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Posts Tagged ‘New York Appellate Division First Department’

N.Y. Appellate Division Upholds Vacating Adoption by Father’s New Boyfriend on Petition by Father’s Husband

Posted on: October 3rd, 2017 by Art Leonard No Comments

On September 28, 2017, a unanimous five-judge panel of the N.Y. Appellate Division, First Department, held that New York County Family Court Judge Stewart H. Weinstein had properly granted a motion by Han Ming T., the husband of Marco D., to vacate a May 2016 order that had granted an adoption petition by Carlos A., Marco’s boyfriend, to adopt a child conceived through gestational surrogacy using Marco’s sperm at a time when Marco and Han Ming were subsequently deemed to be married.  Ming, who had initiated a divorce proceeding in Florida in which he sought joint custody of the child, then unaware that the adoption petition had been filed in New York, showed that he was entitled to notice of the adoption petition and respect for his parental rights.  Carlos and Marco had failed to inform the Family Court that the status of the child in question was implicated in an ongoing divorce proceeding, so that court had originally granted the adoption unaware that there was a legal impediment as the consent of Ming was lacking. In re Maria-Irene D., 2017 N.Y. App. Div. LEXIS 6713, 2017 WL 4287334, 2017 N.Y. Slip Op 06716.

Marco and Ming, who are both British citizens, entered a formal civil partnership in the U.K. in 2008, which they converted into a legal marriage in 2015. Under British law, their marriage was treated as retroactive to the date of their civil partnership.  Between those two dates they had relocated to the U.S., living in Florida.  In 2013 they undertook to have a child through gestational surrogacy, a process by which an egg is extracted from a donor, fertilized in a petri dish, and then implanted in a surrogate.  Both men contributed sperm for several in vitro fertilization attempts; the one that “took,” using Marco’s sperm, was implanted in the surrogate.  This process was carried out in Missouri, where the child, who was named after the mothers of both men, was born in September 2014.  A Missouri court then terminated any parental rights of the egg donor and the surrogate and designated Marco, the genetic father, as having “sole and exclusive custody” of the child.  “Marco, Ming, and the child returned to Florida, where they lived as a family until October 2015, when Ming returned to the UK to seek employment,” wrote the court.

But evidently the relationship of the men was complicated during that time, because, the court reports, “At some point in or after 2013, Marco entered a relationship with petitioner Carlos A., and they moved to New York with the child after Ming went to the U.K.” Carlos petitioned the New York County Family Court to adopt the child in January 2016.  The adoption papers “disclosed that Marco and Ming were married in 2008, but alleged that they had not lived together continuously since 2012 and that Carlos and Marco have been caring for the child since her birth.  A home study report stated that Marco and Ming legally separated in 2014 and had no children together.”  That Ming had participated in the surrogacy process and that Marco, Ming and the child lived together as a family thereafter were not disclosed to the Family Court in the adoption proceeding.   Neither did Carlos and Marco disclose to that court prior to the adoption order being granted that Ming had filed a divorce action in Florida in March 2016, seeking joint custody of the child.

The Family Court granted the adoption in May 2016. When Ming learned of this, he filed a motion in the Family Court to vacate the adoption “on the ground that relevant facts had not been disclosed to the court and that he was entitled to notice of the adoption and an opportunity to be heard since he had parental rights.”  Judge Weinstein granted Ming’s motion and vacated the adoption, finding that Carlos and Marco made “material misrepresentations” to the court and that Ming was entitled to notice of the proceeding.  Weinstein did leave open the possibility that depending how the divorce proceedings were resolved in Florida, Carlos might later renew his petition to adopt the child.  Carlos moved for re-argument, but the motion was denied, and Carlos and Marco appealed.

The Appellate Division found that the Family Court “providently exercised its discretion in vacating the adoption.” Since the Marco-Ming marriage was retroactive to 2008 under U.K. law, it would be recognized as such under New York law as a matter of comity.  Which meant that the child, born in 2014, was a child of the marriage, “giving rise to the presumption that the child is the legitimate child of both Marco and Ming.”  The court noted Ming’s allegation that they lived together as a family in Florida, and that “the couple took affirmative steps in the U.K. to establish Ming’s parental rights in accordance with U.K. law.”  The court doesn’t explain this further.  Perhaps it refers to their subsequent 2015 marriage, which had retroactive effect under U.K. law to 2008, thus establishing Ming’s parental status, regardless of the Missouri judgement awarding Marco sole and exclusive custody.  (One has to factor into the mix that in 2014 same-sex couples could not marry in Missouri and their U.K. legal status as civil partners when the child was born would have no recognition under Missouri law, so naturally a Missouri court at that time would not recognize Ming as having any legal relationship to the child.)

“The prevailing law at the time the adoption petition was granted does not compel a different result,” said the court. As far as this court was concerned, as a matter of New York law according comity to the retroactive effect of their U.K. marriage, “Marco and Ming were deemed legally married when they embarked on the surrogacy process to have a child together.  Accordingly, the child was born in wedlock, and Ming was entitled to notice of the adoption proceeding.  Under the Court of Appeals’ most recent decision concerning parental standing (Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488 [2016]), Ming’s claim to have standing as a parent is even stronger.”

The court also found the failure by Carlos and Marco to disclose the Florida divorce proceeding to the Family Court to be “another ground to vacate the adoption,” since an adoption petition requires the petitioner to disclose to the court whether the child is the subject of any other legal proceeding affecting his or her custody or status, and Ming had petitioned for joint custody of the child in the Florida proceeding. Carlos and Marco learned of that proceeding a few months after Carlos’s adoption petition was filed, while that petition was still pending before the Family Court, so they had a duty to bring it to the attention of that court.  Instead, they filed a supplemental affidavit claimed that there had been no change in the child’s circumstances “whatsoever” since the filing of the adoption petition.

Ming is represented by Nina E. Rumbold of Rumbold & Seidelman, LLP (Bronxville). Carlos and Marco are represented by Frederick J. Magovern of Magovern & Sclafani, Mineola.  There is no attorney appointed to represent the child’s interest, a point that Carlos and Marco raised in their appeal but as to which the Appellate Division declined to rule.  The court’s opinion does not report on the current status of Ming’s Florida divorce proceeding.  It is possible that Ming and Marco are still legally married, which perhaps explains why Carlos and Marco are not?


Dangers of Home-Made Wills Shown by New York Appellate Ruling

Posted on: July 13th, 2015 by Art Leonard No Comments

A New York Appellate Division four-judge panel has affirmed a ruling by New York County Surrogate Nora Anderson that Ronald D. Myers’ home-made will should be construed to leave his stock portfolio, apart from some IBM stock, to his mother rather than to his same-sex life partner.  Ephraim v. O’Connor, 2015 WL 4002277 (N.Y. App. Div., 1st Dep’t, July 2, 2015).  The ruling turned on the ambiguities of a document drafted without the assistance of a lawyer and the application of standard rules of contract construction that appear to contradict the likely intention of the gay testator.

In his will, Ronald Myers wrote that he left “all monies” to his mother, and “all stocks of I.B.M.” and “all personal property” to his life partner, whom he referred to as his “close friend.” He designated his mother and his life partner to be co-executors.

At the time he made his will, Myers’ sole stock ownership was I.B.M. shares, but by the time of his death his portfolio included other significant stock holdings.  He never revised his will to explicitly indicate how the rest of his stock should be distributed.  The dispute between the co-executors was whether the rest of the stock portfolio would go to Myers’ mother or his life partner (who is not named in the court’s opinion, the case being litigated by Martin Ephraim as “fiduciary of the deceased executor for the Estate of Ronald D. Myers”).

The surviving partner argued that corporate stock is “personal property” and thus should go to him.  Myers’ mother argued that by specifically designating I.B.M. stock to his partner, Myers signaled that he did not intend his other stock to go to the partner as well.

New York County Surrogate Anderson opted for the mother, who is now deceased as is Myers’ former life partner, so the dispute is actually between successors in interest on both sides.

Attorney Tom Shanahan, representing the fiduciary for the deceased life partner, argued that the stock should come within the term “personal property” rather than “monies” and go to his client, and that Surrogate Anderson had improperly favored the mother over the life partner in resolving this interpretive dispute, based on a traditional preference of resolving ambiguities on inheritance in favor of legal relatives.  Farrell Fritz, attorney for the mother’s estate, pressed the general rule of construction that the specific bequest of I.B.M. stock implies that Myers did not consider his other stock holding to come within the general category of “personal property” so it should go to the mother.

The Appellate Division was not sympathetic to Shanahan’s argument, writing: “The court properly interpreted the will as intending to bequeath to decedent’s mother the stock in companies other than IBM, in view of the limiting language of the bequest to his life partner and the broad language of the bequest to his mother.  If decedent viewed stock as ‘personal property,’ he would not have expressly noted the bequest of the IBM stock, since it would have been included in the more general bequest to his life partner.”  Since Myers did not own any stock other than I.B.M. stock at the time he wrote the will, one could argue that his failure to mention other stock specifically was not evidence of such an intention, but rather the oversight of somebody unaware of the intricacies of drafting wills.

Finding that the court’s reliance on this linguistic distinction was “proper,” the court also found that because the will itself referred to the partner as his “close friend,” the court’s “reference to decedent’s life partner as a ‘friend’ does not show that the court relied on a presumption in favor of relatives or that it marginalized or disregarded decedent’s long-term relationship with his life partner.”  Thus, the court rejected Shanahan’s argument that Surrogate Anderson’s reference to the surviving partner as a “friend” of Myers in her opinion was dismissive of the men’s relationship.  Of course, at the time the will was made many years ago, it might have been prudent for a gay testator to refer to his partner as a “close friend,” since a reference to somebody as a “lover” could open the door to “undue influence” arguments, which had traditionally been raised by surviving legal relatives in contesting gay people’s bequests to their surviving partners.  At the time this will was drafted, New York State did not provide any legal status for same-sex partners, so Myers’ partner could not have been referred to as a “spouse” or “husband.”

N.Y. Appellate Panel Finds Discharge is Disproportionate Penalty for Teachers Accused of Having Lesbian Sex in a Classroom

Posted on: March 23rd, 2014 by Art Leonard No Comments

In a pair of decisions issued on March 24, the New York Appellate Division, First Department, found that the New York City Education Department should not have discharged two female teachers who were alleged to have been engaging in sexual activity in a darkened, otherwise empty classroom one evening while a musical program was taking place elsewhere in the building. However, the court found that the teachers had engaged in conduct that merited punishment, and sent the case back to the Education Department for imposition of “a lesser penalty.” The court’s opinion made nothing of the gender of the teachers. A spokesperson for the Education Department expressed disappointment with the decision, and there were reports that the Department might seek review from the state’s highest bench, the Court of Appeals.

Alini Brito was a Spanish teacher and Cindy Mauro was a French teacher, both assigned to James Madison High School in Brooklyn. On November 20, 2009, they joined with other colleagues to have dinner and then return to the school to watch a music competition in the auditorium. Brito and Mauro slipped out during the performance and were later allegedly observed by a school employee in an upstairs classroom “partially undressed and engaging in what appeared to be sexually inappropriate behavior” with each other. The women contended that they were not engaged in sex and that the observer misconstrued what he saw. However, the Education Department claimed that their conduct “caused widespread negative publicity, ridicule and notoriety” to the school and the Department when somebody, who knew they had a juice story, talked to the newspapers, leading to widespread print and electronic media reporting about the incident.

The Education Department sought to discharge both teachers, and the union pursued grievances on their behalf to arbitration. The discharges were upheld in arbitration by the hearing officers, and the teachers appealed to New York Supreme Court, the trial court with jurisdiction over the case. The two trial court judges who heard the appeals came to differing conclusions. In Brito’s case, Justice Alice Schlesinger vacated the termination and the finding of misconduct and sent the case back to arbitration for a new hearing. However, in Mauro’s case, Justice Robert Torres enforced the arbitrator’s award, upholding the discharge. Both decisions were appealed, and an Appellate Division panel considered both cases together.

The panel found that Justice Schlesinger should not have substituted her judgment for the hearing officer about what the evidence showed. “Here, Supreme Court erred in substituting its judgment for that of the hearing officer. The hearing officer’s findings of misconduct . . . are supported by adequate evidence,” wrote the court. “Multiple witnesses gave interlocking and closely corroborating testimony indicating that petitioner engaged in sexual conduct with an adult colleague in a darkened and empty third-floor classroom on November 20, 2009, at about 9:00 p.m., while a student musical performance was under way in an auditorium on the first floor. There is no basis for disturbing the hearing officer’s credibility determinations.” This finding also confirmed Justice Torres’s conclusion in Mauro’s case that the teacher had engaged in misconduct.

But, said the court, “the penalty of termination of employment is shockingly disproportionate to petitioner’s misconduct.” The court observed that the teachers were present at the school as audience members, not in their official capacity as teachers, and that the incident “involved a consenting adult colleague and was not observed by any student.” Both teachers enjoyed academic tenure and had unblemished disciplinary records. Brito’s supervisor described her as “one of the best teachers she had ever worked with,” and the court noted that Mauro had “consistently satisfactory teaching ratings.”

In identical paragraphs in the two opinions, the court explained, “While petitioner’s behavior demonstrated a lapse in judgment, there is no evidence that the incident was anything but a one-time mistake. Of critical significance is that, unlike matters involving some sort of romantic involvement or other inappropriate conduct with a student, petitioner’s engaging in consensual sexual conduct with an adult colleague is not in and of itself either criminal or otherwise improper. Indeed, lesser penalties have been imposed where a teacher had an ongoing relationship with or engaged in inappropriate behavior with a student. Nor is there any indication in the record that petitioner’s conduct will affect her ability to teach or that she intended to inflict any damage on any student. While it is unfortunate that the incident garnered so much attention and was exploited in the media, that in and of itself does not warrant the penalty of termination.”

This opinion is an extraordinary example of how drastically things have changed over the last several decades. There was a time when the mere hint that a teacher was lesbian or gay would result in a discharge, back when all gay sex was condemned as criminal. New York’s highest court voided the state “sodomy” law’s application to private, consensual adult conduct in 1980, however, and in 1986 the City Council passed an ordinance forbidding sexual orientation discrimination. These actions were amplified when the state legislature repealed the sodomy law and passed the Sexual Orientation Non-Discrimination Act early in this century, and of course in 2003 the U.S. Supreme Court ruled that private adult consensual homosexual sex came within the sphere of liberty protected under the 14th Amendment. What could have been seen as criminal and scandalous decades ago became the object of ridicule by some elements of the media in 2009, and now a state appellate court says that the teachers deserve some punishment for this lapse in judgment for engaging in this conduct in an unlocked classroom while an evening event was happening at their school auditorium, but not discharge.

The teachers were both represented by Michael Valentine and Aaron Altman of the firm Altman Schochet. The judges on the unanimous appellate panel were Angela Mazzarelli, Richard Andrias, Leland DeGrasse, Helen Freedman and Judith Gische. The unsigned opinions were the collective work of the panel, not attributed to any individual justice.