For a Judgment Pursuant to Art. 78 of the CPLR DECISION AND ORDER PROCEDURAL HISTORY Petitioner V.G. (“Petitioner”) brings this Action under Article 78 of the CPLR against Respondents Doreen M. Hanley, as Clerk as the Family Court of the State of New York (“Chief Clerk of the Family Court”), Andrew Cuomo, as the Governor of the State of New York (“Governor”) and the State of New York (the “State”) to compel the Family Court of the State of New York (“Family Court”) to immediately accept the filing of new petitions for parenting (the “Petition”). Petitioner seeks to have his action heard in Family Court, which remains largely closed due to the current COVID pandemic. The Court hereby denies the Petition and dismisses the Action against all Respondents. Petitioner has two minor children, E.G. (DOB xx/xx/2018) and A.G. (DOB xx/xx/2020). According to Petitioner, he and the mother of his children (the “Mother”) co-parented their children until on or about May 6, 2020. Before such date, Petitioner represents that he was a very hands-on father who was involved in “every aspect” of his children’s daily lives. After his co-parenting relationship with the Mother ceased, Petitioner alleges that the Mother filed a “bogus” Family Offense Petition against him and was issued a Temporary Limited Order of Protection. Petitioner claims that since such filing, he has been unable to arrange for parenting time with his children and the Mother refuses to comply with previously agreed upon terms for parenting time. Petitioner represents that he attempted to commence a Family Court Action in order to see his children without delay on June 15, 2020 and July 21, 2020 by way of Emergency Order to Show Cause. According to Petitioner, the Chief Clerk of the Family Court refused to accept the matter on both dates. Petitioner also represents that he submitted a Petition for Sole Legal Custody on August 6, 2020. “Although the Richmond County Family Court has time-stamped the document, they still refuse to calendar ‘until the Court opens’”. Petitioner argues that he and his children are suffering irreparable harm due to the Family Court’s refusal to hear his application. According to the Chief Clerk of the Family Court, Petitioner filed a Petition for a Writ of Habeas Corpus dated August 16, 2020 and commenced a new proceeding before the Family Court, alleging that the Mother “wrongfully prevented or interfered with his rights” to see and visit the children. Petitioner attempted to gain sole legal custody of his children based on his claims that the Mother is suffering from post-partum mental illness. On August 17, 2020, the Family Court granted the writ and assigned an attorney for the children, directing the Mother to produce the children. On August 20, 2020, the Mother produced the children via videoconference and the Family Court heard the Petition. The Family Court subsequently directed a Court Ordered Investigation (“COI”) by the Administration of Children’s Services (“ACS”) to determine the validity of the allegations made by Petitioner against the Mother. The Family Court adjourned the matter to September 9, 2020 for further hearing upon completion of the investigation. On September 9, 2020, the Family Court represents that it received a written report of ACS’ investigation based on an observation of the children with the Mother and interviews of both parents. ACS reported no safety concerns and the Family Court marked the writ satisfied with no future dates set. In his Petition before this Court, filed on July 30, 2020, Petitioner brings forth ten causes of action, including those for violation of his equal protection rights, due process rights and parental rights provided for in the United States Constitution and the New York State Constitution. Petitioner requests that this Court compel Respondents to immediately hear his case in Family Court and also seeks attorney’s fees. In Petitioner’s Emergency Order to Show Cause, filed August 3, 2020, Petitioner asks that this Court require the Respondents to immediately commence and hear his Family Court Matter and all Family Court matters (Motion No. 001). Counsel for Petitioner argues that “if the Mother and Petitioner were married, despite the Pandemic, there would be no delay whatsoever in having the case heard now in Supreme Court. This is a form of rampant institutional discrimination against parents who just simply happen not to be married to each other.” Counsel further maintains that Petitioner has met the necessary elements to procure a preliminary injunction, namely (1) the likelihood of ultimate success on the merits, (2) irreparable injury absent the granting of the preliminary injunction and (3) that a balancing of equities favors the movant’s position. Chief Clerk of the Family Court’s Cross-Motion to Dismiss On September 14, 2020, the Chief Clerk of the Family Court filed a Cross-Motion to Dismiss the Verified Petition (Motion No. 002). The Chief Clerk of the Family Court represents that on June 15 and July 21, 2020, Petitioner sought to file an Emergency Order to Show Cause with the Family Court, seeking an order granting visitation and/or custody of his children while already living in the same household as them. The Court notes that Petitioner denies such statement in his Affidavit in Opposition. The Chief Clerk of the Family Court states that the Family Court refused to accept Petitioner’s filing seeking to commence a new visitation or custody proceeding based on the Administrative Orders in place that currently limit filings to certain essential and emergency matters. In her Cross-Motion, the Chief Clerk of the Family Court details the issuance of Administrative Orders (“AO”) by Chief Judge DiFiore (“CJ”) and Chief Administrative Judge Lawrence K. Marks (“CAJ”) that commenced in March 2020. Such AOs were issued and designed to protect litigants, the public and the courts during the ongoing COVID-19 pandemic. According to the CJ’s AO 3/20, it was necessary to postpone all non-essential matters and keep the courts open only for “essential matters”. Concurrently, CAJ Marks, under the authority delegated to him by the CJ, issued AO 68/20 to mitigate the effects of COVID-19 on all persons in the Court and postponed all non-essential functions of the courts until further notice. AO 68/20 also attached a list of essential matters and any matters not included in the list were postponed until they could be safely pursued. On March 16, 2020, Administrative Judge Jeanette Ruiz of the Family Court established that Family Court hearings would be limited to emergency and essential matters and all other matters not heard in the emergency parts would be administratively adjourned.the statute of limitations After Governor Cuomo suspended the statute of limitations in legal matters, CAJ Marks issued AO 78/20, which determined that new filings would only be accepted for “essential” matters. On July 31, 2020, the Family Court “began accepting new filings in an expanded range of cases, but to date has not begun to accept new petitions for custody or visitation, such as the one petitioner seeks to file here (as well as other matters).” The Chief Clerk of the Family Court argues that the Family Court still permits the filing of emergency matters, including new applications for orders of protection and removal applications brought by ACS, and recently started accepting new filings for writs of habeas corpus as of July 31, 2020. According to the Chief Clerk of the Family Court, Petitioners “emergency” application is not considered an essential matter and “did not present any claim of a true emergency regarding the welfare of his children.” The Chief Clerk of the Family Court represents that the limitation on Family Court proceedings and filings “is a significant one for purposes of public health” and is necessary to avoid an unsafe level of foot-traffic that would contravene all required COVID-19 protocols. The Chief Clerk of the Family Court notes that the Governor relied upon the CJ’s directive to limit court operations to essential matters when he issued Executive Order 202.8, tolling the statute of limitations in New York.2 In her Cross-Motion, the Chief Clerk of the Family Court cites to the Governor’s declaration of a state of emergency and his Executive Orders, including those that required all non-essential businesses to close or require their employees to work from home. The Chief Clerk of the Family Court maintains that Petitioner has failed to state a claim for mandamus to compel. The Chief Clerk of the Family Court notes that under the applicable standard, the mandamus can only compel ministerial acts, not discretionary acts, and that the writ of mandamus does not lie where a statute does not command an administrative or government body to do something within a specific time period. The Chief Clerk of the Family Court states that under CPLR §7803, Petitioner has not demonstrated that he has a ‘clear legal right’ to commence a new visitation proceeding immediately before the Family Court during the current emergency caused by the COVID-19 pandemic, and to have such a matter heard in preference to all other litigants waiting to also file new matters. To the contrary, such a filing is barred by the terms of the current AOs. Petitioner in no sense explains how, in light of the AOs, Chief Clerk Hanley is required as a matter of law and as a “ministerial” matter, to accept a filing which is otherwise currently not permitted. To the contrast, the AOs establish that she has no “ministerial duty” to do so. As a result, the claim here fails and must be dismissed. (Memorandum of Law, Page 10 of 12). The Chief Clerk of the Family Court further contends that Petitioner has failed to show that his constitutional rights were violated, as the question of when to hear a matter “lies within the sound discretion of the courts-and do not involve a purely ‘ministerial’ duty. Governor’s Cross-Motion to Dismiss On September 14, 2020, the Governor also filed opposition to Petitioner’s Motion and a Cross-Motion to Dismiss the Petition (Motion No. 003). The Governor states that the Administrative Orders that applied to Petitioner’s attempted filings in Family Court were issued by the New York State Office of Court Administration (“OCA”). The Governor denies having any role in the creation, issuance or enforcement of such AOs and states that he heads a different branch of government. According to the Governor, Petitioner has also failed to allege “a single fact connecting the Governor’s conduct to the Family Court’s refusal to accept Petitioner’s Family Court Petition.” Furthermore, the State maintains that the Article 78 proceeding must be dismissed against it, since it is not a “body” or “officer” within the meaning of CPLR §7802. Petitioner’s Opposition to Respondents’ Cross-Motions In his opposition papers, Petitioner disputes the Chief Clerk of the Family Court’s contention that he is seeking preferential treatment. Petitioner states that he wants only wants to be treated “the same way as hundreds and perhaps thousands of parties have been treated since Covid simply because they happen to be married”, as Supreme Court has been hearing these individuals’ matters for “several months now.” In response to the Chief Clerk of the Family Court’s arguments regarding ministerial acts, Petitioner argues that the Chief Clerk of the Family Court’s duty is strictly ministerial under CPLR §2102(c), which prohibits a clerk from refusing to accept any paper for filing except where specifically directed to do so by statute or rules promulgated by the chief administrator of the courts, or order of the court. Petitioner also cites to §22 NYCRR 205.8, which requires that all papers for signature and consideration of the court shall be presented to the clerk and promptly delivered to the judge by the clerk. By refusing to accept Petitioner’s papers for filing and docketing, the Chief Clerk of the Family Court has allegedly failed to perform her ministerial act, which is not subject to discretion. Citing the Governor’s argument that he did not have any role in creating or enforcing the Family Court’s Decision, the Petitioner disputes the Chief Clerk of the Family Court’s argument that she was forced to comply with the Governor’s Executive Orders and states that “the Court acted alone by failing to properly process Petitioner’s papers within its clear ministerial duty.”3 Petitioner’s counsel further argues that the attorney’s fees application is unopposed. With regard to the State and Governor’s Cross-Motion, Petitioner argues that “there is a clear nexus amongst the Governor, State and Court Clerk”. Petitioner further argues that the State and Governor are in charge of Court administration with the power to compel the Family Court to conduct their ministerial acts and therefore the Respondents are “inextricably linked together.” Petitioner further argues that the Second Department case law supports bringing an Article 78 Action against the state and that the state must be accountable for its actions. DECISION Under CPLR §3211(a)(7), a motion to dismiss for failure to state a cause of action must be construed in the light most favorable to the plaintiff and all factual allegations accepted as true. (Parekh v. Cain, 96 A.D.3d 812, 815 [2d Dept., 2012]. Such a motion to dismiss should be granted “where, even viewing the allegations as true, the plaintiff cannot establish a cause of action.” Id. The Court has used this standard in deciding the relevant motions and disregards Petitioner’s argument that CPLR §3211(a)(1) is applicable here.4 It is well-established that a writ of mandamus is “an extraordinary remedy” that is “available only in limited circumstances.” Alliance to End Chickens as Kaporos v. New York City Police Dept., 32 N.Y.3d 1091, 1093 [2018]. (See Matter of County of Chemung v. Shah, 28 N.Y.3d 244, 266 [2016] (quoting Klostermann v. Cuomo, 61 N.Y.2d 525, 537 [1984])). The Court of Appeals has held that “Mandamus is available, however, only to enforce a clear legal right where the public official has failed to perform a duty enjoined by law. (see CPLR §7803 [1])”. N.Y. Civ. Liberties Union v. State, 4 N.Y.3d 175, 184 [2005]. Further, “mandamus does not lie to enforce the performance of a duty that is discretionary, as opposed to ministerial. A discretionary act “involve[s] the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result.” Id. According to the Court of Appeals, mandamus “may only issue to compel a public officer to execute a legal duty; it may not direct how the officer shall perform that duty.” Alliance to End Chickens as Kaporos v. New York City Police Dept., 32 N.Y.3d at 1093 (internal citations omitted). Under CPLR §7803(1), (3), the Court must determine whether the body or officer failed to perform a duty enjoined upon it by law or whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary, capricious or an abuse of discretion. (See CPLR §§7803(1), (3)). The Court first turns to the Petition as against the Chief Clerk of the Family Court. The Court must examine the Chief Clerk of the Family Court’s actions and decisions under the umbrella of the ongoing COVID pandemic and its unprecedented impact. As the Chief Clerk of the Family Court correctly argues, Petitioner has failed to allege how the Chief Clerk of the Family Court has a ministerial duty to accept his filing when the AOs that are currently in effect prohibit her from doing just that. Furthermore, CPLR §2102(c), which Petitioner cites, states that a clerk must not refuse any papers presented for filing except “where specifically directed to do so by statute or rules promulgated by the chief administrator of the courts, or order of the court.” Clearly, the rules promulgated in AOs 3/20, 68/20 and 78/20 prevent the Chief Clerk of the Family Court from accepting Petitioner’s filing, which has been deemed “nonessential.” The fact that the Chief Clerk of the Family Court granted the writ on August 17, 2020 and held a hearing on the ACS investigation on September 9, 2020 demonstrates that she has performed her ministerial duties, as she has accepted the filings that were deemed “essential.” Therefore, the Court finds that Petitioner has failed to state a cause of action under CPLR §7803(1). The Court further finds that Petitioner has failed to state a cause of action against the Chief Clerk of the Family Court under CPLR §7803(3). As detailed by the Chief Clerk of the Family Court, the CJ and CAJ issued the relevant AOs to mitigate the effects of COVID-19 on all persons in the court and comply with recommended protocols. Under AO 3/20 and AO 68/20, both the CJ and CAJ exercised their discretion in determining how the Courts would function during the shutdown and what matters would be “essential” for the Court to hear during that time. Considering the novel challenges brought by the COVID pandemic and the widespread threat to public safety, the Court finds that Petitioner has failed to allege that such actions were arbitrary, capricious or an abuse of discretion. The Court further finds that Petitioner has failed to sufficiently allege that the Chief Clerk of the Family Court’s refusal to accept his filing was arbitrary, capricious or an abuse of discretion. The Court has closely examined Petitioner’s argument that as an unmarried individual, he has been discriminated against since married individuals have been able to bring their petitions for visitation and divorce in New York State Supreme Court for a period of time. Such an argument fails since Petitioner could have brought his filing in Supreme Court, which is currently hearing nonessential matters, so long as he paid the required filing fee. While such a fee might be burdensome to Petitioner, the Court finds Petitioner has not been discriminated against. As counsel for Petitioner conceded on oral argument, the Chief Clerk of the Family Court’s refusal to accept a petition for parenting applies to both married and unmarried individuals alike. If a married individual wants to file his or her petition in Family Court, he or she is in the same position as Petitioner, who is unmarried. Therefore, the Court finds that Petitioner is not being discriminated against due to his unmarried status and the Chief Clerk of the Family Court has not acted in an arbitrary or capricious manner or abused discretion under CPRL §7803(3). The Court has considered the remaining arguments made by Petitioner and finds them to be without merit. Therefore, the Petition against the Chief Clerk of the Family Court must be dismissed for failure to state a cause of action. The Court then turns to the arguments made by the Governor and the State. Applying the standard set forth under CPLR §3211(a)(7), the Court finds that Petitioner has failed to allege a cause of action against the Governor pursuant to CPLR §7803. Even after accepting all the allegations as true, Petitioner has still failed to allege that the Governor failed to perform a duty enjoined by law. The Governor has demonstrated that as the leader of the executive branch, he did not play any role in the Family Court’s designation of “essential” matters or its decision to not accept Petitioner’s filing. In his opposition to the Chief Clerk of the Family Court’s Cross-Motion, Petitioner himself cites to the Governor’s statements concerning his lack of involvement in order to argue that the Chief Clerk of the Family Court was solely responsible for her actions. While Petitioner later changed this position in subsequent opposition papers, the Court finds that the Petitioner has not sufficiently alleged that the Governor has failed to perform a duty enjoined by law. Petitioner has also failed to allege that any determination by the Governor, including his Administrative Orders and declaring a state of emergency, was arbitrary, capricious or an abuse of discretion. Therefore, the Petition against the Governor is hereby dismissed. The Court also hereby dismisses the Petition against the State for failure to state a claim. CPLR §7802 states that a “body or officer” includes “every court, tribunal, board, corporation, officer, or other person, or aggregation of persons, whose action may be affected by a proceeding under this article.” Since the State does not fall within this definition, the Petitioner has failed to state a cause of action against it and his Petition against the State is hereby dismissed. Irrespective of the Petitioner’s failure to designate a body or officer for the State of New York, the Court finds that Petitioner has further failed to allege that the State failed to perform a duty or that the State acted in an arbitrary or capricious manner.5 Since Petitioner is not the prevailing party in this Action, he is not entitled to attorney’s fees. (See DKR Mtge. Asset Trust 1 v. Rivera, 130 A.D.3d 774, 776 [2d Dept., 2015]; Nestor v. McDowell, 81 N.Y.2d 410, 415-416 [1993]). Therefore, the Court also denies Petitioner’s request for attorney’s fees. CONCLUSION The Court would like to note that it is sympathetic to Petitioner and the frustration he is experiencing during this time. The Court also recognizes the great difficulties faced by the Chief Clerk of the Family Court and Family Court in providing access to justice while protecting the safety of litigants, court employees and the public. While this Court is not in a position to provide a solution to this ongoing dilemma, the Court hopes that Petitioner can have his matter heard as soon as the Chief Clerk of the Family Court is permitted to accept such filings in a safe and secure environment. Accordingly, it is hereby ORDERED that Petitioner’s Motion (Motion No. 001) is denied in its entirety; it is further ORDERED that the Chief Clerk of the Family Court’s Cross-Motion to Dismiss (Motion No. 002) is granted in its entirety; it is further ORDERED that Petition is dismissed as against the Chief Clerk of the Family Court; it is further ORDERED that the Governor’s Cross-Motion to Dismiss (Motion No. 003) is granted in its entirety; it is further ORDERED that the Petition is dismissed as against the Governor; it is further ORDERED that the State’s Cross-Motion to Dismiss (Motion No. 003) is granted in its entirety; and it is ORDERED that the Petition is dismissed against the State. Dated: October 21, 2020
