Decisions of Interest

During the time that she was allegedly being abused, S. kept a diary in which she recorded, among other things, details of her interactions with her former brother-in-law. She provided heavily redacted excerpts of this recorded information to the mother and her attorney, but did not want to give them the actual diary. She said the redacted parts pertained to things unconnected with the alleged abuse. After giving these pages to her sister and her attorney, S. threw the diary away because it embarrassed her.

The father asked the court to sanction the mother for spoliation by preventing S. and the mother from testifying about the existence or contents of the diary. The mother asserted that she should not be sanctioned because she had nothing to do with the destruction of the diary. The court observed that a party is responsible for preserving evidence when she is on notice that it may be needed for litigation (see Thornhill v. A.B. Volvo, 304 AD2d 651 (2d Dept. 2003)), and that that responsibility extends even to an item of evidence not in the party's possession, if she negligently fails to take steps to assure its preservation (see Amaris v. Sharp Electronic Corp., 304 AD2d 457 (1st Dept. 2003)). Here, the court found that “[t]he mother had greater potential access to the diary than the father and should have taken steps to ensure that it would be preserved, once she relied on it to support her application.” Justice Sunshine determined also that the diary's destruction prejudiced the father because, without it, he is now “unable to verify the sequence of diary entries, challenge the diary's authenticity or when it was actually written, or use any exculpatory or conflicting information gleaned from the diary.” Thus, allowing the mother to use the diary in any way would be unfair, and the court ordered her and S. not to refer to it in any hearing in the matter.

A Foster Child Is a Foster Child, No Matter How He Entered the System

The Appellate Division, Second Department, has reversed Queens County Family Court, holding that an 18-year-old former foster child may re-enter the foster-care system even though he had previously been declared a person in need of supervision (PINS). Matter of Jefry H., 2012 N.Y. App. Div. LEXIS 7972 (2d Dept. 11/21/12) (Balkin, J.P., Hall and Cohen, JJ).

The young man in question was placed in foster care at the age of 16 after his mother petitioned the court to have him declared a person in need of supervision pursuant to Article 7 of the Family Court Act. He was then ordered to stay at a residential treatment center, but was discharged to his mother two years later. He soon sought to return to the system pursuant to Family Court Act ' 1091, a 2010 state law that allows former foster children still under 21 years of age to return to the foster care system if there is a “compelling reason.” His reason was that he had no permanent place to stay.

Queens Family Court denied the petition, holding there was no “clear indication” in the 2010 law that it was supposed to apply to juveniles adjudicated as PINS. The appeals court unanimously reversed, concluding that “nothing in the legislative history of Family Court Act ' 1091 suggests that the legislature intended to restrict its applicability to youth who were placed in foster care following child protective proceedings.”

Med-Mal Suit Reaps No Divorce-Related Damages

A woman seeking the costs of her divorce from her doctor for allegedly causing her divorce was rebuffed by the Court of Appeals of New York, which found that the plaintiff was not entitled to recover the legal fees because she had willingly participated in a sexual affair with the doctor. Dupree v. Guigliano, 2012 N.Y. LEXIS 3556; 2012 NY Slip Op 8171 (N.Y. 11/29/12).

The plaintiff, Kristin Kahkonen Dupree, first sought treatment for depression and stress from licensed family physician James E. Giugliano in 2000. Dr. Guigliano's medical specialty is osteopathic medicine. He prescribed anti-depressants, along with exercise, to improve Dupree's mood, and referred her to a counselor. (At some point, Dr. Guigliano changed the plaintiff's prescription because she complained that the first medication he prescribed had lowered her libido.) A year and a half after the plaintiff first sought help for her depression, she and the doctor entered into a sexual affair that began at a gym, where Dr. Guigliano was showing Dupree some exercises to alleviate her stress and anxiety. They continued the relationship for nine months, breaking it off by mutual agreement. However, when Dupree confessed the affair to her husband, he sued her for divorce. The divorce was contentious, taking five years to settle.

Dupree sued Dr. Guigliano for medical malpractice, seeking damages not only for physical and emotional harm but also to cover the costs of her divorce proceedings ($155,000) and for the loss of her husband's financial support ($435,600). The jury awarded Dupree damages of $154,000 for past mental distress, $50,000 for future mental distress, $134,000 for past loss of income and $166,000 in punitive damages, but nothing for the losses incurred in connection with the divorce. On appeal, New York's highest court affirmed, declaring, without discussion, that the plaintiff's claims for divorce-related costs and losses were “without merit.”

Mother Sanctioned for Not Preventing Witness from Destroying Evidence

Brooklyn Supreme Court Justice Jeffrey Sunshine has declared that a mother involved in a custody dispute with her children's father cannot present evidence contained in a diary, now destroyed, that was kept by her sister, who now claims that she was sexually abused in the past by her then-brother-in-law. S.B. v. U.B., [Index Number Redacted by Court], NYLJ 1202577574190, at *1 (Sup., KI, Decided Oct. 31, 2012) (Sunshine, J.).

The mother and father, who entered into a custody arrangement in conjunction with their divorce, are in litigation because the mother recently learned that her younger sister may have been sexually abused by her ex-husband. She is seeking to alter the visitation conditions so that the father may only have supervised visits with his two children, a son who is 11 years old and a daughter who is nine. The mother's sister ' identified by the court as “S.” ' is expected to testify that, in 2002, when she was 10 years old, her brother-in-law began sexually molesting her, and that the abuse lasted for three years. S. says she did not come forward with this information earlier because she was not aware of how much it had psychologically harmed her until she discussed the past abuse with her therapist, in 2011. Further, S.'s affidavit in support of her sister's motion seeking supervised visitation states that “in recounting the details [of the alleged sexual abuse] with my therapist, I also came to realize that I had a duty to come forward. My niece is approaching the age that I was when Defendant first started abusing me. I would not be able to live with myself if my niece was subject to the same abuse.”

During the time that she was allegedly being abused, S. kept a diary in which she recorded, among other things, details of her interactions with her former brother-in-law. She provided heavily redacted excerpts of this recorded information to the mother and her attorney, but did not want to give them the actual diary. She said the redacted parts pertained to things unconnected with the alleged abuse. After giving these pages to her sister and her attorney, S. threw the diary away because it embarrassed her.

The father asked the court to sanction the mother for spoliation by preventing S. and the mother from testifying about the existence or contents of the diary. The mother asserted that she should not be sanctioned because she had nothing to do with the destruction of the diary. The court observed that a party is responsible for preserving evidence when she is on notice that it may be needed for litigation ( see Thornhill v. A.B. Volvo , 304 AD2d 651 (2d Dept. 2003)), and that that responsibility extends even to an item of evidence not in the party's possession, if she negligently fails to take steps to assure its preservation ( see Amaris v. Sharp Electronic Corp. , 304 AD2d 457 (1st Dept. 2003)). Here, the court found that “[t]he mother had greater potential access to the diary than the father and should have taken steps to ensure that it would be preserved, once she relied on it to support her application.” Justice Sunshine determined also that the diary's destruction prejudiced the father because, without it, he is now “unable to verify the sequence of diary entries, challenge the diary's authenticity or when it was actually written, or use any exculpatory or conflicting information gleaned from the diary.” Thus, allowing the mother to use the diary in any way would be unfair, and the court ordered her and S. not to refer to it in any hearing in the matter.

A Foster Child Is a Foster Child, No Matter How He Entered the System

The Appellate Division, Second Department, has reversed Queens County Family Court, holding that an 18-year-old former foster child may re-enter the foster-care system even though he had previously been declared a person in need of supervision (PINS). Matter of Jefry H., 2012 N.Y. App. Div. LEXIS 7972 (2d Dept. 11/21/12) (Balkin, J.P., Hall and Cohen, JJ).

The young man in question was placed in foster care at the age of 16 after his mother petitioned the court to have him declared a person in need of supervision pursuant to Article 7 of the Family Court Act. He was then ordered to stay at a residential treatment center, but was discharged to his mother two years later. He soon sought to return to the system pursuant to Family Court Act ' 1091, a 2010 state law that allows former foster children still under 21 years of age to return to the foster care system if there is a “compelling reason.” His reason was that he had no permanent place to stay.

Queens Family Court denied the petition, holding there was no “clear indication” in the 2010 law that it was supposed to apply to juveniles adjudicated as PINS. The appeals court unanimously reversed, concluding that “nothing in the legislative history of Family Court Act ' 1091 suggests that the legislature intended to restrict its applicability to youth who were placed in foster care following child protective proceedings.”

Med-Mal Suit Reaps No Divorce-Related Damages

A woman seeking the costs of her divorce from her doctor for allegedly causing her divorce was rebuffed by the Court of Appeals of New York, which found that the plaintiff was not entitled to recover the legal fees because she had willingly participated in a sexual affair with the doctor. Dupree v. Guigliano, 2012 N.Y. LEXIS 3556; 2012 NY Slip Op 8171 (N.Y. 11/29/12).

The plaintiff, Kristin Kahkonen Dupree, first sought treatment for depression and stress from licensed family physician James E. Giugliano in 2000. Dr. Guigliano's medical specialty is osteopathic medicine. He prescribed anti-depressants, along with exercise, to improve Dupree's mood, and referred her to a counselor. (At some point, Dr. Guigliano changed the plaintiff's prescription because she complained that the first medication he prescribed had lowered her libido.) A year and a half after the plaintiff first sought help for her depression, she and the doctor entered into a sexual affair that began at a gym, where Dr. Guigliano was showing Dupree some exercises to alleviate her stress and anxiety. They continued the relationship for nine months, breaking it off by mutual agreement. However, when Dupree confessed the affair to her husband, he sued her for divorce. The divorce was contentious, taking five years to settle.

Dupree sued Dr. Guigliano for medical malpractice, seeking damages not only for physical and emotional harm but also to cover the costs of her divorce proceedings ($155,000) and for the loss of her husband's financial support ($435,600). The jury awarded Dupree damages of $154,000 for past mental distress, $50,000 for future mental distress, $134,000 for past loss of income and $166,000 in punitive damages, but nothing for the losses incurred in connection with the divorce. On appeal, New York's highest court affirmed, declaring, without discussion, that the plaintiff's claims for divorce-related costs and losses were “without merit.”