Opinion
Argued September 17, 1997
Decided October 21, 1997
APPEAL from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered December 19, 1996, which, with two Justices dissenting, (1) reversed, on the law, an order of the Supreme Court (George L. Cobb, J.), entered in Columbia County, denying a motion by defendants Greene County Community Action Agency, Inc. and Karen Gregory for summary judgment dismissing the complaint, (2) granted the motion, (3) awarded summary judgment to said defendants, and (4) dismissed the complaint as against said defendants.
Plaintiff and defendant Linda Brink have three children together. In early November 1992, Brink, claiming that plaintiff had abused her, was granted a temporary order of protection giving joint custody of the children to Brink and the Columbia County Department of Social Services (DSS). Plaintiff and Brink appeared in Family Court on November 12, 1992, reconciled during that appearance, and returned home together. As a result of this reconciliation, the order of protection was vacated. DSS obtained a stay retaining custody until November 27, 1992, when the stay was lifted and the children's return was ordered. On November 27, 1992, the same day the stay was lifted, Brink appeared at a domestic violence shelter operated by defendant Greene County Community Action Agency, Inc. Up until that time, she had been residing with plaintiff. She claimed that plaintiff had kicked her and that plaintiff's new girlfriend had beaten her with a broomstick. On December 1, 1992, Brink asked for the assistance of the shelter coordinator, defendant Karen Gregory, in filing a criminal complaint against plaintiff. Brink and Gregory were informed by the State Police that they were going to arrest plaintiff. Upon learning that plaintiff was to be arrested, Brink decided to remove her children, the youngest of whom was a little more than a year old at the time, from plaintiff's house. Gregory called her supervisor and an attorney from DSS, who was familiar with the case, for guidance. The attorney advised her that if plaintiff was to be arrested and the children left alone, they would need to be removed. Accompanied by a State Trooper, Brink and Gregory went to plaintiff's house to remove the children. Plaintiff's girlfriend handed the children over without protest. Plaintiff was arrested on December 1, 1992. One day later, a preliminary hearing was held in Family Court and the children were placed in the custody of DSS. A factfinding hearing was held on December 7, 1993. On December 29, 1993, a Judicial Hearing Officer signed findings of fact and conclusions of law to the effect that both plaintiff and Brink had neglected their children, and he specifically found that plaintiff had repeatedly physically abused Brink in the children's presence. Plaintiff then commenced this action seeking damages based upon the theory of tortious interference with custodial rights, alleging that he enjoyed sole legal custody of the three children and that defendants knew this when the children were removed on December 1, 1992; he sought $1 million in damages. Gregory and the Agency moved for summary judgment.
Supreme Court denied the motion, finding that there was a question of fact regarding Gregory's knowledge of the custodial status of the children.
The Appellate Division concluded that the tort of intentional interference with a parent's custodial rights is rather narrow, involving violent abduction, willful disobedience of a court custody order, and wrongful detention; that despite the fact that counsel for plaintiff in his brief repeatedly refers to these children as having been "abducted", it is clear that these children were not in fact abducted within the meaning of the Penal Law; that the central issue in this case is the willfulness of defendants' conduct; that defendants were entitled to judgment as a matter of law in light of Gregory's sworn statement that she had no knowledge that plaintiff possessed sole legal custody of the children, and in light of her consultation with her supervisor, a DSS attorney, and Brink before taking any action to remove the children; that notes from the Agency to the effect that the children were "returned" to plaintiff's "custody" a few days before the incident in question do not necessarily give rise to a question of fact on the essential issue of willfulness, even imputing knowledge of these notes to Gregory; that plaintiff has not produced the Family Court order that purportedly gave him sole custody of the children; that the duration of the purported interference was a single day, and as plaintiff spent much of that day in the custody of the police after having been arrested for beating Brink, his interaction with the children during that day would have been inconsequential at best.
Casivant v Greene County Community Action Agency, 234 A.D.2d 818, affirmed.
Robert C. Hunter, Hudson, for appellant.
Samoff, Kaplan, Benton Franzman, P.C., Kingston ( Stephen Franzman of counsel), for respondents.
Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division ( 234 A.D.2d 818).
Concur: Chief Judge KAYE and Judges TITONE, BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY.