Kubik v. New York State Dept. of Social Services

• Decision Date: 06 November 1997
• Citation: 664 N.Y.S.2d 365,244 A.D.2d 606
• Parties: , 1997 N.Y. Slip Op. 9147 Renee KUBIK et al., Respondents, v. NEW YORK STATE DEPARTMENT OF SOCIAL SERVICES et al., Defendants, and Frank Martin et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 365

664 N.Y.S.2d 365

244 A.D.2d 606, 1997 N.Y. Slip Op. 9147

Renee KUBIK et al., Respondents, v. NEW YORK STATE DEPARTMENT OF SOCIAL SERVICES et al., Defendants and Frank Martin et al., Appellants.

Supreme Court, Appellate Division Third Department.

Nov. 6, 1997.

Carter, Conboy, Case, Blackmore, Napierski & Maloney (Joseph T. Johnson, of counsel), Albany, for appellants.

Keith F. Schockmel, Albany, for respondents.

Before CARDONA, P.J., and MIKOLL, MERCURE, CASEY and PETERS, JJ.

MIKOLL, Justice.

Appeal from an order of the Supreme Court (Connor, J.), entered February 6, 1997 in Columbia County, which, inter alia, denied a motion by defendants Frank Martin and Town of Stockport for summary judgment dismissing the complaint and cross claims against them.

In the afternoon on Friday, February 15, 1991, Jennifer Collins (hereinafter Jennifer) had an argument with her mother, plaintiff Renee Kubik (hereinafter Kubik), following which, Jennifer, then about 7 1/2 months pregnant, left their family residence in the Town of Stockport, Columbia County. The departure was either directed by Kubik or mutually consensual with Kubik's permission granted during the argument. In any event, Jennifer left and went to a friend's house from where she telephoned defendant Frank Martin, a Town of Stockport police officer and an employee of the Columbia County Department of Social Services (hereinafter the County DSS), seeking his assistance.

Martin received the call from Jennifer at about 5:00 P.M. as he was getting ready to go to work as a police officer. Jennifer told Martin that she had been thrown out of her home. Martin then contacted the County DSS and informed the representative assigned to after hours' duty, Helen Pinkowski, that they needed a place for Jennifer. The representative then contacted Jennifer and placed her in the St. Charles Hotel. The representative also arranged for the purchase of a small amount of food for Jennifer.

However, neither Martin, the representative nor any other person from the County DSS telephoned Kubik concerning her daughter's whereabouts that night. Martin also met with Jennifer at the hotel to discuss the situation as did the representative. Jennifer stayed at the hotel that weekend. The County DSS paid the hotel bill and Martin, as the resource director with the County DSS, sent letters to Kubik seeking reimbursement; the County DSS ultimately obtained a judgment for the hotel bill and food after a trial in small claims court. Kubik participated in the trial, pro se, and received notice of both the court's decision and the judgment.

Another incident occurred in April 1991 after Kubik telephoned Martin inquiring about the whereabouts of Jennifer, who had just been furnished with services by the County DSS. Kubik was advised by Martin to contact Wendy Warfield, a social worker, for the information she wanted. Kubik apparently attempted to do so. Subsequently, Martin signed an affidavit concerning a subsequent telephone conversation with Kubik on May 1, 1991. Martin's affidavit and three other affidavits, as well as an information made by Warfield, were used to seek the arrest of Kubik for harassment. Kubik was thereafter arrested on the charge.

Plaintiffs thereafter commenced the instant action in 1993. The complaint alleged, inter alia, that Martin's activities in placing Jennifer in the St. Charles Hotel on February 15, 1991, his subsequent report to defendant State Department of Social Services (hereinafter the State DSS) relating to possible abuse or neglect concerning the incident, his testimony in the small claims proceeding concerning the circumstances of February 15, 1991 and his actions involving the May 1, 1991 affidavit intentionally violated Kubik's constitutional rights. The action against the Town was based on its role as Martin's employer.

Following joinder of issue and discovery of certain documents, Martin and the Town (hereinafter collectively referred to as defendants) moved for summary judgment dismissing the complaint and all cross claims against them, arguing that there were no issues of material fact concerning liability. Plaintiffs cross-moved for dismissal of four affirmative defenses. Supreme Court held that the complaint stated a cause of action for violation of Kubik's civil rights pursuant to 42 U.S.C. § 1983 and denied defendants' motion as well as plaintiffs' cross motion. Defendants appeal.

Defendants' contention that Martin's activities on the evening of February 15, 1991 were not in violation of Kubik's constitutional rights and that Martin was entitled to a qualified immunity for such actions has merit. The record establishes that Jennifer left Kubick's home due to either Kubik's words and threats or Kubik's consent uttered during their argument. Kubik admitted that the argument occurred and that she told Jennifer to leave. It was a cold winter's night in February when the then-7 1/2-months-pregnant teenager sought Martin's assistance, informing him that her mother had kicked her out of the house and that she had no place to go. Martin, acquainted with Kubik's stubbornness, contacted a representative of the County DSS and had her contact Jennifer. The representative spoke with the teenager about her situation and made a determination to provide shelter for her at a local hotel. The representative advised Martin of the arrangements and he relayed the information to Jennifer, met her at the hotel and discussed her home situation.

Jennifer was homeless for the night either at Kubik's direction or with Kubik's consent. Under these circumstances it cannot be said that Martin deprived Kubik of any parental right in regard to Jennifer. Kubik had already voluntarily surrendered that right by her own words and action or inaction. Martin acted in an objectively reasonable manner in these circumstances and no rational jury could conclude otherwise. Consequently, defendants were entitled to the defense of qualified immunity (see, van Emrik v. Chemung County Dept. of Social Servs., 2d Cir., 911 F.2d 863, 866). As Kubik had at least consented to Jennifer's departure from her home, there was no removal of the teen...