Does the Office of Children and Family Services have the authority to create a voluntary program under which parents in need of assistance with their children can designate other adults to stand in their shoes, while still maintaining the right to terminate that designation at any time?
The Third Department held recently that it does and rejected a claim that OCFS exceeded its legislative grant of power by creating the hopefully transformative "supplementary rather than substitute care" program. Let's take a look at that opinion and what else has been happening in New York's appellate courts over the past week.
Court of Appeals
People v Farrell, 2025 NY Slip Op 02100 (Ct App Apr. 10, 2025)
Criminal Law, Animal Cruelty
Issue: Was the accusatory instrument charging defendant with failure to provide necessary sustenance in violation of Agriculture and Markets Laws § 353 facially insufficient?
Facts: "[A]n investigator for the Ulster County Society for the Prevention of Cruelty to Animals responded to a call regarding a dog in distress in the City of Kingston. The investigator found the dog in the middle of the road, unable to easily stand or walk more than a few paces. When the owner could not be located, the investigator seized the dog as a stray. The investigator later discovered that the dog was named Mogley and defendant was his owner. Medical intervention proved unsuccessful due to Mogley's deteriorated condition and he was eventually euthanized." Defendant was charged with failure to provide necessary sustenance in violation of Agriculture and Markets Laws § 353, which provides: "A person who overdrives, overloads, tortures or cruelly beats or unjustifiably injures, maims, mutilates or kills any animal, whether wild or tame, and whether belonging to [themselves] or to another, or deprives any animal of necessary sustenance, food or drink, or neglects or refuses to furnish it such sustenance or drink. . ., or in any way furthers any act tending to produce such cruelty, is guilty of a class A misdemeanor."
The accusatory instrument "allege[d] that on a specified date and time in Kingston, defendant allowed a Burmese [sic] Mountain Dog known as 'Mogley' to live with the debilitating medical condition of Spondylosis, causing chronic pain and suffering; as well as being infested with fleas, a mass on his spine and a mass near his heart; denying the animal access to veterinary care." "Defendant moved to dismiss the accusatory instrument, arguing that the instrument was facially insufficient and on the ground that section 353 is void for vagueness as applied to the failure to provide veterinary care under the Fifth and Fourteenth amendments of the federal Constitution. Kingston City Court granted the motion and dismissed the charge based on facial insufficiency. Upon the prosecution's appeal, Ulster County Court reversed, reinstated the charge under section 353 and remitted to City Court for further proceedings. County Court held that the accusatory instrument was facially sufficient because it set forth sufficient factual allegations of animal cruelty. County Court also concluded that the statute was not void for vagueness because a person of ordinary intelligence could determine that the statute encompasses, as torture or cruelty, the denial of necessary care where a companion animal plainly suffers from willful neglect."
Holding: The Court of Appeals reversed, and dismissed the accusatory instrument, noting that "[o]ne commentator has described section 353 as a 'truly behemoth criminal statute, containing 322 separate charging theories in its principal passages alone.'" The Court held, however, that it needn't parse each of those theories, or even determine whether a failure to provide veterinary care constitutes a failure to provide "sustenance," to decide this appeal. The Court explained that simply applying its normal precedent for the sufficiency of an accusatory instrument would suffice. "In accordance with CPL 100.40, a misdemeanor information must set forth nonhearsay allegations which, if true, establish every element of the offense charged.
" The accusatory information here did not, the Court reasoned, and it was therefore facially insufficient. "The accusatory instrument alleges that Mogley suffered from spondylosis, which it does not define but which it asserts caused Mogley chronic pain and suffering. The instrument further alleges that Mogley had a mass on his spine and near his heart. However, the instrument fails to allege how the investigator became aware of these conditions and there is no corresponding veterinary diagnosis attached to the instrument or assertion that a veterinarian examined Mogley. Moreover, the instrument does not indicate whether these afflictions were visible to the naked eye, and therefore we cannot infer from these allegations that the investigator personally observed them. These hearsay allegations are thus insufficient to support the charge." Further, the Court held, the allegations regarding Mogley's flea infestation and Defendant's admission that Mogley had never been to a vet were also insufficient, because a flea infestation is not a condition that necessarily requires veterinary care to treat. Finally, the Court clarified, "an accusatory instrument charging a violation of section 353 need not include documentation from a veterinarian, especially in those cases where the conditions are visible or palpable. The investigator CasePrepPlus A New York State Bar Association member benefit April 18, 2025 Editor: Robert S. Rosborough IV Summarizing recent significant New York appellate cases Page 2 | New York State Bar Association CasePrepPlus [here, however,] did not allege any facts in support of such a conclusion. The investigator also failed to describe the conditions under which he first observed Mogley—splayed in the middle of a traffic lane and barely able to move—which might have allowed for an inference that the dog was mistreated or neglected to the point of being in extremis."
Appellate Division, Second Department
Auquilla v Villa, 2025 NY Slip Op 02053 (2d Dept Apr. 9, 2025)
Mortgage Foreclosure
Issue: Is a mortgagee entitled to recover sums expended to preserve and maintain an allegedly abandoned property from the owner under equitable and quasi-contractual theories?
Facts: In September 2005, the borrower executed a note and mortgage secured by a residential property in Ossining. The borrower thereafter executed a deed by which she transferred 2/3 of her interest in the property to two others ("the owners"). By 2009, the borrower and owners defaulted on the mortgage payments. In 2010, Deutsche Bank, as the mortgagee, commenced a foreclosure action against them. Deutsche Bank failed to prosecute the action, however, and it was dismissed in 2013. Deutsche Bank then filed a second foreclosure action in 2014 against the borrower and owners. While the owners answered, the borrower defaulted. In 2017, therefore, Supreme Court "granted that branch of the owners' motion which, in effect, upon the borrower's default on the cross-claims against her, was for a declaration that the owners had sole title to the property." In 2018, the Court granted Deutsche Bank's motion "for summary judgment on the complaint and for an order of reference and directed the mortgagee to move for a judgment of foreclosure and sale within three months of the date of the order. However, in a subsequent order dated December 20, 2018, the court granted the owners' motion to dismiss the complaint due to the mortgagee's failure to timely comply with the order dated March 19, 2018."
The owners then commenced this action "pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage. The mortgagee interposed an answer by which it asserted, inter alia, counterclaims alleging unjust enrichment, to recover in quantum meruit, and for the imposition of an equitable lien and an equitable mortgage against the property. The mortgagee claimed, among other things, that the owners abandoned the property and, as a result, the mortgagee was forced to protect its interest in the property for the duration of the default. The mortgagee alleged that it advanced funds for the payment of property taxes, property insurance, property preservation fees, and other charges and costs, and sought to recover those funds." Following motion practice, "Supreme Court, among other things, granted that branch of the owners' motion which was for summary judgment on the causes of action pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage and denied that branch of the mortgagee's cross-motion which was for summary judgment dismissing the complaint insofar as asserted against it. The court also denied those branches of the owners' motion which were, in effect, pursuant to CPLR 3211(a)(7) to dismiss the mortgagee's counterclaims alleging unjust enrichment, to recover in quantum meruit, and for the imposition of an equitable lien and an equitable mortgage against the property to the extent those counterclaims allege that the mortgagee is entitled to reimbursement for certain expenditures it made to preserve and maintain the property."
Holding: The Second Department held that Supreme Court properly granted the owner's motion to cancel and discharge the mortgage, because the six-year statute of limitations ran out in 2016 following the initial acceleration of the debt in 2010. Thus, when the 2014 foreclosure action was dismissed in 2018, no new foreclosure action could be timely commenced and the owners were entitled to cancel and discharge the mortgage.
The mortgagee's counterclaims to recover its carrying and upkeep costs for the property presented a much closer question, the Court held. The mortgagee argued that it should be able to recover under quasi-contract theories because the only contract—the mortgage agreement—was with the borrower, and not the owners who acquired their interests in the property later. The Court, however, was unpersuaded, holding that because the mortgage agreement specifically required the borrower to pay all carrying and upkeep costs for the property, it governed the dispute and the fact that the owners were not parties to the mortgage agreement did not allow the mortgagee to recover in quasi-contract. The Court explained, "there can be no quasi contract claim by a mortgagee against a third-party nonsignatory owner of property encumbered by a mortgage, the terms of which covers the subject matter of the dispute . . . Although the Court of Appeals has not considered whether that rule applies to nonsignatories of a mortgage agreement, it is nonetheless well settled that a contract cannot be implied in fact where there is an express contract covering the subject matter involved." And here there was.
"For the purposes of considering whether the owners are subject to the mortgage agreement, it is immaterial that the owners did not individually execute the mortgage agreement. The mortgage agreement may be considered a contract between the mortgagee and the owners in this context even though it was executed only by the borrower since it evinces an understanding between the mortgagee and the owners, who obtained the property subject to the mortgage, that the property secured a prior loan and that enforcement of the mortgage through foreclosure was permitted upon default . . . The mortgagee thus agreed to take a security interest in the land by means of a mortgage of record, which would bind all future owners, and the owners obtained the property subject to the terms of the mortgage agreement. As such, while the mortgage agreement was not executed by the owners, the owners and the mortgagee intended that they all be bound by the terms and obligations contained therein by their conduct. The relevant inquiry here remains not whether the owners are signatories or nonsignatories to the mortgage agreement, but rather whether the mortgage agreement covers the subject matter involved."
Appellate Division, Third Department
Administrative Law
Issue: Did the Office of Children and Family Services exceed its delegated authority by establishing the Host Family Home program under 18 N.Y.C.R.R. § 444.1?
Facts: "Petitioners, legal organizations with contracts to represent children in foster care proceedings, commenced this CPLR article 78 proceeding seeking to annul" OCFS' regulations that established the Host Family Home program. The program "aims to provide 'supportive services . . . to children and their families . . . for the purpose of: assisting a family in need of day-to-day community-based supports by peers, arranging for parents and children to be temporarily cared for together in a host family home, and/or temporarily supporting a family when a parent has determined that he/she is temporarily unable to care for their child . . . as a way to avert the need for more formal child welfare intervention.' Pursuant to the program, OCFS would designate qualified entities as host family home agencies, and, as authorized agencies, those agencies would, in turn, recruit, vet, train and supervise volunteer host families willing to provide such support to families in need. A parent would then be able to choose from among volunteers to select a family that best meets their present needs. When it is temporary care of a child that is needed, legal custody would not be relinquished; instead, the parent would execute a designation of person in parental relation, in accordance with the General Obligations Law, for the intended duration of the care, which could be revoked at any time." Petitioners argued that the program was a shadow foster care system without the legislatively set protections and exceeded OCFS's authority. Supreme Court agreed and annulled the regulations.
Holding: The Third Department reversed, holding that OCFS was well within its authority to create the hopefully transformative "supplementary rather than substitute care" program, following the lead of 38 other states. Examining title 15-A of the General Obligations Law, on which the regulations were based, the Court noted that under the law, parents have the right to "designate another person as a person in parental relation to such minor for the purpose of making certain healthcare and educational decisions for the child" for up to 12 months, which given the designee the right to make immunization and other health care and educational decisions for the child. Because such a designation does not transfer legal custody, however, the designation can be superseded by the parent at any time. "The plain language of General Obligations Law title 15-A does not limit who may be designated a person in parental relation. We therefore need not consider the legislative history of the title to reject petitioners' claim that such a designation was only intended to be used for relatives." Reviewing the legislative history only confirmed the determination, the Court held.
In light of that statutory grant, the Court explained, OCFS's authority to provide for the care and protection of children under the Social Services Law was broad enough to allow for the creation of the Host Family Home program. Moreover, the Court noted, "the Host Family Home program is broader than petitioners' challenge to it. The program involves the provision of short-term care to children when that child's parent has determined that he or she is temporarily unable to provide such care, but it is also designed to provide care to children and parents together and to connect families with supportive individuals in their communities more generally. Petitioners do not address or challenge these significant aspects of the program. As for the short-term care of children, OCFS has been expressly delegated the authority to decide the appropriate circumstances for preventive services. In our view, the creation of a safe and reliable pool of volunteers for parents otherwise lacking 'a village' of their own falls within the definition of such service. As explained by OCFS in opposition to this petition, the hope is that, without the fear of unnecessary child welfare entanglement and the relinquishment of both care and custody of their child, as would be required with a voluntary foster care placement, parents will take advantage of available support, which, in turn, may help to avoid circumstances that could result in foster care placements and the prolonged separation of the family. We further find that implementation of that preventive service through the utilization of authorized agencies — that may arrange for the care of children with a family not their own — also falls within OCFS's authority. That said, the fact that OCFS is marshalling resources for parents does not change the fact that, under the Host Family Home program, it is ultimately the parent who is deciding whether and with whom to place their child and, further, what the terms and length of that placement will be."
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
