| Matter of John H. |
| 2008 NY Slip Op 09151 [56 AD3d 1024] |
| November 20, 2008 |
| Appellate Division, Third Department |
| In the Matter of John H., a Child Freed for Adoption. Green CountyDepartment of Social Services, Appellant; Eugenia Brennan Heslin, as Law Guardian,Respondent. In the Matter of Brandon R., a Child Freed for Adoption. Greene CountyDepartment of Social Services, Appellant; Eugenia Brennan Heslin, as Law Guardian,Respondent. |
—[*1] Eugenia Brennan Heslin, Hunter, respondent pro se.
Kane, J. Appeal, by permission, from an order of the Family Court of Greene County (Lalor,J.), entered February 5, 2008, which, in two proceedings pursuant to Family Ct Act article 10-A,granted the Law Guardian's motion for an order compelling compliance with certain discoverydemands.[*2]
This appeal concerns the applicability of the disclosureprovisions of CPLR article 31 to permanency proceedings under Family Ct Act article 10-A. TheLaw Guardian served petitioner with notice to take the deposition of a caseworker involved in thedevelopment of a permanency plan for the Law Guardian's clients, as well as the production ofpetitioner's records relating to these children. The Law Guardian also served similar demands ona placement agency under contract with petitioner. Without moving for a protective order,petitioner merely returned the notices claiming that they were invalid. The Law Guardian thenmoved to compel compliance with her disclosure demands. Family Court, which had recentlyapproved a new permanency plan, considered the motion as an application for premotiondiscovery pursuant to CPLR 3102 (c) and granted the application to the extent of requiringpetitioner to disclose its file and produce its caseworker for a deposition, but denied disclosurefrom the placement agency. Petitioner appeals.
Initially, Family Court had jurisdiction in this pending proceeding. If a child is freed foradoption, "the case shall remain on the court's calendar and the court shall maintain jurisdictionover the case until the child is discharged from placement and all orders regarding supervision,protection or services have expired" (Family Ct Act § 1088). Although there are strict timeframes for commencement and completion of permanency hearings (see FamilyCt Act § 1089), the case itself continues from initial placement until permanency isachieved (see Sobie, Practice Commentaries, McKinney's Cons Law of NY, Book 29A,Family Ct Act § 1086, 2008 Pocket Part, at 238-240). Because the case is of a continuingnature, Family Court did not need to consider the application as one for preaction or premotiondiscovery pursuant to CPLR 3102 (c).
Turning to the merits, the disclosure devices of CPLR article 31 are available to parties to aproceeding under Family Ct Act article 10-A. Family Ct Act § 1088 directs that thedisclosure provisions of Family Ct Act § 1038 are available in permanency proceedings.Family Ct Act § 1038 directs that the provisions of CPLR article 31 are applicable toFamily Ct Act article 10 proceedings, with certain limitations not relevant here (seeFamily Ct Act § 1038 [d]; see also Family Ct Act § 165 [a]; Matter ofCrystal AA., 271 AD2d 771, 771-772 [2000], lv dismissed 95 NY2d 903 [2000]).Clearly, the specific provisions of Family Ct Act article 10 override the general discoverylimitations placed on special proceedings under CPLR 408 (cf. Matter of General Elec.Capital Corp. v New York State Div. of Tax Appeals, Tax Appeals Trib., 301 AD2d 819,820 [2003], affd 2 NY3d 249 [2004]; Matter of Constantine v White, 166 AD2d59, 62 [1991]; but see Matter of Brandon G., 5 Misc 3d 1023[A], 2004 NY Slip Op51513[U], *1 [2004]; Matter of Commissioner of Social Servs., 170 Misc 2d 126,128-129 [1996]). Upon receipt of the notice of deposition of petitioner's employee (seeCPLR 3102 [b]; 3106 [b]), if petitioner disagreed with the time or manner of service, the properresponse would have been to serve written objections identifying the defect (see CPLR3112). On the other hand, if the objection related to the right to examine the witness or theproduction of documents, petitioner was required to move for a protective order (seeCPLR 3103 [a]; 3120; Family Ct Act § 1038 [b]). As petitioner did not comply with thedemands, serve specific written objections or move for a protective order, the Law Guardian wasentitled to compel the demanded disclosure.
The Law Guardian also sought to depose an employee of the placement agency providingservices to children pursuant to a contract with petitioner. This agency was not a party to theproceeding and the Law Guardian failed to show any special circumstances requiring disclosurefrom it, rendering service of the notice without a court order ineffectual (see CPLR 3101[a] [4]; Cerasaro v Cerasaro, 9AD3d 663, 665 [2004]). Once Family Court declined to compel disclosure from theplacement agency in this instance, the ruling that it was a party for [*3]future proceedings constituted an impermissible advisory opinion(see Matter of NRG Energy, Inc. vCrotty, 18 AD3d 916, 919 [2005]). In any event, based upon the limited informationbefore the court concerning this agency, the court erred in holding that the placement agency willbe deemed a party for disclosure purposes in any further proceedings.
Finally, the specific language of Family Ct Act § 1114 (a)—that the filing of anotice of appeal from a Family Court order does not give rise to a stay—abrogates themore general automatic stay provision of CPLR 5519 (a) (1)—providing an automatic staywhere the state or a political subdivision, such as petitioner, is the appellant (see FamilyCt Act § 165 [a]; Besharov, Practice Commentaries, McKinney's Cons Laws of NY, Book29A, Family Ct Act § 1114, at 365). Thus, no automatic stay is in effect. Not havingmoved for a stay, petitioner was required to comply with Family Court's order despite theprosecution of this appeal.
Mercure, J.P., Spain, Carpinello and Kavanagh, JJ., concur. Ordered that the order ismodified, on the law, without costs, by reversing so much thereof as held that Northeast Parentand Child Society is deemed a party for disclosure purposes in any further proceedings; and, asso modified, affirmed.