Decisions of Interest

Parenting Agreement Can't Substitute for Separation Agreement

Holding that a “parenting plan agreement” does not constitute a “separation agreement,” the Appellate Division, Fourth Department, ruled that a separated couple's agreement concerning custody and visitation for their three children did not satisfy the “agreement” element of the state's only no-fault grounds for divorce, which requires couples to live apart for at least one year, according to the terms of either a separation agreement or judicial judgment of separation. Scully v. Haar, — N.Y.S.2d —-, 2009 WL 3790417 (4th Dept. 11/13/09) (Hurlbutt, J.P., Fahey, Peradotto and Pine, JJ.).

In its unsigned opinion, the three-member majority wrote, “We conclude, particularly in light of the circumstances in which the agreement was made, that it does not 'evidenc[e] the parties' agreement to live separate and apart.'” Therefore, they found that the agreement did not satisfy the statutory requirement that there be a separation agreement in force during the one-year term of living apart.

The one holdout, Justice Erin M. Peradotto, wrote in her dissenting opinion that the majority had overlooked the legislative purpose behind the separation-agreement requirement. “[I]t is the physical separation of the parties, not the written agreement, that supplies the ground for a divorce pursuant to Domestic Relations Law ' 170 (6),” she wrote. “Indeed, the written agreement is simply intended as evidence of the authenticity and reality of the separation.” (Internal quotes omitted.) Here, there was no dispute that the parties had been living separate and apart for much longer than the statutory one-year period. Under these circumstances, Justice Peradotto argued, the parenting agreement should have constituted enough evidence of the separation, in spite of the fact that it dealt only with issues concerning the couple's children.

Because of 'Special Relationship,' Social Services Not Exempt from Liability

Supreme Court, Kings County, declined to dismiss a tort action against the Administration of Children's Services (ACS) and some of its employees because the plaintiff pleaded facts sufficient to allege a “special relationship” between ACS and the subject deceased child, defeating defendants' assertion that they were entitled to absolute immunity concerning any harm caused by their performance of their governmental functions. Gotlin v. City of New York, — N.Y.S.2d —-, 2009 WL 3681839 (Sup. Ct., King's County, 10/27/09) (Miller, J.).

The child in question died while under the supervision of ACS. The complaint alleged that the infant was killed by his mother's companion, and that ACS, which was working under a Family Court order to supervise the home, failed to act in the face of overwhelming evidence that the child's mother repeatedly placed herself and her children in dangerous domestic violence situations. The defendants moved to dismiss the wrongful death complaint, arguing that although ACS monitored the family under their Social Services Law obligations, their actions did not create a “special relationship” with the child so as to constitute a predicate for liability.

The plaintiff, administrator of the child's estate, countered that a “special relationship” did indeed exist, since the defendant ACS and certain of its employees had a duty to the deceased child that arose from a supervision order issued by the Family Court. That order, the plaintiff claimed, “triggered a number of specific, mandatory duties under applicable state regulations.” The plaintiff also asserted that there was a “voluntary assumption of duty” by the defendants because: 1) Family Court ordered ACS to supervise the child's home; 2) ACS knew the child's mother was prone to domestic violence situations; 3) ACS had direct contact with the child; and 4) The child, through the Family Court and her law guardian, relied upon the defendants' affirmative undertaking of their duty to care for her.

In deciding on the motion to dismiss, the court first noted that under the governmental immunity doctrine, a municipality and its agents cannot be held liable for negligence in the exercise of a governmental function absent a special relationship between the governmental unit and the plaintiff. Lauer v. City of New York , 95 NY2d 95 (2000). A special relationship can be formed in three ways: 1) When the municipality violates a statutory duty enacted for the benefit of a particular class of persons; 2) When it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the city; or 3) When the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation. Pelaez v. Seide , 2 NY3d 186 (2004).

To form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action. Here, no such private right of action for breach of the Social Services Laws could be found or inferred.

There also was no municipal assumption of control on the part of ACS, contrary to plaintiff's argument that the teachings of Smullen v. City of New York , 28 NY2d 66 (1971) applied. Smullen involved an inspector's positive action in assuming direction and control at an accident scene. Here, although ACS had the ability to enforce the Family Court order and was monitoring the deceased child's family, it did not take positive action and control of the situation in the household.

That left only the second Lauer possibility: that ACS voluntarily assumed a duty to the child that generated in her (and those responsible for her) a justifiable reliance on ACS. It was on this theory that the court determined dismissal of the case was not justified.

The Court of Appeals, in Cuffy v. City of New York , 69 NY2d 255 (1987), has set out the elements of the “justifiable reliance” type of special relationship. There must be: 1) An assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; 2) Knowledge on the part of the municipality's agents that inaction could lead to harm; 3) Some form of direct contact between the municipality's agents and the injured party; and 4) A party's justifiable reliance on the municipality's affirmative undertaking. The court here found that these elements were present, explaining: “The Family Court's supervision order triggered specific, mandatory duties on the part of ACS which, it is alleged, its employees neglected to perform. It is further alleged that ACS's employees were aware of the dysfunctional and potentially dangerous environment in which the infant lived.” In addition, the court noted that “direct contact and reliance by someone other than the injured party may be sufficient to create a special relationship where the person making the contact was acting on behalf of his or her immediate family.” Here, that requisite direct contact was made with Family Court and the child's law guardian on her behalf, and they relied upon ACS to protect her. Thus, the dismissal was not warranted.

Parenting Agreement Can't Substitute for Separation Agreement

Holding that a “parenting plan agreement” does not constitute a “separation agreement,” the Appellate Division, Fourth Department, ruled that a separated couple's agreement concerning custody and visitation for their three children did not satisfy the “agreement” element of the state's only no-fault grounds for divorce, which requires couples to live apart for at least one year, according to the terms of either a separation agreement or judicial judgment of separation. Scully v. Haar, — N.Y.S.2d —-, 2009 WL 3790417 (4th Dept. 11/13/09) (Hurlbutt, J.P., Fahey, Peradotto and Pine, JJ.).

In its unsigned opinion, the three-member majority wrote, “We conclude, particularly in light of the circumstances in which the agreement was made, that it does not 'evidenc[e] the parties' agreement to live separate and apart.'” Therefore, they found that the agreement did not satisfy the statutory requirement that there be a separation agreement in force during the one-year term of living apart.

The one holdout, Justice Erin M. Peradotto, wrote in her dissenting opinion that the majority had overlooked the legislative purpose behind the separation-agreement requirement. “[I]t is the physical separation of the parties, not the written agreement, that supplies the ground for a divorce pursuant to Domestic Relations Law ' 170 (6),” she wrote. “Indeed, the written agreement is simply intended as evidence of the authenticity and reality of the separation.” (Internal quotes omitted.) Here, there was no dispute that the parties had been living separate and apart for much longer than the statutory one-year period. Under these circumstances, Justice Peradotto argued, the parenting agreement should have constituted enough evidence of the separation, in spite of the fact that it dealt only with issues concerning the couple's children.