Michael N. v. Montgomery Cnty. Dep't of Soc. Servs.
| Docket Number | Index No.: E2021-478 |
| Decision Date | 23 September 2022 |
| Citation | 78 Misc.3d 171,185 N.Y.S.3d 493 |
| Parties | 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. |
| Court | New York Supreme Court |
For Defendants: Timothy J. Lambrecht, Esq., Syracuse, The Wladis Law Firm, P.C.
For Plaintiffs: Adam P. Grogan, Esq., Albany, Tully Rinckey PLLC
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.
This case arises from a Family Court Article 10 proceeding that was commenced by the Montgomery County Department of Social Services ("Department") against Plainti...
To continue reading
Request your trial