V.G. v. Hanley

• Decision Date: 21 October 2020
• Docket Number: 85127/2020
• Citation: 135 N.Y.S.3d 591,70 Misc.3d 392
• Parties: V.G., Petitioner, For a Judgment Pursuant to Art. 78 of the CPLR, v. Doreen M. HANLEY, as Clerk of the Family Court of The State of New York, Andrew Cuomo, as Governor of the State of New York and the State of New York, Respondents.
• Court: New York Supreme Court

70 Misc.3d 392

135 N.Y.S.3d 591

V.G., Petitioner, For a Judgment Pursuant to Art. 78 of the CPLR,

v.Doreen M. HANLEY, as Clerk of the Family Court of The State of New York, Andrew Cuomo, as Governor of the State of New York and the State of New York, Respondents.

85127/2020

Supreme Court, Richmond County, New York.

Decided on October 21, 2020

Counsel for Petitioner (V.G.), Steven Gildin, STEVEN GILDIN, PC, 61-43 186th Street, Fresh Meadows, NY 11365, 718-409-1111

Counsel for Respondents Governor of the State of New York Andrew Cuomo and the State of New York: Amy Luo, NYS Office of Attorney General, 28 Liberty St, New York, NY 10005, (212) 416-8538

Counsel for Respondent Clerk of the Family Court of the State of New York Doreen M. Hanley: Michael John Siudzinski, New York State Office of Court Administration, 25 Beaver St Fl 11, New York, NY 10004, (212) 428-2185

Ralph J. Porzio, J.

PROCEDURAL HISTORY

Petitioner V.G. ("Petitioner") brings this Action under Article 78 of the CPLR against Respondents Doreen M. Hanley, as Clerk as the Family Court of the State of New York ("Chief Clerk of the Family Court"), Andrew Cuomo, as the Governor of the State of New York ("Governor") and the State of New York (the "State") to compel the Family Court of the State of New York ("Family Court") to immediately accept the filing of new petitions for parenting (the "Petition"). Petitioner seeks to have his action heard in Family Court, which remains largely closed due to the current COVID pandemic. The Court hereby denies the Petition and dismisses the Action against all Respondents.

Petitioner has two minor children, E.G. (DOB xx/xx/2018) and A.G. (DOB xx/xx/2020). According to Petitioner, he and the mother of his children (the "Mother") co-parented their children until on or about May 6, 2020. Before such date, Petitioner represents that he was a very hands-on father who was involved in "every aspect" of his children's daily lives. After his co-parenting relationship with the Mother ceased, Petitioner alleges that the Mother filed a "bogus" Family Offense Petition against him and was issued a Temporary Limited Order of Protection. Petitioner claims that since such filing, he has been unable to arrange for parenting time with his children and the Mother refuses to comply with previously agreed upon terms for parenting time.

Petitioner represents that he attempted to commence a Family Court Action in order to see his children without delay on June 15, 2020 and July 21, 2020 by way of Emergency Order to Show Cause. According to Petitioner, the Chief Clerk of the Family Court refused to accept the matter on both dates. Petitioner also represents that he submitted a Petition for Sole Legal Custody on August 6, 2020. "Although the Richmond County Family Court has time-stamped the document, they still refuse to calendar ‘until the Court opens’ ". Petitioner argues that he and his children are suffering irreparable harm due to the Family Court's refusal to hear his application.

According to the Chief Clerk of the Family Court, Petitioner filed a Petition for a Writ of Habeas Corpus dated August 16, 2020 and commenced a new proceeding before the Family Court, alleging that the Mother "wrongfully prevented or interfered with his rights" to see and visit the children. Petitioner attempted to gain sole legal custody of his children based on his claims that the Mother is suffering from post-partum mental illness. On August 17, 2020, the Family Court granted the writ and assigned an attorney for the children, directing the Mother to produce the children. On August 20, 2020, the Mother produced the children via videoconference and the Family Court heard the Petition. The Family Court subsequently directed a Court Ordered Investigation ("COI") by the Administration of Children's Services ("ACS") to determine the validity of the allegations made by Petitioner against the Mother. The Family Court adjourned the matter to September 9, 2020 for further hearing upon completion of the investigation. On September 9, 2020, the Family Court represents that it received a written report of ACS' investigation based on an observation of the children with the Mother and interviews of both parents. ACS reported no safety concerns and the Family Court marked the writ satisfied with no future dates set.

In his Petition before this Court, filed on July 30, 2020, Petitioner brings forth ten causes of action, including those for violation of his equal protection rights, due process rights and parental rights provided for in the United States Constitution and the New York State Constitution. Petitioner requests that this Court compel Respondents to immediately hear his case in Family Court and also seeks attorney's fees. In Petitioner's Emergency Order to Show Cause, filed August 3, 2020, Petitioner asks that this Court require the Respondents to immediately commence and hear his Family Court Matter and all Family Court matters (Motion No. 001). Counsel for Petitioner argues that "if the Mother and Petitioner were married, despite the Pandemic, there would be no delay whatsoever in having the case heard now in Supreme Court. This is a form of rampant institutional discrimination against parents who just simply happen not to be married to each other." Counsel further maintains that Petitioner has met the necessary elements to procure a preliminary injunction, namely (1) the likelihood of ultimate success on the merits, (2) irreparable injury absent the granting of the preliminary injunction and (3) that a balancing of equities favors the movant's position.

Chief Clerk of the Family Court's Cross-Motion to Dismiss

On September 14, 2020, the Chief Clerk of the Family Court filed a Cross-Motion to Dismiss the Verified Petition (Motion No. 002). The Chief Clerk of the Family Court represents that on June 15 and July 21, 2020, Petitioner sought to file an Emergency Order to Show Cause with the Family Court, seeking an order granting visitation and/or custody of his children while already living in the same household as them. The Court notes that Petitioner denies such statement in his Affidavit in Opposition. The Chief Clerk of the Family Court states that the Family Court refused to accept Petitioner's filing seeking to commence a new visitation or custody proceeding based on the Administrative Orders in place that currently limit filings to certain essential and emergency matters. In her Cross-Motion, the Chief Clerk of the Family Court details the issuance of Administrative Orders ("AO") by Chief Judge DiFiore ("CJ") and Chief Administrative Judge Lawrence K. Marks ("CAJ") that commenced in March 2020. Such AOs were issued and designed to protect litigants, the public and the courts during the ongoing COVID-19 pandemic.

According to the CJ's AO 3/20, it was necessary to postpone all non-essential matters and keep the courts open only for "essential matters". Concurrently, CAJ Marks, under the authority delegated to him by the CJ, issued AO 68/20 to mitigate the effects of COVID-19 on all persons in the Court and postponed all non-essential functions of the courts until further notice. AO 68/20 also attached a list of essential matters and any matters not included in the list were postponed until they could be safely pursued. On March 16, 2020, Administrative Judge Jeanette Ruiz of the Family Court established that Family Court hearings would be limited to emergency and essential matters and all other matters not heard in the emergency parts would be administratively adjourned.¹ After Governor Cuomo suspended the statute of limitations in legal matters, CAJ Marks issued AO 78/20, which determined that new filings would only be accepted for "essential" matters.

On July 31, 2020, the Family Court "began accepting new filings in an expanded range of cases, but to date has not begun to accept new petitions for custody or visitation, such as the one petitioner seeks to file here (as well as other matters)." The Chief Clerk of the Family Court argues that the Family Court still permits the filing of emergency matters, including new applications for orders of protection and removal applications brought by ACS, and recently started accepting new filings for writs of habeas corpus as of July 31, 2020. According to the Chief Clerk of the Family Court, Petitioners "emergency" application is not considered an essential matter and "did not present any claim of a true emergency regarding the welfare of his children."

The Chief Clerk of the Family Court represents that the limitation on Family Court proceedings and filings "is a significant one for purposes of public health" and is necessary to avoid an unsafe level of foot-traffic that would contravene all required COVID-19 protocols. The Chief Clerk of the Family Court notes that the Governor relied upon the CJ's directive to limit court operations to essential matters when he issued Executive Order 202.8, tolling the statute of limitations in New York.² In her Cross-Motion, the Chief Clerk of the Family Court cites to the Governor's declaration of a state of emergency and his Executive Orders, including those that required all non-essential businesses to close or require their employees to work from home.

The Chief Clerk of the Family Court maintains that Petitioner has failed to state a claim for mandamus to compel. The Chief Clerk of the Family Court notes that under the applicable standard, the mandamus can only compel ministerial acts, not discretionary acts, and that the writ of mandamus does not lie where a statute does not command an administrative or government body to do something within a specific time period. The Chief Clerk of the Family Court states that under CPLR § 7803,

Petitioner has not demonstrated that he has a ‘clear legal right’ to commence a new visitation proceeding immediately before the Family Court during the current emergency caused by the COVID-19 pandemic, and to have such a matter heard in preference to

...