Genesee Cnty. Dep't of Soc. Servs. v. Niasia J. (In re Rajea T.)

• Decision Date: 18 March 2022
• Docket Number: 1085,CAF 21-00162
• Citation: 203 A.D.3d 1714,165 N.Y.S.3d 647
• Parties: In the MATTER OF RAJEA T., Jr. Genesee County Department of Social Services, Petitioner-Respondent; v. Niasia J., Respondent-Respondent. The Batavian, LLC, Appellant.
• Court: New York Supreme Court — Appellate Division

203 A.D.3d 1714
165 N.Y.S.3d 647

In the MATTER OF RAJEA T., Jr.

Genesee County Department of Social Services, Petitioner-Respondent;
v.
Niasia J., Respondent-Respondent.

The Batavian, LLC, Appellant.

1085
CAF 21-00162

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

Entered: March 18, 2022

CORNELL LAW SCHOOL FIRST AMENDMENT CLINIC, ITHACA (HEATHER E. MURRAY, OF COUNSEL), FOR APPELLANT.

DAVID J. PAJAK, ALDEN, ATTORNEY FOR THE CHILD.

PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND BANNISTER, JJ.

165 N.Y.S.3d 649

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is modified on the law by granting the motion insofar as it sought access to the transcript of the attorney disqualification hearing and as modified the order is affirmed without costs and the matter is remitted to Family Court, Genesee County, for further proceedings in accordance with the following memorandum: Appellant, a nonparty online-only local news outlet covering Batavia and Genesee County, appeals from an order denying its motion for, inter alia, permission to "intervene" in this Family Court Act article 10 proceeding. Appellant published a story covering criminal charges against a Batavia resident arising from certain allegations, including that the resident had intentionally struck and caused physical injuries to a five-year-old child. Appellant subsequently learned that the resident—i.e., respondent in this neglect proceeding, arising from allegations that included the incident with the child—had moved to disqualify Deputy County Attorney Durin Rogers. At that time, Rogers was simultaneously serving as the part-time Judge in Batavia City Court. The disqualification motion alleged that, inasmuch as the resident was being criminally prosecuted before the full-time City Court Judge, and Rogers shared chambers and staff in City Court and could be called on to preside if the full-time City Court Judge was unavailable, Rogers should be disqualified from prosecuting this child protective matter on the ground that his ethical obligations precluded him from serving dual roles. The disqualification motion further alleged, inter alia, that Rogers's unwillingness to disqualify himself from the neglect proceeding had resulted in ethical violations, including ex parte communications with the prosecutor about the criminal charges and the appearance of impropriety that Rogers was advancing a prosecutorial objective beyond his judicial role.

Appellant's owner considered the disqualification motion based on Rogers's alleged conflict of interest to be newsworthy because, at that time, Rogers was a candidate for the full-time City Court judgeship. According to the owner, because it had been a long time since there had been a contested judicial election in Batavia, there was significant public interest in the race, and appellant covered the judicial candidates, including Rogers, throughout the lead-up to the election. Appellant then published an article previewing the upcoming argument on the disqualification motion. A few days after the article was published, Rogers won the election for the full-time City Court judgeship.

Subsequently, on the day of the scheduled argument on the disqualification motion, the owner went to the courthouse with the intent of covering the hearing. However, the owner was denied access to the courtroom. After conferring with Family

165 N.Y.S.3d 650

Court, a court deputy reported that the court would not allow the owner in the courtroom because the hearing was part of a sensitive matter. The owner requested that he be allowed to make an argument that he should be provided access to the hearing, but the court deputy reported, after again conferring with the court, that the court would not allow the owner the opportunity to be heard. Appellant published an article later that day describing how the court had excluded the press from covering the hearing on the disqualification motion.

After unsuccessfully seeking the transcript of the hearing, by written request to the court, in order to remedy the alleged improper exclusion from the courtroom, appellant moved for permission to "intervene" in this neglect proceeding and, in essence, for release of the transcript, even if redacted. As noted, the court denied the motion.

As a preliminary matter, with respect to the vehicle by which it sought release of the transcript, appellant contends that the court erred by denying it permission to "intervene" in this Family Court Act article 10 proceeding for that limited purpose. While there are cases characterizing similar motions as seeking a form of intervention (see Maxim, Inc. v. Feifer , 145 A.D.3d 516, 516-517, 43 N.Y.S.3d 313 [1st Dept. 2016] ; Mancheski v. Gabelli Group Capital Partners , 39 A.D.3d 499, 499-501, 835 N.Y.S.2d 595 [2d Dept. 2007] ; see generally 200 Siegel's Practice Review, Media's Right to Intervene at 4 [Aug. 2008]), we conclude that appellant's motion is better understood as a permissible application for release of the transcript pursuant to Family Court Act § 166. That statute provides that although "[t]he records of any proceeding in the family court shall not be open to indiscriminate public inspection[,] ... the court in its discretion in any case may permit the inspection of any papers or records" (id. ; see also 22 NYCRR 205.5 ). Here, appellant was excluded from the underlying hearing on the disqualification motion and, as a remedy, sought access to the transcript of that hearing. Appellant's motion is properly brought as an application made to Family Court for release of the transcript, which must be determined in accordance with the standards applicable to child protective proceedings in that court (see generally Matter of Herald Co. v. Mariani , 67 N.Y.2d 668, 670, 499 N.Y.S.2d 672, 490 N.E.2d 539 [1986] ).

As a further preliminary matter, we agree with appellant that the court erred to the extent that it denied the motion on the ground of defective service. The court reasoned that service was defective because, although all the parties to this proceeding were served and appeared, "the subject of the motion," Rogers, was not...