DeMarco v Severance
Annotate this CaseDecided on February 25, 2019
Supreme Court, Monroe County
Debra A. DeMarco, Plaintiff,
against
Dominick A. Severance & ASHLEY M. SEVERANCE, Defendants.
E2018005247
Appearances:
Rhian D. Jones, Esq.
Attorney for Plaintiff
Rochester, New York
Christine F. Redfield, Esq.
Attorney for Defendants
Rochester, New York
Richard A. Dollinger, J.
In this instance, a court plunges headlong into a debate over a grandparent's access to her grandchildren over the objections of the child's parents.
The facts, at this stage, are undisputed. The grandmother filed a petition requesting visitation with the respondents' three children. The parents filed this motion to dismiss and claim the grandmother lacks standing to be heard in this court. CPLR 3211 (a) (3). CPLR 3211 (a) (3) provides that dismissal is available where "the party asserting the cause of action has no legal capacity to sue." While the statute refers specifically to "capacity," New York courts treat this provision as encompassing the larger concept of standing. Sta-Brite Servs. v Sutton, 17 AD3d 570 (2d Dept 2005); Loeb Boathouse Services LLC v. City of New York, 2018 NY Misc LEXIS 2365 (Sup.Ct. New York Cty 2018).
The respondents are married and the parents of three children. Since 2016, the parents have denied the maternal grandmother access to her grandchildren.In this context, the only question for this court is whether the grandmother's application, laid bare, justifies the conclusion that she has standing to be heard. Under CPLR 3211 (a), the facts alleged in her petition are presumed true and given every favorable inference. People v. Credit Suisse Sec. (USA) LLC, 31 NY3d 622 (2018); Connolly v. Long Island Power Authority, 30 NY3d 719 (2018). However, before analyzing the proof in this matter, this court must determine whether to convert this motion to dismiss under CPLR 3211 into a motion for summary judgment under CPLR 3212. In that regard, the court notes that the parents of the children presented a lengthy 87-paragraph attorney's affidavit and a 40-paragraph affidavit from the parents in support of the [*2]motion to dismiss. The grandmother also produced a series of affidavits from family members, attesting to her view of the relationship between the grandparents and the children. These factual documents from either side could easily provide the basis for converting the motion to dismiss into a motion for summary judgment on the issue of standing.
However, in an exercise of discretion, this court declines to convert the respondent's pre-answer motion to dismiss the petition pursuant to CPLR 3211 (a) (7) into a motion for summary judgment because the respondents never notified the parties of their intention to convert the motion. Mihlovan v. Grozavu, 72 NY2d 506 (1988) (the unilateral actions of a party in seeking summary judgment on a CPLR 3211 (a) (7) motion cannot constitute "adequate notice" to the other party in compliance with the requirement of CPLR 3211 (c)). This court, during oral argument, never told either party that it would treat the pending motion as one for summary judgment. Nor can it be said, in this case, that "both sides made it unequivocally clear that they [were] laying bare their proof and deliberately charting a summary judgment course." Pesce v. Leimsider, 59 Misc 3d 23 (Sup.Ct. App. Term. 2d Dept 2018); Bowes v. Healy, 40 AD3d 566 (2d Dept 2007); Four Seasons Hotels v. Vinnik, 127 AD2d 310, 320 (1st Dept 1987).
In this procedural posture, standing in the context of a grandparent's right of access to their grandchildren is governed by Domestic Relations Law §71 (1), which provides that a grandparent can intervene if "circumstances show the conditions exist in which equity should intervene." The statute, as several courts have recognized, rests on the humanitarian concern that "' 'visits with a grandparent are often a precious part of a child's experience and there are benefits which devolve upon the grandchild . . . which he cannot derive from any other relationship." Emanuel S. v. Joseph E., 78 NY2d 178 (1990). As the Court of Appeals added:
an essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship. It is not sufficient that the grandparents allege love and affection for their grandchild. They must establish a sufficient existing relationship with their grandchild, or in cases where that has been frustrated by the parents, a sufficient effort to establish one, so that the court perceives it as one deserving the court's intervention. If the grandparents have done nothing to foster a relationship or demonstrate their attachment to the grandchild, despite opportunities to do so, then they will be unable to establish that conditions exist where "equity would see fit to intervene."Id. at 182-83. This court also notes that it may also consider any evidentiary allegations that the grandmother, if frustrated in establishing a relationship, has exercised a sufficient effort to establish a loving and nurturing relationship with her grandchildren. Matter of Wilson v. McGlinchey, 2 NY3d 375, 380 (2004)
In evaluating this petition on the limited basis permitted by CPLR 3211 (a), the court notes that the grandmother alleges that she enjoyed a "loving relationship" with the grandchild "Noost of their young lives." The grandmother alleges that she stayed in the children's home in California, caring for the children on an almost daily basis until June 2016. She further alleges that she visited the grandchildren "frequently" and spent a significant amount of time with them. When the family moved to Rochester in 2016, they lived with the grandmother for one month and she spent significant time with them and she "helped care for them." Even after the grandmother was denied access to the children, the grandmother alleges that she exerted efforts to obtain access to the children. The grandmother alleges that in March 2017, she went to the grandchildren's house to deliver a present for one of her granddaughters. When she left the present at the house, she alleges that she was walking back to her car when her granddaughter [*3]greeted her and hugged before her daughter, the child's mother, intervened and told the child to avoid her grandmother. The grandmother also alleges that she attended a family party in March 2017, but she was denied access to her grandchildren. The grandmother finally alleges that she sent texts message and emails to the parents of the children, asking for access, but none were returned. The grandmother also hired counsel and authorized sending a letter to the parents, asking for access, but that entreaty was also denied. All these allegations are contained solely in the petition before the court and the court does not consider the allegations contained in the numerous family affidavits or the affidavits of the grandfather and grandmother which are attached to the grandmother's responding papers.
The New York Legislature charted a broad right of access for grandparents in seeking access to their grandchildren. The language of DRL §71 leaves substantial discretion to trial courts in evaluating the "equity to intervene." The New York courts, implementing this board discretionary legislative grant, have given grandparents a wide berth in seeking to establish standing in these cases. In Vandenburg v. Vandenburg, 137 AD3d 1498 (3d Dept 2016), the court, in affirming a grant of standing to the grandmother, noted that the grandmother had cared for the child when she was very young and when informed that no further visitation would be permitted, the grandmother regularly called, sent text messages and once placed a balloon and card on the mother's car. The court found that the grandmother had standing because she had established a relationship during the early parts of the child's life. As in this case, the mere passage of time in which the grandmother has not visited with the children does not defeat the grandmother's standing. Wendy KK v. Jennifer KK., 160 AD3d 1059 (3d Dept 2018) (two years without visits does not defeat a standing claim). In Laudadio v. Laudadio, 104 AD3d 1091 (3d Dept 2013) the grandmother alleged that she was a consistent part of the child's life during the first two months of her life, until an incident occurred that created an estranged relationship between the mother and the grandmother and based on these numerous visits in the first month of the child's life, the court found standing. The court also added, in a pertinent observation that impacts the conclusion in this matter, that "in assessing the sufficiency of the grandparent's efforts [to create a relationship with the child], what is required of grandparents must always be measured against what they could reasonably have done under the circumstances." Id. at 1093.
This court notes that the grandmother here also produced a lengthy affidavit in which she detailed the extent of her relationship with the children and her efforts, after the estrangement to maintain a relationship with them. But, as noted earlier, this court is not now concerned with whether the mother can prove that she has a necessary relationship with her grandchildren to permit her to have visitation over the parent's objection or that access by the grandmother would be in the children's best interests. The only issue before this court is whether the grandmother alleges sufficient facts to create a prima facie entitlement to standing under DRL §71. The respondents, despite lengthy affidavits, have failed to demonstrate that the material facts alleged by the grandmother as a predicate for standing are "not a fact at all' and that "no significant dispute exists regarding it." Guggenheimer v. Ginzberg, 43 NY2d 268 (1977); Matter of 54 Marion Ave LLC v. City if Saratoga Springs, 162 AD3d 1341 (3d Dept 2018). Based on the allegations in this petition, the grandmother has established standing and hence, the respondent's motion to dismiss is denied.
SUBMIT ORDER ON NOTICE. 22 NYCRR 202.
Dated: February ______, 2019
_______________________________
Richard A. Dollinger, A.J.S.C.
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