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."

NY CHILD CUSTODY & SUPPORT - NOT SUBJECT TO ARBITRATION

The court feels that delegating this duty to a third party is against public policy.

MW v. RR, 2026 NY Slip Op 50278 - NY Sup. Ct. Rock. Co. 2026:

"Parties should generally be permitted to discontinue an action, provided that the discontinuance is filed within the time parameters set forth in CPLR § 3217. However, there are exceptions, particularly where children are involved, and especially when the safety of children is at issue. To this end, any application to discontinue must be evaluated with due regard to the interests of the children, since the state has a legitimate interest in protecting children from abuse or neglect. See generally Irene D. V. Anthony D., 113 Misc 2d 561 (Family Court New York County 1982).

In this action seeking divorce, with a contested custody dispute, the Court finds an issue of first impression, involving the interplay between CPLR § 3217(a), the rights, duties and obligations of an attorney for the child, a temporary order of protection, the parties' right to contract, and the validity of an arbitration agreement. The principal issue is whether this Court should accept a stipulation of discontinuance, contained in an "Agreement to Arbitrate" filed with this Court. In this Agreement, the parties state that they agree to arbitrate not only issues of support, maintenance and equitable distribution, but also issues of custody and visitation. The Court appointed attorney for the child ("AFC") was not a signatory to the arbitration agreement when there is a temporary order of protection in effect protecting the child, and the AFC and the Plaintiff both object to the discontinuance.

For the reasons that follow in this Decision and Order, this Court finds that: (1) because of the Court's function as parens patriae in contested custody matters, (2) because of the existence of a temporary order of protection in favor of the child, and (3) because the attorney for the child objects to the discontinuance, discontinuance of this action should not be permitted even though the parties agreed to same. Additionally, the Court finds that the stipulation does not comply with CPLR §3717.

PRELIMINARY STATEMENT

On October 3, 2025, this Court issued an Order (hereinafter referred to as the "October 2025 Order") which provided, inter alia, that:

WHEREAS, the parties entered into an arbitration agreement dated September 12, 2025, that included a stipulation discontinuing the instant action; and

WHEREAS, the Attorney for the Child was not a signatory of said agreement; and

WHEREAS, an issue as to the validity of the Stipulation of Settlement pursuant to CPLR 3217 has been raised as has the issue of the parties agreeing to arbitrate the issue of Custody and parental access (Goldberg v. Goldberg, 124 AD3d 779) as well as other terms of the agreement; and

IT IS HEREBY ORDERED that all parties and the Attorney for the Child shall submit briefs on the issue of the validity of the agreement simultaneously on October 17, 2025 at 5:00 p.m.

BACKGROUND

This instant matter has a substantial litigation history, much of which will not be repeated herein. However, as for relevant background, the parties were married on June 13, 2020. There is one child of this marriage, to wit: Z., born xx/xx/xxxx. The instant action for divorce and ancillary relief was commenced on February 10, 2023 by the filing of a Summons and Verified Complaint with the Rockland County Clerk on February 10, 2023. The Defendant interposed a Verified Answer on March 3, 2023. A Preliminary Conference was held in this matter on April 4, 2023.

On April 15, 2025, an Administrative Order was issued by the Hon. James P. Murphy, J.S.C., D.C.A.J., assigning the undersigned Justice to hear and determine this matter. On April 28, 2025, this Court issued an Order Appointing Attorney for the Child. On April 28, 2025, this Court issued a Temporary Order of Protection on behalf of the child.^[1] On September 12, 2025, the parties executed the subject Arbitration Agreement ("Agreement") filed with the Court on September 22, 2025. On January 7, 2026 this Court issued a Decision and Order (hereinafter referred to as the "January 2026 Order")^[2] which, inter alia and in sum and substance, denied the Defendant's application seeking the disqualification of the AFC and denied the Defendant's application seeking the appointment of a new AFC. The instant Decision and Order with respect to the October 2025 Order was held in abeyance pending the January 2026 Order.

THE PARTIES' CONTENTIONS

Defendant's Contentions:

The Defendant asserts that a stipulation of discontinuance executed by the parties is binding and terminates the jurisdiction of the Court. She argues that the AFC, while she is the advocate for the child, she is not a procedural party and her signature is not required to effectuate a stipulation of discontinuance. The Defendant alleges that the Court lacks jurisdiction over the instant custody matter following the execution of a valid stipulation of discontinuance, and the parties have a constitutional right to determine the best interests of the child. The Defendant argues that stipulation of discontinuance is binding and enforceable, and that judicial resources should not be expended on matters which have been voluntarily discontinued. The Defendant alleges that the parties freely chose the Rabbi, that there was no fraud, collusion, mistake or accident, especially where the Plaintiff induced the execution of the Agreement. The Defendant alleges that the Agreement, which resolved all issues, included a stipulation of discontinuance, and that the Agreement is signed and notarized by the parties after consultation with counsel of their own choosing.

The Defendant maintains that a stipulation of discontinuance is effective even if it is contained within an agreement signed by the parties. The Defendant alleges that the stipulation of discontinuance is valid and enforceable notwithstanding the validity of the other provisions in the agreement. The Defendant alleges that in the Agreement, the parties included a severability clause which could be used to enforce the remainder of the Agreement. The Defendant alleges that even if the arbitration provision in the Agreement is deemed nonbinding and unenforceable, the severability clause ensures that the stipulation of discontinuance remains in effect. The Defendant argues that allowing a party to challenge the stipulation of discontinuance based on whether the child custody arbitration portion of the agreement would undermine the severability clause to which the parties agreed.

The Defendant further argues that CPLR § 3217(a)(2) applies even when a divorce action in Supreme Court involves child custody matters. The Defendant asserts that the absoluteness of a discontinuance under this section applies in all circumstances. The Defendant claims that the stipulation of discontinuance does not purport to alter or extinguish any independent legal rights of the child. The Defendant argues that there are very limited exceptions to the termination of jurisdiction following a stipulation of discontinuance, such as a Family Court Act Article 10 proceedings. He maintains that in the event that the Court determines that approval to discontinue is required after a voluntary discontinuance, then a formal motion would be required, which would, ostensibly, upend established practice of voluntary discontinuance(s) in matters involving child custody.

The Defendant alleges that the AFC does not represent a party to the divorce. She argues that CPLR § 3217(a)(2) requires that the stipulation of discontinuance be signed by the "attorneys of record for all parties", and the term "parties" refers to the individuals named in the proceeding or have legal standing to assert or defend claims. The Defendant argues that requiring an AFC to sign stipulation(s) of discontinuance would improperly elevate their role beyond statutory or ethical bounds, and alleges that it would give the AFC "unprecedented power" over a personal decision. The Defendant alleges that CPLR § 3217(a)(2) permits a voluntary discontinuance before the matter is submitted to the court or jury, and the matter has not been submitted to the court or jury in this instance. The Defendant finally argues that the parties have a right to discontinue this action and pursue alternative dispute resolution methods.

As to the Court's role and power over the parties' desire to arbitrate, the Defendant argues that while courts have held that their role as parens patriae must not be usurped, such authority extends where the conformation of an arbitration award is disputed, and that the courts cannot stop parties from engaging in alternative dispute resolution methods if they so wish (see Defendant's Brief, pages 14-15). While the Court initially agrees with the generalized notion that courts cannot stop parties from seeking alternative dispute resolution, the Court parts ways with the Defendant based upon the provisions of the Agreement after a review of same.

Plaintiff's Opposition:

The Plaintiff alleges that the Defendant is, in effect, attempting to discontinue this action so that she can immediately thereafter file an action in New York County where her family rents an apartment. The Plaintiff claims that in September 2025, a Rabbi was contacted to assist the parties in resolving their contested issues. The Plaintiff maintains that the Rabbi thereupon presented the parties with the Agreement. The Plaintiff alleges that the Defendant executed the Agreement and filed same on September 22, 2025 alleging that the divorce action was discontinued, but the Plaintiff thereupon objected to the discontinuance. He alleges that the Agreement cannot serve as a stipulation of discontinuance because it was not signed by the attorneys of record in this action. The Plaintiff alleges counsel for the parties did not sign the Agreement, nor did counsel for the parties sign a stipulation of discontinuance. The Plaintiff argues that the rule that counsel must sign any stipulation of discontinuance is not discretionary.

The Plaintiff also argues that agreements to arbitrate custody issues are invalid in New York, which is the state with jurisdiction in this matter. The Plaintiff argues that even if the Agreement served to discontinue the action with respect to the financial issues, it cannot discontinue the action concerning the custody issues because custody issues are not subject to arbitration in New York. The Plaintiff claims that it is irrelevant that New Jersey permits arbitration of custody issues because New Jersey does not have jurisdiction over custody of the child. The Plaintiff alleges that the child has resided in the State of New York for her entire life.

Attorney for the Child's Opposition:

The AFC alleges that once an action has commenced and advanced, CPLR § 3217(b) requires court approval, and that discontinuance is not a matter of right, but lies within the discretion of the Court. The AFC alleges that in family law matters, especially ones involving custody, allegations of abuse, and visitation, discontinuance is not a matter of right, but it lies within the discretion of the Court to protect the best interests of the child. The AFC notes that both she and the Plaintiff object to the discontinuance. The AFC alleges that CPLR § 3217(a) permits discontinuance without an order of the Court, but only prior to issue being joined or, in limited circumstances, where all parties of record consent in writing. The AFC alleges that she must be afforded an opportunity to be heard before a proceeding affecting the child's welfare be discontinued.

The AFC also claims that she is not a signatory to the Agreement and that she did not have an opportunity to review the Agreement prior to the signing thereof. The AFC alleges that the Court must act as parens patraie to do what is best for the child. The AFC argues that a discontinuance would "disintegrate the very protections the Court has already put in place to ensure the child's safety". The AFC alleges that there is an active temporary order of protection in place in her client's favor and the AFC continues to serve by court appointment, reinforcing the need for continued judicial supervision. The AFC maintains that the child's welfare is at issue and the discontinuance would remove safeguards put in place by the Court. The AFC alleges that the Defendant's own filings reinforce why discontinuance would endanger the child's safety, as one day before the signing of the Agreement, the Defendant moved to restore Family Court's order requiring supervision for the Plaintiff. The AFC argues that the Defendant's own conduct in this action underscores that the child's welfare is deeply troubled and "at escalating risk".

DISCUSSION AND ANALYSIS

DISCONTINUANCE

The Agreement, at Paragraph "44", provides:

44. The parties expressly acknowledge that they understand and agree that arbitration before the Arbitrator shall be the exclusive forum for the adjudication of the above listed disputes and as set forth above by agreeing to arbitration they are waiving their rights to other resolution processes, such as court action or other arbitration, and that the parties shall be precluded from bringing suit in court with respect to the disputes listed above, except as to enforce this Agreement. This provision shall be a complete defense to any suit, action or proceeding instituted before any court or other body with respect to the above listed disputes, provided, however, that, notwithstanding this provision, any party may seek interim judicial relief in aid of arbitration, to prevent a violation of this Agreement pending arbitration, or to enforce any arbitration award. If either party violates this provision, the other party shall be entitled to dismissal or injunctive relief regarding such court action or arbitration and recovery of all costs and disbursements, losses, and attorneys' fees related to such other proceeding, if such claim is dismissed, to the extent permitted by law. The Parties further agree to immediately discontinue any and all court actions, if any, relating to the matters discussed in Paragraph 2 of this Agreement and the parties shall immediately execute all documents necessary to complete the foregoing. The parties agree that the court case, if any, is hereby discontinued and all prior orders, decisions, findings and stipulations, if any, no longer have effect. The invalidity of any provision of this Agreement shall not affect the validity of any other provision of this Agreement. In the event that a court of competent jurisdiction determines that any provisions of this Agreement fail to comply with the legal requirements for the compulsory arbitration of the disputes listed above, it is the parties' intention that the court shall equitably reform such provisions to the extent necessary (and only to the extent necessary) to conform the offending provisions to such legal requirements.

(emphasis added).

As a threshold matter, both the Plaintiff and Defendant aver that CPLR § 3217(a) applies. The AFC avers that CPLR § 3217(b) applies. The parties and the AFC are effectively at odds as to the operative provision of CPLR § 3217. The Court therefore finds that it must, first, address the operative provision of CPLR § 3217. CPLR § 3217(a)(2) provides:

(a) Without an order. Any party asserting a claim may discontinue it without an order

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2. by filing with the clerk of the court before the case has been submitted to the court or jury a stipulation in writing signed by the attorneys of record for all parties, provided that no party is an infant, incompetent person for whom a committee has been appointed or conservatee and no person not a party has an interest in the subject matter of the action; or

CPLR § 3217(b) provides:

(b) By Order of Court. Except as provided in subdivision (a), an action shall not be discontinued by a party asserting a claim except upon order of the court and upon terms and conditions, as the court deems proper. After the cause has been submitted to the court or jury to determine the facts the court may not order an action discontinued except upon the stipulation of all parties appearing in the action.

Initially speaking, the AFC argues that since "... issue has long since been joined, discovery completed, witnesses sworn, and the Court has issued material orders ..." (see AFC Brief, page "3"), CPLR § 3217(b) applies.

The Court disagrees with the AFC on an initial basis; the Court finds CPLR § 3217(b) inapposite in the first instance. In Emigrant Bank v. Salimano, the court held that

"... [t]he third stage of a litigation, as relevant to a discontinuance, is the period after the case has been submitted to the court or the jury for a determination of the facts. Once an action or a proceeding has advanced to the point of deliberation and fact-finding, there can be no discontinuance except by leave of court upon such terms and conditions as the court deems proper and a stipulation of all parties appearing in the action ... [t]hus, CPLR § 3217, viewed in its entirety, operates like a seesaw, allowing for discontinuances by mere unilateral notice at the earliest stage of a litigation, while imposing incrementally greater requirements upon the party seeking the discontinuance the farther the litigation progresses.

The statute is easily applied in cases that go to trial. In such instances, the submission of the case to a jury for its findings of fact, or the submission of the case to a court during a bench trial, operates as a bright line separating the discontinuance that may be sought using the pre-deliberative mechanisms of CPLR §§ 3217(a)(2) and (b) from the mechanism of CPLR § 3217(b) which attaches once the deliberative phase begins ..."

Emigrant Bank v. Solimano, 209 AD3d 153 (2d Dept. 2022). While testimony has, in fact, been taken, the trial was never completed and submitted to the Court for a determination of the facts (Emigrant Bank, supra). This matter has not advanced to the point of deliberation and fact-finding. While testimony was taken in Rockland County prior to the assignment to the undersigned, this Court has not, at this juncture, declared a mistrial. It is of no moment that discovery may or may not have been completed, and it is of no moment that "material" orders may have been issued. Matrimonial courts routinely issue material orders pendente lite; but a material pendente lite order does not mean that the case was submitted to the undersigned for fact-finding and deliberation on a final basis. Therefore, the Court finds that, at this point, CPLR § 3217(a) is operative, unless, of course, the Court finds that the parties cannot discontinue pursuant to CPLR § 3217(a). CPLR § 3217(a)(2) clearly provides that a party may discontinue without a court order:

"... by filing with the clerk of the court before the case has been submitted to the court or jury a stipulation in writing signed by the attorneys of record for all parties, provided that no party is an infant ... no person not a party has an interest in the subject matter of the action..."

(emphasis added).

The Defendant argues to the Court that once a stipulation of discontinuance is signed by the parties and filed with the Court, the Court is divested of jurisdiction and it terminates the underlying divorce proceeding. The Court disagrees under the circumstances of this case.

As an initial matter, the Agreement is in derogation of CPLR § 3217(a)(2) inasmuch as it was neither signed by the Plaintiff's counsel nor the Defendant's counsel. The text of CPLR § 3217(a)(2) makes clear that the signatures of counsel are required, and the Agreement is devoid of the signature(s) of counsel for the parties. The text of the statute could have provided that any stipulation of discontinuance be signed just by the parties. It does not. Inasmuch as CPLR § 3217(a)(2) specifically requires the signatures of the attorneys of record for all parties, and inasmuch as the Agreement does not contain the signature of the attorneys of record for all parties, the Agreement fails to comply with CPLR § 3217(a)(2).

The Court also disagrees with the AFC's position that the Agreement which seeks to discontinue the action is invalid because she was not a signatory. A child is not a party to a matrimonial action. The parties to a matrimonial action are the parents. While the Court certainly has to consider, in a contested custody matter, the express wishes of the children as a factor (Silverman v. Silverman, 186 AD3d 123 [2d Dept. 2020]), their wishes are not dispositive. Whether the Court can choose not to honor a stipulation of discontinuance which discontinues a divorce action is a separate issue. In this instance, the Court declines to accept the Agreement as a stipulation of discontinuance.

CPLR § 3217(a)(2) provides this Court with the authority to decline to permit the discontinuance by stipulation. It reads "... provided that ... no person not a party has an interest in the subject matter of the action..." (emphasis added). While a child may not be a party to the action, a child is a person. See generally Matter of Bennett v. Jeffreys, 40 NY2d 543 (1976). The Second Department has made it clear that children have a real and substantial interest in the outcome of contested custody litigation, writing, in part:

"... [s]ubstantively, and more importantly, it cannot be denied that a ... child has a real and substantial interest in the outcome of litigation between the parents ... [i]t seems self-evident that the child is the person most affected by a judicial determination on the fundamental issues of responsibility for, and the environment of, the child's upbringing. To rule otherwise would virtually relegate the child to the status of property, without rights separate and apart from those of the child's parents...."

Matter of Newton v. McFarlane, 174 AD3d 67 (2d Dept. 2019). The Second Department characterized the child's interest in the outcome as "vital". Matter of Newton, 174 AD3d at 75.

A party can argue that an AFC has no right to object to litigants voluntarily electing to discontinue their divorce action. That argument is certainly well-taken. In JM v. RM when discussing the role of an AFC:

"... [i]t is worth summarizing: the AFC is tasked with the weighty responsibilities of zealously advocating for his or her client ... taking an active role in the proceedings ... and consulting and counseling the client ... [i]n addition, the AFC must subject themselves to the ethical requirements applicable to all lawyers ... including the rules of good lawyering and professional responsibility ..."

JM v. RM, 77 Misc 3d 506 (Supreme Court Nassau County 2022). The AFC, once assigned by the Court, is an attorney in the matter who must represent his or her client. She has to advocate for and counsel her client, she has to take an active role in the proceedings, and she must comport herself with ethical obligations imposed upon counsel. The AFC's role in cases is much deeper than just a functional one in representing a client. AFC's develop relationships with their clients and must advocate for them without prejudicing their rights. See generally M.M. v. K.M., 62 Misc 3d 487 (Supreme Court Nassau County 2018).

The Court finds that while the AFC's position on behalf of her client is not dispositive on whether or not parties in a contested custody matter may discontinue an action, her position on behalf of his or her client is entitled to weight and consideration. The degree of weight and consideration depends upon a multiplicity of factors, such as the age and maturity of the child, but also should depend, to some degree, on whether or not there are allegations of domestic violence and/or abuse or neglect in a specific case. Such a logical conclusion is in-line with the ethical rules promulgated to counsel and the Second Department's reasoning in Matter of Newton v. McFarlane, supra. That weight and consideration, however, requires a fact-specific analysis.

In this instance, the child has a clear interest in the outcome of the custody litigation between their parents. The child, through the AFC, objects to the discontinuance of the action. The Court finds that in this contested custody matter where the AFC, on behalf of her client, objects to the discontinuance, the parties cannot simply discontinue as a matter of right, but, rather, they need permission of the Court to discontinue pursuant to CPLR § 3217(b).

In furtherance of the above, not all actions can fit the bill of a "one size fits all" motto. Matrimonial matters are unique (L.F. v. M.F., 78 Misc 3d 810 [Supreme Court Nassau County 2023]; Marcillo v. Hennessy, 46 Misc 3d 1225(A) [Supreme Court New York County 2015]). The Court has a duty to act as parens patriae. (C.M. v. E.M., 82 Misc 3d 198 [Supreme Court Nassau County 2023]; G.P. v. S.S., 78 Misc 3d 1221(A)[Supreme Court Nassau County 2023]; T.H. v. G.M., 81 Misc 3d 1205(A)[Supreme Court Nassau County 2023]). Where custody and visitation are in issue, the court's role as parens patriae must not be usurped Clarence M. V. Martina M., 68 Misc 3d 457 [Supreme Court Kings County 2020]). While children of divorce are still children and the parents are still the parents, it is the court's role in parens patriae to protect the child. Clarence M., 68 Misc 3d at 469.

This Court is charged with protecting children that are the subject of litigation before it and making determinations of what is in the best interests of the child under the totality of the circumstances (Paige v. Paige, 202 AD3d 794 [2d Dept. 2022]). When the Court undertakes its role as parens patriae, it must put itself "... in the position of a wise, affectionate and careful parent..." (Finlay v. Finlay, 240 NY 429 [1925]).

The Court notes that while appointed by the Court, the AFC does not assert any judicial supervision of the child, she represents the child. The only body exercising judicial supervision over this child is the undersigned Justice. The Court finds that the existence of the Temporary Order of Protection, in and of itself, is a basis for the Court to decline to permit the discontinuance of this action at this time. The Temporary Order of Protection is in favor of only the child.^[3] The Temporary Order of Protection is a "general refrain" in favor of the child against the Plaintiff, and directs the Plaintiff to "... refrain from covering the subject child's throat, mouth, or nose that creates an unreasonable risk to the health, safety, or welfare ..." of the subject child. The Court has yet to have a hearing on the underlying petition, so it has yet to determine whether a family offense has been committed. Without an adjudication on the merits of that petition, the Court declines, at this time, to permit the discontinuance of this action. The Court has also considered the fact that the Defendant herself, one day prior to the execution of the Agreement, filed an emergency application with the Court seeking to restore a prior order of the Rockland County Family Court requiring supervised access for the Plaintiff with the child. In that filing, she characterizes the Plaintiff's conduct as "reckless", represents that the child "screams and cries when she goes" to the Plaintiff, refuses to communicate with her about the child's health and mental issues, and characterizes the Plaintiff's conduct as "intentional or grossly negligent". She also claims that the Plaintiff has a "disregard for his child's safety" and that she left the Plaintiff after his "repeated threats" and "domestic violence". She also alleges that the Plaintiff obstructed the child's breathing.

Based upon those sworn allegations, it would be irresponsible and an abrogation of the Court's duty as parens patriae to permit the discontinuance of this action at this juncture. The Court is compelled to find that a discontinuance of this proceeding, while perhaps truly desired by the Plaintiff and Defendant, is not in the best interest of the child, or appropriate to insure the child's protection. Accordingly it is hereby:

ORDERED, that the stipulation of discontinuance, contained within the Arbitration Agreement, be and the same is hereby REJECTED and shall be of no force and effect.

AGREEMENT TO ARBITRATE CUSTODY AND ACCESS

The Agreement, at Paragraph "2", provides:

2. The parties agree to arbitrate certain disputes as provided in this Agreement as follows: All issues that could be raised and adjudicated in court, including pendente lite and temporary and permanent issues, so that matters in arbitration include but are not limited to custody (legal and physical), parenting time, child support and the allocation of child-related expenses, spousal support, division of assets and allocation of debt. These and all other matters between the parties arising out of their marriage and divorce shall be subject to the jurisdiction and determination by the Arbitrator pursuant to the terms and procedures of this Agreement. The Arbitrator shall determine whether an issue or dispute is within the scope of the Arbitrator's jurisdiction.

(emphasis added).

Disputes concerning child custody and visitation are not subject to arbitration, as the Court's role as parens patriae must not be usurped (Goldberg v. Goldberg, 124 AD3d 779 [2d Dept. 2015]; Weisz v. Weisz, 123 AD3d 917 [2d Dept. 2014]; Hirsch v. Hirsch, 4 AD3d 451 [2d Dept. 2004]; Matsui v. Matsui, 200 AD3d 774 [2d Dept. 2021]).

The parties executed the Agreement which contains the following provisions:

4. The Arbitrator may issue a temporary or partial decision or injunction.

5. Judgment on the award rendered by the Arbitrator may be entered in any court having jurisdiction thereof.

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10. The Arbitrator shall retain jurisdiction over this matter after publishing its award, and shall be authorized to modify the award for any reason they deem proper.

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19. In any arbitration proceeding involving custody or parenting time issues, the parties shall have a record made of the arbitration proceeding as to those issues. Such record shall include: (i) a record of all documentary evidence; and (ii) all testimony shall be recorded verbatim. A record of testimony may be made by one of the following: (i) certified shorthand reporter; (ii) electronic recording; or (iii) audio or video recording. The recording of the proceeding by any of the means listed above shall be at the cost of the parties and absent agreement of the parties, the Arbitrator shall decide the proper allocation of the costs of the record.

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25. In any proceeding involving custody, parenting time or child support issues, parties shall require the Arbitrator to make findings of fact and conclusions of law with respect to child-custody, parenting-time, or child support issues. As to those issues, the Arbitrator shall state in writing or otherwise record findings of fact and conclusions of law with a focus on the best-interests standard ...

Here, a review of the Agreement, both in toto and the salient paragraphs above clearly indicate to the Court that the parties contracted to provide the Arbitrator with the authority to determine issues concerning custody and parental access inasmuch as those issues are squarely in dispute in this case and inasmuch as the Agreement provides that the parties agreed to arbitrate the issues of custody and parenting time (see Agreement, Paragraph "2"). While parties to a contract are basically free to make whatever agreement they wish, even if the agreement appears to be unwise to a third party, they may not do so in the presence of a violation of law or transgression of a strong public policy. Rowe v. Great Atlantic & Pacific Tea Co., 46 NY2d 62 (1978). The Court finds that delegating the decision on the issues of custody and visitation to an Arbitrator violates public policy inasmuch as it infringes upon the Court's role as parens patriae.^[4] Therefore, it is hereby:

ORDERED, that so much of the Agreement which purports to delegate to an Arbitrator decision-making over the issues of custody and visitation be and the same are hereby deemed NULL and VOID.

Any other relief requested not specifically addressed herewith is hereby DENIED.

This constitutes the Decision and Order of this Court.

[1] The Temporary Order of Protection remains in effect and on February 5, 2026, was extended through and included August 4, 2026.

[2] On Motion Sequence No.: 035.

[3] Had the Temporary Order of Protection been, for instance, in favor of only one of the parties against the other, and had there been no children of this marriage, the Court may have reached a different result.

[4] While not necessarily before the Court on these submissions, the Court also finds problematic the provision of Paragraph "2" of the Agreement which provides that the parties are to arbitrate "... [a]ll issues that could be raised and adjudicated in court ..." The phrase "all issues" certainly includes the adjudication on the temporary order of protection and whether or not a family offense has been committed. The Court finds that this provision, to the extent it purports to be an agreement to adjudicate the temporary order of protection, is invalid as a transgression of public policy. The Court does not finds that whether or not a family offense has been committed and whether or not a temporary or final order of protection should be issues is a dispute subject to arbitration."