NY CHILD WELFARE - NEWBORN TEMPORARILY PLACED WITH GRANDMOTHER

In this case, we have a newborn, an at-risk mother but with a credible grandmother. thus, the court feels that the risk is mitigated by supervision, and the child is temporarily placed with family, not removed.... noting of course that this is all temporary before trial.

MATTER OF KENDREW T., 2026 NY Slip Op 51004 - Kings Co. Family Court 2026:

"This neglect petition, which was filed by the Administration for Children's Services ("ACS" or "Petitioner") against the Respondent mother, Ms. Malaysia T, on June 5, 2026 alleges that Ms. Malaysia T. neglected her newborn son Kendrew by misusing drugs, specifically marijuana and cocaine, and not having been in a drug treatment program. Ms. Malaysia T. acknowledged smoking marijuana regularly while pregnant and believes it may have been laced with cocaine, leading to Kendrew's positive toxicology at birth. The ACS caseworker referred the mother for intake at a drug treatment program, as well as random screens, for Ms. Malaysia T. to engage in after she was released from the hospital but she failed to attend in the two months prior to the filing of the petition. Additionally, the petition alleges that Ms. Malaysia T. has a history of "multiple mental health diagnoses, including PTSD, ADHD, Borderline Personality Disorder, anxiety and depression" for which she has been hospitalized and had not received any treatment in at least 1 to 2 years. The ACS caseworker referred her for an evaluation at Kings County Hospital, where she gave birth, but the mother did not attend.

The subject child, Kendrew was born on XX/XX/2026, extremely premature at 26 weeks and he weighed only 1 pound 4 ounces at birth. At that time, Kendrew tested positive for cocaine and had a brain bleed, which the doctor's determined was unrelated to the presence of drugs in his system. As a result of his condition, Kendrew was placed in the NICU and it was initially unclear if he would survive, or if he would need months of hospitalization before he was ready for release. Contrary to expectations, Kendrew recovered much sooner, gained weight consistently and the brain bleed was resolved. During Kendrew's first month of life his mother, Malaysia, who is only 18, and his grandmother, Ms. Tanya T. visited him almost daily. Those visits were less frequent though still consistent, at least by the grandmother, during the infant's second month in the NICU.

Once Kendrew was ready for discharge, ACS filed this petition and requested a removal, opposing release to his mother, and also objected to placing the infant with his maternal grandmother which had been the family's plan. The basis for this objection was prior ACS involvement and an indicated case against the grandmother from 2023 and before for lack of supervision and guardianship over Malaysia due to her failure to attend school regularly and engage in mental health treatment, as well as an allegation that Tanya T, along with Malaysia, smelled of marijuana when they came to visit Kendrew in the hospital. The Respondent mother opposed the request not to release Kendrew to her care or that of her mother, and requested a hearing pursuant to FCA 1027. This Court ordered that Kendrew remain in the NICU, where his mother and grandmother could continue to visit him daily, pending the outcome of this hearing.

ACS called Caseworker Dorman as a witness and introduced various exhibits. The Respondent mother called her mother, Tanya T, as a witness and introduced exhibits, including scholarly articles. The Attorney for the Child ("AFC") did not introduce any evidence and, on summation, opposed a release to the mother but argued in support of a temporary direct placement with the maternal grandmother where the mother would be allowed to remain living in the home with a "no leave alone" order.

DECISION

The Court of Appeals in Nicholson has mandated that, in FCA 1027 hearings, Family Courts "weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal. It must balance that risk against the harm removal might bring, and it must determine factually which course is in the child's best interests. Additionally, the court must specifically consider whether imminent risk to the child might be eliminated by other means, such as issuing a temporary order of protection or providing services to the victim." Nicholson v. Scoppetta, 3 NY3d 357, 378-79 [2004].

This Court agrees with both ACS and the AFC that the infant would be at imminent risk of harm if released to his mother's care. Kendrew is still extremely vulnerable at only 4 pounds and this young first time mother would need support for his care under the best of circumstances. However, it is clear from the evidence that Malaysia has a long history of mental health issues going back to her early childhood, and more recently, a history of substance abuse in the form of very frequent marijuana use and on at least one instance, cocaine. However, Malaysia has stated that she is now willing to engage in treatment, and it is often the case that the reality of motherhood is a significant motivator in obtaining sobriety. When considering a child's safety and wellbeing, the Court must look not only to the present, but to the future as well. If there is an option that keeps Kendrew safe but also allows his mother to have daily contact with him and provides her with hope and incentive to believe she can regain responsibility for his care, this would clearly be in Kendrew's best interest.

The importance of the infant-mother bond on a child of this age cannot be understated. Studies have shown that interruption in this bonding process can have a life-long impact on a child's well-being that cannot be remedied.^[1] In writing about the "Developmental Issues for Young Children in Foster Care," the American Academy of Pediatrics stated, "Paramount in the lives of these children is their need for continuity with their primary attachment figures and a sense of permanence that is enhanced when placement is stable. There are critical periods of interaction among physical, psychological, social, and environmental factors. Basic stimulation techniques and stable, predictable nurturance are necessary during these periods to enable optimal cognitive, language, and personal socialization skills." Respondent's Exhibit C in evidence, Pediatrics Vol. 106 No. 5 November 2000, p. 1145-6.

Ms. Tanya T. had planned to be her grandson's primary caretaker from before his birth. She has maintained a stable 3-bedroom home which is lived in by her daughter as well as her older adult son who is caring for his teenage daughter. ACS found no safety concerns with the manner in which the home was kept. Since the landlord decided to sell the building, Ms. Tanya T. has already secured a new 3-bedroom apartment in the same neighborhood and she is moving into it this week. This should allow a seamless transition to the new home and there is no reason to believe that this new apartment will not be similarly safe for Kendrew. Ms. Tanya T. has already bought baby supplies and everything that is needed for Kendrew to come to her home including a car seat.

The prior ACS cases involving Ms. Tanya T. as a parent never reached the stage of a filing or any finding of neglect and they occurred when Malaysia was a teenager. This Court is well aware of the challenges faced by any parent of a teen who has a mental health diagnosis but does not wish to engage in mental health treatment or take prescribed medication. Regular school attendance, which is very difficult to obtain with any teen who is resistant, is made even more so when that teen has an untreated mental health condition. ACS has these same challenges with the many teens who are in the agency's care. Unfortunately, this situation remained true up to Kendrew's birth, as Malaysia continued to not engage in treatment after her 18th birthday last year. Neither Malaysia's mother nor the efforts of ACS changed that, and even this Court does not have the power to force Malaysia to obtain the help she clearly needs for both her mental health and substance abuse. The Court can only hope that the birth of her son has in fact motivated that change. Therefore, this prior ACS involvement does not, in the Court's opinion, render Tanya T. an unsafe or inappropriate caretaker for her infant grandson.

As for the allegations of potential marijuana use by Tanya T. herself, the Court finds these to be vague and unsubstantiated. ACS did not call any witness from the hospital who had allegedly "smelled" marijuana coming from the grandmother. Therefore, it is asking the Court to exclude this infant's maternal grandmother as a resource simply on the basis of a claim that is documented in the ACS record from an unnamed source. Specifically, the ACS case record in evidence contains three hearsay references to this allegation. The first, dated April 23rd, states that the Kings County hospital ("KCH") social worker informed the Caseworker Dorman that "she has received reports from nurses that the mother and MGM has [sic] been to visit smelling of marijuana and on one occasion the mother appeared high and could not even hold herself up." The second entry from June 1st states that a Dr. Lahage stated that "the mother and MGM come in [sic] smelling of marijuana and the mother had to be put out of the NICU one time." The last mention of this allegation is that, on May 7th, "CPS obtained collateral from KCH nurse who stated that there was report of the mother visiting the baby and noted to be smelling of marijuana and high on something where she could barely stay up. The nurse also noted that MGM also reeked of marijuana smell." Petitioner's Exhibit 3 in evidence, pp. 50, 60, & 62. Several aspects of these entries are notable and diminish the weight this Court will give them. First, they are all very similar in language and could well have all come from one nurse on one date, especially in regard to the alleged marijuana scent from the maternal grandmother. It is impossible to tell because the caseworker did not obtain the dates of these observations or the name(s) of the person(s) who made them; nor did Ms. Dorman speak to that person directly. Additionally, there is nothing in the record as to whether Ms. Tanya T. was asked about the alleged smell or her marijuana use and what if any response she gave. Further, unlike Ms. Malaysia T. who is observed to be high and unable to hold herself up, there is no such allegation as to Ms. Tanya T.

During her testimony, Caseworker Dorman acknowledged that Ms. Tanya T. had denied any marijuana use when asked and that she had never observed the grandmother to appear under the influence of any substance or smelled marijuana on her. The caseworker testified that she did not smell any marijuana in the apartment when she made a home visit on April 7th and confirmed the presence of all the provisions for Kendrew. She acknowledged that the smell of marijuana is present in the hallways of apartment buildings, including the grandmother's, and outside on the streets of NYC. In fact, this Court has experienced that, since marijuana has been legalized in New York State, people have even come to court on occasion smelling of marijuana. At those times, when the smell of marijuana fills the courtroom, this Court cannot tell which of the several people in the courtroom is responsible. While marijuana is legal and Ms. Tanya T. should not be faulted for its use any more than a person who drinks alcohol, it would indicate poor judgment and be of concern to the Court if a resource used either substance on the day one is visiting a premature and vulnerable baby in the NICU (or coming to court) to the extent where they have a scent of alcohol or marijuana. However, without the opportunity to hear directly from the person who allegedly sensed that smell on Ms. Tanya T. specifically and have her testimony be examined by other counsel, this Court cannot credit this as a basis to believe that Ms. Tanya T. used marijuana. It is also quite possible that the frequency of Malaysia's marijuana use has led to her having the scent of marijuana and that this smell transferred to the grandmother through close and extended physical contact.

The Court has had the opportunity to hear from Ms. Tanya T. directly as she testified credibly in this hearing. Ms. Tanya T. stated that she does NOT smoke marijuana and definitely did not smoke it on a day she was going to visit her grandson in the hospital. However, she was willing to go for drug testing and did take a test during the course of the hearing which was negative for marijuana and any illegal substances. She also expressed her concerns about her daughter's mental health and substance use over the years and her inability to get her daughter to engage in help. While she acknowledged some issues in the past with Malaysia's behavior such that the grandmother had called the police, the most recent being in March of 2025, Ms. Tanya T. expressed that her recent behavior, especially since Kendrew's birth had not been an issue in the home, and that she did not believe there would be any safety concern to allowing her daughter to remain living with them. She explained that she would have Kendrew sleep in the same bedroom as her own and would follow any order, including not to allow her daughter to be alone with Kendrew. Ms. Tanya T. also stated definitively that she would call the police again if needed to keep her grandson with her.

Although ACS has raised concerns about the grandmother's ability or willingness to enforce court orders that might require her to tell her daughter to leave the home or call the police, their counsel was not able to respond to the point made by the mother's attorney that clearly Ms. Tanya T. had shown her willingness to involve the authorities when needed by the prior Domestic Incident Reports ("DIR") placed in evidence where Ms. Tanya T. called the police. See Petitioner's Exhibit 5-8 in evidence, DIRs dated 2/12/20, 11/9/22, 11/23/22, 3/22/25. Ms. Tanya T. made these calls even without the incentive that would be at stake here, namely the grandmother losing the Court's trust in her ability to safely care for her grandson and risking having him removed from the home. Additionally, Ms. Tanya T's adult son, Mr. P, would also be living in the home and stated he would assist his mother and similarly was not concerned about his sister's current behavior being disruptive. See Petitioner's Exhibit 4 in evidence, ACS Court Report dated 6/9/26. His daughter is currently a subject of ACS intervention as there is a pending neglect case against her mother and the child has been released to her father, Mr. Parker. Thus, there is added adult supervision in the home as well as added ACS oversight.

As required by the Court of Appeals in Nicholson, this Court has balanced the risk of harm from removal against the risk of harm for Kendrew being in the care of his grandmother with his mother in the home, and this Court has found that the harm of removal of this newborn from family during this critical bonding period is greater than the theoretical risk that exists in that home given the evidence here and the fact that orders can be made to mitigate the risk by requiring that Ms. Malaysia T. not be left alone with her son and that she engage in mental health and substance abuse treatment as a condition of her living in the same home.

Therefore, at this time, the Court finds that Kendrew would be at imminent risk of physical, mental and/or emotional harm if he were released to his mother but that it is in his best interests to be temporarily directly placed with the maternal grandmother, Ms. Tanya T, under the following conditions:

1. Comply with ACS supervision including allowing announced & unannounced home visits;

2. Insure the infant sleep in the same room and Tanya T. and not allow Malaysia T. to be alone with him; or

3. All contact between Malaysia T. and her son must be closely supervised and if Malaysia T. uses or appears under the influence of substances in the home, or if she is interfering with the grandmother's care of the baby, Malaysia must be told to leave and the police must be called if she does not leave voluntarily;

4. Not leave Kendrew unattended and only with caretakers approved by ACS;

5. Insure Kendrew attends any necessary medical appointments and comply with any recommendations for him;

6. Submit to random screens twice per month and test negative for all substances including marijuana;

7. Not be under the influence of any non-prescribed drugs in the presence of the subject child.

The Respondent mother must engage in outpatient mental health and substance abuse treatment in order to remain in the home with the subject child as soon as a program is available. Kendrew is ordered to remain in the hospital until the grandmother Ms. Tanya T. insures the new apartment is safe for this premature infant which will be no later than THIS Friday June 19th.

[1] Newborns "suffer significant negative effects when taken from their parents, and especially when taken from their mothers. Studies show that newborns prefer the sound of their mothers' voice over those of other females, which doctors see as evidence that the period after birth is critical for bonding. It is also now widely accepted that skin-to-skin contact between parents and their babies in the first hours of life has significant health benefits for the infant. Physical contact and proximity to their parents is therefore crucial for infants." Respondent's Exhibit D in evidence, Shanta Trivedi, The Harm of Child Removal, NYU Review of Law and Social Change, Vol. 43:523, p. 529 [2019]. Separations as brief as a week have been shown to negatively impact the mother-child relationship. Kimberly Howard, et. al., Early Mother-Child Separation, Parenting, and Child Well-Being in Early Head Start Families, Attach Hum Dev. 2011 January; 13(1), 1. "Short-term disruptions can result in negative socio-emotional outcomes such as aggression and negativity." Id. at, 10. In short, disruptions in the mother-child relationship can have many negative consequences for a child, some of which can last to adulthood and the "physical accessibility" of the mother has significant implications for positive child development. Id. at 13. See also Mokhtar Malekpour, Effects of Attachment on Early and Later Development, The British Journal of Development Disabilities, Vol. 53, Part 2, July 2007, No. 105, pp. 81-95; William Wan, What Separation from Parents does to Children: "The effect is catastrophic," Washington Post (July 18, 2018)."

NY CHILD CUSTODY - JOINT LEGAL CUSTODY ISSUES

SCOLAVINO v. SCOLAVINO, 247 AD 3d 1078 - NY: Appellate Div., 2nd Dept. 2026:

"In an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Putnam County (Victor G. Grossman, J.), dated October 15, 2024. The order, insofar as appealed from, granted those branches of the defendant's motion which were for declarations that a so-ordered stipulation of settlement dated July 8, 2024, required the parties to consult in good faith and reach joint decisions regarding all major decisions concerning their children and that such major decisions included matters beyond the children's health, education, and religion.

Ordered that the order is affirmed insofar as appealed from, with costs.

In June 2023, the plaintiff commenced this action for a divorce and ancillary relief. The parties entered into a so-ordered stipulation of settlement dated July 8, 2024, which included, inter alia, terms relating to custody and parental access of the parties' two children. The stipulation provided, among other things, that "[t]he parties in this matter will have joint legal custody of the two minor children," that "[t]he parties are going to utilize ... a parent coordinator solely for major decisions of health, education and religion," and that the parties would "be guided by the recommendation of the [parent coordinator] in making major decisions," with the party whose position the parent coordinator supported being permitted to implement that decision, subject to the other party's right to seek a stay from a court of competent jurisdiction. The stipulation further provided that the plaintiff would have primary residential custody of the children, subject to the defendant's parental access schedule, and that each party would be entitled to make the day-to-day decisions for the children while they were in his or her care.

In September 2024, the defendant moved for declarations, among other things, that the stipulation (1) required the parties to consult in good faith and reach joint decisions regarding all major decisions concerning the children, and (2) defined major decisions to include not only matters of the children's health, education, and religion, but also decisions relating to dental, therapeutic, and psychiatric treatment, extracurricular activities, summer camp and summer programs, day care and day care facilities, and tutoring. The plaintiff opposed the motion. In an order dated October 15, 2024, the Supreme Court, 1079*1079 inter alia, granted those branches of the defendant's motion which were for declarations that the stipulation required the parties to consult in good faith and reach joint decisions regarding all major decisions concerning the children and that such major decisions included matters beyond the children's health, education, and religion. The plaintiff appeals.

"A stipulation of settlement is a contract subject to the principles of contract construction and interpretation" (Sabau v Sabau, 222 AD3d 1017, 1019 [2023]). "A court should interpret the stipulation in accordance with its plain and ordinary meaning, and `arrive at a construction that will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized'" (id., quoting Matter of Schiano v Hirsch, 22 AD3d 502, 502 [2005]). "`Where the stipulation is clear and unambiguous on its face, the intent of the parties must be gleaned from the four corners of the instrument, and not from extrinsic evidence'" (Herman v Herman, 220 AD3d 849, 850 [2023], quoting Oakes v Oakes, 38 AD3d 865, 865 [2007]). "Joint custody reposes in both parents a shared responsibility for and control of a child's upbringing" and thus requires "the parties ... to communicate and cooperate on matters concerning the child" (Matter of Lee v Fitts, 147 AD3d 1058, 1059 [2017] [internal quotation marks omitted]).

Here, the stipulation, as placed on the record in open court, is clear and unambiguous (see Herman v Herman, 220 AD3d at 850). Read as a whole, the stipulation reflects the parties' agreement to share joint legal custody of the children and, consistent with the ordinary meaning of that term, to consult in good faith and attempt to jointly resolve all major decisions concerning the children, while specifically carving out a subset of such decisions—those relating to health, education, and religion— for nonjudicial dispute resolution through the parent coordinator (see Matter of Lee v Fitts, 147 AD3d at 1059). Issues such as dental care, summer camp, summer programs, day care, therapy, psychiatric care, and extracurricular activities fall within the umbrella of the categories in the stipulation for which nonjudicial dispute resolution applies.

Accordingly, the Supreme Court properly granted those branches of the defendant's motion which were for declarations that the stipulation required the parties to consult in good faith and jointly resolve all major decisions concerning the children and that such major decisions included matters beyond the children's health, education, and religion."

NY DIVORCE - CHILD SUPPORT AND EMANCIPATION

An example of a family breakdown after divorce. Here, one parent suffered financial reversals as well as a breakdown in the relationship with the child..

JL v. RL, 2026 NY Slip Op 50813 - NY Nassau Co, Supreme Court 2026:

"Jeffrey A. Goodstein, J.

Preliminary Statement

Defendant Ex-Husband ("Defendant") brings an Order to Show Cause seeking an Order directing the immediate sale of the parties' former marital residence, 126 Central Park Road, Plainview, New York. He also seeks an Order declaring that the parties daughter T.L. is emancipated, and terminating his child support. The Defendant also seeks a reduction in his support obligations due to an "unforseen" reduction in his income. Defendant also seeks an Order consolidating this post divorce action with a modification petition filed in Family Court. In that petition he seeks a downward modification of his child support obligations. Plaintiff Ex-Wife ("Plaintiff")does not oppose the consolidation, but opposes the other requested relief.

In a cross motion the Plaintiff seeks an award of counsel fees in the amount of $4,178.00 for the fees she incurred in the Family Court proceeding brought to enforce the Defendant's child support and maintenance obligations. She also seeks an Order pursuant to 22 NYCRR 130-1.1 awarding her counsel fees in the amount of $5,750.00 for the fees incurred in this proceeding.

Background

The parties were married on September 7, 2002. They had one child, T.L., born XX/XX/XXXX. Plaintiff filed for divorce on May 3, 2021. On February 10, 2023, the parties signed a Stipulation of Settlement. The Judgement of Divorce was signed September 12, 2023 and entered September 18, 2023. It incorporates, but does not merge, the Stipulation of Settlement. At the time of the settlement the defendant was earning $188,000.00.

Prior to the entry of the Judgment of Divorce the Defendant filed an emergency application seeking immediate execution of the Judgment. The basis for his request for relief was his assertion that he lost his job on May 16, 2023 and required a divorce decree to access his 401(k) funds.

On February 14, 2025 the Defendant filed an Order to Show Cause in this Court seeking to reduce his maintenance obligation based on a loss of employment. This Court denied the application, without prejudice to renew, due to the Defendant's omission of a Net Worth Statement.

In May, 2025 the Defendant filed a petition in Family Court seeking a downward modification of his child support obligation based on a change in circumstances, his loss of employment. Plaintiff filed a motion to dismiss the petition as Defendant conceded he lost his employment prior to the entry of the Judgment of Divorce.

Plaintiff filed a petition in Family Court in June 2025, seeking the enforcement of the Defendant's child support and maintenance obligations. She alleged that Defendant was in arrears in the amount of $3,680.00 in child support and $3,332.00 in maintenance.

In his Order to Show Cause filed in this Court Defendant seeks to constructively emancipate the daughter, ending his support obligations. He also asks this Court to order a sale of the former marital residence and to consolidate the Family Court proceedings with this proceeding. By "So-Ordered" Stipulation, the Family Court proceedings were transferred to the Supreme Court and consolidated with this post-judgment proceeding.

Motions

The Defendant seeks to constructively emancipate the parties daughter claiming she has finished school and is employed full-time. He claims that she did not go to college, but instead completed an Aesthetician program and is employed by a salon. Defendant claims that the emancipation should end his child support obligations end and her graduation and employment is an event which triggers the parties' agreement to list and sell the former marital residence.

Defendant does not provide any documentation to support his claim of emancipation. He does not provide the name of an employer, or proof of income. He apparently relies on the fact of her reported graduation as sufficient proof of employment and income.

Plaintiff opposes this application alleging that T.L.'s employment is not a sufficient basis to emancipate her pursuant to the terms of our Stipulation. She argues that pursuant to the Stipulation, to become emancipated prior to twenty-one, T.L. must be both working full-time and be self-supporting.

According to plaintiff T.L. does not work full time and plaintiff supports her. Plaintiff argues that she pays all of her housing expenses such as the mortgage, utilities, inclusive of electric. gas, water and cable. She alleges that she also pays all of T.L.'s additional basic expenses such as food, toiletries, and cell phone.

With respect to the Defendant's request to sell the house, Plaintiff argues that this is not in accordance with their Stipulation. The Stipulation states that she has exclusive use and occupancy until the earliest of the happening of one of the earlier termination events: (1) The Child's graduation from undergraduate school but, in no event, beyond June 1, 2027.

Defendant argues that the child's graduation from aesthetician school and decision not to complete undergraduate school should result in the house being placed on the market. He argues that this a triggering event for the sale.

Plaintiff argues that the terms of the Stipulation distinctly address the circumstances needed for sale. It states that if the daughter did not graduate from undergraduate school in four years then the house would be put on the market on June 1, 2027. This language was specifically put into the Stipulation.

Plaintiff seeks an Order directing the defendant's maintenance and child support obligations be paid through the Support Collection Unit due to his continued failure to make the required payments, In addition, she seeks an award of attorneys fees incurred in this action as well as the Family Court proceedings consolidated with this motion.

The Defendant does not deny that he has failed to meet these obligations. He claims that he is filing a plenary action to set the Stipulation aside.

As to the Family Court petitions, Defendant filed a petition seeking downward modification of his child support obligations due to a claim of reduced income. Plaintiff filed a motion to dismiss that petition. There is no opposition filed to her motion to dismiss. There being no opposition and good cause having been demonstrated, the plaintiff's motion to dismiss the Father's petition for downward modification of his child support obligation is Granted.

Discussion

The parties Stipulation of Settlement defines events that trigger the emancipation of their daughter as affecting child support, as well as events that trigger the sale of the former marital residence.

With respect to the sale of the house, Article XII of the parties Stipulation states that the Plaintiff shall have exclusive use and occupancy of said residence until the child's graduation from undergraduate school, but in no event beyond June 1, 2027. The Stipulation is silent as to what occurs if T.L. does not attend an undergraduate school, nor does the Stipulation define "undergraduate school."

While the defendant argues that the child's completion of aesthetician school is the equivalent of a college graduation, he offers no law to support that assertion. He states no degree obtained by his daughter, nor does he name the program or school she attended.

The argument that the aesthetician program is an "undergraduate school" or college as is commonly understood is not supported by the proof presented. The words and phrases used in an agreement must be given their plain meaning so as to define the rights of the parties (Scalabrini v. Scalabrini, 242 AD2d 725 [2nd Dept 1997]).

Case law which interprets the meaning of the word "college" is limited. The Court of Appeals has stated that where a decedent had agreed to pay support of his son "so long as the boy shall remain in college," the decedent had not "unequivocally" assumed an obligation to support his son during his post-graduate education (Matter of Kelly, 285 NY 139 [1941]). The Court of Appeals evaluated the term "college," noting that it is not a word of art which, by common understanding, has acquired a definite, unchanging significance in the field of education. Its meaning varies with its context. Though at times it is used to denote any institution of higher learning, including institutions for professional or post-graduate study, it is frequently used to denote an "undergraduate" school for instruction in liberal arts having a course of study commonly requiring four years for completion and leading to a bachelor's degree (Matter of Kelly, 285 NY 139 [1941]).

Courts have relied on the language in Kelly in determining whether support obligations are triggered by a child's attendance at a particular type of institution (Hacker v. Hacker, 137 Misc 2d 819 [Sup. Ct. New York County 1987]; Patamoussis v. Leonardos, 2011 NY Slip Op 52097[U] [Sur Ct, Kings County 2011]).

In the absence of a specific definition of the term undergraduate school in the separation agreement, the court is bound to apply the plain and ordinary meaning. As set forth in Kelly, supra., this Court finds that it denotes attendance at an undergraduate program resulting in a bachelors degree.(Hacker v. Hacker, 137 Misc 2d 819 [Sup. Ct. New York County 1987]); (Patamoussis v. Leonardos, 2011 NY Slip Op 52097[U], [Sur Ct, Kings County 2011]; Robinson v. Gerny, 2007 NY Misc. LEXIS 4787 [Sup Ct, Suffolk County June 19, 2007]).

As to defendant's request to list and sell the former marital residence, the defendant offers no proof of an undergraduate school graduation or degree obtained by his daughter which would trigger the sale of the former marital residence.

With respect to defendant's child support obligations, Article IX of the parties Stipulation states the father is obligated to pay monthly child support until her emancipation as the parties defined.

The stipulation sets forth: "Emancipation" of each child as used in this Stipulation shall be deemed to have occurred upon the earliest happening of any of the following events: 1) The child attaining the age of 21 years unless the child is pursuing a reasonably continuous course of college education leading to an undergraduate degree at an accredited college or university or other alternative post-high school education, in which event emancipation shall not take place until the child obtains an undergraduate degree or completes said alternative post-high school education, but in no event later than the child's 22nd birthday; 2) Death of the child or the parent; 3) Entry into the Armed Forces of the United States, to continue only so long as the child is a member of the Armed Forces before attaining the age of majority, so that in the event of discharge before attaining majority, the child shall be deemed not to have been fully emancipated; 4) Marriage of the child, even though such marriage may be void or voidable; 5) Permanent residence away from the residence of the Mother. A residence at boarding school, college, summer camp or summer vacation is not to be deemed a residence away from the residence of the parties sufficient to constitute emancipation; or 6) The child engaging in full-time employment so that the child is self-supporting upon and after attaining the age of 18, except that engaging in part-time or sporadic employment by the child shall not constitute emancipation and engaging in full-time employment during vacation and/or during summer periods by the child shall not be deemed emancipation.

In his application the Father has asserted that the child is emancipated pursuant to paragraph 6, alleging she is employed full time and is self supporting.

Emancipation can occur where a child is gainfully employed child and is fully self-supporting and economically independent. The parties may provide for emancipation contingencies in a written agreement or stipulation (Thomas B. v. Lydia D., 69 AD3d 24 [1st Dept 2009]). The issue of emancipation is significant because a finding of emancipation terminates the parental obligation of support (Bailey v. Bailey, 15 AD3d 577 [2nd Dept 2005]). A review of the cases that have addressed this issue shows each one using the child's "economic independence" as the test (Alice C. v. Bernard G.C., 193 AD2d 97 [2nd Dept. 1993]. The Court can find emancipation where a child is economically independent and working full time and uses his or her earnings to meet all personal expenses, including car insurance payments and telephone charges, voluntarily contributed modest sums toward room and board (Thomas B. v. Lydia D., 69 AD3d 24 [1st Dept 2009]).

There is no proof of that level of independence for T.L. set forth by the Defendant in this case. The Court cannot, on the proof presented, find that there has been an emancipation event triggering a reduction or suspension of the his child support obligation.

As to the Plaintiff's request for attorneys fees. Plaintiff argues that she is entitled to attorneys fees incurred in having to respond to Defendant's petition in Family Court, now before the undersigned by stipulation, as well as his motion filed in Supreme Court. Defendant does not oppose the request on the merits, but only asks the court to defer it due to his filing a plenary action. There is no motion for a stay.

Conclusion

Based on the proof and arguments presented, the court finds that the father has failed to demonstrate that the parties child, T.L., is emancipated or that she graduated from an undergraduate school.

Based on the foregoing, those portions of the father's motion seeking to direct the sale of the parties former marital residence is Denied;

Furthermore, the motion to declare the parties' daughter emancipated is Denied; and

The motion to terminate the defendant's child support obligations is Denied.

Upon a showing of good cause and there being no opposition from Ex-Husband, plaintiff's motion seeking counsel fees is Granted;

It is hereby

ORDERED, that Ex-Husband is directed to pay the sum of sum of $4178.00 for attorneys fees incurred in the proceeding initiated in Family Court and $5,750.00 for the fees incurred in the motion initiated Supreme Court. He is directed to pay these sums to the Ex-Wife as and for counsel fees within sixty (60) days of service of this Decision and Order with Notice of Entry; and it is further

ORDERED, that if payment of legal fees is not made as directed herein, the Clerk of the County of Nassau, upon payment of all appropriate fees shall enter judgment in favor of Ex-Wife as against Ex-Husband upon presentation of this Order together with an Affirmation of Non-Compliance.

All other relief requested not specially addressed herein, is hereby DENIED."

NY NEW RULES - ARTIFICIAL INTELLIGENCE AND THE LAW

Effective June 1, 2026, the New York State Unified Court System implemented a new statewide rule (Part 161) governing attorneys' use of artificial intelligence (AI) in court filings. The rule permits attorneys to use AI tools when preparing submissions to the court and does not require disclosure of AI use. However, attorneys remain fully responsible for the accuracy of any AI-assisted work and must independently verify that filings do not contain fabricated cases, statutes, citations, or other false information.

Appendix A of the rule provides:

"Appendix A Model Rule Regarding Use of Artificial Intelligence Technology in Preparing Court Papers

Every attorney or party who uses an artificial intelligence (AI) tool in preparing any paper submitted to this court is expected to understand that tool's capabilities and limitations. Attorneys and parties need to be aware that AI tools, among other risks and limitations, can generate fabricated information or fictitious citations to authority (commonly known as hallucinations). Under existing authority, by signing a paper and submitting it to this court, an attorney or party certifies that the paper does not contain any false material factual statement or any frivolous legal argument Cree, e.g, 22 NYCRR 130-1.1, 130-1.1a), and an attorney who submits any paper to this court is additionally bound by the Rules of Professional Conduct. Accordingly, any attorney or party who uses an artificial intelligence tool, as defined in 22 NYCRR 161.2(a), in preparing any paper, as defined in 22 NYCRR 161.2(b), filed in or submitted to this court or served on another party in a case before this court is required to carefully review the paper and independently ensure that it contains no fabricated or fictitious cases, statutes, or other material. By signing such paper, an attorney or party certifies that such a review has been conducted and that the paper contains no such fabricated or fictitious content. If this court determines that this requirement has not been satisfied, such attorney or party may be subject to sanction or other remedial action."

NY CHILD CUSTODY - AFC RIGHT TO APPEAL

Matter of Abdoch v Abdoch, 2026 NY Slip Op 03219, (May 21, 2026 NY Court of Appeals):

"The question of whether an attorney for the child (AFC) has the authority to appeal a custody determination made pursuant to Family Court Act article 6 has divided the Appellate Division. We hold that under the plain language of the Family Court Act, an AFC has the authority to appeal a custody determination when the subject child is aggrieved. We therefore reverse the Appellate Division order dismissing the appeal and remit for further consideration.

In proceedings pursuant to article 6 of the Family Court Act, the child may be represented by an attorney appointed at the court's discretion (see Family Ct Act § 249 [a]). The AFC must zealously represent the child's interests, including by advocating for the child's wishes in Family Court (see 22 NYCRR 7.2 [d] [1]-[3]). When an AFC has been appointed by Family Court, their appointment continues without further action by that court when either "the attorney [*2]on behalf of the child files a notice of appeal, or . . . a party to the original proceeding files a notice of appeal" (Family Ct Act § 1120 [b]).

The Appellate Division Departments have split over whether an AFC can appeal a custody determination on behalf of their client when neither parent-party has appealed. The Second Department has endorsed the AFC's authority to appeal on behalf of their client, emphasizing that the Family Court Act expressly "recognizes that an [AFC] has the right to pursue an appeal on behalf of the child" because it permits the AFC to file a notice of appeal (Matter of Newton v McFarlane, 174 AD3d 67, 72-73 [2d Dept 2019]). The First and Third Departments have adopted the Second Department's reasoning (see Matter of Kylie P. [Carlos P.—Karen G.], 213 AD3d 463, 463 [1st Dept 2023]; Matter of Amber B. v Scott C., 207 AD3d 847, 848 n 1 [3d Dept 2022]). The Fourth Department has taken a different approach, dismissing appeals taken solely by an AFC when neither parent-party appeals or otherwise indicates their support for the child's appeal, reasoning that a "child in a custody matter does not have 'full-party status' " and therefore cannot force their parent to " 'litigate a petition that [they] ha[ve] since abandoned' " (Matter of Lawrence v Lawrence, 151 AD3d 1879, 1879 [4th Dept 2017], quoting Matter of McDermott v Bale, 94 AD3d 1542, 1543 [4th Dept 2012], and Matter of Kessler v Fancher, 112 AD3d 1323, 1324 [4th Dept 2013]; cf. Matter of Muriel v Muriel, 228 AD3d 1345, 1346-1347 [4th Dept 2024] [reaching the merits of an AFC's appeal because the mother had attempted to file her own appeal and supported the AFC's appellate arguments]).

This appeal concerns a Family Court proceeding involving mother, father, and their four children. Mother and father had an agreed-upon custody order providing that the children lived primarily with mother. Father petitioned to modify the custody order, and mother opposed in a competing petition. The attorney appointed to represent the four children opposed father's petition and advocated that the children wished to continue living primarily with mother. Family Court issued an order determining that modification was warranted and awarding the parents joint custody "with designated zones of influence" and shared residency. The AFC noticed an appeal from Family Court's order. Although mother did not file her own appeal, she appears to have filed a letter with the Appellate Division supporting the children's appeal. Father did not appear in connection with the appeal. The Appellate Division dismissed the appeal, following Fourth Department precedent holding that children in custody matters cannot appeal independent of [*3]the parent-parties (see 235 AD3d 1251, 1251 [4th Dept 2025], citing Lawrence, 151 AD3d at 1879). We granted the AFC leave to appeal to this Court (see 44 NY3d 902 [2025]).

We hold that the Family Court Act authorizes an AFC to appeal on behalf of their client. Family Court Act § 1120 (b) provides that the AFC's appointment continues when "the attorney on behalf of the child files a notice of appeal." In turn, section 1115 provides that an appeal is taken by filing a notice of appeal, which begins the appellate process (see Family Ct Act § 1115). Reading these two sections in harmony, the Family Court Act clearly authorizes an AFC to appeal a Family Court decision on behalf of their client (cf. Matter of Marian T. [Lauren R.], 36 NY3d 44, 49 [2020], quoting Matter of Mestecky v City of New York, 30 NY3d 239, 243 [2017] [when " 'statutory language . . . is but one component in a larger statutory scheme, it must be analyzed in context and in a manner that harmonizes the related provisions and renders them compatible' "]). To hold otherwise would render section 1120 (b)'s relevant language without practical effect.

The Family Court Act plainly authorizes an AFC to appeal on behalf of the subject child even though the child is not a full party to the custody proceedings. However, the subject child—like any appealing party—must still meet the CPLR's aggrievement requirement and other applicable jurisdictional requirements (see CPLR 5511 [only an "aggrieved party" may appeal]; Family Ct Act § 165 [a] [Family Court proceedings follow the provisions of the CPLR unless a different procedure is set forth in the Family Court Act]). Here, the children were aggrieved as the AFC argued against modifying the original custody order designating mother as the primary custodial parent and advocated that the children wished to remain primarily with her, but Family Court modified the custody order by awarding mother and father joint custody and shared residency.

We hold only that an AFC is authorized to appeal a custody determination on behalf of an aggrieved child. We have no occasion to address how a parent's participation or failure to participate in an appeal may bear on other issues raised on such an appeal.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the matter remitted to the Appellate Division for consideration of the facts and issues raised but not determined on appeal to that Court.

Order reversed, without costs, and matter remitted to the Appellate Division, Fourth Department, for consideration of the facts and issues raised but not determined on appeal to that Court. Opinion by Judge Singas. Chief Judge Wilson and Judges Rivera, Garcia, Cannataro, Troutman and Halligan concur.

Decided May 21, 2026"

LEGAL OPEN HOUSE CLINIC

 

NY CHILD WELFARE - SIBLING ABUSE

Sadly, in my work as an attorney for children in child welfare cases, this fact pattern has become increasingly familiar in several cases I have worked on.

MATTER OF CG, 2026 NY Slip Op 50636 - Bronx Family Court 2026

"At issue in this combined Qualified Residential Treatment Program ("QRTP") hearing and motion for an order to directly place the subject child with family, instead of remaining in a "QRTP" is whether placement with family is in the child's best interest and whether the alternative setting available can meet the child's needs in a less restrictive environment. For reasons that follow, continued placement in the "QRTP" is denied, and the application for direct placement is GRANTED in part as indicated herein with a host of conditions.

The History of the Case:

On February 17, 2026, this matter was arraigned and the child C.G. removed from the care of Respondent, L.J., based on allegations in the filed sworn Petition, which asserted that C.G. (Dob XX/XX/2015), K. H. (dob XX/XX/2017), Ka.H. (dob XX/XX/2019), and D.V. (dob XX/XX/2016) are children under eighteen years of age whose physical, mental or emotional condition had been impaired or is in imminent danger of becoming impaired as a result of the failure of their mother, L.J, to exercise a minimum degree of care, in that: 1. The respondent mother, failed to protect the subject children: a. According the subject child K. H., she had told the respondent mother that her brother C.G. had raped^[2] her while they were living in Minnesota. According to the same, after this happened the family moved to New York. The allegation of neglect stems from the fact that respondent failed to protect or that no services were provided to K.H. or her siblings. According to the same, on or about February 8, 2026, the sibling C.H. had raped her in the home.

b. According to the respondent mother on or about February 13, 2025, she stated to ACS regarding C.G. "if you guys want him you can come take him." According to the same, she denies that K.H. ever told her that C.H. had raped her in Minnesota. According to the respondent mother, on or about December of 2025 Ka.H. had disclosed to her that C.G. was being "weird" and asked her to perform oral sex. According to the respondent, in response to this, she had a conversation with C.G. about the incident. Upon information and belief, the respondent took no other steps to intervene.

c. As a result of the respondent mothers neglect of the subject child K.H. the subject children Ka.H., C.G. and D.V. are also neglected children.

2. The respondent mother fails to provide the subject children with proper supervision and guardianship in that:

a. Paragraphs 1(a)-(c) are reiterated in the entirety.

b. As a result of the respondent mothers neglect of the subject child

K.H. the subject children Ka.H., C.G. and D.V. are also neglected children. (See, Petition dated February 17, 2026, bearing Docket No. NN-03963-26)

* * *

On or about March 13, 2026, the court assigned Attorney for the child ("AFC") filed an OSC for an order directing NYC Administration for Children Services ("ACS") to have the subject child reside with Jeanette Stemley and to commence an investigation of Ms. Stemley's home within twenty-four hours and thereafter approve Ms. Stemley, if qualified as a foster parent pursuant to FCA 1017(2)(a)(iii); and related relief.

On or about April 2, 2026, a hearing was held on the motion and testimony taken.

The hearing can be summarized as follows:

The subject child, C.G., is currently 10 years old and placed in a "QRTP" at Children's Village in Dobbs Ferry, New York. The facility is a secure, male-only residential program for children aged 7 to 12. Each child has their own individual room, and there are five staff members per shift for supervision. Bathrooms are shared but are in eyesight of staff. Cameras are present in common areas. C.G. attends school in this structured setting and receives all services on campus. He receives weekly individual therapy focused on decreasing sexualized abusive behavior, twice-weekly group therapy, and sees a psychiatrist monthly or as needed.

C.G. has been in Children's Village since March 16th, 2026. According to ACS", he was placed there because of the allegation that he penetrated his sibling, K.H. and made an inappropriate comment to another sibling, Ka.H.

His mother, the Respondent, Ms. J., and Ms. Stemley (sister-in-law) visit him every week. Ms. J. is also engaged in family therapy with C.G.

Proposed Placement with Jeanette Stemley:

Mrs. Jeanette Stemley is the subject child's sister-in-law and has offered her home as a direct placement resource, even without receiving foster care funds.

ACS declined to explore her as a resource due to the presence of other children in her home and the fact she has an ACS-indicated history, coupled with the fact that C.G. has just recently begun his treatment plan.

According to Ms. Stemley, her household consists of her husband (Lanina J.'s son) and four children: a 19-year-old male, an 18-year-old female, a 16-year-old female, and a 14-year-old male. If the application was approved, Ms. Stemley indicated she would rearrange living arrangements so C.G. would not share a room with anyone vulnerable; suggesting her youngest son could move to a daughter's room, and C.G. would have his own bed in her room, which has an en-suite bathroom and would agree to install cameras in the common areas in her home.

Ms. Stemley testified she works remotely, allowing her the flexibility to take C.G. to appointments and address his needs.

Ms. Stemley testified C.G. has previously stayed at her home a few times, including overnight, without any issues or concerning behavior. Ms. Stemley is aware of the allegations against C.G., including the accusation of rape and asking his sister to perform oral sex.

Ms. Stemley testified that she believes it is safe for C.G. to be alone with her children and is willing to follow any court orders, including installing cameras or door alarms if necessary. She discussed with C.G. the possibility of him living with her, and C.H. expressed interest.

Ms. Stemley and her children had a family meeting to discuss the situation, and her children are aware and supportive. Her daughters have visited C.G. at his current location.

Ms. Stemley testified she believes her home would be better suited for C.G., offering love and support from family, rather than being treated like an offender in a facility.

At the request of ACS, the court combined the hearing record of April 2, 2026, with the QRTP April 29, 2026, hearing record. ACS entered the following documentary evidence: Exhibit "1" Qualified Individual Report dated March 8, 2026 (pages 1-7); Exhibit "2" the Qualified Individual Assessment Summary Report dated March 8, 2026, and Exhibit "3" the The Child and Adolescent Level of Care Utilization System ("CALOCUS") Evaluation Report dated March 8, 2026.

Notably, the Qualified Individual Report dated March 8, 2026, provides in the narrative summary portion the following:

"... According to the Family Assessment and Service Plan, it was reported that [C.G.] sexually abused his sister [K.H]. It was confirmed that the child [C.G.] was caught and admitted to taking off her clothes and penetrating [K.H] with his private part as she slept. It was also reported that [C.G.] asked another sibling, [Ka.H] for oral sex. According to the Family Assessment and Service Plan, it was also reported that there is a prior history of sex abuse when the family resided out of state. The family continued to allow [C.G.] to reside in the same home as the other children after finding out about the abuse. It was reported that child [C.G.] was touched inappropriately by a 9-year-old family member when he was 3-4 years old." (See, Exhibit "1" at page 1-2)

* * *

The "CALOCUS" Evaluation Report dated March 8, 2026, indicates a composite score of a total of 19. Risk of Harm dimension score is reported at 4.

At the April 29, 2026 "QRTP" hearing, Ms. Stemley reiterated her desire to have C.G. in her home and explained the prior 2018 ACS indicated case involved allegation of excessive corporal punishment. The 2018 case did not go to trial, and no similar incidents have occurred since. According to Ms. Stemley, the daughter who was the subject of the 2018 case is now a college student living at home.

Ms. Stemley testified she last visited C.G. at Children's Village yesterday. She visits weekly, at times bringing her children, who are excited to see C.H. According to Ms. Stemley, C.G. enjoys playing board games with Ms. Stemley's children and shares updates about school and "uncomfortable things" he is experiencing. Ms. Stemley reiterates she believes she can provide the necessary supervision and replicate essential services at home.

Ms. Stemley repeated she will comply with whatever court orders that are issued, and arrange for monthly psychiatrists, group therapy, and family therapy, to gain C.G.'s direct placement.

In preparation for the placement, Ms. Stemley testified she has already spoken to the children's school about enrolling C.G. in the school, without disclosing the allegations.

C.G.'s placement in the "QRTP" is due to the rape. According to ACS, the long-term goal is for C.G. to return to a safe community environment and note his current positive engagement in services. ACS's recommendations are continued placement to maintain gains and address C.H.'s own trauma, as all necessary services have not "taken hold" yet.

ACS opposes the direct placement with Ms. Stemley, indicating placing C.G., at this time in a home with other children before he has fully engaged in appropriate services is premature, and sets the child up for failure. ACS argues the QRTP is the appropriate placement at this time, given the severity of the allegations and lack of engaged mental health services.

According to ACS, C.G.'s mother, Ms. J., reportedly prefers him to remain in his current setting until he is ready to return home, fearing regression and believing he needs 24/7 supervision. In ACS's view, C.H.'s needs cannot be met in a foster family home and that "QRTP" placement is the most effective, appropriate, and least restrictive environment, aligning with his goals, emphasizing C.G.'s clinical needs.

In addition, ACS questions Ms. Stemley's protective capacity due to her stated lack of concern regarding the underlying allegations, Finally, ACS argues the court cannot order the agency to certify a foster parent due to separation of powers but concedes the court can order a direct placement of the child with a relative with specific orders in place.

The AFC pressed the argument that the mental health services can be obtained outside the "QRTP" restrictive setting, and all stakeholders are committed to finding C.G. the required services. Placement in a "QRTP" is not necessary or the least restrictive option.

The Law:

In accord with the statutory framework, within 60 days from the child's placement in a "QRTP" facility, the agency must seek court approval of the placement and bears the ultimate burden to establish the "QRTP" placement is the most effective and appropriate level of care in the least restrictive environment, that it is consistent with the child's short-and long-term goals and in the child's best interest. (See, Social Services Law § 393 and Family Court Act § 1055-c).

In New York, a "QRTP" is a congregate care setting that meets strict state and federal requirements, including trauma-informed care, 24/7 licensed staff, family participation, and aftercare support. Under the Family First Prevention Services Act ("FFPSA"), "QRTP"s are intended for children whose needs cannot be met in a less restrictive setting, such as a foster family home. (See, Social Services Law § 393; § 409-h).

The legislative history of the "FFPSA" acknowledges that, "[a]lthough there is an appropriate role for congregate care placements in the continuum of foster care settings," these placements "should be used only for as long as is needed to stabilize the child or youth so they can return to a family-like setting" since "most children and youth, but especially young children, are best served in a family setting" (HR Rep 114-628, 114th Cong, 2d Session at 60) citied in Matter of Joseph D.L. (Keisha T.M.), 243 AD3d 48 (2nd Dept. 2025)(Ventura, J.); See also, Matter of Malachi B. (Administration for Children's Servs.), 228 AD3d 570 (1st Dept. 2024).

The "QRTP" assessment must show that no suitable family-based placement exists that can meet the child's needs. Matter of Joseph D.L. (Keisha T.M.), 243 AD3d 48 (2nd Dept. 2025)(Ventura, J.).

The "CALOCUS" Evaluation Report dated March 8, 2026, documents a composite score of 19, with the Risk of Harm dimension specifically rated at 4, indicating a high level of concern in that area, and offered to justify the continued need for C.G.'s structured placement.

The "CALOCUS" is a structured clinical decision-making tool used to assess service needs and guide level-of-care recommendations for children and adolescents between the ages of 6 and 18. It does so by evaluating six core dimensions that together provide a comprehensive picture of clinical severity, functional impairment, environmental context, and treatment readiness.

Each of the six dimensions captures a distinct but interrelated domain of the youth's presentation:

1. Risk of Harm — This dimension evaluates both acute and chronic safety concerns, including the potential for self-harm, suicidal behavior, aggression toward others, impulsivity, and vulnerability to victimization or exploitation. A score of 4 suggests significant and imminent risk factors that require close monitoring and possibly intensive intervention to ensure safety.

2. Functional Status — This area assesses the child's ability to function across key life domains such as home, school, and community. It includes evaluation of daily living skills, social functioning, academic performance, and behavioral regulation. Higher scores reflect greater impairment and difficulty meeting age-appropriate expectations.

3. Developmental, Medical, Substance Use, and Psychiatric Co-Morbidity — This dimension considers the presence of multiple co-occurring conditions and how they interact to complicate diagnosis, treatment, and prognosis. It includes developmental disorders, chronic medical issues, substance use concerns, and psychiatric diagnoses, with higher scores indicating more complex and impactful comorbidity.

4. Recovery Environment: Stressors and Supports — This domain evaluates the external context in which the child lives, including family stability, caregiver capacity, exposure to trauma or stress, and the availability of social, educational, and community supports. It considers both risk factors (e.g., instability, conflict, lack of supervision) and protective factors (e.g., supportive caregivers, structured environment).

5. Resiliency and Treatment History — This dimension looks at the child's internal strengths, coping abilities, and prior experiences with treatment. It includes responsiveness to past interventions, history of engagement, and the degree to which the child has demonstrated the ability to recover from stressors or setbacks.

6. Treatment Acceptance and Engagement — This assesses the readiness, willingness, and ability of both the child and their caregivers to participate meaningfully in treatment. It includes factors such as insight into problems, motivation for change, adherence to recommendations, and consistency in attending services.

Each dimension is rated on a 5-point scale, where:

• 1 = Minimal need (little to no impairment or risk),

• 2 = Mild need (minor or situational concerns),

• 3 = Moderate need (clear but manageable difficulties),

• 4 = Serious need (significant impairment or risk requiring active intervention),

• 5 = Severe need (intense, pervasive, or dangerous conditions requiring immediate and intensive services).

After individual dimension scores are assigned, each is translated into a Need Intensity category (e.g., Low, Moderate, Significant, or Severe). These categories are not interpreted in isolation; rather, they are integrated across all six dimensions to determine the overall clinical picture and appropriate Level of Care (LOC). The total composite score (in this case, 19) is then matched to a recommended service intensity level, which may range from basic outpatient services to more intensive options such as intensive in-home services, day treatment, or residential care, depending on established "CALOCUS" thresholds.

In summary, a composite score of 19, combined with a Risk of Harm score of 4, suggests a clinically significant level of need, particularly in the area of safety, and supports consideration of a structured and potentially intensive treatment approach to ensure stabilization and ongoing support of the subject child.

In the context of a "QRTP", the "CALOCUS" Evaluation Report helps interpret and weigh assessment results. The report is only a tool to assist the court in evaluating and weighing the child's clinical needs. (See, generally, Calocus Child and Adolescent Level of Care Utilization System, Child and Adolescent Version 2010, American Association of Community Psychiatrists, October 17, 2010)(www.chpw.org/wp-content/uploads/2020/06/CALOUS-Instument-2010.pdf)(last visited May 1, 2026)

The subject child is 10 years old. Although unfortunate, being a survivor of sexual abuse and having purportedly committed acts of rape himself weigh heavily in the analysis and do significantly signal a need for extensive treatment. However, those facts alone cannot control the outcome in the context of "QRTP" placement.

Doli incapax is a Latin phrase meaning "incapable of wrongdoing." It refers to the legal presumption that children below a certain age cannot form criminal intent. Research indicates young children are considered not only free of malice but especially capable of reform. See generally, Family Court Act § 301.2(1)(a)(iii). A 10-year-old child who has purportedly committed a sexual offense requires immediate, highly specialized therapeutic intervention. New York State's juvenile justice system and related statutes reflect a strong emphasis on rehabilitation, family placement, and community services over punitive incarceration for the very young. See, generally, New York State Raise The Age Implementation Task Force, https://www.ny.gov/sites/default/files/atoms/files/NYS_RTA_Task_Force_First_Report.pdf (last visited May 1, 2026); see also, Roper v. Simmons, 543 U.S. 551(2005) (unconstitutional to impose capital punishment for crimes committed under 18 years old and acknowledged that juveniles possess distinct characteristics that differentiate them from adults, particularly regarding their capacity for rehabilitation and moral culpability).

Family Court Act § 1055 reflects a legislative presumption in favor of family-based settings when possible and in the context of a "QRTP" placement, the test is that no suitable family-based placement exists that can meet the child's needs. Matter of Joseph D.L. (Keisha T.M.), supra.

The record here makes clear ACS's primary objection to the placement with family is rooted in the fact that Ms. Stemley has other children, and C.G. had not yet sufficiently engaged in sexual reactive services. However, this court finds the alternative setting available can meet the subject child's needs in a less restrictive environment, (Family Court Act § 1055-c[2][c][i][B]) and further finds orders can be put in place to ensure services are provided consistent with the short-and long-term permanency goals.

Ms. Stemley has demonstrated a willingness and ability to provide a structured, supervised environment, to comply with court-imposed safeguards, and to ensure continuity of services. The court is satisfied that appropriate conditions and oversight can mitigate identified risks.

Accordingly, the court finds that placement with Ms. Stemley constitutes a viable, less restrictive alternative that can meet the child's needs while advancing the statutory preference for family-based care.

Therefore, the subject child, C.G.'s continued placement in the "QRTP" is denied, and the motion for direct placement is granted over ACS's objection. This court orders the direct placement of the subject child, C.G. to the care and custody of the Ms. Stemley stayed 35 days from the date of this order, under the following conditions:

1) Ms. Stemley is to cooperate with ACS supervision including announced or unannounced home visits; and

2) Ms. Stemley shall comply with all ACS recommended services for C.G., including any reasonable referrals in writing, including monthly psychiatrists, group therapy, and family therapy, engage in individual and family therapy as the service providers may direct;

3) Ms. Stemley shall ensure the subject child, C.G. attends school

4) Ms. Stemley shall enforce an order of protection barring contact between C.H. and K.H;

5) that C.H. NOT be left alone with any child below the age of 14 years old;

6) A copy of the underlying neglect petition and this order shall be provided to all services providers;

7) ACS shall conduct a clothing inventory; the child has his own bed in the Stemley home and dresser;

8) ACS shall develop a treatment plan for C.G., consistent with the subject child's care and welfare and shall provide meaningful and supportive services to C.H., including Problematic sexual behavior cognitive behavioral therapy and Trauma focused cognitive behavioral therapy and ensure the subject is enrolled in the local school and engaged in summer activities including day-camp;

9) It is further ordered that ACS shall take any protective measure necessary to ensure the protection of the subject child and prevent any violations of this order;

10) ACS shall provide the court with a report within twenty days of this order indicating the progress of the release plan, and what sexual behavior cognitive behavioral therapy and trauma focused therapy recommended and ensure the subject is enrolled in the local school;

11) All parties shall take notice pursuant to section 1113 of the Family Court Act, an appeal must be taken within thirty days of receipt of the order by appellant in court, thirty-five days from the mailing of the order to the appellant by the clerk of the court, or thirty days after service by a party or Attorney for the Child upon the appellant, whichever is earliest.

[1] Because this case involves sensitive matters, this court will use initials to refer to the subject children. C.G. is a 10-year-old child born in xx xx-2015.

[2] Notably, there is no factual assertions describing the specific conduct to constitute "rape" in the petition, nor is there any assertion that there is a corresponding delinquency matter pending. According to ACS, there is no juvenile delinquency allegation against C.G., as the NYPD did not pursue a criminal investigation due to his age. Generally, there is a rebuttable presumption in New York that a 10-year-old child lacks capacity to form criminal intent."

NY - BULLYING AT SCHOOL IS ACTIONABLE

JA v. City of New York, 2026 NY Slip Op 2084 - NY: Appellate Div., 2nd Dept. 2026:

"VOUTSINAS, J.

Appeal by the plaintiffs, in an action to recover damages for personal injuries, etc., from an order of the Supreme Court (Kevin J. Kerrigan, J.), dated August 1, 2023, and entered in Queens County. The order, insofar as appealed from, granted that branch of the motion of the defendants City of New York, New York City Department of Education, and Catherine and Count Basie Middle School 72 which was for summary judgment dismissing the complaint insofar as asserted against the defendants New York City Department of Education and Catherine and Count Basie Middle School 72.

This appeal concerns whether the defendants New York City Department of Education (hereinafter DOE) and Catherine and Count Basie Middle School 72 (hereinafter the school) demonstrated, prima facie, that they did not have adequate notice of the alleged verbal and physical harassment and physical assaults that the infant plaintiff, J.A., a student at the school, was being subjected to or that the steps these defendants took to supervise J.A. and protect him from harm were adequate. We conclude that the DOE and the school (hereinafter together the DOE defendants) failed to establish, as a matter of law, that they did not have sufficient notice of the harassment and assaults or that they took adequate steps to properly supervise and protect J.A. We also conclude that because of the continuing wrong doctrine, the notice of claim served by the plaintiffs was timely with respect to all of the allegations.

I. Factual and Procedural Background

The instant matter presents a case of harassment and assault of a student by other students at his school. J.A. allegedly was bullied by his fellow students throughout the 2017-2018 school year, while a student at a public middle school located in Queens. The incidents began in October 2017 and continued through May 2018. J.A. allegedly was repeatedly verbally and physically harassed and physically assaulted by other students. On October 6, 2017, while under the supervision of the DOE defendants, a classmate identified as N. punched J.A. in the head and face during recess. On February 7, 2018, another classmate, identified as R., called J.A. a racial slur, kicked him, and threatened to jump him if he told a teacher. On March 6, 2018, J.A. was at a nearby store off school grounds when another classmate, identified as A., pushed J.A. to the ground. On April 13, 2018, another classmate, identified as O., threw a crate of books at J.A.'s head and then punched him on the left and right sides of his face. On May 21, 2018, J.A. was physically assaulted in a classroom, injuring his left eye. As a result of these incidents, J.A. suffered injuries to both of his eyes, his head, his face, and his teeth.

On May 25, 2018, J.A., through his mother, filed a notice of claim encompassing all of these incidents, alleging that the defendants provided negligent supervision of J.A. On January 3, 2019, J.A., by his mother, and his mother (hereinafter the plaintiff mother) suing individually, commenced this action against the City, the DOE defendants, and another defendant, alleging, inter alia, negligent supervision.

J.A. testified at his deposition about the incidents with his classmates. In describing the physical assault by N., J.A. stated that he was sitting on a bench when he was punched in the head and face. When J.A. came to his senses after blacking out, he had ringing in his ears, had blurry vision, and was spitting blood. As to the physical assault by R., R. called J.A. a racial slur, then R. got out of his seat and kicked J.A. When J.A. told a teacher about the incident with R., the teacher seemed to dismiss J.A.'s report, stating that she "could not deal with crazy." Regarding the incident during which O. threw a crate of books at J.A.'s head and punched him, J.A. testified that he and O. did not say anything to one another prior to the crate being thrown. After that incident, J.A. went to the nurse. The nurse contacted J.A.'s parents, who picked him up from the school. J.A. did not speak to any teachers or school administrators about the incident prior to being picked up. Concerning the incident on May 21, 2018, in which his left eye was injured, J.A. had no recollection of what happened, including who hit him. J.A. testified that N., O., and the other classmates who harassed him were all friends who "hung out" together.

The plaintiff mother testified extensively at her deposition concerning the school's response to the verbal and physical harassment of J.A., including additional incidents. She testified that following many of the incidents, she had to initiate contact with school administrators to learn what had happened, and she was not otherwise informed of the incidents. The plaintiff mother testified that following the incident with O., during which the crate of books was thrown at J.A., she went to the school's office to see its principal, Omotayo Cineus. Initially, Cineus did not want to see the plaintiff mother, but she refused to leave until Cineus spoke to her.

The plaintiff mother further testified that following the incident with N., she left numerous messages with Cineus and Thompson Young, the school's former dean of students. Eventually, a meeting was held with Cineus, three or four teachers, J.A., the plaintiff mother, N., and N.'s mother "to address the situation and prevent anything further from happening." The plaintiff mother also testified that the school nurse called to inform the plaintiff mother that another student had spat on J.A. The plaintiff mother further testified that she was informed by Young that J.A. was spat on accidentally. However, the plaintiff mother testified that J.A. reported that he was spat on three days in a row by the same student. Moreover, that student, prior to spitting on J.A. again, had called him a "bombing nigger" and a "terrorist." The plaintiff mother could not recall the student's name. She testified that she had contacted the school about these additional spitting incidents and left messages, but she did not receive a call back. A few days later, while the plaintiff mother was leaving the school after trying to meet with Cineus or Young about the spitting incidents, she was threatened by a female student, who told the plaintiff mother that the female student would put the plaintiff mother in a neck cast.

The plaintiff mother also testified that prior to the incident in February 2018, J.A. was kicked by a different student, identified as T. This kicking incident occurred in math class, while a substitute teacher was out of the classroom, making copies. The plaintiff mother initially contacted the school about the incident but received no reply. She had to ask a teacher about the incident during a standard parent teacher conference a week or two later. The plaintiff mother further testified about an incident during which a student identified as R. had threatened to punch J.A., prior to assaulting him later that day on the way to a school bus, and stated that R.'s threat was heard by a teacher. She testified that there was no meeting at the school following the assault by R.

In addition, the plaintiff mother testified that she learned of the incident in which O. threw the crate of books at J.A. from the school nurse, not administrative staff. J.A. told his mother that prior to O. throwing the crate at him, R. had whispered something to O., who became enraged and threw the crate. The plaintiff mother also described the incident at the store, where A. threw J.A. to the ground. The plaintiff mother testified that it was her understanding that her son's assailants were all friends. In addition, she testified that she repeatedly called and visited a school district superintendent's office to initiate a safety transfer for J.A.

Clevelon Akil, who became the dean of students at the school in January 2018, testified that since she was not the dean at the time of the incident in October 2017, she only became aware of it by reviewing an incident report. Akil testified that in February 2018, she investigated the incident during which R. hit J.A. on the way to the school bus. Akil testified that she spoke with a teacher who was present during that incident, J.A., R., and the plaintiff mother. Akil further testified that she became aware of the prior incidents involving J.A. after reviewing incident reports. Akil testified that despite her knowledge of the assaults on J.A. and the prior incident reports, she did not believe that J.A.'s safety was at risk or that there was a safety issue, describing the occurrences as "incidents [that] happen in middle school constantly." Akil testified that she did not know whether a specific plan was devised for J.A.'s safety and stated that while she believed that J.A. was eventually transferred to a different class, she could not recall when the transfer occurred or if it was related to the incidents.

Cineus testified that, as principal, she was familiar with J.A. She further testified that she remembered the incident during which N. struck J.A. and recalled that, prior to that incident, N. had taken J.A.'s phone from his bag. Cineus stated that following the incident, both J.A.'s and N.'s families were contacted. Cineus also recalled the incidents in February 2018, March 2018, and April 2018, and testified that prior to the incident with O. in April 2018, J.A. allegedly had made a joke about O.'s recently deceased father.

Cineus testified that she met with the plaintiff mother regarding these incidents on only three occasions. Cineus further testified that the school moved J.A. to a different class and provided him with a paraprofessional in response to the concerns of the plaintiff mother. Cineus also permitted J.A. to eat lunch in the school office, and she spoke with the students in his classes about being kind to one another. Cineus, however, could not recall precisely when these actions took place.

Motion for Summary Judgment

In May 2023, the City and the DOE defendants moved for summary judgment, among other things, dismissing the complaint insofar as asserted against the DOE defendants. They contended, inter alia, that the plaintiffs' claims concerning any incidents prior to February 23, 2018, should be dismissed as time-barred because the plaintiff failed to comply with General Municipal Law § 50-e and that the plaintiffs' claims concerning the remaining incidents, sounding in negligent supervision, should be dismissed, because the DOE defendants provided adequate supervision.

The plaintiffs opposed that branch of the motion, contending, among other things, that the DOE defendants were on notice of all of the incidents in the notice of claim and had more than sufficient time to investigate the incidents. The plaintiffs contended that the notice of claim was timely because the repeated incidents fell within the continuing wrong doctrine. The plaintiffs further contended that after the incidents began, the DOE defendants failed to adequately supervise J.A.

In an order dated August 1, 2023, the Supreme Court, inter alia, granted that branch of the motion. The court concluded that the claims concerning incidents that occurred prior to February 24, 2018 (90 days before the notice of claim was filed), were barred by General Municipal Law § 50-e for failure to serve a timely notice of claim. With respect to the plaintiffs' claims premised upon the incident on March 6, 2018, which happened at a store near the school, the court determined that the DOE defendants were not responsible for protecting the plaintiff from incidents that occurred off school grounds. As to the remaining incidents, the court determined that J.A.'s alleged injuries were not a result of lack of supervision. The plaintiffs appeal.

II. Legal Analysis

A. The Timeliness of the Notice of Claim.

A plaintiff commencing an action against a school district must, as a condition precedent, serve a notice of claim upon the school district within 90 days of a cause of action accruing (see Education Law § 3813[2]; General Municipal Law § 50-e). The notice of claim provides a municipal agency, in this case the DOE, "with an opportunity to timely and effectively investigate the claim" (Stiff v. City of New York, 114 AD3d 843, 843). "The test of sufficiency of a Notice of Claim is merely whether it includes information sufficient to enable the [municipality or agency] to investigate" (Brown v. City of New York, 95 NY2d 389, 393 [internal quotation marks omitted]).

This Court holds that the notice of claim was timely because the continuing wrong doctrine applies (see Motta v. Eldred Cent. Sch. Dist., 172 AD3d 1575). As a general rule, the continuing wrong doctrine may be "employed where there is a series of continuing wrongs and serves to toll the running of the limitations period to the date of the commission of the last wrongful act" (Garron v. Bristol House, 162 AD3d 857, 858-859). The continuing wrong doctrine allows a later accrual date of a cause of action "where the harm sustained by the complaining party is not exclusively traced to the day when the original wrong was committed" (Capruso v. Village of Kings Point, 23 NY3d 631, 639 [internal quotation marks omitted]). "The distinction is between a single wrong that has continuous effects and a series of independent wrongs" (York v. York, 235 AD3d 1032, 1034 [internal quotation marks omitted]).

This Court has not previously addressed the question of whether the period within which a notice of claim may be filed is tolled where there is a continuous pattern of harassment and/or unlawful conduct in a school setting and allegedly negligent supervision of a student by school administrators charged with a duty to properly supervise their students. In Motta v. Eldred Cent. Sch. Dist. (172 AD3d 1575, 1576-1577), a case factually similar to this one, the Appellate Division, Third Department, among other things, affirmed the Supreme Court's denial of a motion for summary judgment dismissing claims alleging negligence with respect to any incidents that occurred more than 90 days prior to the filing of a notice of claim. In Motta, the student was continually verbally taunted and harassed by the same group of students, he continually reported those incidents to school administrators, and the school was continuing to take action with regard to the student's complaints when the notice of claim was filed (see id. at 1577). The Motta Court found that "given the continuing nature of the alleged bullying and negligent supervision" and the fact that the defendant "had actual notice of the claim in time to properly investigate and obtain evidence," the notice of claim was timely with respect to all of the alleged incidents (id.).

This Court has, in analogous circumstances, concluded that a continuing violation tolls limitation periods. In Matter of Lozada v. Elmont Hook & Ladder Co. No. 1 (151 AD3d 860, 861), this Court held that the continuing violation doctrine applied to a hostile work environment claim because that claim, by its very nature, was predicated on a series of separate acts that constituted an unlawful discriminatory practice. In so doing, this Court noted that "`[a] continuing violation may be found where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice'" (id. at 861-862, quoting Clark v. State of New York, 302 AD2d 942, 945).

Similarly, in the context of an employment discrimination action, the Appellate Division, First Department, has held that claims sounding in negligent supervision begin to accrue on the date of the last underlying act (see Pichardo v. New York City Department of Education, 99 AD3d 606, 607).

Schools are obligated to provide students with a safe place to acquire an education. Children, on a daily basis, leave the safety of their homes to attend school, where their parents expect that they will be provided a safe place to grow and learn. While they have physical custody of these children, schools are said to act "in loco parentis," or in place of the parents, and in that role are required to provide the same protection and care for a child that a parent would provide (see e.g. Pratt v. Robinson, 39 NY2d 554).

Here, J.A. was a student with an individualized education plan (hereinafter IEP) who is contending, in essence, that he was subjected to a hostile educational environment through repeated harassment and assaults. The record establishes that the faculty and administration of the school were on notice of the allegations of a continuous pattern of harassment and assaults. The deposition testimony of Akil, Cineus, and the plaintiff mother indicates that the school had notice of every incident, which were recorded in the school's incident reporting system. Moreover, the plaintiff mother testified that she repeatedly contacted the DOE defendants to express her concerns for J.A.'s safety. Under these circumstances, the continuing wrong doctrine applies. The time period for the plaintiffs to file their notice of claim regarding all of the incidents began to run when the last incident occurred in May 2018. Furthermore, as discussed more fully below, questions of fact exist concerning whether the DOE defendants acted appropriately to adequately supervise J.A., given the DOE defendants' notice and knowledge. In addition, because the DOE defendants allegedly were aware of a continuing pattern of harassment, they had ample time to properly investigate the plaintiffs' claims and to obtain evidence. Accordingly, the Supreme Court erroneously concluded that the claims based on incidents that occurred outside the 90-day period prior to the filing of the notice of claim were time-barred (see Motta v. Eldred Cent. Sch. Dist., 172 AD3d 1575).

B. The DOE Defendants' Supervision of J.A.

As a threshold matter, to the extent that the plaintiffs allege damages for any injuries that occurred off school grounds, including any injuries resulting from the incident on March 6, 2018, which occurred at a nearby store, J.A. was no longer in the DOE defendants' custody and/or under their control during that incident. Accordingly, the DOE defendants cannot be liable for injuries arising from alleged incidents which occurred off school grounds (see Donofrio v. Rockville Ctr. Union Free Sch. Dist., 149 AD3d 805).

1. Notice to the DOE Defendants

"Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" (Mirand v. City of New York, 84 NY2d 44, 49). "`[I]n determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably be anticipated'" (A.P. v. John W. Lavelle Preparatory Charter Sch., 228 AD3d 138, 150, quoting Mirand v. City of New York, 84 NY2d at 49). "Actual or constructive notice to the school of prior similar conduct is generally required, and injury caused by the `impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act'" (J.S. v. Ramapo Cent. Sch. Dist., 205 AD3d 947, 948, quoting Mirand v. City of New York, 84 NY2d at 48). "To find that a lack of adequate supervision is a proximate cause of a student's injury, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which causes the injury" (B.J. v. Board of Educ. of the City of N.Y., 172 AD3d 693, 694 [alteration and internal quotation marks omitted]).

Here, viewing the evidence in the light most favorable to the plaintiffs as the non-moving parties (see Qureschi v. Gleason, 231 AD3d 878, 879), the DOE defendants failed to establish, prima facie, that they did not have specific knowledge or notice of the dangerous conduct of J.A.'s classmates such that the acts that led to his injuries could not have been reasonably anticipated. As set forth in the discussion of the timeliness of the notice of claim, the DOE defendants had notice of the incidents that targeted J.A. On behalf of these defendants, Akil and Cineus testified that they were aware of the specific incidents wherein J.A. was assaulted and harassed. Moreover, the testimony of the plaintiff mother details the repeated instances when she either contacted school administrators to report incidents herself or was contacted by school employees other than the administrators concerning incidents involving J.A. She also testified that she and Young discussed that the students who were harassing J.A. all belonged to the same group of friends.

The evidence submitted in support of the motion clearly demonstrated that the DOE defendants had actual notice of the prior similar conduct by J.A.'s classmates and the continued verbal and physical harassment of J.A., which gave the DOE defendants an opportunity to take proper measures to protect J.A. while he was attending the school (see J.S. v. Ramapo Cent. Sch. Dist., 205 AD3d at 949; see also Nizen-Jacobellis v. Lindenhurst Union Free Sch. Dist., 191 AD3d 1007). Since the DOE defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them based on lack of notice, this Court need not consider the sufficiency of the plaintiffs' submission in opposition (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324-325).

2. The Adequate Supervision of J.A.

In examining the question of whether J.A. was adequately supervised, that determination "`depends largely on the circumstances attending the event'" (Sclafani v. Young Adult Inst., Inc., 240 AD3d 816, 817 [internal quotation marks omitted], quoting Mei Kay Chan v. City of Yonkers, 34 AD3d 540, 541). "The adequacy of a school's supervision of its students is generally left to the trier of fact to resolve, as is the question of whether inadequate supervision was the proximate cause of the plaintiff's injury" (id. at 817-818 [internal quotation marks omitted]; see also L.S. v. Massapequa Union Free Sch. Dist., 215 AD3d 708).

Here, viewing the evidence in the light most favorable to the plaintiffs as the non-moving party (see Qureschi v. Gleason, 231 AD3d 878, 879), the DOE defendants failed to establish, prima facie, that they provided adequate supervision to J.A. (see Sclafani v. Young Adult Inst., Inc., 240 AD3d at 818).

The record is replete with allegations of the DOE defendants' indifference to the alleged wrongful actions of J.A.'s classmates. For example, the incident in which J.A. was spat on was described as accidental, and when J.A. attempted to report the incident during which he was kicked in class, a teacher dismissed him by saying that she "could not deal with crazy." The school had knowledge of these repeated incidents, yet Akil, the dean, testified that she did not believe that J.A.'s safety was at risk or that there was a safety issue, describing J.A.'s experiences as incidents that "happen in middle school constantly." There is no indication in the record that any plan was devised for J.A.'s safety. Akil believed that J.A. was transferred to another class, however she could not recall when J.A. was transferred or whether it was related to the incidents. Cineus confirmed that J.A. was moved to another class and also testified that J.A. was provided with a paraprofessional. The record is unclear, though, as to whether the paraprofessional was provided based on J.A.'s IEP or as a result of the harassment and assaults he experienced. Cineus further testified that J.A. was permitted to eat lunch in the school office. However, other than providing J.A. with the paraprofessional and the option to eat lunch in the school office, there is no evidence presented to show what actions the DOE defendants took to protect J.A. Moreover, there is no evidence in the record demonstrating that the DOE defendants consequated the students allegedly harassing J.A. in an effort to stop their pattern of harassing and assaultive behavior, other than Cineus stating that she spoke to all of the students in J.A.'s classes and asked them to be kind to one another.

Under these circumstances, the DOE defendants failed to establish that any lack of supervision on their part was not a proximate cause of J.A.'s injuries (see RT v. Three Village School Central School District, 153 AD3d 747). Significantly, the deposition testimony of the school employees, including regarding their failure to prepare an individual safety plan for J.A., failed to eliminate triable issues of fact concerning whether the DOE defendants took adequate steps to supervise the plaintiff and prevent the incidents that led to J.A.'s injuries (see Sclafani v. Young Adult Institute, Inc., 240 AD3d at 818; J.S. v. Ramapo, 205 AD3d at 949; Nizen-Jacobellis v. Lindenhurst Union Free School District, 191 AD3d at 1008). Instead, the evidence indicates that despite their notice and knowledge, employees of the DOE defendants were indifferent to the harassment that J.A. was enduring, describing the incidents as merely the type that happen constantly at a middle school and testifying that they did not believe J.A.'s safety was at risk.

Given that the DOE defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them based on a showing that they provided J.A. with adequate supervision, this Court need not consider the sufficiency of the plaintiffs' opposition papers (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324-325).

III. Conclusion

Accordingly, the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the City and the DOE defendants which was for summary judgment dismissing so much of the complaint as was predicated on alleged incidents which occurred on school grounds, insofar as asserted against the DOE defendants, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from.

BARROS, J.P., CHRISTOPHER and WARHIT, JJ., concur.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants City of New York, New York City Department of Education, and Catherine and Count Basie Middle School 72 which was for summary judgment dismissing so much of the complaint as was predicated on alleged incidents which occurred on school grounds, insofar as asserted against the defendants New York City Department of Education and Catherine and Count Basie Middle School 72, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiffs."