Bluntt v. O'CONNOR

• Decision Date: 01 February 2002
• Citation: 291 A.D.2d 106,737 N.Y.S.2d 471
• Parties: CATHERINE BLUNTT, an Infant, by Her Parent and Guardian, MICHELLE BLUNTT, et al., Appellants-Respondents,<BR>v.<BR>ELIZABETH O'CONNOR, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

291 A.D.2d 106

737 N.Y.S.2d 471

CATHERINE BLUNTT, an Infant, by Her Parent and Guardian, MICHELLE BLUNTT, et al., Appellants-Respondents,

v.ELIZABETH O'CONNOR, Respondent-Appellant.

PINE, J. P.

February 1, 2002.

Ronald Cohen, New York City, for appellants-respondents.

O'Shea, Reynolds & Cummings, Buffalo (Michelle Parker of counsel), for respondent-appellant.

WISNER, KEHOE, GORSKI and LAWTON, JJ., concur.

OPINION OF THE COURT

PINE, J. P.

This case raises the issues, not previously considered by an appellate court in this State, whether a parent may on his or her own behalf and on behalf of his or her child sue a court-appointed Law Guardian for legal malpractice and, if so, what legal standard should apply in evaluating the Law Guardian's representation. We conclude for the reasons that follow that plaintiff mother (hereafter plaintiff) in this case lacks standing to bring such an action either individually or on behalf of plaintiff child and therefore conclude that the order of Supreme Court dismissing the complaint should be affirmed on that ground. Were we to reach the merits, we would conclude that the Law Guardian in the circumstances of this case owes no duty to plaintiff individually and has absolute quasi-judicial immunity in an action commenced on behalf of the child.

I FACTS

The child was born on December 12, 1996. The father, who was never married to plaintiff and apparently never lived with her, brought a paternity proceeding on February 12, 1997, and it is undisputed that paternity was established. He filed a Family Court petition seeking visitation that was followed by an order of Judge Rosa dated June 13, 1997 appointing defendant Law Guardian for the child and by an order dated July 10, 1997 permitting visitation in accordance with a stipulation of the parties placed on the record by the Law Guardian.

By another petition dated October 17, 1997, the father alleged that plaintiff had denied him visitation on three occasions without just cause. On October 22, 1997, the court again appointed defendant the child's Law Guardian and the parties appeared in court on November 7, 1997; both parents had new counsel. The court noted on the record that, despite being represented, plaintiff sent the court an extensive letter containing, inter alia, criticism of defendant for failing to bring forward certain of plaintiff's concerns. Although no motion was made at that time to replace defendant as Law Guardian, the court stated that plaintiff's complaints concerning defendant would not warrant such action. Plaintiff's concerns not brought forward by defendant included alleged exposure of the child to cigarette smoke, the need for a proper car seat, the need to avoid exposing the child to animals because of potential allergy problems, and the presence of a suicidal, and possibly homicidal, relative in the father's home. The father's attorney stated in response that the father does not smoke in the presence of the child, had purchased a new car seat and has no pets.

Because of the serious nature of some of the allegations and the difference in the parents' versions of the facts, defendant requested the appointment of a psychologist to evaluate the situation and make a recommendation in the best interests of the child, inasmuch as the child should visit her father if it was safe for her to do so. The court appointed a psychologist over plaintiff's objection. Visitation was continued and the matter was adjourned.

By order to show cause in January 1998 plaintiff sought suspension of the father's visitation. That motion was denied without prejudice on February 2, 1998, and a hearing on the father's violation petition was set for March 19, 1998. On February 24, 1998, plaintiff filed a modification petition seeking supervised smoke-free visitation. That same day, the father filed a cross petition alleging further violations of the visitation order by plaintiff.

The record contains the decision portion of that hearing, dated June 8, 1998, as well as a few pages of the testimony taken in March and April 1998. It is apparent that the court heard testimony from Dr. Mark Schachter, the court-appointed psychologist; both parents; the child's paternal grandmother; a half-sister of the father who is also plaintiff's friend; and Dr. K. Michael Cummings, chairman of the Department of Cancer Control and Epidemiology at Roswell Park Institute. The court found that the evidence presented by Dr. Cummings concerning the effects of smoke on young children was uncontroverted but irrelevant because he was unable to state whether smoke that might linger on hair and clothing would subsequently have an adverse effect upon a person.

Most significantly, Dr. Cummings did not testify whether the child was in fact placed in an environment with cigarette smoke during visitation, which was the issue in controversy. The court found that the child was not placed in such an environment, declining to credit the testimony of plaintiff's friend but accepting the testimony of Dr. Schachter that, while the fears of plaintiff about improper car seats or second-hand smoke may in fact be reasonable ones, her reactions "in fact have been far outside the actual facts." The court stated that Dr. Schachter "could not find support medically [for] any of [plaintiff's] allegations and his assessment found there was no reason to restrict the father in his visitation." The court found the child's paternal grandmother "intelligent and sincere and restrained in her testimony" and plaintiff's reaction to the paternal grandmother inappropriate. It further found the father's testimony credible and reasonable and stated that the father has acted "in a restrained and gentlemanly fashion in the face of what have been, at times, very vigorous and in fact what the [c]ourt will find as outrageous and baseless allegations." The court detailed the efforts of the father in providing "new carpeting, furniture, paint, [and] a relatively new furnace" and referred to evidence that inasmuch as he had an asthmatic person living in his home, he had taken great steps to create a proper environment for the child, who appears to have a tendency toward asthma. The court found that plaintiff has resisted the father's efforts to be in contact with the child almost "every single step of the way" and credited the testimony of the father that he had lost contact with plaintiff before the birth of their child and that she had failed to advise him of her hospital stay.

The court further found that plaintiff "has been bordering on a pathological obsession with this child. * * * Her appearance, her demeanor, [and] her testimony, confirm[] Dr. Schachter's assessment that she is rigid and unrealistic [and] that she clings to some inappropriate judgments * * * that she makes in the face of all other countervailing evidence to the contrary."

The court noted that, whenever plaintiff has received an assessment or a comment from Dr. Schachter or defendant that she finds inconsistent with her version of events, i.e., "when they will not advocate her position, she becomes vigorous in fighting them. Her obvious rancor and hostility towards those individuals as well as the father were evident throughout the entirety of these court proceedings." The court anticipated that it too would be on the list of those vigorously opposed by plaintiff. The court stated, "[S]he clearly, on several occasions, emphatically admitted that all of this child's illnesses are based on the father's contact and that is completely belied by the hospital record she had subpoenaed and brought into the Court. The Court finds in fact this child was seen by her physician as stated on May 1997 for an obvious congestion and cough and yet [plaintiff] maintains that never occurred."

The court denied plaintiff's modification petition, finding no reason to have supervised visitation, and granted the father's violation petition. The court stated that it would have expanded visitation for the then 18-month-old child if the father had sought it. The court also forbade both parents from taping conversations between them, including telephone conversations, or from videotaping the child before or after visitation.

A notice of appeal from that order was filed by plaintiff and an application for a stay pending appeal and a renewed application for a stay were made. Those applications were both denied and the appeal was never perfected.

On January 5, 1999, plaintiff filed a complaint in the United States District Court for the Western District of New York seeking an injunction against Judge Rosa based on her having directed the parties not to videotape the child. Plaintiff alleged that Judge Rosa was biased against her, an African-American, in favor of the father, who had a Caucasian parent, and that there was no rational basis for Judge Rosa's rejection of her evidence, which was far more credible. District Court sua sponte dismissed that complaint 10 days later.

In the meantime, on January 7, 1999, the father filed another violation petition. That same day, the court reappointed defendant Law Guardian, for the third time. On February 12, 1999, plaintiff, represented by a third attorney, moved to have Judge Rosa recuse herself. That motion was denied on February 22, 1999. The record contains a letter from defendant to plaintiff's attorney dated April 16, 1999 declining plaintiff's request that defendant withdraw as Law Guardian, but no motion for substitution of the Law Guardian appears in the record.

On April 30, 1999, plaintiff commenced a CPLR article 78 proceeding in Supreme Court against Judge Rosa, alleging that the Judge had demonstrated neglect for the child's safety by permitting visitation with the father and seeking an order requiring Judge Rosa to disqualify herself from any proceeding in which plaintiff or the child was a party. That proceeding was dismissed on May 13, 1999.

By yet another attorney, plaintiff commenced the instant...