Matter of Karr v Black

[*1] Matter of Karr v Black 2009 NY Slip Op 52566(U) [25 Misc 3d 1243(A)] Decided on December 15, 2009 Family Court, New York County Sattler, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 15, 2009
Family Court, New York County

In the Matter of a Family Offense Proceeding Gabriella N. Karr, Petitioner,

against

Melissa C. Black, Marc Black, Respondent.



V-28341-09

Lori S. Sattler, J.

In this proceeding brought pursuant to Article 6 of the Family Court Act, the Petitioner, Gabriella N. Karr (hereinafter "Petitioner"), seeks grandparent visitation with her grandson, Noah Black, and a photograph of him so that she can establish a trust fund for the child. Her petition is filed over the objection of Noah's parents, Melissa Black and Marc Black (hereinafter "Respondents"), who have filed a Motion for Summary Judgment (hereinafter "Motion") alleging, inter alia, that the doctrine of res judicata bars the instant petition; that the Petitioner has committed fraud and perjury in filing the petition; and for sanctions and counsel fees.

In support of their motion, the Respondents submitted documentary evidence showing that the Petitioner previously filed a petition for grandparent visitation in the New York County Supreme Court before the Honorable Jacqueline W. Silbermann, who rendered a Decision and Order dated March 14, 2007 (hereinafter "Order") dismissing the petition for lack of standing. The Respondents also submitted documentary evidence showing that the Petitioner appealed the Supreme Court Order to the Appellate Division of the State of New York, First Department, which issued a unanimous opinion concluding that the Petitioner lacked standing to warrant judicial intervention and that the Supreme Court had acted properly in declining to conduct a hearing as to whether visitation would be in the best interest of the child.

In her Affidavit in Opposition to the Respondents' Motion for Summary Judgment, the Petitioner argues that the Respondents failed to attach a copy of Judge Silbermann's Order and therefore this Court cannot determine if the issue of the photograph of the Petitioner's grandson was part of the Supreme Court action. The crux of her argument is that this Court cannot determine if the Supreme Court action was for the same relief as in the instant proceeding without a copy of that Order. Notably, the Petitioner failed to attach a copy of Judge Silbermann's Order.

Next, the Petitioner claims that the prior court decisions were based on her "unstable mental [*2]condition" and a failure to allege "any improvement" in her mental status or present evidence to meet her evidentiary burden entitling her to a hearing. In the instant matter, the Petitioner claims that she is "mentally stable and healthy" and therefore deserves the chance to argue her right to see her only grandchild. She claims that it is in her grandchild's best interests to have contact with her.

In response, the Respondents emphasize that the Petitioner has not only been denied by the Supreme Court and the Appellate Division the relief she now seeks, but that she also has orders of protection against her by Stephen Karr (her former husband), which is due to expire on April 24, 2010 and the Respondent, Marc Black (her son-in-law, who is employed as a police detective), which is due to expire on May 2, 2012.

In addition, the Respondents argue that the Petitioner has been admitted multiple times to different psychiatric facilities and has caused them "incalculable" emotional and financial harm throughout the years.

Counsel for the Respondents is requesting relief for himself in the form of a protective order against the Petitioner because he alleges that she is calling him incessantly at his office and leaving long messages, harassing and stalking him. This Court may not entertain counsel's request as it lacks jurisdiction. Family Court Act § 812. Accordingly, that branch of the Respondents' motion is denied.

Lastly, the Respondents seek dismissal of the action based on the doctrine of res judicata, which precludes re-litigation of matters that could have or should have been raised in a prior proceeding arising from the same material facts. They claim that the very issues raised in the petition have been litigated and decided and that no new issues have been raised.

The New York Court of Appeals has held that in order to "grant summary judgment it must clearly appear that no material and triable issue of fact is presented." Sillman v. Twentieth Century-Fox F. Corp., 3 NY2d 395 (1957). The Respondents, therefore, must establish that the "cause of action. . . has no merit" by a "showing of entitlement to judgment as a matter of law [by] tendering sufficient evidence to eliminate any material issues of fact from the case." CPLR §3212(b); Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985).

Similarly, the Petitioner, who is opposing the Motion, "must assemble and lay bare affirmative proof to demonstrate that genuine issues of fact exist." Kornfield v. NRX Technologies, 93 AD2d 772 (1st Dept 1983), aff'd 62 NY2d 686 (1984). Summary judgment must be granted when "the cause of action of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." CPLR §3212(b).

As to grandparent visitation in New York, Domestic Relations Law § 72 governs and recognizes the value of the relationship between children and grandparents, but does not create an absolute or automatic right to visitation. LoPresti v. LoPresti, 40 NY2d 522 (1976). Section 72 only provides a procedural mechanism for grandparents to acquire standing to seek visitation with a minor grandchild in two instances: (1) where one or both of the parents of the child are deceased; or (2) where circumstances show that conditions exist where equity would warrant the court to intervene. Matter of Emanuel S. v. Joseph E., 78 NY2d 178 (1991). Visitation rights of grandparents where both parents are alive are based on equitable circumstances, and involve an examination of the nature and extent of the grandparent-grandchild relationship, and the nature and basis of the parents' objection to visitation. Id. at 182. If the Court determines that the grandparent has a right to be heard [*3]then itmust determine if visitation is in the best interest of the child. Id.

In the instant action, the parties have a long history before the New York Courts. It is against this backdrop of continuing litigation that the Petitioner has filed a second petition for visitation with her grandson. The Court finds that the entire record, which includes the prior record before the Supreme Court, is sufficient for a determination upon the pleadings, papers and admissions. The Court may "decide [such] matters upon pleadings, papers, and admissions to the extent that no triable issues of fact are raised'." Karr v. Black, 55 AD3d 82, 86 (1st Dept 2008), quoting Civil Practice Law and Rules § 409(b) and citing Matter of Port of NY Auth. [62 Cortland St. Realty Co.], 18 NY2d 250, 255 (1st Dept 1966), cert. denied sub nom. McInnes v. Port of NY Auth., 385 U.S. 1006 (1967). In addition, the Court takes Judicial Notice of the decisions in Gabrielle N. Karr v. Melissa Black, et al., 55 AD3d 82 (1st Dept 2008) and Karr v. Black,11 NY3d 712 (2008).

The record and evidence presented by the parties in their papers demonstrates that there is no triable issue of fact in this proceeding. The Petitioner, who is the maternal grandmother of the subject child, litigated this very issue two years ago in the Supreme Court and the Appellate Division affirmed the dismissal. She argues, however, that this action presents different facts and issues because, here, she seeks a photograph of the child to establish a trust fund and is asserting that she is currently "mentally stable and healthy".

The Court notes in the Supreme Court action that the Petitioner indicated that she petitioned for visitation "to share with her grandchild the family history... and establish a bond with this child prior to making final decisions on whom [sic] to leave my substantial estate." The Court therefore finds that this issue of establishing a trust fund for the benefit of the child has been raised before and was decided.

Furthermore, the request for a photograph is a request for particular relief. Where the same foundational facts serve as a predicate for each proceeding, differences in legal theory or relief (e.g., where the Petitioner argues that she is seeking a photograph of her grandson, which she claims was not sought in the Supreme Court action) will not create a separate cause of action. See Matter of Reilly v. Reid, 45 NY2d 24, 26 (1978).

As to the Petitioner's claims that she is now of sound mental health, she has failed to offer an expert's opinion, attestation or any other affirmative proof of her current mental health status, such as a letter from her treating psychiatrist/psychologist/therapist or any other mental health provider. See Kornfield v. NRX Technologies, supra. Nor has she provided any other details as to her mental health providers, the course of treatment she sought and engaged in, if any, and whether she is currently in therapeutic counseling and/or taking prescriptive/pharmacological medication. In sum, she has failed to provide any documentary proof or other sufficient and reliable evidence that would tend to show how she is now a "mentally stable and healthy" person, aside from her bare assertion.

Accordingly, the Court finds that the Petitioner has failed to meet her evidentiary burden to support her allegations that she is of an improved mental state and that there exist circumstances warranting judicial intervention. The Petitioner is not entitled to a further opportunity, by hearing or otherwise, to remedy the deficiencies in her proof. See Gabrielle Karr v. Melissa Black, et al., 55 AD3d 82 (1st Dept 2008), citing Ritt v. Lenox Hill Hospital, 182 AD2d 560, 562 (1st Dept 1992). [*4]

The Court recognizes that mere animosity between a parent and grandparent is not enough to deny visitation privileges to a grandparent (see E.S. v. P.D., 27 AD3d 757 (2d Dept 2006), affirmed, 8 NY3d 150 (2007)). This case, however, does not present mere animosity, but pervasive estrangement, which is partially linked to the Petitioner's mental health. Based on the record, the Petitioner and her daughter, the Respondent, Melissa Black, have been estranged since 1980 when the Petitioner's ex-husband was awarded custody of Melissa in a divorce action. The Supreme Court record indicates that "Melissa [has] had limited contact with the [P]etitioner while growing up and throughout her adult years, as petitioner continued to manifest mental illness." See Gabrielle Karr v. Melissa Black, et al., 55 AD3d 82 (1st Dept 2008).

Furthermore, even if the Court were to find that the Petitioner has standing, she has not demonstrated a strong likelihood of success on the merits. At stake here is the child's best interests and his rights in knowing his grandmother. In its parens patriae role, this Court has a compelling interest in promoting relationships that protect the general welfare of children. Thus, the Court would have to examine whether the Petitioner had demonstrated a sufficient relationship with the child or has shown an appropriate effort to establish and maintain that relationship. See A.B. v. C.D., 810 Misc 3d 1078(A) (Fam. Ct., Westchester County 2006); C.M. v. M.M., 176 Misc 2d 644, 652-653 (Fam. Ct., Westchester County 1998).

The Petitioner has not alleged that she has an affectionate, loving bond with her grandson. The prior record indicates that she had no existing relationship with the child at that time. Currently, the Petitioner admits that she has not seen her grandson in over five years and does not know his date of birth. She has failed to allege any relationship whatsoever with the child or effort to establish and maintain a relationship. This is not surprising since she has never been allowed to be a part of the child's life. Based on the entire record, this Court finds that there is no significant connection between the Petitioner and the child.

Similarly, the Court does not find any equitable circumstances exist in this case warranting further review. As the Supreme Court before it, this Court observes the nature and basis of the Respondent-parents' objection to the Petitioner's contact with their child. The Respondents oppose the Petitioner's visitation for no other reason than to protect their child. See Gabrielle Karr v. Melissa Black, et al., 55 AD3d 82 (1st Dept 2008). As a matter of law, the Petitioner has not demonstrated that she has the right to be heard by showing the existence of circumstances in which equity would warrant that this Court intervene. For all of the above reasons, the Court grants the Respondents' Motion for summary judgment as no issues of fact remain.

The Court denies that branch of the Respondents' motion requesting a finding that the Petitioner, by causing the Respondent, Marc Black, to be served with process, is in violation of the Criminal Court Order of Protection. This claim is not appropriately raised in the context of this visitation proceeding.

In addition, that branch of Respondents' motion which seeks an award of costs, counsel fees and sanctions is granted to the extent set forth below. It is well settled that the successful party in litigation may not recover attorney's fees, except where authorized by agreement, statute or court rule. See Hunt v. Sharp, 85 NY2d 883 (1995). Under 22 NYCRR §130-1, a party may be awarded reimbursement for actual expenses reasonably incurred and reasonable attorney's fees resulting from the frivolous conduct of the opposing party. Frivolous conduct has been defined by statute to include the assertion of material factual statements that are false. [*5]

The issues raised in this proceeding have been litigated and decided by another court and as such are barred by the doctrine of res judicata. The Petitioner commenced the instant proceeding with no evidence to support her claim of a change of circumstances since the last proceeding. Thus, the Court finds that the Petitioner has acted in bad faith by bringing the Respondents to Court for a second time to relitigate the very issues that had been decided.

Moreover, the Petitioner knowingly asserted that no previous application had been made to any court or judge for the relief requested in the petition and signed a verification as to the truth of her statements. Meanwhile, the Petitioner had been embroiled in litigation over these very issues for the past two years. In fact, the Appellate Division decision was rendered only five months prior to the filing of the instant petition. For this reason, the Court finds the Petitioner's claim that it was her understanding that she did not have to disclose the prior proceedings to be disingenuous. The Court finds that the Petitioner has knowingly misrepresented a material fact in this action and filed a frivolous petition.

Accordingly, this matter is scheduled for a hearing on the issue of the appropriate amount of a sanction to be imposed and/or reasonable counsel fees to be awarded to the Respondents, pursuant to 22 NYCRR § 130-1.1. This matter shall be heard for one hour on January 27, 2009 at 3:30 p.m. in Part 5.

The petition is hereby dismissed with prejudice.

This constitutes the decision and order of the court.

DATED:December 15, 2009ENTERED:

New York, New York

___________________________

HON. LORI S. SATTLER

NEW YORK COUNTY FAMILY COURT