Jacobs v. Newton

• Decision Date: 08 July 2003
• Citation: 1 Misc.3d 171,768 N.Y.S.2d 94
• Parties: DOROTHY JACOBS, as Guardian of the Person and Property of SARAH NEWTON, Plaintiff,<BR>v.<BR>ROBERT NEWTON et al., Defendants.
• Court: New York Civil Court

1 Misc.3d 171

768 N.Y.S.2d 94

DOROTHY JACOBS, as Guardian of the Person and Property of SARAH NEWTON, Plaintiff,

v.ROBERT NEWTON et al., Defendants.

July 8, 2003.

Robert Newton, defendant pro se.

Joan Newton, defendant pro se.

Daly, Bamundo, Dalton & Schermerhorn (Kenneth M. Dalton of counsel), for Rockaway Home Attendant Services, defendant.

Dorothy Jacobs, plaintiff pro se.

OPINION OF THE COURT

JACK M. BATTAGLIA, J.

The simple description of the cause of action in this endorsed complaint, "failure to provide proper services," belies the difficult legal and human issues that are presented by this claim by a daughter, on behalf of her incompetent mother, against the brother and wife who took the mother in, and against the agency that provided home care services.

Plaintiff Dorothy Jacobs is the guardian of the person and property of Sarah Newton (mother Newton), who is now 75 years old and resides in River Manor Care Home. As described in the order appointing Ms. Jacobs to serve as her mother's guardian, mother Newton "suffered a stroke that has rendered her aphasic . . . she has partial paralysis, can no longer swallow. . . she is nonambulatory . . . her cognition is nonexistent . . . [and] she suffers from hyperthyroidism and vascular dementia." From February 1998 until October 2001, mother Newton resided with her son, defendant Robert Newton, and his wife, defendant Joan Newton. During that period, she received home care services from defendant Rockaway Home Attendant Services, Inc., a licensed home care services agency. In October 2001, mother Newton was hospitalized for a month, and then transferred to the nursing home.

Ms. Jacobs alleges that mother Newton was neglected by Robert and Joan Newton and by Rockaway in that, among other things, she was not properly medicated, and was not given adequate food and water, with the result that she suffered serious physical harm. Ms. Jacobs was supported at trial in these charges by two sisters, Alice Gordon and Linda Newton-Watts. Of course, Mr. and Ms. Newton and Rockaway deny the allegations. The Newtons contend that this lawsuit is a manifestation of guilt on the part of Ms. Jacobs and her two sisters because they did not sufficiently attend to their mother when she was in a position to appreciate their attendance.

Before addressing the merits of this dispute, there are two threshold matters that require resolution: the status of the suit as against a defendant named as "Faye Baker," who has not appeared, and a motion to dismiss by Rockaway based upon the failure of Ms. Jacobs, who is unrepresented by counsel, to designate her representative capacity in the summons with endorsed complaint.

Although known to Ms. Jacobs and Mr. and Ms. Newton as "Faye Baker," it appears that the name of the home attendant who assisted mother Newton is Shazia Bakaralli. There are two affidavits of service, but neither is sufficient to establish jurisdiction over Ms. Baker/Bakaralli. An attempt to serve her at her purported residence was unsuccessful, the affidavit showing that the process server was told that "Faye Baker" did not reside at the address, and neither affixation nor mailing having taken place. Service was attempted twice at the office of defendant Rockaway, but the testimony at trial was that the attendant was no longer employed by Rockaway when service was attempted, and that no one from Rockaway delivered the summons with endorsed complaint to her. The claim is dismissed as against "Faye Baker," without prejudice to refiling; this opinion will not address in terms the viability of a claim against the home attendant personally.

The summons with endorsed complaint is dated January 7, 2003, based upon an application for a pro se summons of the same date. "Dorothy Jacobs" is designated as plaintiff. An order appointing guardian of the person and property of Sarah Newton was signed by the Honorable Ariel E. Belen on November 12, 2002, and the commission issued on January 30, 2003 after Ms. Jacobs filed a suitable bond. "[I]n the absence of some express limitation, a cause of action in favor of an . . . incompetent, arising either under the common law or conferred by statute, may be prosecuted by a . . . special guardian." (Kaplan v Kaplan, 256 NY 366, 367-368 [1931].) Here, Justice Belen's order gives Ms. Jacobs the power to "defend or maintain any civil proceeding" on behalf of Sarah Newton.

Whether the addition to the caption of Ms. Jacobs' representative capacity is deemed an amendment of the summons and pleadings, or the addition or substitution of a party, it is supported by the CPLR and case law. (See CPLR 305 [c]; 1003, 3025 [b]; JCD Farms v Juul-Nielsen, 300 AD2d 446 [2d Dept 2002]; Buonomo v Stalker, 40 AD2d 733 [3d Dept 1972]; Vander Stegen v Neuss, Hesslein & Co., 243 App Div 122, 131-132 [1st Dept 1934]; Bogart v Imports of Wantagh, 142 Misc 2d 105, 106-107 [Long Beach City Ct 1988]; Gutman v Branden, 65 Misc 2d 232, 232-233 [Sup Ct, Nassau County 1971].)

No possible prejudice can result to defendants. A document introduced into evidence by Rockaway summarizes a telephone conversation on December 17, 2002 between Ms. Jacobs and a Rockaway representative, during which Ms. Jacobs apparently said that she would be filing a claim based upon neglect of her mother. The answer in person filed by Harold Moorer, Executive Director of Rockaway, although ineffective as an appearance by the corporation (see CPLR 321 [a]), shows that Mr. Moorer understood on January 28, 2003 that the action might relate to the services that Rockaway rendered to mother Newton. When the case was first on the calendar on February 21, it was conferenced both by this Judge's court attorney and separately by volunteer mediators. More than three months before the trial on June 3, therefore, the parties knew that Ms. Jacobs was complaining about the neglect of mother Newton.

Recognizing, however, that Ms. Jacobs may pursue a claim on behalf of mother Newton does not mean that mother Newton has a viable claim against either her son and daughter-in-law or against the contractor that provided home care services. Those issues involve questions of duty and breach that do not appear to have been previously addressed by a New York court.

Duty/Robert and Joan Newton

In Gelbman v Gelbman (23 NY2d 434 [1969]), an action in negligence by a parent against her unemancipated son arising out of an automobile accident, the Court of Appeals abolished intrafamily immunity for nonwillful torts. The Court concluded that the policy basis for the defense, "preserving family unity," would be better served by permitting the parent's action. (See id. at 437.) The law already permitted suit against an emancipated child. (See Crosby v Crosby, 230 App Div 651, 652-653 [3d Dept 1930]; Becker v Rieck, 19 Misc 2d 104, 105 [Sup Ct, Onondaga County 1959], affd 13 AD2d 611 [4th Dept 1961].)

Again, however, removal of any bar of immunity does not establish that Mr. Newton or his wife breached any duty to mother Newton. "There was, at common law, no legal duty upon a child to support his parents." (Matter of State Welfare Commr. v Mintz, 28 AD2d 14, 16 [2d Dept 1967]; see also Ulrich v Ulrich, 136 NY 120, 122-124 [1892]; Matter of Salm, 171 Misc 367, 370-371 [Sup Ct, NY County 1939], affd 258 App Div 875 [1st Dept 1939], affd 282 NY 765 [1940]; Rutecki v Lukaszewski, 273 App Div 638, 640 [4th Dept 1948].) There have been statutes imposing liability on a child for a parent's support, which could be enforced by criminal or civil proceedings, including an action by the needy parent, but the most recent were repealed in the mid-1960s. (See Matter of State Welfare Commr. v Mintz, 28 AD2d at 16; Matter of Errico, 49 Misc 2d 1055, 1057 [Sur Ct, NY County 1966].)

The last of the statutes requiring a child to support a needy parent were repealed in connection with the then new Medicare program, in part to lift, what was deemed, a "burden of support." (See Matter of State Welfare Commr. v Mintz, 28 AD2d at 17.) And so, "absent agreement or other definitive obligation, this State, as opposed to some others . . . does not hold a child liable for the support of his or her parent." (Matter of Summers v D'Elia, 95 AD2d 184, 193-194 [2d Dept 1983].) Moreover, it is not at all clear that the statutory duty to support that once existed would encompass a duty to provide needed care or medical attention. (See State v Flontek, 82 Ohio St 3d 10, 13, 693 NE2d 767, 770 [1998] ["the duty . . . imposed by the statute is a purely financial one"].)

In the somewhat analogous arena of parental liability to a child, the Court of Appeals has held that "a child does not have a legally cognizable claim for damages against his parent for negligent supervision." (See Holodook v Spencer, 36 NY2d 35, 40 [1974].) In addition to the "prevention of family discord and the correlative concern to preserve the family's resources for the aid of all its members" (id. at 46), the Court noted other policy considerations that weighed against allowing the cause of action: "the potential for abuse of a negligent supervision claim when brought in a retaliatory context between estranged parents"; the "difficulty of judicial delimitation, either by court or by jury, of the bounds of the asserted right to supervision"; a danger of "circumscrib[ing] the wide range of discretion a parent ought to have in permitting his child to undertake responsibility and gain independence"; the "different economic, educational, cultural, ethnic and religious backgrounds which must prevail"; and recognition that "[s]upervision is uniquely a matter for the exercise of judgment" (id. at 49-50).

The Court subsequently extended its reasoning to preclude a cause of action for negligent supervision "between unemancipated minor siblings." (See Smith v Sapienza, 52 NY2d 82, 84 [1981].) But lower appellate courts have allowed the claim against grandparents with temporary custody and control (see Hadden v...