Matter of Alex A. v Nivia A.

[*1] Matter of Alex A. v Nivia A. 2019 NY Slip Op 50714(U) Decided on May 9, 2019 Family Court, Bronx County Taylor, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 9, 2019
Family Court, Bronx County

In the Matter of Alex A., Petitioner,

against

Nivia A., Respondent.



REDACTED



Geoffrey Berman, Esq., for Cardinal McCloskey

Katherine Tracey, Esq., Assigned counsel for the petitioner

Elizabeth Posse, Esq., Assigned counsel for the child
Gilbert A. Taylor, J.

Procedural History

The subject child Malachi A. was born on February 1, 2011 and has been in the care of Cardinal McCloskey Community Services (hereinafter, "Cardinal McCloskey") continuously since August 24, 2011, when an Article 10 petition was filed by the Administration for Children's Services (hereinafter "ACS") against his mother, Nivia A. (hereinafter, "Respondent").

On December 3, 2013, Cardinal McCloskey filed a termination of parental rights petition against the Respondent in Bronx County Family Court, alleging in part that there was no man who had the right to notice of the termination of parental rights proceeding pursuant to Social Services Law ("SSL") 384-c, or whose consent to the child's adoption is required by Domestic Relations Law ("DRL") 111.

On October 6, 2014, petitioner Alex A. (hereinafter, "Petitioner") filed a paternity petition in Bronx County Family Court, seeking a declaration of paternity. This petition was dismissed without prejudice on October 9, 2014 by Referee Guido due to the Petitioner's failure to appear.

On October 9, 2014, the Petitioner filed a second paternity petition in Bronx County Family Court, seeking "a declaration of paternity, an order of support and such other and further relief as may be appropriate under the circumstances."

On November 3, 2014, an appearance was scheduled to discuss the possibility of settlement on the termination matter given that the approved goal at the permanency hearing on the Article 10 matter held on October 9, 2014 was "Return to Parent." The Petitioner's paternity petition was not on the docket for this day. The matter was adjourned to January 28, 2015.

On January 28, 2015, a scheduled court attorney conference was held. The Petitioner was present, but he was asked to remain outside the conference room and was given a return slip with an adjourn date of March 6, 2015. The Petitioner was instructed to obtain a new summons for service from the petition room for that March 6, 2015 appearance before the Honorable Karen Lupuloff.

On March 6, 2015, both the paternity and termination of parental rights dockets came before Judge Lupuloff. Testimony was taken on the termination matter, specifically as it related to the existence of whether there is any man entitled to notice of the termination proceeding. During that proceeding, Judge Lupuloff made a finding that, as to Malachi, there is no man entitled to notice of the proceeding to terminate parental rights to the child pursuant to Section 384-c of the Social Services Law or whose consent to the adoption of the child is required before the child was freed for adoption pursuant to Section 111 of the Domestic Relations Law.[FN1] As far as the record reflects, the Petitioner was not assigned an attorney nor was any testimony taken on the issue of establishing or declaring paternity for the Petitioner as it related to his paternity petition. Furthermore, there were no orders issued for genetic marker testing to be conducted. Nonetheless, on this date, the Petitioner's paternity petition was dismissed with prejudice on the premise that there were findings made by clear and convincing evidence pursuant to the termination petition that there is no man entitled to notice (of these proceedings) and no consent father.

Additionally, on March 6, 2015, as to the Respondent, Judge Lupuloff dismissed the termination of parental rights petitions filed against her, finding that Cardinal McCloskey failed to meet its burden of proving by clear and convincing evidence that she permanently neglected her children.

On July 8, 2015, the underlying Article 10 matter was scheduled for a permanency hearing. At that time, there was mention that Cardinal McCloskey had filed a notice of appeal regarding the dismissal of the termination of parental rights petitions, but that the agency had not yet perfected the appeal. By September 8, 2015, Cardinal McCloskey perfected its appeal, and the matter was calendared for the First Department Appellate Division's November 2015 term. [*2]The trial court's decision was affirmed by the First Department Appellate Division on May 19, 2016.

On November 13, 2015, findings of fact, conclusions of law and an order of disposition were certified and entered as to the termination matter, finding in part that there is no known male who is entitled to notice of the termination proceeding or of Malachi's adoption pursuant to Section 384-c of the Social Services Law, or whose consent to the adoption of Malachi is required pursuant to Section 111 of the Domestic Relations Law.

On February 11, 2016, the Petitioner filed a third paternity petition in Bronx County Family Court, seeking "a declaration of paternity, an order of support and such other and further relief as may be appropriate under the circumstances." This petition was dismissed without prejudice on February 18, 2017 by the Honorable Karen Lupuloff due to the Petitioner's failure to appear.

On May 10, 2017, a new termination of parental rights petition was filed by Cardinal McCloskey against the Respondent, alleging that she permanently neglected Malachi.

On October 31, 2017, the Respondent executed a conditional surrender and an order terminating her rights was signed by this Court. Accordingly, the child Malachi was freed for adoption.

On June 5, 2018, the Petitioner filed the instant paternity petition, seeking "a declaration of paternity, an order of support and such other and further relief as may be appropriate under the circumstances."

On June 14, 2018, the paternity petition was scheduled for a first appearance. Over the objection of the Attorney for the Child, the Court ordered genetic marker testing; since the child is freed for adoption, but not yet adopted, the Court deemed it in the best interests of the child for paternity to be established. The Attorney for the Child was given 14 days to file any papers opposing the genetic marker testing test. There were no objection papers filed within that time frame.

On August 13, 2018, the matter was scheduled for a permanency hearing on the docket for the conditional surrender. On this date, the Petitioner was present, and the results of the genetic marker testing revealed that he is the biological father of Malachi. The matters were adjourned to September 20, 2018 for continued permanency hearing and status on the paternity petition.

On September 20, 2018, the Petitioner was assigned counsel to represent him. The Attorney for the Child sought an estoppel hearing and opposed the entry of an order of filiation for the Petitioner.

On October 25, 2018, counsel for the Petitioner requested visitation, and the Court denied that application. The Attorney for the Child indicated an intent to pursue an estoppel hearing, and the hearing was scheduled for the following court appearance. This Court indicated it would postpone Malachi's adoption until any such estoppel hearing is completed.

On December 21, 2018, the matter was scheduled for a permanency hearing as well as an estoppel hearing. However, testimony was not taken due to counsel for the Petitioner seeking to [*3]be relieved. The Petitioner's attorney was relieved, and the Petitioner was assigned another 18B attorney. The estoppel hearing was rescheduled to March 1, 2019 to accommodate newly assigned counsel.

On January 3, 2019, counsel for Cardinal McCloskey filed a Notice of Motion seeking an order to dismiss the instant petition in its entirety based on the doctrine of res judicata.

On February 19, 2019, the Attorney for the Child filed an Affirmation in Support of the agency's motion. Additionally, the Attorney for the Child argued that the Petitioner should be collaterally estopped from establishing paternity.

On February 28, 2019, counsel for the Petitioner filed an Affirmation in Opposition of the agency's motion.

On March 1,2019, the matter was scheduled for commencement of an estoppel hearing. With respect to the motion filed by Cardinal McCloskey, the Court did not dismiss the paternity petition, but did grant the agency's motion to the extent that an estoppel hearing was to be held. The estoppel hearing started on March 1, 2019, and the Petitioner was called as the Attorney for the Child's first witness. The matter was adjourned to May 13, 2019 for Malachi's foster parents to be called as additional witnesses.

On April 4, 2019, a petition was filed seeking review of a substantial failure of a material condition of the Respondent's conditional surrender. The failed material condition asserted by the agency was that Malachi's foster father recently passed away. Cardinal McCloskey's noted that their plan going forward is for Malachi to be adopted solely by his surviving foster mother.

Legal Analysis:

Cardinal McCloskey asserts that the Petitioner's paternity petition should be dismissed because the Petitioner had a prior paternity petition that was dismissed with prejudice. Cardinal McCloskey further argues that a dismissal with prejudice is a final judgment which renders a case res judicata on the claims that were previously brought. In this particular case, the Court rejects their argument.

There is no question that a party is entitled to move for judgment dismissing one or more causes of actions asserted against him on the ground that the cause of action may not be maintained because of res judicata. See CPLR 3211(a)(5). Generally, a case that is dismissed with prejudice usually cannot be reopened and refiled, as it signifies that a court intended to dismiss an action on the merits. Yonkers Cont. v. Port Authority Trans-Hudson Corp., 93 NY2d 375, 380, 690 N.Y.S.2d 512, 712 N.E.2d 678 (Ct App 1999). However, it is not an absolute that a case can never be refiled if it previously had been dismissed with prejudice. Stacey O. v. Donald P., 137 AD2d 965 (3d Dept 1988). Under very narrow circumstances, it is within a trial court's discretion to permit a new petition to be filed requesting the same relief. Id. Discretion to reconsider a previous petition that was dismissed with prejudice or decided on the merits is often extended in circumstances when a [*4]judge is persuaded that the original decision to dismiss was somehow an error or new evidence found that was not previously discovered at the time of the dismissal may also serve as proper grounds to reopen a case. Id.; Matter of John D. v. Raymond B., 52 AD2d 636 (2d Dept, 1976)

Overall, the standard for the application of the doctrine of res judicata is "whether the issue as to which preclusion is sought is identical to the issue decided in the prior proceeding, ii) the issue had necessarily been decided in the prior proceeding, and iii) the litigant who will be held precluded in the present proceeding had a full and fair opportunity to litigate the issue in the prior proceeding; additionally, the issue must be the point actually to be determined in the second action or proceeding such that a different judgment in the second would destroy or impair rights or interests established by the first." Under 21, Catholic Home Bureau for Dependent Children v. City of New York, 126 Misc 2d 629, 481 N.Y.S.2d 632 (1984). If a trial court determines that these elements have not been met, then res judicata is unavailable as a defense to prevent a trial pursuant to a motion to dismiss. Newin Corp. V. Hartford Acc. & Indem. Co., 37 NY2d 211, 216, 371 N.Y.S.2d 884, 889 (Ct App 1975).

Finally, under current New York law, for res judicata to apply, there must have been privity between parties. For res judicata purposes, "privity between litigants in earlier and later proceedings is determined by considering whether circumstances of actual relationship, mutuality of interests, and the manner in which a nonparty's interests were represented in earlier litigation establishes a functional representation such that the nonparty may be thought to have had a vicarious day in court." Slocum v. Joseph B., 183 AD2d 102 (3d Dept 1992).

For several reasons, this Court is not persuaded that the circumstances under which the Petitioner's prior petition was dismissed with prejudice necessitates the dismissal of his instant petition. From a review of the transcript of the prior proceeding, the testimony that was heard was taken within the context of a termination of parental rights proceeding. The specific inquiries made in the termination proceeding were narrowly tailored to the elements of DRL 111(d) and SSL 384-c: ascertaining whether there is any man entitled to notice of the proceeding to terminate parental rights to the child or whose consent to the adoption of the child is required before the child was freed for adoption. In contrast, the inquiries and legal determinations that are to be made to establish paternity are distinctly different and are not identical to those that are to be made in a termination proceeding. The actual issue of biological and legal paternity went unaddressed. Since the issues at hand are not based upon the same transaction that was previously considered in the earlier termination action, the Petitioner's petition is not barred by res judicata.

Additionally, the Court does not find that there was privity between the litigants of the termination proceeding and the paternity proceeding. The Petitioner, who was unrepresented prior to the filing of the current petition, did not participate in the March 6, 2015 termination of parental rights hearing. Given that there had been no findings made with respect to his paternity rights under either of his prior paternity petitions, he was not even named as a party to the termination proceeding and was not afforded the opportunity to participate. The record before this Court shows that on March 6, 2015, there were no questions asked of the Petitioner regarding his paternity petition, no arguments made about whether he should be equitably estopped from seeking to establish paternity and no inquiry made as to whether it would be in Malachi's best interest to order genetic testing. [*5]Rather, the record reflects that there solely were specifically tailored determinations made within the purview of a termination of parental rights matter, which frankly, have vastly different legal elements than what is to be considered in a paternity matter. As such, the doctrine of res judicata is inapplicable since the Petitioner did not have a full and fair opportunity to litigate the issue of paternity during the earlier proceeding.

ORDERED, that the matter is hereby adjourned to May 13, 2019 for continuation of the collateral estoppel hearing.

WHEREFORE, based on the foregoing, the Court hereby denies Cardinal McCloskey's motion to dismiss the Petitioner's paternity petition. Notify parties.

Dated:Bronx, New York

May 9, 2019

ENTER:

___________________________

Hon. Gilbert A. Taylor, J.F.C.

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Footnote 1:The Petitioner was present for the March 6, 2015 appearance, but he appeared late with his wife. As there had been no findings made with respect to paternity under the paternity petition and he was not a party to the termination matter, he did not participate in the termination proceeding.