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FAMILY COURT SHOULD HAVE MADE FINDINGS ENABLING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS), STATUTORY PROCESS LEADING TO IMMIGRATION DETERMINATION BY DEPARTMENT OF HOMELAND SECURITY EXPLAINED (THIRD DEPT).

The Third Department, reversing Family Court, in a full-fledged opinion by Justice Lynch, determined the child was entitled to findings which would enable him to apply for special immigrant juvenile status. The court explained the relevant steps in the immigration process:

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In November 2015, Family Court granted the petition of Ericza K. and appointed her as the permanent guardian of her brother, Jose YY., born in 2000 (hereinafter the child). In April 2016, the child moved for a threshold order that would enable him to petition the United States Citizenship and Immigration Services (hereinafter USCIS) for special immigrant juvenile status (hereinafter SIJS) which, in turn, would enable him to obtain lawful permanent residency in the United States … . A child seeking SIJS from USCIS must first obtain a special findings order from a state court with jurisdiction over the juvenile, which must determine that (1) the child is under 21 years of age, (2) the child is unmarried, (3) the child is dependent upon a juvenile court or legally committed to an individual appointed by that court, (4) reunification with one or both parents is not viable due to abuse, neglect, abandonment or a similar basis under state law, and (5) it would not be in the child’s best interests to be returned to his or her native country … . Upon such an application, the role of Family Court is to render specific findings as to the above criteria, with the ultimate determination as to whether to grant SIJS to a child to be made by USCIS and its parent agency, the Department of Homeland Security … . Correspondingly, it is not Family Court’s role to render an immigration determination … . * * *

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.. .[W]e conclude, upon our independent review of the record, that returning the child to Honduras would not be in his best interests … . The child testified that his father died in 2003 and his mother in 2012, and their death certificates are consistent with such testimony. After his mother’s death, he lived with an older sister who operated a billiards business, where the child was fearful and exposed to people smoking, drinking and using cocaine in his presence. That sister has since relocated to Virginia, and the child no longer has family residing in Honduras. In sharp contrast, his guardian has provided a stable home for the child where he feels safe and is attending school … . Matter of Jose YY. (Ericza K.), 2018 NY Slip Op 00375, Third Dept 1-18-18

FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD HAVE MADE FINDINGS ENABLING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS), STATUTORY PROCESS LEADING TO IMMIGRATION DETERMINATION BY DEPARTMENT OF HOMELAND SECURITY EXPLAINED (THIRD DEPT))/IMMIGRATION LAW (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD HAVE MADE FINDINGS ENABLING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS), STATUTORY PROCESS LEADING TO IMMIGRATION DETERMINATION BY DEPARTMENT OF HOMELAND SECURITY EXPLAINED (THIRD DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (FAMILY LAW, FAMILY COURT SHOULD HAVE MADE FINDINGS ENABLING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS), STATUTORY PROCESS LEADING TO IMMIGRATION DETERMINATION BY DEPARTMENT OF HOMELAND SECURITY EXPLAINED (THIRD DEPT))

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FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ENABLE THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should have made the findings to enable a child to petition for special immigrant juvenile status:

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… [T]he record supports a finding that reunification of the child with one or both of his parents is not viable due to parental neglect and abandonment … . The child testified that, while in El Salvador, although he was approached by gang members to join their gang during his walk to school, his parents did not make any arrangements for his transportation to and from school to ensure his safety or do anything to deter such recruitment activities although aware of such activities and the fact that a neighborhood boy, who resisted the gang’s efforts, was killed while traveling to another village … . Moreover, the child testified that his parents strongly encouraged him to leave the family home in El Salvador but did not provide alternate living arrangements and have not supported him since his arrival in New York.

Accordingly, the Family Court should have granted the petitioner’s motion for the issuance of an order, inter alia, making specific findings so as to enable the child to petition for SIJS. Since the record is sufficient for this Court to make its own findings of fact and conclusions of law, we find that reunification of the child with one or both of his parents is not viable due to parental neglect and abandonment. Matter of Nelson A. G.-L. (Maria Y. G. S.), 2018 NY Slip Op 00289, Second Dept 1-17-18

FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ENABLE THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/IMMIGRATION LAW (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ENABLE THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ENABLE THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))

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JUVENILE DELINQUENCY PETITION JURISDICTIONALLY DEFECTIVE, PETITION ALLEGING UNLAWFUL POSSESSION OF A WEAPON DISMISSED (SECOND DEPT).

The Second Department, reversing Family Court, determined the juvenile delinquency petition was jurisdictionally defective and dismissed it:

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For the petition, or a count thereof, to be sufficient on its face, the factual part of the petition or of any supporting depositions must set forth sworn, nonhearsay allegations sufficient to establish, if true, every element of each crime charged and the alleged delinquent’s commission thereof … . Such allegations must be set forth in the petition and/or the supporting depositions … . The failure to comply with this requirement constitutes a nonwaivable jurisdictional defect that deprives the court of subject matter jurisdiction to entertain the petition or count … . Here, neither the petition nor the supporting deposition provided sworn, nonhearsay allegations as to the appellant’s age, which is an element of the crime of unlawful possession of weapons by persons under 16 … . Matter of Ricki I., 2018 NY Slip Op 00291, Second Dept 1-17-18

FAMILY LAW (JUVENILE DELINQUENCY PETITION JURISDICTIONALLY DEFECTIVE, PETITION ALLEGING UNLAWFUL POSSESSION OF A WEAPON DISMISSED (SECOND DEPT))/JUVENILE DELINQUENCY (FAMILY LAW, JUVENILE DELINQUENCY PETITION JURISDICTIONALLY DEFECTIVE, PETITION ALLEGING UNLAWFUL POSSESSION OF A WEAPON DISMISSED (SECOND DEPT))/CRIMINAL LAW (JUVENILE DELINQUENCY PETITION JURISDICTIONALLY DEFECTIVE, PETITION ALLEGING UNLAWFUL POSSESSION OF A WEAPON DISMISSED (SECOND DEPT))/WEAPON, UNLAWFUL POSSESSION (FAMILY LAW, JUVENILE DELINQUENCY PETITION JURISDICTIONALLY DEFECTIVE, PETITION ALLEGING UNLAWFUL POSSESSION OF A WEAPON DISMISSED (SECOND DEPT))

RECORD DID NOT SUPPORT TERMINATION OF MOTHER’S PARENTAL RIGHTS DESPITE HER VIOLATION OF TERMS OF SUSPENDED JUDGMENT (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined the record did not support the termination of mother’s parental rights based on a violation of the terms of a suspended judgment:

Here, a preponderance of the evidence supported a finding that the mother failed to comply with certain conditions set forth in the suspended judgment. However, the evidence did not support the Family Court’s conclusion that it was in the best interests of the children to terminate the mother’s parental rights … .

,,, [T]he testimony elicited at the hearing demonstrated that the children emphatically wanted to be with the mother, that the mother regularly visited with the children until the court suspended all contact, and that there is a strong bond between the children and their mother. Further, the mother had not used illegal substances for a substantial period of time, was committed to her recovery, regularly attended AA meetings, completed programs related to issues of anger and domestic violence, obtained an order of protection against her abuser, and engaged in mental health treatment. In addition, while the court determined that the mother violated the terms of the suspended judgment, in large part, based on a finding that she failed to comply with a provision mandating ongoing involvement in a specified parenting class, the mother completed that class prior to the conclusion of the hearing.

Under these facts, we find that termination of the mother’s parental rights was not in the best interests of the children … . Matter of Skyler G. (Heather G.), 2018 NY Slip Op 00288, Second Dept 1-17-18

FAMILY LAW (PARENTAL RIGHTS, RECORD DID NOT SUPPORT TERMINATION OF MOTHER’S PARENTAL RIGHTS DESPITE HER VIOLATION OF TERMS OF SUSPENDED JUDGMENT (SECOND DEPT))/PARENTAL RIGHTS, TERMINATION (RECORD DID NOT SUPPORT TERMINATION OF MOTHER’S PARENTAL RIGHTS DESPITE HER VIOLATION OF TERMS OF SUSPENDED JUDGMENT (SECOND DEPT))/SUSPENDED JUDGMENT (FAMILY LAW, PARENTAL RIGHTS, RECORD DID NOT SUPPORT TERMINATION OF MOTHER’S PARENTAL RIGHTS DESPITE HER VIOLATION OF TERMS OF SUSPENDED JUDGMENT (SECOND DEPT))

LEAVING A 16 MONTH OLD CHILD UNATTENDED IN A BATHTUB WITH FOUR INCHES OF WATER CONSTITUTED NEGLECT, FAMILY COURT REVERSED (THIRD DEPT).

The Third Department, reversing Family Court, determined mother’s leaving unattended for several minutes a 16-month-old child in a bathtub with four inches of water constituted neglect. The child drowned:

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In our view, this evidence was more than sufficient to establish a prima facie case of neglect. Fundamentally, a reasonably prudent person would not leave a 16-month-old child unattended in a bathtub filled with four inches of water for any appreciable amount of time … . Through her own statement, respondent estimated that she was absent for 1 to 10 minutes. Doing so was “intrinsically dangerous” and has resulted in a heartbreaking tragedy for this family … . Where, as here, a prima facie case has been established, it became respondent’s obligation to offer “a reasonable and adequate explanation for how the child sustained the injury”… . Respondent opted not to testify and did not call any witnesses. Consequently, we conclude on the record before us that the petition should have been granted. Matter of Leah VV. (Theresa WW.), 2018 NY Slip Op 00201, Third Dept 1-11-18

FAMILY LAW (NEGLECT, LEAVING A 16 MONTH OLD CHILD UNATTENDED IN A BATHTUB WITH FOUR INCHES OF WATER CONSTITUTED NEGLECT, FAMILY COURT REVERSED (THIRD DEPT))/NEGLECT (FAMILY LAW, LEAVING A 16 MONTH OLD CHILD UNATTENDED IN A BATHTUB WITH FOUR INCHES OF WATER CONSTITUTED NEGLECT, FAMILY COURT REVERSED (THIRD DEPT))

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NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT).

The Second Department, reversing Family Court, determined that the appellant did not have an intimate relationship with petitioner and therefore Family Court did not have jurisdiction over the family offense proceeding against appellant and could not issue an order of protection. Even though the order of protection had expired, the continuing reputational consequences of the order of protection justified determining the appeal:

The petitioner is the live-in girlfriend of the appellant's brother. The petitioner and the appellant live in the same building, on different floors. The petitioner filed a family offense petition against the appellant, alleging that she had physically attacked and verbally threatened her. * * *

The Family Court is a court of limited jurisdiction, and “cannot exercise powers beyond those granted to it by statute”… . “Pursuant to Family Court Act § 812(1), the Family Court's jurisdiction in family offense proceedings is limited to certain prescribed criminal acts that occur between spouses or former spouses, or between parent and child or between members of the same family or household'” … . “[M]embers of the same family or household” include, among others, “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” … . Expressly excluded from the ambit of “intimate relationship” are “casual acquaintance[s]” and “ordinary fraternization between two individuals in business or social contexts” … . Beyond those delineated exclusions, what qualifies as an intimate relationship within the meaning of Family Court Act § 812(1)(e) is determined on a case-by-case basis … . Relevant factors include “the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship” … .

Here, the parties have no direct relationship and are only connected through a third party, who is the petitioner's live-in boyfriend and the appellant's brother. Additionally, the parties have never resided together and their contact with one another has been purely by happenstance, as they live in the same building. Accordingly, they do not have an intimate relationship within the meaning of Family Court Act § 812(1)(e). Matter of Royster v Murray, 2018 NY Slip Op 00151, Second Dept 1-10-18

FAMILY LAW (NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT))/FAMILY OFFENSES (FAMILY COURT, NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT))/INTIMATE RELATIONSHIP (FAMILY COURT, NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT))/CRIMINAL LAW (FAMILY OFFENSES, NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT))/APPEALS (FAMILY LAW, FAMILY OFFENSES, ORDER OF PROTECTION, NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT))/ORDER OF PROTECTION (APPEALS, FAMILY LAW, FAMILY OFFENSES, ORDER OF PROTECTION, NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT))

PRENUPTIAL AGREEMENT SHOULD HAVE BEEN SET ASIDE AS UNCONSCIONABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant-wife's motion to set aside the prenuptial agreement should have been granted:

“An agreement between spouses or prospective spouses should be closely scrutinized, and may be set aside upon a showing that it is unconscionable, or the result of fraud, or where it is shown to be manifestly unfair to one spouse because of overreaching on the part of the other spouse” …  “An agreement is unconscionable if it is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense'”… . An agreement that might not have been unconscionable when entered into may become unconscionable at the time a final judgment would be entered … . The burden of proof as to unconscionability is on the party seeking to set aside the agreement … .

Here, contrary to the Supreme Court's determination, the defendant sustained her burden of establishing that the prenuptial agreement was, at the time this action was before the court, unconscionable. Enforcement of the agreement would result in the risk of the defendant's becoming a public charge. The defendant, who is unemployed, largely without assets, and the primary caregiver for the parties' young children, would, under the prenuptial agreement, receive only $20,000, in full satisfaction of all claims, even though the plaintiff earns approximately $300,000 annually as a physician … . Taha v Elzemity, 2018 NY Slip Op 00188, Second Dept 1-10-18

FAMILY LAW (PRENUPTIAL AGREEMENT SHOULD HAVE BEEN SET ASIDE AS UNCONSCIONABLE (SECOND DEPT))/PRENUPTIAL AGREEMENT (FAMILY LAW, PRENUPTIAL AGREEMENT SHOULD HAVE BEEN SET ASIDE AS UNCONSCIONABLE (SECOND DEPT))/UNCONSCIONABLE (FAMILY LAW, (PRENUPTIAL AGREEMENT SHOULD HAVE BEEN SET ASIDE AS UNCONSCIONABLE (SECOND DEPT))/CONTRACT LAW (FAMILY LAW, PRENUPTIAL AGREEMENT SHOULD HAVE BEEN SET ASIDE AS UNCONSCIONABLE (SECOND DEPT))

PRIMA FACIE CASE OF NEGLECT BASED UPON MOTHER’S MENTAL CONDITION HAD BEEN MADE OUT, THE NEGLECT PETITION SHOULD NOT HAVE BEEN DISMISSED, FACT THAT MOTHER HAD NOT BEEN DIAGNOSED AS SUFFERING FROM A MENTAL ILLNESS WAS NOT DISPOSITIVE (SECOND DEPT).

The Second Department, reversing Family Court, determined a prima facie showing of neglect based upon mother's mental condition had been made. Therefore mother's motion to dismiss the neglect petition should not have been granted. The court noted that the fact that mother had not been diagnosed as having a mental illness was not dispositive:

… [T]he petitioner presented a prima facie case of neglect. At the fact-finding hearing, the petitioner introduced into evidence a recording of two 911 calls made by the mother's stepdaughter, in which she reported, among other things, that the mother, while holding the child, was hitting and slapping the mother's sister. She further stated that the mother was manic, yelling, throwing things, and getting violent. Additionally, the petitioner presented the testimony of the attending psychiatrist in the emergency room at Queens Hospital Center who, based upon his assessment of the mother's mental condition, found that she was unable to care for the child and ordered her admission into a psychiatric emergency program that requires frequent observation for at least 24 hours. The mother's hospital records, which the petitioner also introduced into evidence, demonstrated that the mother's mental condition, which was described as paranoid, violent, and lacking in insight and impulse control, had not resolved within 24 hours and necessitated her admission into the extended observation unit. Moreover, “[t]he absence of a diagnosed condition does not preclude a finding of neglect” … . Therefore, although the petitioner did not show that the mother had a specific diagnosed mental illness, the petitioner was not required to make such a showing to avoid dismissal…. . Matter of Catalina A. (Evelyn C.), 2018 NY Slip Op 00135, Second Dept 1-10-18

FAMILY LAW (NEGLECT, PRIMA FACIE CASE OF NEGLECT BASED UPON MOTHER'S MENTAL CONDITION HAD BEEN MADE OUT, THE NEGLECT PETITION SHOULD NOT HAVE BEEN DISMISSED, FACT THAT MOTHER HAD NOT BEEN DIAGNOSED AS SUFFERING FROM A MENTAL ILLNESS WAS NOT DISPOSITIVE (SECOND DEPT))/NEGLECT (FAMILY LAW, PRIMA FACIE CASE OF NEGLECT BASED UPON MOTHER'S MENTAL CONDITION HAD BEEN MADE OUT, THE NEGLECT PETITION SHOULD NOT HAVE BEEN DISMISSED, FACT THAT MOTHER HAD NOT BEEN DIAGNOSED AS SUFFERING FROM A MENTAL ILLNESS WAS NOT DISPOSITIVE (SECOND DEPT))/MENTAL ILLNESS (FAMILY LAW, NEGLECT, PRIMA FACIE CASE OF NEGLECT BASED UPON MOTHER'S MENTAL CONDITION HAD BEEN MADE OUT, THE NEGLECT PETITION SHOULD NOT HAVE BEEN DISMISSED, FACT THAT MOTHER HAD NOT BEEN DIAGNOSED AS SUFFERING FROM A MENTAL ILLNESS WAS NOT DISPOSITIVE (SECOND DEPT))

ALTHOUGH FOSTER MOTHER ENTITLED TO FOSTER CARE BENEFITS AT THE EXCEPTIONAL RATE AFTER THE CHILD WAS DIAGNOSED AS AUTISTIC, SHE WAS NOT ENTITLED TO THE EXCEPTIONAL RATE RETROACTIVELY FOR THE PERIOD OF FOSTER CARE BEFORE THE DIAGNOSIS (FIRST DEPT).

The First Department determined petitioner's (foster mother's) application for retroactive foster care benefits at the “exceptional” rate for the period before the child was diagnosed as autistic was properly denied:

The OCFS's [Office of Children and Family Services'] determination that the child did not meet the relevant criteria to qualify for “exceptional” rate foster care payments during the first 22 months she was in the foster mother's care is supported by substantial evidence, and is not arbitrary and capricious. It is undisputed that during this time no qualified psychiatrist or psychologist certified that the child had severe behavioral problems that required high levels of individualized supervision in the home (18 NYCRR 427.6[d][3]), and that no physician had certified that she required around-the-clock care or had been diagnosed by a physician with a qualifying illness such as autism … . The child was diagnosed with autism by a physician, her pediatrician, in July of 2014, and respondents correctly found that she was entitled to exceptional rate benefits following the time she was diagnosed … . In the absence of a diagnosis from the time the child was placed with the foster mother until the time of her diagnosis 22 months later, however, respondents correctly denied the foster mother's application for exceptional rate benefit … . Matter of Pascall v Poole, 2018 NY Slip Op 00099, First Dept 1-9-18

FAMILY LAW (FOSTER CARE, ALTHOUGH FOSTER MOTHER ENTITLED TO FOSTER CARE BENEFITS AT THE EXCEPTIONAL RATE AFTER THE CHILD WAS DIAGNOSED AS AUTISTIC, SHE WAS NOT ENTITLED TO THE EXCEPTIONAL RATE RETROACTIVELY FOR THE PERIOD OF FOSTER CARE BEFORE THE DIAGNOSIS (FIRST DEPT))/FOSTER CARE ( ALTHOUGH FOSTER MOTHER ENTITLED TO FOSTER CARE BENEFITS AT THE EXCEPTIONAL RATE AFTER THE CHILD WAS DIAGNOSED AS AUTISTIC, SHE WAS NOT ENTITLED TO THE EXCEPTIONAL RATE RETROACTIVELY FOR THE PERIOD OF FOSTER CARE BEFORE THE DIAGNOSIS (FIRST DEPT))/AUTISM (FAMILY LAW, FOSTER CARE, ALTHOUGH FOSTER MOTHER ENTITLED TO FOSTER CARE BENEFITS AT THE EXCEPTIONAL RATE AFTER THE CHILD WAS DIAGNOSED AS AUTISTIC, SHE WAS NOT ENTITLED TO THE EXCEPTIONAL RATE RETROACTIVELY FOR THE PERIOD OF FOSTER CARE BEFORE THE DIAGNOSIS (FIRST DEPT))/EXCEPTIONAL RATE (FOSTER CARE BENEFITS, AUTISM, ALTHOUGH FOSTER MOTHER ENTITLED TO FOSTER CARE BENEFITS AT THE EXCEPTIONAL RATE AFTER THE CHILD WAS DIAGNOSED AS AUTISTIC, SHE WAS NOT ENTITLED TO THE EXCEPTIONAL RATE RETROACTIVELY FOR THE PERIOD OF FOSTER CARE BEFORE THE DIAGNOSIS (FIRST DEPT))

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PLAINTIFF AND HIS ATTORNEY EACH SANCTIONED $5000 FOR FRIVOLOUS ACTION AND APPEAL (FIRST DEPT).

The First Department imposed $5000 sanctions (each) upon plaintiff and his attorney in this matrimonial matter. The underlying action attacking a stipulation (which had already been appealed) and the appeal were deemed frivolous:

We grant defendant's request that we impose sanctions upon plaintiff and his counsel (22 NYCRR 130-1.1[a]). The action below, and the appeal before us now, both of which counsel prosecuted, are plainly without merit (22 NYCRR 130-1.1[c][1]). Moreover, this appeal constitutes plaintiff's third unsuccessful challenge in this Court to the stipulation of settlement, which the parties entered into in 2012 … . In our 2016 decision and order, which affirmed, inter alia, an award of counsel fees to defendant, we held that the award was proper based in part on plaintiff's “multiple, unsuccessful attempts to void or rescind the support provisions contained in the stipulation” … . Where a matrimonial litigant engages in a “relentless campaign to prolong th[e] litigation,” sanctions in this Court are appropriate … . Sonkin v Sonkin, 2018 NY Slip Op 00011, First Dept 1-2-18

ATTORNEYS (PLAINTIFF AND HIS ATTORNEY EACH SANCTIONED $5000 FOR FRIVOLOUS ACTION AND APPEAL (FIRST DEPT))/APPEALS (FRIVOLOUS, PLAINTIFF AND HIS ATTORNEY EACH SANCTIONED $5000 FOR FRIVOLOUS ACTION AND APPEAL (FIRST DEPT))/SANCTIONS (FRIVOLOUS ACTION AND APPEAL, (PLAINTIFF AND HIS ATTORNEY EACH SANCTIONED $5000 FOR FRIVOLOUS ACTION … ND APPEAL (FIRST DEPT))/FAMILY LAW (SANCTIONS, PLAINTIFF AND HIS ATTORNEY EACH SANCTIONED $5000 FOR FRIVOLOUS ACTION AND APPEAL (FIRST DEPT))

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