Articles Posted in Queens

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This case is being heard in the Supreme Court of the State of New York in Queens County. The defendants of the case have moved for an order to set aside a jury award of damages that was returned on the 22nd of June, 2005 and for a new trial to be granted in the interest of justice. The defendants contend that the amount of the awards issued by the jury are excessive and are not supported by the evidence that was provided in the case. The jury awarded the plaintiff $2,500,000 for past pain and suffering, $1,000,000 for future loss of earnings over the next 32 years and $12,500,000 over 52 years for future pain and suffering. There have been several conferences held in regard to this case, but no agreement could be reached and now it is up to the court to decide.

Case Background
The trial of this instant action was bifurcated. The liability portion of the trial was held on the seventh of June, 2005 and the jury returned with a verdict on the ninth of June finding that negligence of the defendants was the only cause of the accident in which the plaintiff was injured.

The Long Island plaintiff was coming home from work when she was hit by a bus when she crossed Putnam Avenue in Queens County. She fell backwards on the ground and sustained injuries to her back and to her neck. The most serious injury was to her right foot which was crushed by the wheel of the bus.

The damages portion of the trial was started on the 15th of June. The evidence provided in the case showed that as a result of the accident the skin and tendons of the plaintiff’s foot were badly damaged. She also suffered from fractures and displacements of the bones of the foot and toes.

At the time of the accident the plaintiff was taken by ambulance to the hospital where her wounds were cleaned. She was put under while surgery was performed and a cast put on her foot. She was released from the hospital two weeks later with her foot still in a cast.

The plaintiff stated during her testimony that she underwent physical therapy for her foot, but continues to have unbearable pain and numbness throughout her right foot. She ended up having another surgery to her foot to release the nerve from scar tissue that had developed around it.

Court Discussion and Decision
In order for the court to set aside a jury determination for damages the record must show that the verdict made by the jury could not have been reached by any fair interpretation of the evidence.

In this case, the plaintiff concedes that the amount awarded for pain and suffering is excessive and suggests a reduced award in the amount of $1,500,000 for past pain and suffering and $3,500,000 for future pain and suffering.

The court has reviewed similar cases and jury awards and determined that a fair settlement would be $1,000,000 for past pain and suffering and $2,000,000 for future pain and suffering. If the plaintiff does not agree to this the defendant will be granted a new trial to resolve the issue.
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This case is being heard in the Family Court of Queens County. This particular case involves alleged child abuse.

Case Background
On the ninth of June, 2004, the Administration for Children’s Services filed a petition alleging that the subject child had sustained a second degree burn on her elbow, a bruise over her eye, a laceration on her lip, a bite mark on her foot an numerous scars and scratch marks all over her body. The respondents, who are her biological parents, could offer no explanation as to how she sustained all of these injuries.

The child had been living in foster care for the previous three years and was returned to her parents in April of 2004. The original petition of abuse that resulted in the child being put in foster care was filed in February of 2001 and charged that the then 10 month old child had been burned on her right eye, below her right cheek, and across the back of her neck. The child also had cuts all over her body including inside her ears and on the bottoms of her feet. The respondents failed to provide a reasonable explanation for these injuries.

Fact Finding Hearing
In this instant case the fact finding hearing was held in October of 2004. The physician’s assistant that treated the child and the foster care agency worker both testified during the hearing.

The physician’s Manhattan assistant testified that the mother brought the child in for treatment for a burn on her right arm. She testified that the child had a two centimeter second degree burn around the area of her elbow. The physician’s assistant stated that the mother told her that the child had received the burn when she touched an electrical outlet. The mother also told the physician’s assistant that the child had just recently been returned to her after having been in foster care for child abuse. She went on to testify that the child was quite during the examination and very scared. She states that the child seemed to be malnourished and was very small and appeared to be younger than her stated age. She reported the case to the State Central Register because the explanation for the burn was inconsistent with the injury.

The caseworker for the child testified that the child was discharged to the respondents in May of 2004 and that she learned about the injuries when the father called her in June to report them. The father told her that the mother had grabbed the child’s arm to keep her from grabbing a blow dryer that was plugged in because the child’s hands were wet and she did not want her to get shocked.

Case Discussion and Decision
The inconsistencies of the stories from both parents it is quite clear that this child has been abused. The court finds that the respondents have been unsuccessful with the required parenting classes and finds that they are unlikely to ever be successful. The child along with the other children of the home is to be removed and placed in foster care.
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The Facts:

A medical malpractice action to recover damages for the birth injury sustained by an infant was commenced by plaintiff, the mother of the injured infant, against, among others, the defendant Hospital Center. Plaintiff alleges that, inter alia, as a result of the negligence, carelessness, and recklessness of defendants, plaintiff’s infant was born prematurely and thereby suffered severe and permanent brain injury, including cerebral palsy, spastic quadriplegia, gastroesophageal reflux disease, and cognitive and speech impairments.
In December 2004, before commencing the action, plaintiff’s attorney requested the Hospital to provide him with the complete medical file for both plaintiff and her infant from July 1997 to December 2004. In July 2006, after the commencement of the action, plaintiff’s attorney specifically requested that the Queens Hospital provide him with, among other things, the fetal monitoring strips for 19 July 1997. On 9 November 2006, after plaintiff’s counsel made several attempts to secure the Hospital’s compliance with his request, the Hospital informed plaintiff’s attorney that the fetal monitoring strips he had requested no longer existed. Plaintiff now moved to strike the Hospital’s answer due to spoliation of evidence.

On 22 October 2008, the Supreme Court, Westchester County, granted plaintiff’s motion to strike its answer for spoliation of evidence. Defendants appeal from the said order.

The Ruling:

As provided for under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party of the ability to prove its claim, the responsible party may be sanctioned by the striking of its pleading. However, a less severe sanction is appropriate where the absence of the missing evidence does not deprive the moving party of the ability to establish his or her case. The determination of a sanction for spoliation is within the broad discretion of the court.

Here, The Staten Island plaintiff did not clearly establish that the Hospital negligently lost or intentionally destroyed the subject fetal heart monitoring data for 19 July 1997, the infant’s date of birth. The record fails to rule out the possibility that the central monitoring computer system utilized by the Hospital in its labor and delivery unit to electronically store fetal heart data onto an optical disk was properly operating, or the possibility that it malfunctioned on 19 July 1997, due to no fault of any of the parties involved in this action, and resulting in no fetal heart data being recorded or stored for that date. Nor did the plaintiff establish that the unavailability of the fetal heart monitoring data fatally compromised her ability to prosecute the instant action.
Thus, since plaintiff failed to clearly establish that the Hospital negligently lost or intentionally destroyed the material, the plaintiff is entitled only to the sanction of an adverse inference charge at trial with respect to the subject fetal heart monitoring data, as against the Hospital. Moreover, plaintiff failed to show that the alleged spoliation left her prejudicially bereft of the means to prosecute the action against the Hospital.

In sum, the Supreme Court improvidently exercised its discretion in striking the Hospital’s answer and, instead, should have imposed the lesser sanction of an adverse inference charge at trial with respect to the subject fetal heart monitoring data. Accordingly, the appeal by the defendants is dismissed as abandoned; the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof granting the plaintiff’s motion to strike the answer of defendant Hospital Center on the ground of spoliation of evidence, and substituting therefor a provision granting plaintiff’s motion to the extent of directing that an adverse inference charge be given at trial with respect to the fetal monitoring data for 19 July 1997, as against defendant Hospital Center, and otherwise denying the motion; as so modified, the order is affirmed insofar as appealed from by defendant Hospital Center, without costs or disbursements.
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The prohibition of marijuana is a hot topic of discussion these days. Since, many tests have demonstrated that marijuana is less toxic to a body than either alcohol or tobacco, many people are interested in eliminating the prohibition that makes it illegal. In recent years, many states have taken action to decriminalize the personal use of marijuana. The use of this substance has been proven to have many beneficial medicinal effects. Preventing citizens from having access to a natural medicine that has very few side effects seems ridiculous. However, much like alcohol was at one time prohibited, marijuana is not prohibited. Anyone who uses marijuana, even if they only use it once, is found guilty of a criminal offense. In some states, there is so much marijuana seized by local law enforcement agencies that it is no longer sent to the state crime lab to be tested and verified. The local agencies test it themselves with a simple test before they dispose of it. So with so much political upheaval associated with the personal use of marijuana, how does the use of this substance affect the parents who engage in ingesting it? For some people, they claim that they use it to self medicate for numerous psychological and physical maladies that artificial drug company produced legal drugs cannot compete with for effectiveness. There are several ways that a person may use marijuana to relieve physical pain or anxiety. One way that has been popular in home remedies since the early 1700’s before marijuana became an illegal substance, was to steep the leaves in vinegar to be applied topically for arthritis or muscle pain. Other people eat the leaves as a way to gently reduce anxiety or increase appetite. However, even these non-recreational uses of the herb is prohibited by law in most states.

What happens to an otherwise normal law abiding citizen who is found guilty of personal use of marijuana? In most states, the answer to that would be that they would be issued a ticket like a traffic ticket and would have to appear in court. They would then be given community service or a fine if they are found guilty. However, what if that same person delivered a baby in a hospital in New York within thirty days of ingesting marijuana? The child is taken away from them and put into foster care.

That is what happened to one mother in November of 2010, the mother gave birth to a healthy baby boy in Brookdale Hospital in Manhattan. He had excellent Apgar scores and exhibited no problems or illnesses. Shortly after the birth, the mother was notified that both she and the baby had tested positive for marijuana and that a child neglect report was being filed with the state. Although, the hospital could not show that the marijuana had caused any risk to the mother or the child, the baby was removed from her care and her other six children were taken as well. The mother was charged with derivative neglect of her other children because the Administration for Child Services in New York determined that the mother had eaten some marijuana to calm her nerves several days before she delivered her baby.

The Queens mother agreed to drug treatment and upon completion of the mandatory drug treatment program, her children were returned. Several months later, the mother tested positive for marijuana again. She claimed that she had smoked one marijuana cigarette at a party. The state filed an accusation to remove the children again. The court was called upon to determine if this was an appropriate response to an offense that would not even be considered criminal in most states. The court determined that the state had not made a sufficient case to show that the actions of this mother had been detrimental in any way to her children. The case was dismissed.
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On September 21, 1982, the complainant 32-year-old woman visited her accused gynecologist for her annual check-up. At that time, the gynecologist made note of a one-centimeter mass on the outside lower quadrant of the woman’s left breast which he tentatively classified as a galactocele or a milk-filled cyst, but no further tests were performed. Ten months later, the woman returned to her Manhattan gynecologist complaining of a painful lump in her left breast and a swelling under her left arm. Following a mammography and other examinations, the mass in the woman’s breast was diagnosed as cancer which had metastasized or spread, to three ribs and two vertebrae. The woman died nearly two years later, as a result of the extensive metastasis of the cancer leaving as the sole beneficiary of her estate her then four-year-old daughter.

At the time her condition was first diagnosed, she was in the process of obtaining a divorce from her husband who contributed nothing toward her own or her child’s support. Although after the birth of her daughter, she had discontinued working outside the home, she was certified as a teacher for kindergarten through twelfth grade and had been a permanent substitute teacher in the Lawrence school district for one and one-half years prior to her daughter’s birth. She held undergraduate degrees in art education and psychology and was working toward obtaining an advanced degree in psychology in preparation for a child psychology program. She had always been a very self-sufficient and independent person. She had fully participated in the daily activities of her child. Because of her rapidly deteriorating physical condition and the negative effects of the medical treatment, the woman’s life changed to a tragically radical degree. She initially underwent two months of hormone therapy which was discontinued when she stopped responding. She began experiencing excruciating pain in her right leg which was determined to be caused by an additional lesion. She was then placed on a program of pain killers including morphine and methadone which her treating physician testified only dulled the recognition of pain in the brain but did not eliminate the pain. She also received a combination of five chemotherapy drugs which caused debilitating side effects. She became constipated, weak and tired, suffered from insomnia and began losing weight at the rate of two or three pounds per week. Her bones became very brittle and she was warned by her physicians to be very careful to avoid breaking them. In fact, she had to be hospitalized on three separate occasions for hypocalcaemia which is an elevation of calcium in the blood causing sleeplessness, lethargy, confusion, difficulty in walking, severe dehydration and ultimately death. The continuous vomiting caused by the chemotherapy resulted in dental infections and the loss of six teeth which she had to have extracted with only a minimal amount of novacaine due to the chemotherapy.

The Queens woman became a virtual invalid. She relied on a homemaker, her friends and family to care for her child, to shop for her, to clean her house, to prepare meals and to drive her to the hospital. She had no physical strength. She was too weak to pick up her daughter or to perform any type of housework. Moreover, because of her weakened bones, she was afraid to go to any crowded places such as a train station or shopping mall for fear of being hit in her ribs or vertebrae. In any event, she was physically unable to shop for herself. Her social life became nonexistent.

Perhaps the more difficult pain for her was the emotional and psychological pain she suffered as a result of the loss of control over her life, the changed attitudes toward her of her family and friends and the strain of her illness on her relationship with her daughter. Her daughter was greatly affected by her illness and had difficulty understanding why her mother could no longer participate in activities with her. While she arranged for her daughter to be raised by her brother and sister-in-law who have three sons, she was saddened that she could bear no other children to provide brothers and sisters for her daughter.

In view of the woman’s extensive losses and suffering, the aggregate award on the first cause of action was well within the bounds of reason. The question remains whether, notwithstanding the reasonableness of the award, the trial court correctly included in its instructions on damages, a separate instruction on loss of enjoyment of life. The trial court’s instructions to the jury were entirely proper.

The complainant commenced an action to recover damages for conscious pain and suffering and wrongful death. The woman’s gynecologist and his professional corporation are charged with various acts of medical malpractice stemming from his failure to properly diagnose the woman’s breast cancer and to provide appropriate medical care and treatment. The jury, after finding the accused 90% liable and the deceased woman 10% contributorily negligent, rendered award of damages, in accordance with the court’s instructions and special interrogatories.
The accused gynecologist immediately moved to set aside the verdict on the grounds that as to liability the verdict was against the weight of the evidence and inconsistent. The gynecologist further charged that the damages awarded for the injuries were excessive, the damages for loss of enjoyment of life were duplicative of the damages awarded for pain and suffering, the amount awarded for prospective loss of inheritance was speculative, and the award of damages for college costs was also speculative as well as duplicative of the recovery for loss of support. The trial court denied the motion and, thereafter, entered judgment for the amounts awarded by the jury reduced by the 10% of the fault attributable to the complainant. The amount of the judgment with interest, costs and disbursements totaled $845,772.59.
The accused gynecologist’s appeal, arguing that the verdict as to liability is against the weight of the credible evidence adduced at the trial, the awards of separate amounts of damages for pain and suffering and impairment of the ability to enjoy life are duplicative, and the awards to the woman’s child on the wrongful death cause of action for loss of prospective inheritance and cost of a college education are speculative.

The trial court’s denial of the accused gynecologist’s motion to set aside the verdict in favor of the complainant as against the weight of the evidence is affirmed. As the courts have frequently stated, a verdict will be set aside on this basis only if the jury determination could not have been reached on any fair interpretation of the evidence. On such a review, the evidence must be viewed in a light most favorable to the complainant to determine whether a sufficient rational basis exists to support the jury’s finding of liability as to the accused.
One of the key issues in controversy at trial was whether the lump that the gynecologist first noticed in the woman’s breast in September 1982 was the same as the cancerous tumor surgically removed from the woman’s breast one year later. Apparently because of the woman’s history of being cystic, the gynecologist was not overly concerned about the lump upon its initial appearance. According to his trial testimony, after making a tentative determination that the lump was a one centimeter galactocele and making a diagram indicating the location of the lump, he advised the woman to return for a follow-up examination in two or three months. He conducted no further procedures to either confirm his diagnosis or to rule out the possibility of carcinoma. Nor did he advise the woman to examine her breasts during the intervening period. His office records confirm that he had doubts with respect to his diagnosis since next to the word galactocele and next to the diagram on which he indicated the location of the lump he placed a question mark. The records further corroborated his instructions to the woman.

In the course of the woman’s examination before trial, conducted prior to her death and read into the trial record in pertinent part, she testified that her gynecologist had found her to be in good health at the time of her checkup in September 1982 and told her to return in a year. Discovery of a painful lump and swelling under her left arm prompted the woman to return to her gynecologist. During that examination, she saw a diagram in her file with an X where the lump was. To her surprise, her gynecologist had been aware of the lump, identified it as a cyst and reassured her that he was watching it. No recommendation was issued that a mammography be performed or another physician be consulted. Her doctor simply prescribed vitamins and instructed her to return after her next period. Only later when she consulted the surgery doctor, upon her gynecologist’s recommendation did she learn the gravity of her condition. The surgeon was able to confirm the presence of cancer after only a brief examination because the skin in the area of the lump had a dimpling effect resembling the skin of an orange when it was palpated in a certain manner. Owing to the advanced nature of the cancer, a lumpectomy rather than a mastectomy was later performed. Following surgery, the woman was placed on a regimen of hormonal therapy and later chemotherapy.
The gynecologist’s expert evidence consisting of the testimony of a specialist in obstetrics and gynecology, and a pathologist, was presented to refute the allegations of medical malpractice. The accused parties’ experts were consistent in their opinion that although the lesion which was palpated in September 1982 was in the same location as the tumor removed in September 1983 the former did not lead to the latter. The basis for the opinion was the theory of doubling times which refers to the growth rate of tumors. According to the doubling times concept of oncology, a tumorous mass hypothetically doubles in size every 60 days. If the theory were followed in its strictest sense, the woman’s September 1983 tumor would not have been palpable in September 1982. However, the accused parties’ experts agreed that studies measuring the growth rate in the human breast as opposed to the laboratory have shown doubling times ranging from 20 to 209 days. The gynecologist expert also conceded that the failure to take any measures following the discovery of a lesion in the woman’s breast in September 1982 would have been a departure from accepted medical practice. His opinion that the woman’s gynecologist had acted in accordance with accepted medical standards in the community stemmed from his rejection of the woman’s statements that her gynecologist did not tell her about the lump.

With due deference to the jury’s determination based upon its opportunity to observe and hear the witnesses, and weighing the conflicting testimony of the parties and their respective experts, we cannot say that the evidence so preponderant in favor of the gynecologist that the jury could not have reached their conclusion upon any fair interpretation of the evidence. Viewing the entire body of evidence, it was entirely plausible for the jury to conclude that the lesion noted in the woman’s medical record in 1982 developed into the malignant tumor removed in 1983 and to find that the gynecologist was negligent in failing to order tests or to follow up his initial examination to check the condition of the lump. The total verdict reflected a thoughtful evaluation of the evidence and not merely a determination, as the gynecologist suggest, which reflected an overriding sympathy for the woman’s infant daughter. Therefore, the verdict as to liability must stand.
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The common issue arising in all of the following cases concerns the constitutionality of the new article as it affects the presumptively mandated removal of custody of children from a parent who considered being addicted to narcotics.

In one case in Queens involving an addiction issue, a mother indicated in the records of the hospital that she had injected 10 bags of heroin daily into her blood stream for six years and that she had administered a dose to herself four hours before she delivered her baby. The attending doctor testified that her baby was born normally, without apparent symptoms or birth injury.

Evidently 24 hours after birth, the baby began to show the unmistakable narcotic withdrawal symptoms consisting of pre-convulsive tremors, hyperactivity, incessant crying, and ravenousness with alternating vomiting. Illnesses with partially similar symptoms were ruled out. Sedatives, dark and quiet environment were required for seven days before the child became physically well. Without careful therapy, the child might have suffered convulsions or even death. To give rise to such symptoms, the mother must have been regularly using large quantities of heroin for considerable time before her confinement. In addition, the placenta permits ready transfer of heroin from mother to fetus. If the mother injected heroin not habitually but only shortly before child’s birth, massive doses may have killed her and the new-born child or the baby would have been sedated instead of hyperactive and suffering withdrawal. Only high tolerance for both the mother and baby would cause the medically observed course of events found.

In another case, in Staten Island, the evidence was most instructive of all as to the dangers encountered by babies born having withdrawal symptoms. The baby had morbid tremors together with symptoms of hyperactivity about two hours after birth. The mother of the baby had her last heroin injection six to eight hours before the symptoms appeared. After one day, the baby showed symptoms with excessive crying, compulsive thumb sucking, vomiting and diarrhea. The remedy for those conditions was administered for one week with little improvement. In this case, the baby did not improve for a week and consequently a sedative was prescribed, gradually controlling the symptoms about two weeks after birth. The baby required careful hospital treatment for five long weeks before release from the hospital. A diplomate in pediatrics gave in evidence that babies subject to heroin withdrawal symptoms at the time of birth are labeled as suffering from congenital morphinism or narcotic addiction in the new born. Such clear symptoms in the new born cannot occur unless the mother is a narcotic addict, that is, dependent on narcotic drugs and in imminent danger of such dependency, as defined in the law. The usual delivering mother is in danger of such dependency, or actually dependent, if she has been daily injecting heroin into her blood stream for at least two weeks prior to the birth of her child, in doses of six to twelve milligrams daily. No one but the wholesale pusher knows how strong the contents of the glassine envelopes may be, and so the symptoms must be the indicator.

In another case, attorneys of the child’s parent, seek to annul the new law for alleged constitutional defect. In the said case, narcotic addiction alone was established, without proof of medical harm to the children. Indeed in that case, the mother had been recently formally adjudged as narcotic addict under the law, in the Supreme Court, by her own formal admission and plea. She was actually committed by the Supreme Court for a residential confinement of three years, subject to parole and supervision by the narcotic addiction control commission.
The evidence revealed that her child was two years of age when the hearing and adjudication in the court took place and that the mother had been addicted for approximately six months. Thus no withdrawal symptoms or any physical transmission of heroin to her child could be proved.

Nevertheless, the mother was committed and totally unable to take personal care of her child by reason of the narcotic addiction commitment. Moreover, she testified that the child’s father was confined in jail for an unrelated offense, so that no parent was available nor was care made available by either parent or other responsible person.

Lastly, in the case of the three children, the allegations were held insufficient on their face to withstand a motion to dismiss. Child abuse was originally pleaded on the sold assertion that the mother is a user of drugs and she appears at such sessions under the influence of drugs. Leave was given to modify the allegation to add that the said parent is a narcotic addict or is in danger of becoming dependent on a narcotic drug and should therefore be considered a narcotic addict. At the next preliminary trial, the complainant did move to modify the petition by adding an allegation that the mother of said three minor children is a narcotic addict. The mother appeared in court unable to stand unaided and thoroughly under the influence of some toxic substance. The mother was remanded to a hospital for a few days for urinalysis and observation and treatment for detoxification. The hospital report can be used in evidence.
As before indicated, it would be a matter of affirmative defense for the parent to assert and prove that the children have been and will be well cared for by or through the efforts of the addicted parent. The brief of the mother already presents that issue by stating that children are healthy with good medical histories, and that none of the children have ever suffered from any infectious or detrimental condition to their health or safety caused by the commission or omission of the parent.

Since as counsel urges, the court must adopt a construction, to avoid raising serious doubt of constitutional defect, the parent will have the opportunity to make the defense asserted even if narcotic addiction may be proved.

Insofar as article claimed to affect the narcotic addict’s status as a parent or custodian of children, it should also be interpreted in light of the jurisdiction’s comprehensive program for the treatment and rehabilitation of addicts. The entire legislative scheme views the addict as still a person, although one with a serious and debilitating illness entitled to humane treatment and vested with all the rights and privileges of any other citizen. Consequently the adoption of a construction which would terminate the parental or custodial privilege of custody upon the sole showing of being adjudicated a narcotic addict despite countervailing showing of affirmative defense, would be both at odds with said prevailing policy towards addiction and would represent a retreat to the not so distant period when addiction led to punishment and was not viewed as an ailment necessitating medical attention.

Despite the vigorous parade of authority, it would appear that the legislature would have been more clearly entitled to denominate presumptive neglect than presumptive abuse, nevertheless should at this stage be upheld. The difference between a finding of abuse and one of neglect results in a difference between a presumption requiring removal of the child from the parent in the case of abuse and a presumption of abuse if there is addiction, as distinguished from a discretionary non-presumptive removal in the case of a finding of neglect only.
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Infant plaintiff’s mother (herein “plaintiff-mother”) is a physician Board Certified in Internal Medicine. On 8 March 1999, plaintiff mother presented to New York University Village Women’s Health (“Women’s Health”) for prenatal care and was examined by a doctor (herein “doctor-one”). According to her deposition, plaintiff-mother was unaware that she had ever been exposed to herpes and reported to her obstetricians that she did not have herpes or diabetes. In fact, the NYU defendants claim that plaintiff-mother still denied that she had herpes to doctor-one on 27 April 2000, some seven months after the delivery. The NYU defendants claim that the prenatal care records and labor and delivery records reveal that herpetic vesicles or lesions were never observed during any of plaintiff-mother’s vaginal examinations throughout the pregnancy.

Plaintiff-mother remained under the care of doctor-one during the prenatal period. On 8 March 1999, in response to a blood sample report which revealed raised red blood cell antibodies which had the potential to destroy the fetus or newborn’s red blood cells, doctor-one referred plaintiff-mother to non-party doctor-two, a specialist in maternal-fetal medicine, for evaluation and monitoring. Doctor-two monitored plaintiff-mother’s blood antibodies through the pregnancy.

On 8 September 1999, plaintiff-mother was examined by doctor-one at Women’s Health. She was 50% effaced, her cervix was closed, and the gestational age was more than thirty-seven weeks. Plaintiff-mother consented to vaginal delivery by induction. She presented to New York University Medical Center (“NYUMC”) on 9 September 1999 at 5:08 p.m. for delivery with the assistance of Pitocin. A fetal heart rate monitor was placed and doctor-one ordered Pitocin to be infused at 7:25 p.m. After some 25 hours, plaintiff-mother’s membranes were artificially ruptured at 9:00 p.m. on 10 September 1999. Doctor-one examined the patient for the last time at approximately 5:56 p.m. on 11 September 1999, some 48 hours after plaintiff-mother presented to NYUMC. From this point on, doctor-three, who was covering doctor-one’s patients, took over the care of plaintiff-mother. Approximately 12 hours later, at 5:30 a.m. on 11 September 1999, the infant-plaintiff was delivered by doctor-three. A vacuum extraction was performed, and forceps were applied to complete the delivery. A pediatrician was present at the time of delivery and noted Apgar scores of eight at one minute and eight at five minutes. The infant was transferred to the well-baby nursery, where he was noted to have two “skin tears”; one on the left side of the face and one on the right neck. On 13 September 1999, infant-plaintiff was discharged home and skin lesions appeared intermittently in September of 1999.

Doctor-four and doctor-five are pediatricians associated with Pediatric Associates of NYC (“Pediatric Associates”). The infant first was seen at the Queens office of Pediatric Associates on 19 September 1999 by doctor-five. This is the only time doctor-five saw the infant, who was brought in before his first scheduled appointment, on a Saturday, due to a skin condition. Doctor-five testified that the lesion looked like a bacterial pustulosis or impetigo lesion, which is also bacterial. He prescribed Keflex and Bactroban, and took a culture. Doctor-five claims that since Keflex and Bactroban are highly effective against a staph infection, which is, as it turned out, what the infant had, then his care and treatment were appropriate. He also testified that he could not perform a culture for herpes in his office as that requires special training which he did not have. Since the infant was to be a patient of the Brooklyn office of Pediatric Associates, doctor-five never saw the infant again.

On 22 September 1999, doctor-four first saw the infant at the Brooklyn office of Pediatric Associates. She noted that the infant had developed 3 pustules with straw colored fluid 3-4 days before this visit, which doctor-five had treated with Keflex and Bactroban. She further noted that the infant’s mother had no history of oral herpes infections or sexually transmitted diseases. The infant presented with two new pinpoint lesions on his neck, and at that time there was no growth of the cultures up to that date and the cultures were being held for fungus.

Doctor-four consulted by telephone with doctor-six, a pediatric dermatologist, describing what she observed on the infant. According to doctor-four, doctor-six did not seem concerned and told her to continue the Keflex and Bactroban and to add Nizoral cream; that it appeared to be a fungul skin infection, and thought that the lesions could have been caused by the forceps used during delivery. Doctor-four’s impression was that the pustules could be staph aureus, Candida, staph epidermidis or epidermolysis bullosa. She continued the Keflex (this was day 4 of the 10 day course of Keflex prescribed by doctor-five), and prescribed Nizoral cream and Bactroban 3 times per day. If the lesions progressed, the mother was to return to the office and doctor-four noted that she would send the baby to a pediatric dermatologist. Doctor-fournext saw the infant on 23 September 1999. She observed no new lesions, and noted three honey crusted lesions on the right neck and three on the chest. Doctor-four’s impression was questionable impetigo. She instructed the mother to continue the Keflex, Bactroban and Nizoral and to call if there were any new lesions.

Meanwhile, the results of the culture taken by doctor-five were stated in a report dated 30 September 1999, and revealed staphylococcus aureus.

On 7 October 1999, doctor-four again saw the infant who was fussy and was seen due to colic. On 14 October 1999, the baby was seen again by doctor-four. Plaintiff-mother, had observed intermittent anisocoria (unequal pupil size) that morning. Doctor-four referred the infant to a pediatric ophthalmologist, doctor-seven, to be seen that same day, and to the pediatric dermatologist, doctor-six, who was to see the infant the next day due to questionable impetigo. Doctor-four from Staten Island noted the mother reported that the skin lesion recurred three days ago and she had been using Nizoral and Bactoban with results. On exam, there was intermittent anisocoria of the right eye and the right pupil was equal and reactive to light. There was a honey crusted lesion on the right neck and a dry lesion on the right chest.

Doctor-six’s records indicate that the plaintiff mother did not bring the infant in until 18 October 1999. He cultured the lesions and they were negative. He did not think they were herpes. Blood tests which had been performed on the mother and infant revealed that the infant-plaintiff and the mother were positive for the antibody for HS V-2, in reports dated October 19 for the mother and October 22 for the infant.

Doctor-four testified that she consulted with doctor-six after he saw the infant and mother on 18 October 1999; that she had wanted them to see doctor-six on 15 October; that she received a report from a doctor-eight indicating that he saw the infant on 4 November 1999 for congenital/perinatal herpes infection.

Subsequently, a medical malpractice action ensued in which plaintiffs seek damages for injuries allegedly sustained by the infant plaintiff at his birth on11 September 1999 due to the alleged malpractice of the defendants. Plaintiffs assert, inter alia, that defendants failed to properly examine, diagnose and medicate plaintiffs; failed to treat the infant in utero and his mother prenatally; failed to properly evaluate the plaintiff-mother’s pelvic anatomy; failed to properly diagnose and treat the plaintiff-mother’s herpes and herpatic condition; failed to treat the pregnancy as high risk; failed to perform and interpret sonograms; improperly recognized the presence of and improperly treated the complications of delivery; negligently and improperly attemptec a vacuum extraction delivery; failed to timely and properly perform a vacuum extraction; failed to perform a cesarean section once the vacuum extraction failed; improperly performed a forceps delivery, and failed to use the forceps in a proper manner, negligently cutting the infant with the forceps; and created a portal of entry of herpes to the infant by the improper use of forceps during delivery, thereby resulting in the infant-plaintiff contracting herpes simplex virus, Type II (“HSV-2”).

The defendants, doctor-four, doctor-five and Pediatric Associates of NYC (“the Pediatric defendants”), move for an order granting summary judgment and dismissing plaintiffs’ complaint on the basis that no triable issues of fact exist.

By separate motion, defendants doctor-one, doctor-three, New York University Ob/Gyn Associates, and NYU Hospitals Center, s/h/a “New York University Medical Center” (“the NYU defendants”) move for the same relief.

Plaintiffs cross-move for an order providing that if any defendant obtains summary judgment and dismissal of plaintiffs’ claims against it, then any remaining defendant should be precluded from obtaining, or should be deemed to have waived or forfeited, the limited liability benefits of CPLR Article 16 in relation to the acts or omissions of said defendant who is granted summary judgment and dismissal of plaintiffs’ claims against it; and then such should become the law of the case as to any remaining defendant so as to preclude the application of CPLR Article 16 concerning the acts or omissions of said defendant who is granted summary judgment and dismissal of plaintiffs’ claims against it.

The Ruling:

Under the rules, summary judgment may be granted only when it is clear that no triable issues of fact exist. The province of a court on a motion for summary judgment is issue finding rather than issue determination. The party moving for summary judgment bears the initial burden of making a prima facie showing of its entitlement to judgment as a matter of law. Once such a showing has been established, the burden is shifted to the opposing party to come forward with proof in evidentiary form to show the existence of genuine triable issues of fact. General conclusory statements and expressions of hope are insufficient to defeat the motion. On such a motion, the court is not to determine credibility, but whether a factual issue exists.

It is well established that for a plaintiff to establish a cause of action sounding in negligence, he must meet the initial burden of showing: the existence of a duty flowing from defendant to plaintiff; a breach of this duty; a reasonably close causal connection between the contact and the resulting injury; and actual loss, harm or damage.

It is equally well established that in determining whether a breach of duty has occurred, it is necessary to consider whether the resulting injury was a reasonably foreseeable consequence of the defendant’s conduct. When faced with a motion for summary judgment on proximate cause grounds, a plaintiff need not prove proximate cause by a preponderance of the evidence, which is plaintiff’s burden at trial. Instead, in order to withstand summary judgment, a plaintiff need only raise a triable issue of fart regarding whether defendant’s conduct proximately caused plaintiff’s injuries.

On the NYU Defendants:

The court finds that plaintiffs experts statements as to departures as to the NYU defendants amount to nothing more than speculation.

Here, the expert states that a cesarean should have been performed because the mother had HPV and genital warts in 1985. The expert states that these are sexually transmitted, so doctor-one knew that plaintiff-mother had been exposed to a sexually transmitted disease. The expert continues that HPV can cause pharyngeal condylomata in the baby and thereby possibly obstruct the pharynx which is life threatening. Doctor-one should have notified plaintiff-mother of this risk to the baby, and of the fact that this risk would be substantially decreased if a cesarean section was performed. The expert also states that as of 5:05 p.m. on10 September 1999, a cesarean should have been performed, since continued labor exposed the mother and fetus to danger from maternal exhaustion, uterine abruption due to scar separation, fetal distress, fetal hypoxia, and uterine abruption due to scar separation. In effect, plaintiff’s expert is claiming the single departure of failure to perform a cesarean section as to the NYU defendants. While plaintiffs claim that the infant contracted HSV as a result of the vaginal delivery and the trauma sustained by the use of forceps, plaintiffs fail to address the issue of proximate cause, and more specifically, foreseeability. The list of injuries in the preceding paragraph which the expert opines the infant could have suffered from a vaginal, rather than cesarean, delivery, were not in fact suffered by the infant. On the contrary, the birth injury (birth injury accident) which is at issue here, the contracting of HSV is not listed as a foreseeable risk of vaginal delivery to a reasonable degree of medical certainty. The NYU defendants were presented with no basis to believe that there was this risk. No herpetic vesicles or lesions were ever observed in plaintiff-mother during the prenatal period, and she affirmatively reported that she did not have herpes and was unaware that she had ever been exposed to herpes, even to a point seven months after the birth of the infant plaintiff.
By reason of the aforesaid failure to establish that the risk of being infected with HSV was foreseeable as to the infant plaintiff, the motion by doctor-one, doctor-three and New York University Ob/Gyn Associates for summary judgment is granted.

Moreover, plaintiff did not point to any departure by NYUMC staff. Plaintiffs’ allegations were directed at doctor-one and doctor-three, who were, according to the evidence, private attending physicians and not employees of NYUMC in 1999. Plaintiffs’ expert in pediatrics addresses only those actions by the Pediatric defendants, who are not NYUMC staff, and whose course of treatment occurred after the infant plaintiff was discharged from NYUMC.

More importantly, plaintiffs’ claims of negligent credentialing which are contained in the Bill of Particulars were addressed by the NYU defendants in an affidavit presented, and plaintiffs have not come forward with evidentiary proof of any kind to rebut the statements therein that proper procedures were employed by NYUMC in the credentialing of physicians. Thus, such claim is dismissed, and summary judgment is granted to NYUMC
On the Pediatric Defendants:

The court finds that issues of fact exist as to whether defendants doctor-five, doctor-four and Pediatric Associates deviated from accepted standards of medical practice which preclude the granting of summary judgment.

Here, unlike the situation presented with the NYU defendants, plaintiffs’ pediatric expert clearly sets forth departures and deviations as to the correctness of these defendants’ treatment and diagnosis of the infant plaintiff, as well as the timeliness of their actions and referrals to appropriate specialists, which plaintiffs’ expert opines permitted the HSV infection to remain undiagnosed for several weeks and to become less amenable to treatment.
Thus, the court denies the motion.

On plaintiff’s Cross-Motion:

Here, plaintiffs cite a case, in support of their motion, where summary judgment has been granted to NYUMC and constitutes the law of the case. The court finds such ruling highly persuasive. Thus, applying the principle set forth therein precludes the remaining defendants from attempting to prove the negligence of the dismissed defendants to reduce their own Article 16 proportional liability.

In the cited case, plaintiff and co-defendants failed to challenge the sufficiency of the movant’s showing and inasmuch as a motion for summary judgment is the functional equivalent of a trial and the remaining defendants failed to satisfy the evidentiary burden that shifted upon the movant’s prima facie showing, the opportunity to limit liability under Article 16 with respect to the movant’s acts or omissions has been forfeited. The same applies, of course, where a defendant opposed the motion and lost. Thus, the court finds that the remaining defendants have had a full and fair opportunity to address each moving party’s liability in this case. Accordingly, the cross-motion is granted.

In sum, the motion by defendants doctor-one, doctor-three, New York University Ob/Gyn Associates and New York University Medical Center for summary judgment is granted and the plaintiffs’ complaint is dismissed as to these defendants; the motion for summary judgment by defendants doctor-four, doctor-five and Pediatric Associates is denied and the complaint is severed as to these defendants and shall continue; the cross-motion by plaintiffs for an Article 16 relief to preclude the remaining defendants doctor-four, doctor-five and Pediatric Associates herein from asserting CPLR Article 16 defenses is granted.
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On June 16, 2003, the Administration for Children’s Services (“ACS”) filed an abuse petition against the respondent mother, and the respondent father, with regard to their infant childEdwin.

The petition was amended against both respondents, alleging that the infant child was also a severely abused child. The petition alleged that the infant suffered rib fractures and intracranial bleeding as result of the respondent mother repeatedly grabbing him by the torso, squeezing the infant’s ribcage and shaking him violently, and dropping him, beginning in March 2003 and extending over the course of approximately three months.

On June 25, 2003, the respondent mother pleaded guilty in assaulting her infant child. A Kings Injury Lawyer said that ACS filed a motion for summary judgment, affirmations and arguments in relation thereto, the Court found, by clear and convincing evidence, that the respondent mother abused and severely abused her infant, Edwin, pursuant to the Family Court Act and Social Services Law respectively.

On January 25, 2004, the respondent mother gave birth to the subject child, Makailia C. (hereinafter called the “subject child”). ACS filed a child protective proceeding, alleging that the respondent mother derivatively abused and severely abused the subject child, whereupon the subject child was remanded to the Commissioner of ACS and a warrant was issued for the respondent mother to produce subject child.

Thereafter, the respondent mother was involuntarily returned on the warrant, a Lawyer said that ACS gave her notice that it intended to prove that the subject child was a severely abused child, by clear and convincing evidence, and that such a finding could constitute a basis to her terminate parental rights pursuant to the Social Services Law.

Pursuant to ACS’s motion to terminate reasonable efforts, affirmations, an evidentiary hearing held thereupon, the Court entered a finding that no reasonable efforts were required to be made to return Edwin to respondent mother. The Court determined that reasonable efforts would not be in the best interests of Edwin, would not be likely to result in reunification with his mother in the foreseeable future and would be contrary to his health and safety. Moreover, the Court found, in light of Edwin’s age and the severity of his injuries sustained while in his mother’s care, in conjunction with the mother’s obvious parental deficiencies, the danger of any reunification efforts clearly outweighed any potential benefits.

In so finding, the Court found Edwin, at five months old, suffered rib fractures, shortness of breath, all requiring hospitalization and intensive medical care. His diagnosis ultimately included bilateral retinal hemorrhages, skull fracture, old rib fractures and traumatic subdural hematomas. He was intubated, placed on a respirator, and given a blood transfusion.

This Court further found that the respondent mother, who was only twenty-one years old, suffered from depression, a seizure disorder, poor parental judgment, and lacked insight into her parental deficiencies. According to her own admission in criminal court, she intended to injure Edwin, who was only months old and completely dependent upon her for his very survival. Despite having been engaged in various services since 2001, she caused serious physical injury to her infant in the spring of 2003. Further, she had failed thus far to follow through with appropriate and reasonable services, make any meaningful progress in her psychiatric treatment, and take her antidepressant and anticonvulsant medications regularly.
The issue in this case is whether derivative findings of abuse and severe abuse should be entered against the respondent mother with respect to the after born infant child, Makailia C, via summary judgment, because there is no genuine issue to be resolved at the trial.

The respondent argues that summary judgment should not be entered because the respondent’s conduct which established the abuse and severe abuse of Edwin was not sufficiently contemporaneous with the petition regarding the subject child, Makaila C. Respondent further argued that, seven months cannot be proximate enough in time to support a derivative finding.

In one case, the Court set-forth a three prong test to determine whether a finding of derivative abuse or neglect would be proper: (1) the offensive conduct proven as to one child was not remote in time; (2) the conduct was serious or involved a course of abusive or neglectful behavior; and (3) the conduct demonstrated a fundamental defect in respondent’s understanding of the duties and obligations of parenthood.
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In view of the foregoing, the Court finds that the respondent mother’s previous abusive conduct towards her infant, Edwin, is so proximate in time to this derivative proceeding that a finding of abuse is warranted. The respondent’s abusive conduct, repeatedly violently shaking and dropping him over a three month period, ended a mere seven months before the subject child was born. Furthermore, the mother did not seek medical attention for Edwin despite knowing he was injured.

In addressing derivative findings it is not necessary for the petitioner to prove that the siblings who were not the direct targets are likely to suffer the same injury or even a substantially similar form of mistreatment as the target child. Rather, the petitioner’s burden is to show only proximity in time, after which showing the burden shifts to the respondent to show any circumstances that may differentiate the target child from the other children.

The mother’s criminal conviction and the Court’s prior findings establish a prima facie case of abuse. Under the Family Court Act which is followed in Queens and Staten Island, proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, the respondent.

In one case, the Court held that: “Such evidence, standing alone, does not necessarily constitute a prima facie case, but may, in appropriate circumstances, be sufficient to sustain a finding of abuse or neglect.” The determinative factor is “whether, taking into account the nature of the conduct and any other pertinent considerations, the conduct which formed the basis for a finding of abuse or neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists.”

Based upon the proximity in time, the duration and nature of the mother’s conduct, and a fundamental defect in her understanding of her parental duties and obligations, the Court finds that the conditions which led to the severe abuse of Edwin still exist. Accordingly, the Court enters findings of derivative abuse of the subject child.

Hence, based upon the respondent mother’s criminal conviction for assaulting infant Edwin, and the Court’s prior findings, including the basis to terminate reasonable efforts to reunify Edwin with his mother, and the medical records of Edwin, the Court held that, as a matter of law, there exists no triable issue of fact, and accordingly, enters an order of summary judgment in favor of the petitioner.
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During the first months of 1998, petitioner and respondent began living together. On 28 August 1998, the parties were married in the State of New York. Both parties were aware of the fact that petitioner was born a woman but lived as a man since he was a teenager. On 8 June 1998, petitioner legally changed his name. Since the age of 15, petitioner adopted the hair style, clothing, demeanor and name of a man. Thereafter, petitioner received hormone treatments to effectuate a fully masculine appearance. Petitioner plans to undergo gender reassignment surgery in the future.

Meanwhile, respondent stated that despite knowing that petitioner was born a female, she agreed to marry petitioner. The couple filled out the marriage certificate together. Respondent claims that the first year of marriage was happy and that in the beginning of the second year, in 1999, petitioner became physically abusive.

After four years of marriage, respondent agreed to conceive a child through artificial insemination with petitioner, despite the alleged continued abuse. In 2001, the parties agreed that the mother would undergo artificial insemination and the parties selected a sperm donor whose characteristics and interests matched those of petitioner. The parties collaborated on, contributed to and supported the artificial insemination process. Petitioner signed the consent form for respondent to be inseminated. The procedure had to be repeated three times before it resulted in a pregnancy which concluded with the birth of the subject child on 13 June 2002. The parties submitted a birth certificate which reflected that petitioner was the father of the child and that respondent was the mother of the subject child. According to the parties, the child was born premature and had to remain in the hospital for over one month after his birth. In a letter dated 20 September 2007 written by a doctor, he described the subject child as a five-year old child born premature and asthmatic. The child has been diagnosed as having asthma but the parties disagree whether the condition is aggravated by the consumption of dairy products.

The subject child has been hospitalized in Queens and Staten Island for a while. It is undisputed that petitioner financially supported the family for approximately six months while respondent took a leave of absence from her employment to care for the infant. The medical and school records of the child reflect that petitioner is the father of the child. According to petitioner, respondent eventually returned to work; that respondent worked long hours and spent days away from the marital residence for her employment while petitioner would provide daily care for the child. Sometime after May of 2006, the parties became estranged. It is undisputed that respondent left the marital home in May of 2006 and left the child in the physical custody of petitioner. Although respondent failed to file a petition in a Family Court for a temporary order of protection, respondent alleged that she was forced to leave the residence due to the domestic violenceperpetrated by petitioner.

Petitioner alleged that respondent left the residence to move into the apartment of another man. On the contrary, respondent alleged that she left the marital residence on 3 August 2007 to escape the abuse and that petitioner picked up the child from the babysitter without her knowledge. Respondent never explained why she left the child with petitioner when she did not intend to return to the marital residence.

On 19 July 2007, petitioner filed a petition for custody.

On 6 August 2007, respondent filed a cross petition for custody. Respondent claims that it would be in the best interest of the child if custody was awarded to her; that petitioner committed acts of domestic violence against her while they lived together and that she feared for the safety of the child; that the petitioner was actually a woman and therefore the marriage was invalid. On the same day, respondent filed a family offense petition against petitioner alleging that he threatened her with a knife.

On 24 August 2007, the Kings County Family Court ordered that the child remain in the temporary custody of petitioner and directed that respondent be granted visitation every Sunday.

On 28 September 2007, respondent made an application seeking the transfer of temporary custody of the child since petitioner was actually a woman and the child was conceived by artificial insemination. The Family Court declined to hear argument on that application since a proceeding regarding the validity of a marriage could properly be determined only by the Supreme Court.

Thereafter, a court order of investigation was conducted by the Administration for Children’s Services (ACS). Respondent acknowledged to the Child Protective Services investigator that the parties agreed to have a child and agreed to use artificial insemination in order to have a child; that she knowingly entered into a relationship with petitioner and willingly entered into a fraudulent marriage despite the fact that petitioner is biologically a woman; that she and petitioner openly lived together as husband and wife for four years before the subject child was born; and, that she never objected that the subject child acknowledged petitioner as his father and she allowed the child to call petitioner “Dad” without admonition. According to the attorney for the child, he has steadfastly referred to petitioner as his father and respondent as his mother. The parties attempted to settle the custody and visitation issues while petitioner exercised temporary custody and the court granted expanded visitation to respondent. On 23 December 2007, during a visitation exchange, respondent alleged that petitioner threatened her in violation of a temporary order of protection and petitioner was arrested.

On 8 January 2008, the proceedings were transferred to IDV-2 in Kings County Supreme Court.
On 21 March 2008, respondent initiated a contested matrimonial proceeding in Supreme Court which was transferred to the herein court.

On 5 May 2008, in the matrimonial proceeding, the herein court continued the temporary order of custody of the child to petitioner. Petitioner reported that respondent repeatedly gave the subject child food containing dairy products which aggravated his asthma and neglected to give him his asthma medication as prescribed. The child reported to his attorney, that, at times, he shared respondent’s bed with her boyfriend.

On 21 July 2008, the parties consented to the issuance of a declaratory judgment in the matrimonial proceeding which adjudged the marriage to be void. Subsequent to the resolution of the matrimonial proceeding, the child reported to his attorney that there was an increased use of derogatory language by respondent about petitioner. Petitioner alleged that respondent used vulgar epithets to refer to petitioner when speaking to the subject child including “bitch,” “fucking bitch” and “fucking idiot.”

On 8 August 2008, the child made an allegation to his attorney of excessive corporal punishment by respondent which was reported to the court. The child described, to his attorney, that he was struck with a belt on the genitals and on the buttocks by respondent. On 14 August 2008, the temporary order of visitation was suspended. Visitation with respondent was reinstated after further investigation and a series of supervised visits.

On 16 June 2009, respondent made an application to transfer custody of the child pending a fact-finding hearing. The request was based on an allegation that petitioner failed to provide the child with medical care and for violation of the court direction that petitioner cooperate to assure that respondent would see the child on his birthday although it occurred during petitioner’s parenting time. Respondent also moved to dismiss the petition for custody since petitioner had no standing, as a biological stranger, to seek custody or visitation with the subject child.

On the contrary, petitioner contends that the doctrine of equitable estoppel should prevent respondent from claiming that petitioner was not the legal parent of the subject child and that extraordinary circumstances exist to establish the legal standing to petition for custody or visitation.

The Issue:
Does petitioner have standing to petition the court for custody of a nonbiological child? Does an extraordinary circumstance exist to warrant the award of custody to petitioner?

The Ruling:
The law has long been settled in New York that a parent’s right to the care and custody of a child is superior to that of all others, absent a showing that the parent has abandoned the child or is unfit to discharge the obligations of parenthood. A finding of “extraordinary circumstances” is the threshold burden to be addressed before any examination as to the best interest of the child is made on a petition for custody filed by a nonbiological party. The petitioner bears the burden of establishing the existence of such extraordinary circumstances. A prolonged separation between the biological parent and the child wherein a psychological parent has bonded to the child would satisfy the threshold of extraordinary circumstances and afford standing to a petitioner seeking custody of a child. Psychological bonding between a nonbiological parent and a child has resulted in a court finding that extraordinary circumstances did exist which allowed the nonbiological party to petition a court for custody of a child. Extraordinary circumstances may be found even in the absence of a finding of unfitness by the biological parent. If removal from the custody of a nonparent would cause significant emotional injury since a strong bond developed between a child and the nonbiological parent, the possibility of that injury would justify a finding of extraordinary circumstances.

In the instant case, the proceedings reflect that the subject child has a strong emotional and psychological bond with petitioner and, in fact, petitioner is the only father that the child has known. This situation was created with the active cooperation of respondent when the parties entered into the marriage. Petitioner and respondent lived as husband and wife for at least eight years, executed a marriage certificate, completed an artificial insemination consent form, filed a birth certificate which identified petitioner as father of the child, and encouraged the subject child to accurately and without qualification address and consider petitioner as his father for more than six years.

The circumstances presented here reflect an unfortunate disruption of custody of the biological parent over an extended period of time. The voluntary abdication of physical custody and parenting responsibility by the biological parent under the color of the law since the conception of the child, and the credible allegations of inappropriate parenting decisions by the biological parent which, together, amount to sufficient compelling circumstances to apply the doctrine of equitable estoppel to the analysis of the total circumstances of the dispute. These circumstances alone support a finding of exceptional circumstances in the case.

Notably, petitioner petitioned for custody while the parties were still married. Petitioner was the legal parent of the subject child at conception and birth and respondent gave petitioner full parenting authority over the subject child for almost six years before raising any objection to the arrangement. Petitioner acquired his status as husband to respondent and father to the subject child for more than six years only because of the active cooperation of respondent for more than nine years. Respondent now seeks to prevent petitioner from having any relationship with the subject child who has only known one person, petitioner, as his father for more than six years. In addition, respondent never explained why, when she left the marital residence, she left the child in the actual physical custody of petitioner between July and August of 2007 (Family Court and Supreme Court granted temporary custody to petitioner), why she made no effort to set aside the marriage until 21 March 2008, although she alleged the parties were estranged and why she made no issue of the standing of petitioner until he was granted temporary custody of the subject child in Family Court. During the proceedings, there were allegations that respondent used excessive corporal punishment, inadequately supervised the child in her home and failed to attend to the child’s health or dietary needs properly. Respondent now seeks an order which would transfer custody of the child and deny petitioner standing to petition for custody after fostering the psychological bond between petitioner father and the subject child for almost six years. It is more than likely that if the relationship is terminated, it would have a devastating psychological and emotional effect on the child. The biological mother planned, enabled and encouraged the development of a father-son relationship between petitioner and the subject child. Petitioner and the attorney for the child submit that respondent should be equitably estopped from raising the issue of standing under these particular circumstances. The doctrine of equitable estoppel is generally imposed by a court in the interest of fairness to prevent the enforcement of rights which would work fraud or injustice upon the person against whom enforcement is sought and who, in justifiable reliance upon the opposing party’s words or conduct, has been misled into acting upon the belief that such enforcement would not be sought.

Clearly, from the facts adduced, an abrupt termination of the father-son relationship which petitioner and respondent together created would put the child in a situation where his welfare could be affected drastically and, thus, an extraordinary circumstance exist requiring inquiry into the child’s best interests. Respondent through her words and deeds held out petitioner as the father of the child. In addition, the subject child is now seven years old and the additional years of relationship have dramatically increased the potential for a traumatic effect on the subject child if that father-son relationship with petitioner would be terminated. It is not unreasonable to believe that the parties here created an expectation by petitioner that he would have standing to seek custody or parenting time. Petitioner relied on the statements and actions of respondent to enter and foster a relationship with the subject child; if respondent can now preclude petitioner from being heard, no fact-finding will be conducted on the traumatic effect a termination of that father-son relationship, encouraged by respondent for six years, would have on the child.

There are statutory provisions of particular relevance which recognize petitioner’s legal status notwithstanding the fact that the marriage was eventually judicially declared null and void. Domestic Relations Law § 73 establishes parental rights to a child conceived via artificial insemination with the consent of both parties. Such a child is considered the legitimate child of the parents at the time of insemination and the permission of the nonbiological parent is required before another party can adopt that child. Domestic Relations Law § 73 recognizes that any child born to a married woman by artificial insemination performed by persons duly authorized to practice medicine and with consent in writing of the woman and her husband, shall be deemed the legitimate birth child of the husband and wife.

Moreover, the Appellate Division, First Department, has held that allowing the de facto father of a child to contest the legal relationship between that child and himself, which was ongoing for 11 years, because the de facto parent was not married to the biological mother, was an error. A “formulaic approach” that allows only a biological or adoptive parent to be a parent to a child may not always be appropriate.
The exact quantum of evidence needed by a petitioner to establish extraordinary circumstances may not be clearly or exactly measured, but the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the biological parent allowed such custody to continue without trying to assume the primary parental role certainly should be factors to be considered.

Here, the child has known petitioner as his father for his entire life and petitioner has had temporary custody of the child throughout all of the proceedings. Respondent did not raise the issue of the biological status of petitioner in the proceedings and, in fact, hid it from the child and the rest of the world until petitioner filed a petition for custody of the child. Respondent never sought exclusive parental responsibility for the child until the child was five years old although it is undisputed that she is the biological parent of the child. Petitioner, the nonbiological parent, enjoyed legal status as husband to respondent and as father to the child through conception, birth and until the child was more than six years old when the marriage was declared null and void. It is not in dispute that the child has a strong emotional and psychological bond with his father despite the fact that there is no biological relationship with the child. The fact that petitioner is biologically a woman is immaterial.

In sum, based on the statements of the parties in their affidavits, the reports submitted, and the court’s observations of the demeanor and conduct of the parties in court, petitioner has sustained his burden of proof to establish the presence of extraordinary circumstances to grant standing to proceed with a petition for custody. Furthermore, there are additional equitable considerations present that were created by both of the parties who entered into the marriage. Respondent should be equitably estopped from challenging the standing of petitioner to seek custody since respondent perpetrated the fraud and derived benefits from it until she raised it in the matrimonial action. Respondent abdicated her parenting authority to petitioner and actively encouraged the creation of a father-son relationship between petitioner and the subject child. In fact, respondent does not dispute the existence of a close father-son relationship.
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On November 29, 1983, a pregnant woman and her husband arrived at Herkimer Memorial Hospital to deliver their new baby into the world. After being admitted to the hospital, the husband and wife were placed in a delivery room. The obstetrician arrived and ordered pain medication and labor induction medication to speed labor. All of the staff from the hospital, left the room at that time. Only the husband and wife were in the room when the baby began to come. The inexperienced husband tried to help his wife safely deliver their baby, but he did not know what needed to be done. Traumatized, he watched as his infant son was delivered into the world with the umbilical cord wrapped around his neck. The baby’s airway was cut off. He struggled to breathe without success. The father watched helplessly as his son suffered from lack of oxygen. When at last, the staff responded to his cries for help, the child was severely injured.

The little baby boy died of his birth injury the next day. The parents filed a medical malpractice suit to recover damages for wrongful death of their baby, by means of negligence and malpractice. The father also made a motion to the court for the court to grant him damages because of his severe mental and emotional distress from watching his baby son suffer.

The court contends that in order for a person to recover damages based on the death of another person, they must be able to show that there was an unreasonable risk of bodily injury or death to themselves. They must be able to show that they were within an area called the zone of danger. Since in this case, the father was not under the care of the doctors who were delivering the baby, and he was not injured in any fashion, he cannot show that there is any justification to the recovery of the damages. He admits that he was never in any danger and that he did not suffer any physical injuries during the entire process. The original trial court found that the father was not eligible to apply for damages under this statute. The Supreme Court agreed that the father had no right to receive monetary compensation for mental pain and anguish over watching his child suffer fatal injury in the delivery room. The third cause of action in regards to the defendant’s motion for summary judgment releasing them from liability in this action is granted and the father’s motion for monetary compensation must be dismissed.

There is no doubt that this new father suffered greatly watching his baby boy born, only to realize that the child was strangling to death. The father is not to be blamed, he simply was not trained to handle the situation. The fact that the doctor had administered labor inducing drugs and then left without ensuring that the mother would be monitored is against current New York law which states that once the doctor from Queens or Staten Island has administered a labor inducing drug, he or she is required to monitor the patient’s progress constantly until the child is born. Constantly does not count as in the hall, locker room, or cafeteria. It requires that the doctor monitor the patient. In this case, the doctor failed to monitor the patient and she went into active labor as a result of the inducing drugs.

The argument is that if the trained staff had been present at the time that the child was born, the umbilical cord could have been removed from his neck before he incurred any injury. The infant was born alive and would have remained alive. This medical malpractice action is an example to every one of the need for proper legal counsel in handling these types of circumstances.
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