigation. As part of the investigation, the Department caseworkers conducted an interview of the six-year old alleged victim. Following the interview, the Department filed a pre-petition application in the Montgomery County Family Court seeking the issuance of a TOP restricting the father's contact with the subject child. The TOP was granted by the Montgomery County Family Court. The fact that the underlying Family Court proceedings involved allegations of sex abuse, meant the Department would have a "particular emphasis" on protecting the child in the case (Soc. Serv. L. § 423). The determination to allow the child to remain in the mother's custody also is not uncommon if it is believed the non-respondent parent is willing to comply with the court ordered TOP and protect the child during the pendency of the proceedings. The Department filed and prosecuted an abuse petition against the father, and ultimately the petition was dismissed. Plaintiffs now sue claiming their rights were violated, and the Department acted tortiously causing injury to them.
In the Complaint, Plaintiffs appears to insinuate wrongful behavior by the Department based upon Judge Meyer's writing in his Decision and Order dated February 20, 2020: "The instant [abuse] petition was filed on July 26, 2018. The next day July 27, 2018, this Court, unaware of the petition and temporary order of protection here, signed the custody order containing the terms of the May 3, 2018 custody stipulation." (See Exhibit I annexed to the hard copy of the Memorandum of Law in Opposition to Defendant's Motion to Dismiss, at p. 15; Complaint at ¶ 25.) The Department filed in the Family Court located in its jurisdiction. The allegations were reported to have occurred at the father's home, which was located in Montgomery County. The separate custody matter which resulted in the order signed on July 27, 2018 had been pending in the Fulton County Family Court. The record before this Court shows the custody matters in Fulton County Family Court had settled on or about May 3, 2018. The record is devoid of any reason why the abuse petition filed in Montgomery County should have been communicated to the judge handling the Fulton County Family Court which only had the ministerial act of signing the final order memorializing the parties’ May 3, 2018 settlement. It certainly is not evidence of wrongdoing that Judge Meyer was not advised of the abuse proceedings, commenced the day before he signed the custody order on July 27, 2018. The record is also devoid of any evidence that any party, including the father, had attempted to change the venue of the abuse proceedings to Fulton County or to notify Judge Meyer of the abuse petition filed on July 26, 2018. There is no basis to presume that there was some subterfuge involved in the choice of venue or the absence of notice to Judge Meyer as the custody proceedings were concluded and the final order, although affected by the abuse proceedings, was a separate and distinct action. Without any other facts it is simply of no moment that Judge Meyer signed the order memorializing the May 3, 2018 settlement on July 27, 2018 without knowledge of the pending abuse petition. The timing of the abuse petition, however, did affect the credibility of the mother's custody petition seeking to modify the newly agreed to consent order (see Exhibit D annexed to the hard copy of the Memorandum of Law in Opposition to Defendant's Motion to Dismiss). It was the mother, that ultimately was found to be in contempt of the prior order, not the Department (id. ).
With regard to Plaintiff Michael N.’s capacity to sue on behalf of his daughter, there is no question that he is her parent. The Decision and Order awarding custody and parenting time issued by Judge Meyer on July 27, 2018 and the October 14, 2020 awarded Plaintiff Michael N. modified legal custody of his daughter. Plaintiff Michael N. does in fact have the capacity to bring this lawsuit on behalf of his daughter. The abuse petition was also dismissed eliminating any conflict of an abusive parent suing on behalf of his abused daughter as he was never determined to have abused her.
The Montgomery County Department of Social Services is a department located within the County of Montgomery. It is not able to sue or be sued separate from the municipality of which it is a subdivision. Suing both the County and the Department, therefore, is redundant and the Court shall grant the motion to dismiss the action as against the Montgomery County Department of Social Services.
It is also noted that the Complaint is devoid of any specific allegations concerning any acts taken by Michelle Russo, Kendall Lee, Shelbi Lewis, and Meghan M. Manion, Esq. These named Defendants were working for the County, but that alone is insufficient to sue them. The lack of any specified allegations requires the Court to dismiss these Defendants as no cause of action has been alleged making it impossible to infer any cause of action exists against them. Second, it is clear that Bridgette Hughes and Bridgette Bonilla are the same person. Having outlined the facts, and addressing the capacity issues, the Court shall now address each of the Plaintiffs’ separate causes of action hereinbelow.
1. Violation of Liberty Interest
The facts agreed to by all parties show that the Department received a referral from the State Central Registry to investigate a hotline call alleging Plaintiff Michael N. was sexually abusing his daughter, the infant Plaintiff. After conducting an interview with the infant Plaintiff, the Department filed a pre-petition application requesting that the Montgomery County Family Court issue a TOP, which the Court did. Throughout the duration of the abuse proceedings in the Montgomery County Family Court, the father was restricted from having contact with the daughter pursuant to the court ordered TOP. There is no allegation or proof the child was removed from the custody of her parents and placed in foster care or that the father's access to the child was denied by the Department without a Court order. The liberty interests of the father and daughter cannot be found to have been violated by the issuance of a court ordered TOP. The subject child remained in her mother's care and custody, was not removed, and therefore, no basis for a cause of action for a liberty interest or Fourth Amendment seizure on behalf of the infant Plaintiff exists. With regard to the father's claim that he was restricted from having contact, the restriction is based upon a valid, court ordered TOP. The Fourth Amendment cases relied upon by the father are not applicable to an order of protection. The child's ability to move freely was not affected, and the father has no liberty interest or protected Fourth Amendment right to be free of a court order restricting his access to his daughter. The applicable cases clearly hold that a parent has no right to be free of a court ordered removal so it is clear that a parent has no right to be free of the less restrictive means of protecting a child by the issuance of a TOP removing an alleged abusive parent.
The Plaintiffs attempt to evade the applicable case law by arguing the TOP was issued without probable cause, and therefore, it was an invalid order. Plaintiffs do not identify any factual basis as to why there was no probable cause to allow the TOP to be issued. The record before the Court, in contrast, shows that a hotline call by a mandated reporter was made on or about July 18, 2018, and the Department conducted an interview with the child, the child's mother and Ms. Berry (the mandated reporter). The Court's issuance of a TOP creates a presumption that probable cause existed to issue the order. Plaintiffs offer only hyperbole and snippets of the final decision dismissing the abuse petition wherein Judge Meyer criticizes the interview by the caseworkers as evidence that no probable cause existed (see Exhibit I annexed to the hard copy of the Memorandum of Law in Opposition to Defendant's Motion to Dismiss). The interview was only one part of the basis to issue the TOP. The argument that because the abuse petition was ultimately dismissed also fails on its face to show that no probable cause to obtain the TOP existed, as the final decision was based upon the application of the higher standard of proof, namely the preponderance of the evidence standard. At no time prior to the issuance of the final order did Judge Meyer or any of the other prior assigned jurists dismiss the abuse petition. The father admits in paragraph 28 of his Complaint that: "To the knowledge of all relevant parties, the July 2018 order [of protection] at no time was suspended or stayed". He never moved to dismiss the petition, nor did he seek to modify the TOP. Judge Meyer also did not, sua sponte , dismiss the petition or modify the TOP.
In addition, the history of the underlying abuse case included the Appellate Division, Third Department holding that Judge McAuliffe abused his discretion when he modified the TOP based upon the untested report of the neutral psychologist's report and the more restrictive TOP was reinstated ( Matter of A. N. [Michael N.] , 177 A.D.3d 1236, 115 N.Y.S.3d 466 [3d Dep't 2019] ). The only inference that may be drawn from these facts is that probable cause existed to issue the TOP and leave it in effect throughout the proceedings. Only after balancing the evidence presented by both sides, as required by the preponderance of the evidence standard, did Judge Meyer dismiss the abuse petition. Plaintiffs unsubstantiated, conclusory protestations that no probable cause existed to enter the TOP or to prosecute the underlying abuse petition are not sufficient to meet even the low threshold necessary to state a cause of action for which relief may be granted. On the contrary, the record supports dismissal of Plaintiffs’ respective causes of action based upon interference with their separate liberty interests.
Second, this Court finds as a matter of law that the presumption of probable cause to issue the TOP was not rebutted by Plaintiffs unsubstantiated allegations in the Complaint, nor the Affirmation to Clarify Pleadings. In reviewing the pleadings, Plaintiffs complain that the interview conducted by the Department's caseworkers was criticized by Judge Meyer and the neutral psychologist, Dr. Bashkoff. Poor interview techniques, however, is not sufficient to overcome the qualified immunity applicable to the caseworkers pursuant to Social Services Law § 419. The qualified immunity is a good faith immunity and the caseworkers are presumed to have acted in good faith. Parroting the criticisms stated in Judge Meyer's Decision and Order dismissing the underlying abuse petition of the caseworkers’ interview of the subject child is not proof of bad faith ( id. ). Plaintiffs’ Complaint fails to address the presumption that the caseworkers acted in good faith, and the presumption that probable cause is evidenced by the fact that the Family Court issued an order restricting the father's contact with his daughter. Neither the Complaint nor the Affirmation to Clarify Pleadings state a cognizable claim regarding Plaintiffs’ rights for their relationship to be free of interference from the State. The interference was based upon a valid court order, which results in the constitutional right not being so clearly defined that the caseworkers would be on notice that their actions violated the Plaintiffs’ right to be free of said interference. This case does not involve Defendants taking a child and withholding her solely based upon an administrative decision, it involves the pre-petition request for a TOP, and the issuance of the TOP. The controlling statutes and regulations for caseworkers investigating alleged sex abuse of a child allows them to conduct an interview and to seek court orders that will have the effect of interfering with a parent's and child's rights to associate with one another. A court ordered TOP is also not a seizure as defined by the Fourth Amendment. Thus, the salient question here is whether the caseworkers were on notice that their poor interview skills and request for a TOP—which the Montgomery County Family Court could have denied—put them on notice that their conduct was clearly unconstitutional. The allegations contained within Plaintiffs’ pleadings do not support a finding that the caseworkers would be on notice that their conduct was unconstitutional. The caseworkers here are protected by qualified immunity with regard to their interview and pre-petition application.
Attorney Giangreco is protected by absolute immunity as the prosecuting attorney for his actions in filing the pre-petition application and in initiating and prosecuting the abuse petition. Clearly these actions are judicial in nature and his intent or motive is irrelevant with regard to his actions during the judicial phase of the proceedings.
The branch of the motion seeking to dismiss the first cause of action is granted.
2. Fourth Amendment Violation
The Court adopts all of the reasoning outlined above in addressing the Fourth Amendment violations. As outlined above the father has no Fourth Amendment right to be free of court ordered removals or TOPs. The child was not removed and the TOP had no effect on her Fourth Amendment rights. This Court has already determined that the caseworkers are protected by qualified immunity and the prosecuting attorney is protected by absolute immunity based upon the allegations in the pleadings. The TOP was not unlawful, it was court ordered and based upon probable cause. Even presuming all the allegations are true, Plaintiffs have failed to allege any facts that would support a violation of their Fourth Amendment rights in the Family Court Proceedings.
The branch of the motion seeking to dismiss the second cause of action is granted.
3. Violation of Social Services Law § 384-b (7) (a)
Plaintiffs allege that the Department failed to encourage the father daughter relationship between the Plaintiffs as required by Social Services Law § 384-b (7) (a). As outlined above, this section of law is inapplicable to the underlying family court proceedings as there was no petition to terminate the father's parental rights (supra , at pp. 216–218, 185 N.Y.S.3d at 535–37). A neglect or abuse petition is filed pursuant to Article 10 of the Family Court Act and a termination of parental rights petition is filed pursuant to Article 6 of the Family Court Act. Secondarily, this Court finds that as a matter of law no private right of action may be brought pursuant to the statute (supra , at pp. 216–218, 185 N.Y.S.3d at 535–37).
Plaintiffs’ allegations, even if true, cannot support an action pursuant to this section of the Social Services Law. They allege that "[d]uring the entire period of the child's temporary order of protection, the Defendants failed and refused to make reasonable, sincere efforts to provide services or actions to reunite the Plaintiffs" (Complaint at ¶ 69). The TOP, a copy of which was never included in the record before this Court, is alleged to be a stay away order of protection. It is unclear what actions the father expected the Department to take given he was court ordered to stay away from, and have no contact with the child (Complaint at ¶ 25 ["On July 20, 2018 ... a pre-petition temporary order of protection prohibiting and suspending Michael N.’s parenting time and all contact with [A.E.]."]; see also , Complaint at ¶ 28 ["To the knowledge of all relevant parties, the July 2018 order at no time was suspended or stayed."]). The provisions of Social Services Law § 384-b (7) (a) do not support a private right of action, instead, the remedy available to aggrieved parent enforcing this statute is dismissal of the petition to terminate parental rights. The petition for abuse did not seek, nor could it, to terminate Plaintiff Michael N.’s parental rights, and the Department was expected to comply with the terms of the then extant TOP. No cause of action, nor remedy, can be asserted by Plaintiffs under this statute.
The branch of the motion seeking to dismiss the third cause of action is granted. 4. Unlawful Imprisonment
No cause of action for unlawful imprisonment exists in New York State. The Court will address the Plaintiffs’ fourth cause of action as alleging false imprisonment, which is what the allegations appear to describe. In order to withstand a motion to dismiss Plaintiffs must allege the Department intended to confine them, that the Plaintiffs were conscious of the confinement, the Plaintiffs did not consent to the confinement, the alleged confinement was not otherwise privileged, i.e. , there was no probable cause (supra , at pp. 218–219, 185 N.Y.S.3d at 536–38). Probable cause is an absolute defense to false imprisonment (id. ).
Plaintiffs attempt to use the TOP and its restrictive language as equivalent to a confinement. No legal authority supports such an interpretation. To constitute a confinement the actions of the Defendant has to restrict one's ability to leave and move freely, not restrict with whom one is allowed to associate. The TOP was also issued by a court creating a presumption of probable cause (supra , at pp. 197–198, 185 N.Y.S.3d at 522–23). Plaintiffs’ Complaint fails to rebut the judicial recognition of the merit that led to the issuance of the TOP, and further Plaintiffs admit that the TOP remained in effect, unmodified throughout these proceedings. The Appellate Division, Third Department also determined an interlocutory motion in which it held that the allegations in the abuse petition supported the issuance of the TOP. Finally, any action by the caseworkers in obtaining the TOP is protected by qualified immunity, and the actions of the Department's counsel are protected by absolute immunity. The allegations fail to state a cognizable cause of action for false imprisonment.
The branch of the motion seeking to dismiss the fourth cause of action is granted.
5. Due Process Violation
The Court adopts all of the reasoning outlined above in addressing the first through fourth causes of action. The Complaint alleges Plaintiffs’ due process rights were violated. It fails to identify whether they are alleging a procedural or substantive due process violation. In reviewing the Complaint, however, the allegations support a finding that the procedural requirements in the underlying Family Court proceeding were met. The Department acted pursuant to the controlling statutes and regulations in conducting its investigation. The Department further had the authority to file a pre-petition application to seek a TOP, and the Department complied with all the time constraints required in filing the abuse petition. The Court held a first appearance in accordance with the time requirements of the Family Court Act. The fact that the whole matter took twenty months to complete is not attributable to any actions taken by the Department, or the procedures used. The delay is attributable to the fact that one judge issued the initial TOP, and three other judges handled the preliminary proceedings and trial. Plaintiff Michael N. further contributed to the delay of his case by seeking to have the third judge, Judge McAuliffe recuse on the first day of the five-day fact-finding hearing. There is no factual allegation in the Complaint that Defendants did not adequately provide notice to Plaintiffs, or that Plaintiffs did not have an adequate forum in which to be heard. Rather the record before this Court shows the Department had authority to obtain, and did obtain an ex parte TOP. Thereafter, Plaintiffs were afforded notice, an opportunity to be heard, and after a full and fair hearing they succeeded in defeating the abuse petition. The allegations in Plaintiffs’ Complaint are consistent with, and must be deemed, as stating an action regarding a violation of Plaintiffs’ substantive due process rights.
Plaintiffs’ allegations with regard to the fifth cause of action consist only of the following: "[b]y keeping [the infant Plaintiff] without probable cause or any reasonable basis to do so, the Defendants herein thereby kept Michael N. away from the minor Plaintiff without due process of law, as guaranteed to her under both the state and federal constitutions" (Complaint at ¶ 79). The vague statement appears to allege that the actions of the Department violated the Plaintiffs’ collective substantive due process rights as they are attacking the basis for filing and prosecuting the abuse petition, not the procedure used. Plaintiffs, however, do not articulate what actions, or which of the myriad of named Defendants did what to violate their substantive due process rights. The factual background in the Complaint in paragraphs 19-52 are not sufficient to fill in the vague reference to the separation as being so shocking and egregious to constitute a substantive due process violation.
Plaintiffs outline in the factual portion of the Complaint that Ms. Berry's hotline call was based upon the child stating she did not want the "father to tickle her eyes anymore" (Complaint at ¶ 24). The Complaint appears to argue that the hotline call was not based upon the child making any direct statement that she was sexually abused (id. ). This allegation infers in conclusory fashion that the hotline call was suspect, but objectively reviewing the hotline call it was made by a mandated reporter and the State Central Registry referred the hotline call to the local department for investigation. The subsequent interview of the child conducted by the caseworkers investigating the hotline call is also characterized to be improper (Complaint at ¶ 27). Combining these two allegations, Plaintiffs attempt to allege that there was no basis for the Department to obtain the TOP and file the abuse petition (Complaint at ¶¶ 27, 29, 31-34). The proper procedure Plaintiffs appear to argue is not enough to sanitize the "improper" actions of the Defendants. What actions of the Defendants are "improper" is not outlined or defined by Plaintiffs in its fifth cause of action. The background outlined in paragraphs 18 through 52 also is not sufficient to overcome the immunity afforded to the Defendants, nor do the allegations rise to the level of shocking or egregious.
The facts outlined in paragraphs 18 through 22 of the Complaint state the custodial rights of the parents, and alleged violations of the custody order by the mother. These allegations are not attributable to the Defendants and the mother's alleged violations of the custody petition are not the Department's or the County's responsibility to enforce. The order of custody was issued by Fulton County Family Court, and the Family Court is a subdivision of the State. Enforcement of a custody order is conducted by the Court, if an enforcement petition is filed by an aggrieved party. The Department's lack of action to enforce the custody order is irrelevant, and under the circumstances the mother's alleged actions would not rise to the level of neglect. The caseworkers discretionary decision to leave the child in the mother's care is protected by qualified immunity and the decision is objectively reasonable as the father was alleged to be sexually abusing the child when the investigation began, pursuant to a valid hotline call.
Paragraphs 22 through 24 discuss the fact that Ms. Berry was providing therapy to the child, who she diagnosed as suffering from adjustment disorder and anxiety. Ms. Berry's concerns that sex abuse may be occurring and her making a hotline call cannot be attributed to Defendants. There is also no basis to conclude the infant plaintiff "never" made a disclosure to Ms. Berry that she was sexually abused. The full extent of the six-year old child's statements to Ms. Berry are unknown and it is not clear whether her behavior in addition to her statements could be sufficient to make a hotline call regarding potential sex abuse. It is also irrelevant to the above captioned action, as Ms. Berry's actions are not attributable to the Department. Paragraph 25 states actions by the prosecuting attorney in the judicial phase of the case, and he has absolute immunity for these actions. It is irrelevant that Judge Meyer was unaware of the abuse proceedings in Montgomery County Family Court when he was signing the Fulton County Family Court order of custody on July 27, 2018. The order he was signing was the written memorialization of the parties’ stipulation made on May 3, 2018, and it was based upon proceedings in a different venue. Paragraphs 26 through 30 allege that the Plaintiffs were separated, but that the separation was due to a court order being issued. The Defendants actions in obtaining the court order have already been stated to be protected by qualified and absolute immunity, and were not so shocking because investigating and stopping sex abuse of children is an overriding interest of the State allowing the Department to seek court intervention. The Court has further found that the facts infer that probable cause existed to issue the TOP, and simply alleging the threadbare statement that the abuse petition was based on "patently false" allegations is insufficient and conclusory. Especially given the fact that the Appellate Division, Third Department issued a decision on an interlocutory motion that TOP was valid and appropriate.
Paragraphs 31 through 34 simply parrot the criticisms of the Department's interview of the child made by Judge Meyer in his decision and order issued on February 10, 2020. Judge Meyer adopted the neutral psychologists’ opinion of the caseworkers’ interview and after a full fact-finding hearing he disregarded the interview as uncorroborated hearsay statements of the child and dismissed the petition (see Exhibit I annexed to the hard copy of the Memorandum of Law in Opposition to Defendant's Motion to Dismiss). Judge Meyer's criticism of the interview does not rise to the level that the interview cannot be deemed to have been objectively reasonable for the Department to pursue the abuse petition. The interview combined with the allegations that the father's pattern of making threats of physical harm to important people in the child's life, which threats Judge Meyer found occurred, are objectively reasonable to support filing an abuse petition. The Department only needed to have probable cause to pursue the abuse petition, which this Court has previously stated existed.
Paragraphs 39 through 44 outline the actions of the prosecutor in making motions to the Appellate Division, Third Department and Family Court. All of the actions are during the judicial phase and the prosecutor is protected by absolute immunity. It is also noted that the Appellate Division, Third Department was not bound by the opinions of the neutral psychologist, Dr. Bashkoff. Paragraph 42 is completely non-sensical.
Paragraph 45 addresses Plaintiffs’ concerns that the progress notes were falsified. Plaintiffs offer no basis for their belief other than a request to inspect the notes. Upon inspecting the progress notes, however, it is clear that they are in conformance with the controlling regulations (supra , at pp. 221–222, 185 N.Y.S.3d at 539–40). The fact that the date of the noted incidents and the corresponding date of entry of the note are not contemporaneous is of no moment to the truth of the notes. It is also unclear why Plaintiffs assert the lack of contemporaneous data entry means the notes were fabricated. This does not mean the report is false, it just resulted in Judge Meyer sustaining the objection to the notes being introduced as evidence because he held the notes did not meet the business record exception to the hearsay rule. Any perceived issue with the progress notes held by Plaintiffs is also irrelevant as the notes were not used by the Family Court.
Paragraphs 46 and 47 do not allege any facts that could form the basis for Plaintiffs’ various causes of action. Dr. Bashkoff's opinions are simply that, opinions, not factual findings. Any actions taken by the prosecuting attorney in the judicial phase of the underlying action are protected by absolute immunity.
Paragraphs 48 through 52 contain no factual allegations. Instead, these allegations state in conclusory terms that the named Defendants did not meet their job duties, without actually stating how they failed to do so. The fact that a supervisor exists is not sufficient to sue them for the actions of their employees. It is also unclear how this Court is to determine how the named Defendants failed to train or supervise without any facts being stated. Simply stating the supervisors failed to supervise is conclusory and factually unsupported. The Complaint is based solely on the one interview, and one interview is insufficient to evidence a policy or custom. In order to survive a motion to dismiss a Plaintiff must do more than repeat the elements of a cause of action, they must allege facts that allow the Court to draw a reasonable inference that the Defendant is liable.
In the above captioned matter, Defendants were presented with a referral from the State Central Registry to investigate possible sex abuse of a six-year old child. The Department has the discretion to seek Court intervention and did so. Once the TOP was issued, the Department pursued an abuse petition. Even if all of the minimal factual allegations are deemed to be true, the Court is not bound to accept the legal conclusions that these actions violated the rights of Plaintiffs asserted as facts to be true. Legal conclusions are simply that, and cannot replace factual allegations to defeat a motion to dismiss. The minimal facts stated also do not substantiate a cause of action.
In order to succeed on a motion to dismiss Plaintiffs need more than their own subjective characterizations of the Defendants’ actions in filing and pursuing the abuse petition. They need to allege facts that support an inference that Defendants’ actions were so shocking or egregious that regardless of the procedures followed, Defendants’ decision or action violated Plaintiffs’ fundamental rights, without any overriding important State interest to justify the infringement upon Plaintiffs rights (supra , at pp. 211–214, 185 N.Y.S.3d at 531–34). While it is clear that parental rights are a fundamental right protected by the Constitutions of both New York and the United States, it is just as clear that the State has an overriding interest in protecting children from abuse or neglect.
Parents are not protected against court ordered removals or TOPs. The facts of this case are not based upon an administrative decision to deprive a parent of his child, rather they are based upon the Department seeking a preliminary court order, and prosecuting an abuse petition. The actions of the caseworkers and the prosecuting attorney are protected respectively by qualified and absolute immunity (supra , at pp. 198–206, 185 N.Y.S.3d at 522–28). The prosecutor had jurisdiction to file the charges and even if he had bad intent he is protected by absolute immunity (supra , at p. 206, 185 N.Y.S.3d at 528). The Complaint fails to articulate any factual allegations that would allow this Court to infer that the caseworkers’ interview of the subject child and their actions with regard to the progress notes were so shocking, arbitrary and egregious that Defendants actions form the basis of a substantive due process violation. In contrast, when reviewing the actions of Defendants the Court finds the abuse petition was based upon the interview and the father's statements regarding harming the child's maternal relatives, the child's diagnosed anxiety and the hotline call from a mandated reporter who was also the subject child's treating therapist. The progress notes simply record the investigation and prosecution of the underlying abuse petition. The progress notes are not actionable, they are simply a computerized file detailing the progress of the open child protective case. The Complaint fails to articulate how the caseworkers should have known or knew that their poor interview skills would violate any certain, recognized right of the Plaintiffs. The caseworkers and prosecuting attorney for the Child Protective Services are charged with protecting children from even the appearance of abuse or neglect and the Court issued a pre-petition TOP which extinguishes any argument that probable cause did not exist to file and pursue the Family Court action. The dismissal of an abuse petition is not sufficient to argue probable cause did not exist at the commencement of the proceeding because the dismissal was after a full hearing where it was determined by the preponderance of the evidence that no abuse occurred.
The branch of the motion seeking to dismiss the fifth cause of action is granted.
6. Violation of Privacy
The Court adopts all of the reasoning outlined above in addressing the first through fifth causes of action. Privacy is a right protected by the Fourth Amendment. The Court has already determined that there is no action under the Fourth Amendment, and that probable cause existed to obtain the TOP and pursue the abuse petition. Paragraphs 78 through 81 that state the sixth cause of action simply state in conclusory fashion that the interview, investigation, and court ordered TOP were "not warranted by law or based on probable cause". The Court has already determined that probable cause existed, and the court ordered TOP was valid.
The branch of the motion seeking to dismiss the sixth cause of action is granted.
7. Gross Negligence
The Court adopts all of the reasoning outlined above in addressing the first through sixth causes of action. Plaintiffs’ Complaint attempts to argue that the Certification of Montgomery County Department of Social Services Records sworn to by Michael McMahon and notarized by Adam G. Giangreco, Esq. on August 12, 2019 was willfully made and false. The basis for this appears to be that the progress notes it is certifying were not made contemporaneously. However, the certification is a boilerplate certification for introducing business records, it has nothing to do with the information contained in the progress notes. The Court will not infer the progress notes are false as the dates of entry are easily discerned and there is a lag between the date of the occurrence and the date of entry of the corresponding computer note. That alone is proof of nothing but the fact that there was a delay in entering information in the computer database. The lag in entry resulted in the progress notes not being entered into evidence. Judge Meyer's exclusion of the progress notes as inadmissible hearsay cannot support an inference that the notes are false.
The remaining allegations for the seventh cause of action again are simply legal conclusions based upon the elements of gross negligence. No new factual allegations are stated, and the infant Plaintiff was never detained. The allegations also fail to identify any of the myriad of Defendants or assign any "improper" action to a particular Defendant. The Complaint is so vague no inference can be made.
The branch of the motion seeking to dismiss the seventh cause of action is granted.
8. Gross Negligence in Supervision and Training
The Court adopts all of the reasoning outlined above in addressing the first through seventh causes of action. Again paragraphs 86 through 90 that purport to state a cause of action for gross negligence in supervision and training state no facts or actions that any particular Defendant did or failed to do. The allegations simply repeat the arguments regarding the certification sworn to by Mr. McMahon, as proof he was grossly negligent. It is unclear how the Court would infer negligence from a certification. The remaining allegations use descriptive words to characterize the named Defendants, but provide no factual basis to support an inference of gross negligence in supervision and training. The Court finds that the following allegations are insufficient to state a cause of action:
"88. DSS, the County of Montgomery, McMahon, Lippie, and Russo, herein, thus were deliberately indifferent to the risk that failing to properly train their employees or adopt and enforce better policies, would allow tragedies such as the instant case to occur as a matter of policy rather than the exception.
"89. DSS, the County of Montgomery, McMahon, Lippie, and Russo, herein, intentionally, deliberately, recklessly, and willfully, caused the Plaintiffs to suffer severe, continuous, emotional distress, by conducting themselves in a manner so shocking
and outrageous that it exceeded all reasonable bounds of human decency." (Complaint, at ¶¶ 88-89).
Characterizations of the elements of gross negligence is insufficient to state a cause of action for gross negligence. The Affirmation to Clarify Pleadings does not even attempt to explain the gross negligence cause of action.
The branch of the motion seeking to dismiss the eighth cause of action is granted. No Ninth Cause of Action
10. Malicious Prosecution
The Court adopts all of the reasoning outlined above in addressing the first through eighth causes of action. In reviewing the final Decision and Order issued by Judge Meyer, he outlined the relevant procedural history of the Family Court case. The history portion Judge Meyer's decision does not reference any formal written motion to dismiss having been filed by the father seeking to dismiss the abuse petition. Nothing in the record shows any formal request to the Department to withdraw or end its prosecution of the abuse petition. The father's allegations that the Department pursued the petition despite "evidence that was clear" to everyone else is not a basis to withdraw a petition. The final outcome of an action is not the measure of whether the action had merit. The question of merit is whether there was probable cause to file and pursue the matter to conclusion. The Court finds that the limited factual allegations in the Complaint actually do support a finding that probable cause existed to file the abuse petition. Probable cause is an absolute defense to a cause of action for malicious prosecution (supra , at pp. 219–221, 185 N.Y.S.3d at 537–39).
The branch of the motion seeking to dismiss the tenth cause of action is granted.
11. Title 42 U.S.C. § 1983 Claim
The Court adopts all of the reasoning outlined above in addressing the first through tenth causes of action. To assert a claim pursuant to § 1983 Plaintiffs must allege an improper deprivation of a constitutionally protected right. As stated earlier in this decision, the pre-petition TOP issued in July 2018 is deemed to be based upon probable cause, and therefore, valid. The valid order is the reason Plaintiff Michael N. and the infant Plaintiff were separated. The Court has already stated that the TOP did not violate the Plaintiffs’ collective rights to due process, privacy. liberty, and the right to be parent and child without interference from the State because it is presumed to be based upon probable cause and Plaintiffs have failed to allege any facts that would rebut the presumption or support an inference that probable cause did not exist. Plaintiffs’ assumption that the dismissal of the abuse petition supports their theory that the TOP and abuse petition were based upon false and fabricated information is not a reasonable inference that can be drawn from the allegations in the Complaint or the Affirmation to Clarify Pleadings. The Court is only expected to take the factual allegations of the Complaint as true and provide plaintiff the benefit of every possible inference that may be gleaned from the factual allegations. Plaintiffs repetition of threadbare conclusory legal pronouncements that their rights were violated is not sufficient to infer their rights were in fact violated. The Complaint and the Affirmation to Clarify Pleadings are completely devoid of the factual basis for Plaintiffs’ claims that their rights were violated.
Public policy in this State protects children who have even the appearance of being mistreated or abused. The Department is the agency charged with enforcing the public policy concerns associated with child neglect and abuse by investigating and pursuing child protective concerns. Plaintiffs must allege more than the Department filed an abuse petition that was dismissed. Their conclusory statements that Defendants "acting under color of law ... conspired to deny the Plaintiffs’ their fundamental state and federal constitutional rights by agreeing to impose fabricated and grossly negligent petitions and temporary protection orders against [Michael N.]" is nothing more than a conclusory allegation based upon the elements of the cause of action, not statements pointing to actual acts or policies that worked to deprive the Plaintiffs of their respective rights (Complaint, at ¶ 97). Plaintiffs fail to point to any actions other than the interview and the progress notes to support the conclusory legal pronouncement that Defendants deprived or violated several of their constitutional rights. The actions pointed to as violative of their rights, however, are discretionary acts, that are permissible by statute, or were pursuant to the Family Court orders. The acts taken by the caseworkers and the prosecuting attorney are protected by qualified and absolute immunity, and mere repetition cannot make the actions "grossly negligent."
Simply alleging a parent was deprived of access to one's child is insufficient to form the basis of a violation of a protected right. If the deprivation was pursuant to a valid court order it cannot be inferred to be violating a right. As stated earlier depriving a parent of access to his child by the issuance of a court ordered TOP is not actionable. Plaintiffs simply do not state any facts under the eleventh cause of action that would allow an inference that they stated a cause of action pursuant to 42 U.S.C. § 1983. The allegations in paragraphs 96 through 101 in the Complaint fail to state any facts. This Court is being asked to simply accept that Defendants actions in the child protective proceeding were based upon false and fabricated charges. However, the hotline call was real and the caller was a mandated reporter who alleged sex abuse. The Department was required to investigate and the child made statements that after a full and fair hearing were determined to not support a finding of abuse. The Court finds that the Department may have done a poor job in its interview, but their allegations in the petition actually tracked what the child stated during the interview, and the investigation led the Department, in its discretion, to seek court action to protect the infant Plaintiff. The discretionary decisions on how to investigate and to seek court action are protected by either qualified or absolute immunity. Plaintiffs’ conclusory allegations that Defendants "willfully" denied Plaintiffs of "several" protected rights is simply inserting unsubstantiated characterizations of Defendants’ investigation and discretionary decision to pursue a civil rights action. The conclusory legal pronouncements are not facts, and even if afforded an inference of truth they do not rise to the level of a civil rights action. The allegations are stated in the form that would normally appear in the wherefore clause of a complaint, which is where the alleged facts are summarized and the legal conclusion plaintiff seeks the Court to draw, is stated. The Plaintiffs in the above captioned matter simply repeat the conclusions throughout the entire complaint, and without more, Plaintiffs fail to state a cause of action for which relief may be granted.
The branch of the motion seeking to dismiss the eleventh cause of action is granted.
12. Equal Protection Violation
The Court adopts all of the reasoning outlined above in addressing the first through eleventh causes of action. An equal protection violation is typically based upon allegations that a government actor discriminated against plaintiff based upon his race, nationality or gender. If the discrimination is not alleged to be based upon a recognized protected class, plaintiff must show disparate treatment from other similarly situated persons. Plaintiffs cannot expect the Court to find alleged sex abusers comprise a protected class. The complaint also does not allege how the Plaintiffs were treated separately from other families experiencing a child protective investigation or the prosecution of an abuse petition. As stated earlier, unsupported legal conclusions that the abuse petition was based upon fabricated or false allegations is insufficient to infer it was all "fake". Plaintiffs do not provide this Court with any evidence that the investigation was false other than the fact that the petition was dismissed and the neutral psychologist criticized the interview of the caseworkers. That is not proof the allegations were fabricated or that the Plaintiffs were treated differently.
The Court will not give any credence to the statement made by counsel in his Affirmation to Clarify Pleadings that:
"10. Regarding the twelfth cause of action, Plaintiff Michael N. alleges that the Defendants, by and through all of the actions in the underlying proceedings and actions, did not give the same amount of weight to Plaintiff Michael N.’s evidence as they did to that of Tiffany Smith, AE's mother, based only on his role as a man and a father. This type of stereotyping is pervasive in Family Court proceedings and is in violation of Equal Protection Clause of U.S. Constitution." (Affirmation to Clarify Pleadings sworn to by Adam P, Grogan, Esq. on October 22, 2021 and November 8, 2021, at ¶ 10.)
No pervasive discrimination is shown by the Complaint which is simply a manifesto of how Plaintiff Michael N. perceives himself as having been persecuted by Defendants. His belief is not based upon the facts of the case, which was based upon a disinterested therapist making a hotline call regarding sex abuse of a child. The investigation led the Department to file a petition, which was ultimately dismissed by the very Court Plaintiff Michael N. argues treats him disparately based upon his gender. This twisted theorizing is insufficient to state a cause of action, and maligning the Court as pervasively discriminating against fathers is not supported by the minimal facts alleged.
The branch of the motion seeking to dismiss the twelfth cause of action is granted.
Based upon the foregoing, it is
ADJUDGED that the Complaint wholly fails to state a cause of action for which relief may be granted; therefore, it is hereby
ORDERED that counsel for Plaintiffs shall be and hereby are directed to upload the hard copy of its Memorandum of Law in Opposition to Defendants’ Motion to Dismiss with Exhibits A, B, C[1], C[2], E, F, J, H, I, J, to the NYSCEF system as one document entitled Working Hard Copy, in order to complete the record; and it is further
ORDERED that the progress notes contained in the Working Hard Copy as Exhibit C[1] shall be sealed by the Clerk of the Court; and it is further
ORDERED that the Defendants’ motion to dismiss is granted in its entirety.
This Decision and Order constitutes the Order of the Court.