Warren Cnty. Dep't of Soc. Servs. v. Jennifer W. (In re Gwenyth V.)

• Decision Date: 01 March 2018
• Docket Number: 525258
• Citation: 71 N.Y.S.3d 711,159 A.D.3d 1097
• Parties: In the MATTER OF GWENYTH V., Alleged to be a Neglected Child. Warren County Department of Social Services, Petitioner; v. Jennifer W., Respondent. Noreen E. McCarthy, Appellant.
• Court: New York Supreme Court — Appellate Division

159 A.D.3d 1097
71 N.Y.S.3d 711

In the MATTER OF GWENYTH V., Alleged to be a Neglected Child.

Warren County Department of Social Services, Petitioner;
v.
Jennifer W., Respondent.

Noreen E. McCarthy, Appellant.

525258

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

Calendar Date: January 19, 2018
Decided and Entered: March 1, 2018

Carter, Conboy, Case, Blackmore, Maloney & Laird, PC, Albany (John T. Maloney of counsel), for appellant.

Jessica H. Vinson, Glens Falls, attorney for the child.

Before: Garry, P.J., McCarthy, Mulvey and Aarons, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

159 A.D.3d 1098

Appeal from an order of the Family Court of Warren County (Kershko, J.), entered October 6, 2016, which, among other things, in a proceeding pursuant to Family Ct Act article 10, imposed monetary sanctions against Noreen E. McCarthy.

Respondent is the mother of the subject child (born in 2007). In June 2016, after petitioner commenced the underlying neglect proceeding pursuant to Family Ct Act article 10, an order of fact-finding and disposition found respondent, upon her consent without admission, to have neglected the child and placed the child "in the custody" of the paternal aunt; a corresponding order of protection stated that the aunt had "sole legal and physical custody of the child." Thereafter, in September 2016, attorney Noreen E. McCarthy was assigned to represent respondent at a subsequent permanency hearing. While the permanency hearing was adjourned, McCarthy sent a subpoena duces tecum to the child's counseling provider for her health records, representing that respondent was the child's "legal guardian" and attaching a 2012 custody order that had granted respondent primary physical custody and joint legal custody with the child's father. By order to show cause, the attorney for the child moved to quash the subpoena. In an affirmation supporting the motion, petitioner requested that Family Court consider imposing sanctions against McCarthy for frivolous conduct. Family Court granted the motion and, upon finding that McCarthy had made material statements of fact that were false, imposed $1,000 in sanctions. McCarthy appeals.¹

A court may, in its discretion, impose monetary sanctions against an attorney for frivolous conduct after affording him or her a reasonable opportunity to be heard, and such determination will not be disturbed absent an abuse of that discretion (see 22 NYCRR 130–1.1 [a], [d]; Matter of Tina X. v. John X. , 156 A.D.3d 1152, 1153, 67 N.Y.S.3d 695 [2017] ; Matter of Flanigan v. Smyth , 148 A.D.3d 1249, 1250–1251, 50 N.Y.S.3d 572 [2017], lv dismissed and denied...