Petition for Writ of Certiorari — Dan Cherner, Petitioner v. Westchester Jewish Community Services, Inc., et al.
Supreme Court briefMar 17, 2023
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Supreme Court of tlje Unite!) States
Dan Cherner,
Petitioner,
V.
Westchester Jewish Community
Services, Inc. and Kathleen McKay,
Respondents.
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Second Circuit
APPENDIX
Dan Cherner
The Cherner Firm
411 Theodore Fremd Avenue
Suite 206S
Rye, New York 10580
(917) 318-9800
fedctsdc@gmail.com
Pro se Petitioner
LANTAGNE LEGAL PRINTING
801 East Main Street Suite 100 Richmond, Virginia 23219 (800)847-0477
1
TABLE OF CONTENTS
APPENDIX A: Summary Order and Judgment of
the United States Court of Appeals for the Second
Circuit, filed 12/20/22................................................. A1
APPENDIX B: Judgment of the United States
District Court, Southern District of New York,
filed 3/1/22...............................................................
A6
APPENDIX C: Opinion and Order of the United
States District Court, Southern District of New
York, filed 2/28/22......................................................
A7
APPENDIX D: First Amended Complaint,
filed 4/2/21........................................................
A22
APPENDIX E: Order for Forensic Evaluation,
dated 9/29/16..........................................................
A57
Al
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE
PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER
JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL
RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY
ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of
Appeals for the Second Circuit, held at the Thurgood
Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 20th day of
December, two thousand twenty-two.
PRESENT:
ROBERT D. SACK,
BARRINGTON D. PARKER
MICHAEL H. PARK
Circuit Judges.
A2
Dan Cherner, on his own behalf and on behalf
of all others similarly situated,
Plaintiff-Appellant,
v.
22-642
Westchester Jewish Community Services, Inc.,
Kathleen McKay,
Defendants-Appellees.
FOR PLAINTIFF-APPELLANT:
Dan Cherner, pro se, The Cherner Firm, Rye, NY.
FOR DEFENDANT-APPELLEE
WESTCHESTER JEWISH COMMUNITY
SERVICES, INC:
Daniel W. Milstein, Aaronson Rappaport
Feinstein & Deutsch, LLP, New York, NY.
LP, New York, NY.
FOR DEFENDANT-APPELLEE KATHLEEN
MCKAY:
Barbara D. Goldberg, Martin Clearwater & Bell
LLP, New York, NY.
Appeal from a judgment of the United States
District Court for the Southern District of New York
(Seibel, J.).
A3
UPON DUE CONSIDERATION, IT IS
HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is
AFFIRMED.
Appellant Dan Cherner, an attorney
proceeding pro se, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 complaint for
failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6).1 Cherner sued Kathleen McKay,
the court-appointed forensic evaluator in Cherner’s
child custody dispute, and Westchester Jewish
Community Services, Inc. (“WJCS”), McKay’s
employer, under 42 U.S.C. § 1983 for alleged
constitutional violations and under New York state
law for fraud and negligent infliction of emotional
distress. Cherner primarily argues that (1)
Defendants are state actors, and (2) they are not
entitled to quasi-judicial immunity. We assume the
parties’ familiarity with the underlying facts, the
procedural history, and the issues on appeal.
“We review de novo a district court’s dismissal
of a complaint pursuant to Rule 12(b)(6), construing
the complaint liberally, accepting all factual
allegations in the complaint as true, and drawing all
reasonable inferences in the plaintiffs favor.:
Chambers v. Time Warner, Inc., 282 F.3d 147, 152
(2nd Cir. 2002). To survive a motion to dismiss under
Rule 12(b)(6), the complaint must plead “enough
facts to state a claim to relief that is plausible on its
face.” BellAtl. Corp. v. Twombly, 550 U.S. 544, 570
1 The special solicitude typically afforded to pro se litigants
does not apply here because Cherner is an attorney. See Tracy
v. Freshwater, 623 F.3d 90, 102 (2nd Cir. 2010).
A4
(2007). A claim will have “facial plausibility when
the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Cherner’s claims fail because Defendants are
shielded from liability by quasi-judicial immunity,
even assuming they were state actors. Private
actors may be entitled to quasi-judicial immunity “if
[their] role is ‘functionally comparable’ to the roles of
. . . judges, or [their] acts are integrally related to an
ongoing judicial proceeding.” Bliven v. Hunt, 579
F.3d 204, 209-10 (2nd Cir. 2009) (internal citations
omitted). Here, the family court ordered Defendants
to conduct an evaluation and to prepare a report to
aid that court’s decision in a child custody suit.
These acts are “integrally related to an ongoing
judicial proceeding.” Id.; see McKnight v. Middelton,
699 F.Supp.2nd 507, 528 (E.D.N.Y. 2010) (concluding
that court-appointed forensic evaluators in a custody
dispute were entitled to quasi-judicial immunity),
aff’d, 434 F. App’x 32 (2nd Cir. 2011). “[E]ngag[ing]
in neutral fact-finding and advis[ing] the court. . .
are intimately related and essential to the judicial
process because they aid and inform the court in its
discretionary duties.” Hughes v. Long, 242 F.3d 121,
127 (3d Cir. 2001); see also Brown v. Newberger, 291
F.3d 89, 94 (1st Cir. 2002) (holding court-appointed
evaluator was entitled to quasi-judicial immunity);
Hodgson v. Waters, 958 F.2d 377 (9th Cir. 1992)
(mem.) (same for a court-appointed psychologist).
We thus agree with the district court that
Defendants were entitled to quasi-judicial immunity.
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We also conclude that the district court did
not abuse its discretion by declining to exercise
supplemental jurisdiction over Cherner’s state-law
claims. 28 U.S.C. § 1367(c)(3); see Carnegie-Mellon
Uniu. v. Cohill, 484 U.S. 343, 350 (1988) (explaining
that once only state-law claims remain, it is well
within a district court’s discretion to decline to
exercise supplemental jurisdiction.
We have considered all of Cherner’s remaining
arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the
district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
Is/
A6
APPENDIX B
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
X
DAN CHERNER, on his own behalf and
on behalf of all others similarly situated,
Plaintiff,
-againstWESTCHESTER JEWISH COMMUNITY
SERVICES, INC., and KATHLEEN MCKAY,
Defendants.
X
20 CIVIL 8331 (CS)
JUDGMENT
It is hereby ORDERED, ADJUDGED AND
DECREED: That for the reasons stated in the
Court’s Opinion & Order dated February 28, 2022
Defendants’ motions to dismiss are GRANTED;
accordingly, the case is closed.
Dated: New York, New York
March 1, 2022
BY:
RUBY J. KRAJICK
Clerk of Court
______ /s K. Mango
Deputy Clerk
A7
APPENDIX C
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
X
DAN CHERNER, on his own behalf and on behalf
of all others similarly situated,
Plaintiff,
-againstWESTCHESTER JEWISH COMMUNITY
SERVICES, INC., and KATHLEEN MCKAY,
Defendants.
X
20-CV-8331 (CS)
OPINION & ORDER
Appearances:
Dan Cherner
The Cherner Firm
Rye, NY
Pro Se Plaintiff
Michelle A. Frankel
Martin Clearwater & Bell, LLP
New York, NY
Counsel for Defendant McKay
Daniel W. Milstein
Aaronson Rappaport Feinstein & Deutsche, LLP
A8
New York, NY
Counsel for Defendant Westchester Jewish
Community Services, Inc.
Seibel. J.
Before the Court are the Motions to Dismiss of
Defendants Kathleen McKay, (ECF No. 18), and
Westchester Jewish Community Services, Inc.
(“WJCS”), (ECF No. 20). For the following reasons,
the motions are GRANTED.
I.
BACKGROUND
For purposes of this motion, the Court accepts
as true the facts, but not the conclusions, alleged by
Plaintiff in the Amended Complaint (ECF No. 15
(“AC”).)
A. Facts
In May 2016, Plaintiff filed for custody of his
children in New York State Family Court, and filed
an Amended Petition on August 30, 2016. (AC flf 1213). On September 29, 2016, the Family Court
appointed Defendant McKay, a psychologist
employed by or affiliated with Defendant WJCS (id.,
Tlf 6, 15), to perform a forensic evaluation of Plaintiff
and his family to assist in the determination of
custody issues, (id., f 16).1
1 Plaintiff attached the Family Court Order of Forensic
Examination, (ECF No. 22-1 (the “Order”)), to his Declaration
(ECF No. 22). I may consider the Order on this motion, as it is
integral to the Complaint. See DiFalco v. MSNBC Cable
L.L.C., 622 F.3d 104, 111 (2“» Cir. 2010). Plaintiffs
(
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Plaintiff brings this action against McKay, the
court-appointed forensic evaluator, and WJCS,
McKay’s employer.2
Declaration, (ECF No. 22), which he filed in addition to a
memorandum of law, (ECF No. 21 (“P’s Opp.”)), is mostly
argumentative and an apparent end-run around my page limits
for briefs. See Quattlander v. Ray, No. 18-CV-3229, 2021 WL
5043004, at *2 no.4 (S.D.N.Y. Oct. 29, 2021) (“I will not allow
counsel to bypass the page limits on memoranda of law set by
my individual practices by submitting additional argument in
the form of an affirmation.”); Novie v. Village of Montebello, No.
10-CV-9436, 2012 WL 3542222, at *9 (S.D.N.Y. Aug. 16, 2012)
(“[I]t is improper for a court to consider declarations and
affidavits on a motion to dismiss.”). As an attorney, Plaintiff
should have known better.
2 Plaintiff names both McKay and WJCS as Defendants and
argues that they both “act[ed] as the court-appointed forensic
examiner in [his] custody matter.” (P’s Opp. at 1). The Order,
which is on a standard form, names “Kathleen E. McKay, PhD.,
Westchester Jewish Community Services” as the “Agency . . .
appointed as the forensic evaluator with respect to this
matter.” (Order at 1.) It appears that Plaintiff and the “other
party” paid McKay directly, (AC 1) 25), and because no conduct
by WJCS is alleged in the AC apart from McKay’s, it appears,
as WJCS argues, “that WJCS’s inclusion in the pleadings is
solely the result of the allegation that Dr. McKay was affiliated
with WJCS,” (ECF No. 20-2 at 6).
A10
B. Procedural History
Plaintiff filed the original complaint in this
action on October 6, 2020. (ECF No. 1.) In January
2021, Defendants filed separate requests for pre
motion conferences in contemplation of their motions
to dismiss. (ECF Nos. 6, 10.) The Court held a pre
motion conference on February 11, 2021, and
granted Plaintiff leave to amend the complaint. (See
Minute Entry dated Feb. 11, 2021.)
Plaintiff filed the Amended Complaint on
April 2, 2021. (AC.) Plaintiff seeks damages and
injunctive relief for violations of his First and
Fourteenth Amendment rights pursuant to 42 U.S.C.
§ 1983 and asserts state-law claims for fraud and
negligent infliction of emotional distress (“NIED”).
(Id. at HU 99-161).3 With respect to his federal
claims, Plaintiff alleges that Defendants violated his
First and Fourteenth Amendment (1) “liberty
interest in retaining custody of his children,” (id. H
101), (2) “right to personal privacy and family
relationships,” (id. H HI), (3) “liberty interest in
preserving the integrity and stability of his family
from intervention without due process of law,” (id. H
120), (4) “right to raise his children free from state
interference absent some compelling justification for
3 The first paragraph of Plaintiff s AC mentions the Fifth
Amendment, (AC T] 1), but as Defendant McKay argues, “there
is no mention or substantiation” of any alleged Fifth
Amendment violation, (ECF No. 18-2 at 10 n.l). Plaintiff also
cites the Declaration of Independence, U 1), but “there is no
private right of action to enforce the Declaration of
Independence,” Nguyen u. Bank of Am., No. 14-CV-1243, 2015
WL 58602, at *3 (E.D.N.Y. Jan. 5, 2015). Plaintiff seeks to
represent an undefined class. (AC
92-98.)
All
interference,” (id. | 129), (5) and “liberty interest in
the care, custody, and management of his children,”
(id. 138). The instant motions followed. (ECF Nos.
18-20).
II.
LEGAL STANDARD
“To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v Iqbal, 556 U.S. 662, 678 (2009).
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id.
“While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiffs obligation to provide the
grounds of his entitlement to relief requires more
than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do.” Twombly, 550 U.S. at 555 (cleaned up). While
Federal Rule of Civil Procedure 8 “marks a notable
and generous departure from the hypertechnical,
code-pleading regime of a prior era, ... it does not
unlock the doors of discovery for a plaintiff armed
with nothing more than conclusions.” Iqbal, 556
U.S. at 678-79.
In considering whether a complaint states a
claim upon which relief can be granted, the court
“begin[s] by identifying pleadings that, because
they are no more than conclusions, are not entitled
to the assumption of truth,” and then determines
A12
whether the remaining well-pleaded factual
allegations, accepted as true, “plausibly give rise to
an entitlement to relief.” Id. at 679. Deciding
whether a complaint states a plausible claim for
relief is “a context-specific task that requires the
reviewing court to draw on its judicial experience
and common sense.” Id. “[W]here the well-pleaded
facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has
alleged — but it has not ‘shown’ — ‘that the pleader
is entitled to relief.’” Id. (cleaned up) (quoting Fed.
R. Civ. P. 8(a)(2)).4
III.
DISCUSSION
In Falco v. Santoro, No. 18-CV-2480, 2018
WL 6706312 (E.D.N.Y. 2018), a closely analogous
case, the plaintiff sued the court-appointed
psychologist who was tasked with “conduct[ing] a
forensic evaluation of [the plaintiff] and [his exwife] with respect to custody of their children and
related issues.” Id. at *1.5 The court dismissed the
case on jurisdictional grounds but explained that
“insofar as Plaintiff seeks to impose Section 1983
liability on the court-appointed attorneys for the
children in the Matrimonial Action, as well as
court-appointed psychologist and caseworkers,
such individuals do not act under color of state law
and are immune from suit under the doctrine of
4 Because Plaintiff is a lawyer, he is not entitled to the special
solicitude normally accorded to pro se litigants. Tracy v.
Freshwater, 623 F.3d 90, 102 (2nd Cir. 2010).
5 The plaintiff brought claims for deprivation of his “Fourth and
Fourteenth Amendment rights to due process” and “fraud and
other tort-based claims.” Id.
A13
absolute witness immunity.” Id. at *4 n.4. The
same is true of Defendants here.
A.
State Actors
A claim for relief under § 1983 must allege facts
showing that each defendant acted under the color
of a state “statute, ordinance, regulation, custom,
or usage.” 42 U.S.C. § 1983. Private parties are
therefore not generally liable under the statute.
Sykes v. Bank of Am., 723 F.3d 399, 406 (2d Cir.
2013) (citing Brentwood Acad. v. Tenn. Secondary
Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001)); see
also Fabrikant v. French, 691 F.3d 193, 206 (2d
Cir. 2012) (“‘Because the United States
Constitution regulates only the Government, not
private parties, a litigant claiming that his
constitutional rights have been violated must first
establish that the challenged conduct constitutes
state action.’”) (quoting Flagg u. Yonkers Sav. &
Loan Ass’n, 396 F.3d 178, 186 (2d Cir. 2005));
Ciambriello v. County of Nassau, 292 F.3d 307,
323 (2d Cir. 2002) (“[T]he United States
Constitution regulates only the Government, not
private parties.”).
There are, however, limited circumstances
under which a private party can be deemed a state
actor under § 1983. Although there is “no single
test to identify state actions and state actors,”
Cooper v. U.S. Postal Serv., 577 F.3d 479, 491 (2d
Cir. 2009) (cleaned up), courts in this Circuit rely
on three tests:
For the purposes of section 1983, the
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actions of a nominally private entity
are attributable to the state (1) when
the entity acts pursuant to the
coercive power of the state or is
controlled by the state (“the
compulsion test”); (2) when the state
provides significant encouragement to
the entity, the entity is a willful
participant in joint activity with the
state, or the entity’s functions are
entwined with state policies (“the joint
action test” or “close nexus test”); or
(3) when the entity has been delegated
a public function by the state (“the
public function test”).
Fabrikant, 691 F.3d at 207 (cleaned up). The main
inquiry under each test is “whether the private
entity’s challenged actions are ‘fairly attributable’
to the state.” Id. (citing Rendell-Baker u. Kohn,
457 U.S. 830, 838 (1982)).
Plaintiff has failed to establish state action
under any of these three tests. Plaintiffs
allegations that “[Defendants were state actors,”
(AC If If 7-11, 83-84), are conclusory, and Plaintiff
does not plausibly allege that anything Defendants
did employed the “coercive power” of the state, was
closely “entwined” with the state, or amounted to
the state delegating a “public function” to them.
Fabrikant, 691 F.3d at 207 (cleaned up); see Davis
v. Whillheim, No. 17-CV- 5793, 2019 WL 935214,
A15
at *9-10 (S.D.N.Y. Feb. 26, 2019).*
“[C]ourt-appointed psychologist[s] ... do not
act under color of state law . .. .” Falco, 2018 WL
6706312, at *4 n.4 (collecting cases); see Young u.
N.Y. State Corr. & Cmty. Supervision, No. 18-CV5786, 2019 WL 591555, at *4 n.9 (E.D.N.Y. Feb.
13, 2019) (courts dismiss section 1983 claims
“against court-appointed psychologists ... on the
grounds that they are not state actors.”); Davis,
2019 WL 935214, at *10 (“Simply providing the
Family Court with allegedly defective reports does
not support allegations that [clinicians employed
by private organizations] should be treated as
state actors.”); Elmasri v. England, 111 F. Supp.
2d 212, 221 (E.D.N.Y. 2000) (granting summary
judgment dismissing § 1983 claim challenging
outcome of divorce and custody proceedings and
holding court-appointed guardian and psychologist
were not state actors even though paid with state
funds). Here, McKay was a court-appointed
psychologist tasked with performing a forensic
evaluation of Plaintiff and his family. Thus, she is
not a state actor and, it follows, neither is WJCS.
B.
Quasi-Judicial Immunity
Even assuming Defendants are state actors - and
6 Plaintiff has cited no case in support of his argument that a
“Family Court order set[ting] the framework for the defendants’
assignment,” (P’s Opp. at 3), transforms them into state actors.
Nothing McKay did was coerced, controlled encouraged or
joined by the Court - indeed, by Plaintiffs account she violated
the Family Court Order, (AC HU 34, 40, 64, 79, 86, 107, 112,
121, 130, 139, 156-57) — nor is practicing psychology or
performing evaluations a public function.
A16
they are not - Defendants would still be entitled to
dismissal because they are immune from suit.
“[AJbsolute immunity may attach to non-judicial
officers and employees where the individual serves
as an arm of the court or where the individual
conducts activities that are inexorably connected
with the execution of court procedures and are
analogous to judicial action.” McKnight v.
Middleton, 699 F. Supp. 2d 507, 527 (E.D.N.Y.
2010) (cleaned up); see Henderson u. Heffler, No.
07-CV-0487, 2010 WL 2854456, at *3 (W.D.N.Y.
July 19, 2010) (“Absolute immunity has been
extended to court- appointed social workers,
doctors, psychiatrists, and evaluators” on
“inexorably connected” theory) (cleaned up).
“Court-appointed forensic evaluators act as arms
of the court and enjoy judicial immunity from
federal civil rights liability as a non judicial person
who fulfills a quasi- judicial role at the court’s
request.” Monte v. Vance, No. 18-CV-9595, 2018
WL 11302546, at *4 (S.D.N.Y. Nov. 7, 2018)
(cleaned up).
Defendant McKay was “appointed as the
forensic evaluator” by the Family Court, (Order at
1), and her alleged indiscretions pertain to the way
she carried out her court-assigned task, (see
generally AC). Thus, Defendants McKay and
WJCS are immune from suit. See Monte, 2018 WL
11302546, at *5 (“[MJental health professionals”
were “entitled to absolute quasi-judicial immunity
for their conduct in evaluating Plaintiff s
competency.”); Falco, 2018 WL 6706312, at *4 n.4
(“[Cjourt-appointed psychologist[s] and
caseworkers . . . are immune from suit under the
t
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doctrine of absolute witness immunity”) (collecting
cases); McKnight, 699 F. Supp. 2d at 527 (social
worker and psychotherapist appointed by family
court entitled to absolute quasi-judicial immunity
for their actions in interviewing and consulting the
parties in a Family Court proceeding and
preparing a report to the court); Hunter v. Clark,
No. 04-CV-0920, 2005 WL 1130488, at *2
(W.D.N.Y. May 5, 2005) (court-appointed
psychiatrists who examined the plaintiff and
submitted reports to court regarding competency to
stand trial entitled to absolute immunity); Di
Costanzo v. Henriksen, No. 94-CV-2464, 1995 WL
447766, at *2 (S.D.N.Y. July 28, 1995) (“The
doctrine of witness immunity bars an action
against [clinical psychologist and medical doctor
who provided medical and psychological
evaluations to the court] even if they did not
formally testify as witnesses in the proceedings,
since their role in the proceedings would have been
essentially that of witnesses.”); see also Mikhail v.
Kahn, 572 F. App’x 68, 71 (3d Cir. 2014) (courtordered custody evaluators immune because
“[individuals charged with the duty of carrying out
facially valid court orders enjoy quasi-judicial
absolute immunity” and “immunity extends to
evaluative functions when the evaluation is done,
as it plainly was here, to assist the court in its
decision-making process”) (cleaned up); Shallow v.
Rogers, 201 F. App’x 901, 904 (3d Cir. 2006)
(“[CJourt-appointed evaluators are entitled to
judicial immunity because of their integral
relationship to the court. Thus, it follows that. . .
both court-appointed psychologists . . . are entitled
to judicial immunity.”).
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C.
State Law Claims
In addition to Plaintiffs federal claims,
Plaintiff further alleges that his rights were
violated under New York state law. The
“traditional ‘values of judicial economy,
convenience, fairness, and comity’” weigh in favor
of declining to exercise supplemental jurisdiction
where all federal-law claims are eliminated before
trial. Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d
118, 122 (2d Cir. 2006) (quoting Carnegie-Mellon
Univ. v. Cohill, 484 U.S. 343, 350 (1988)).
Having determined that the only claims over which
this Court has original jurisdiction should be
dismissed, and having considered the factors set
forth in Cohill, the Court declines to exercise
supplemental jurisdiction over Plaintiffs
remaining state law causes of action. See 28
U.S.C. § 1367(c)(3). Accordingly, although I tend to
agree with Defendants that the allegations here do
not approach those required for NIED and fraud,
Plaintiffs NIED and fraud claims are dismissed
without prejudice.
D.
Leave to Amend
Leave to amend a complaint should be freely
given “when justice so requires.” Fed. R. Civ. P.
15(a)(2). “[I]t is within the sound discretion of the
district court to grant or deny leave to amend.” Kim
u. Kimm, 884 F.3d 98, 105 (2d Cir. 2018) (cleaned
up). “Leave to amend, though liberally granted,
may properly be denied” for “‘repeated failure to
cure deficiencies by amendments previously
A19
allowed”’ or “‘futility of amendment,’” among other
reasons. Ruotolo v. City ofN.Y., 514 F.3d 184, 191
(2d Cir. 2008) (quoting Foman v. Davis, 371 U.S.
178, 182 (1962)).
Plaintiff has already amended once, after
having the benefit of pre-motion letters from
Defendants stating the grounds on which they
would move to dismiss, (ECF Nos. 6, 10), as well as
the Court’s observations during the pre-motion
conference, {see Minute Entry dated Feb. 11, 2021).
In general, a plaintiff s failure to fix deficiencies in
the previous pleading, after being provided notice
of them, is alone sufficient ground to deny leave to
amend. See Nat’l Credit Union Admin. Bd. v. U.S.
Bank Nat’l Ass’n, 898 F.3d 243, 257-58 (2d Cir.
2018) (“When a plaintiff was aware of the
deficiencies in his complaint when he first
amended, he clearly has no right to a second
amendment even if the proposed second amended
complaint in fact cures the defects of the first.
Simply put, a busy district court need not allow
itself to be imposed upon by the presentation of
theories seriatim.”) (cleaned up); In re Eaton Vance
Mut. Funds Fee Litig., 380 F. Supp. 2d 222, 242
(S.D.N.Y. 2005) (denying leave to amend because
“the plaintiffs have had two opportunities to cure
the defects in their complaints, including a
procedure through which the plaintiffs were
provided notice of defects in the Consolidated
Amended Complaint by the defendants and given a
chance to amend their Consolidated Amended
Complaint,” and “plaintiffs have not submitted a
proposed amended complaint that would cure these
pleading defects”), aff’d sub nom. Bellikoff v. Eaton
A20
Vance Corp., 481 F.3d 110, 118 (2d Cir. 2007) (per
curiam) (“[PJlaintiffs were not entitled to an
advisory opinion from the Court informing them of
the deficiencies in the complaint and then an
opportunity to cure those deficiencies.”) (cleaned
up).
Further, Plaintiff has not asked to amend his
federal claims again or otherwise suggested that
he is in possession of facts that would cure the
deficiencies identified in this opinion. See
TechnoMarine SA v. Giftports, Inc., 758 F.3d 493,
505 (2d Cir. 2014) (plaintiff need not be given leave
to amend if plaintiff fails to specify how
amendment would cure the pleading deficiencies in
the complaint); Gallop v. Cheney, 642 F.3d 364,
369 (2d Cir. 2011) (district court did not err in
dismissing claim with prejudice in absence of any
indication plaintiff could or would provide
additional allegations leading to different result);
Horoshko v. Citibank, N.A., 373 F.3d 248, 249- 50
(2d Cir. 2004) (per curiam) (district court did not
abuse its discretion by not granting leave to amend
where there was no indication as to what might
have been added to make the complaint viable and
plaintiffs did not request leave to amend). Indeed,
“[t]he problem[s] with [Plaintiffs federal] causes of
action [are] substantive,” and “better pleading will
not cure [them].” Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000).
Accordingly, the Court declines to
grant leave to amend sua sponte.
A21
IV.
CONCLUSION
For the foregoing reasons, Defendants’
motions to dismiss are GRANTED. The Clerk of
Court is respectfully directed to terminate the
pending motions, (ECF Nos. 18-20), and close the
case.
SO ORDERED.
Dated: February 28, 2022
White Plains, New York
/s/
CATHY SEIBEL, U.S.D.J.
A22
APPENDIX D
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DAN CHERNER, on his own behalf and on
behalf of all others similarly situated,
20 CIV 8331 (CS)(JCM)
Plaintiff,
v.
WESTCHESTER JEWISH COMMUNITY
SERVICES, INC., and KATHLEEN MCKAY,
Defendants.
20 CIV 8331 (CS)(JCM)
JURY DEMAND
FIRST AMENDED COMPLAINT
1.
Plaintiff, Dan Cherner, brings this
action pursuant to 42 U.S.C. §1983 and the United
States Constitution, including the 1st, 5th, and 14th
Amendments, as well as the Declaration of
Independence, and under New York State law,
pursuant to 28 U.S.C. § 1367. Plaintiff contends
that defendants willfully, knowingly, deliberately
and negligently violated his Constitutional and legal
rights as follows.
A23
JURISDICTION AND VENUE
2.
This Court has jurisdiction pursuant to
28 U.S.C. §§ 1331 and 1367. Plaintiffs state law
claims are brought pursuant to 28 U.S.C. § 1367.
3.
Venue is proper in this judicial district
under 28 U.S.C. §§ 1391(b)(1) and (b)(2), as the
defendants reside in this judicial district and the
acts complained of herein took place in this judicial
district.
PARTIES
4.
Plaintiff Dan Cherner is a citizen of the
United States and resident of the State of New York.
5.
Defendant Westchester Jewish
Community Services, Inc. (WJCS) is a corporation
organized under the laws of the State of New York,
with offices located in White Plains, New York;
Hartsdale, New York; and Yonkers, New York.
6.
Defendant Kathleen McKay is, upon
information and belief, an employee of defendant
WJCS. Upon information and belief, defendant
McKay was and is a licensed psychologist in the
State of New York and a member of the American
Psychological Association (APA).
7.
At all times complained of herein,
defendants were state actors, in that they were
clothed with the authority of state law, and their
actions were taken under color of state law.
A24
8.
At all times complained of herein, the
Family Court of the State of New York completely
relied on defendants with respect to forensic
evaluation, and insinuated itself into a position of
interdependence with the defendants so as to make
itself a joint participant in defendants’ actions.
9.
At all times complained of herein, the
State of New York, Family Court of the State of New
York, created the legal framework through which
defendants acted and which was to govern the
defendants’ conduct.
10.
At all times complained of herein, the
Family Court of the State of New York delegated its
responsibilities and its authority with respect to
forensic evaluation to defendants, and defendants’
Constitutional and legal violations occurred while
exercising that authority.
11.
At all times complained of herein,
defendants’ conduct violated clearly established
Constitutional and statutory rights of which a
reasonable person would have known.
STATEMENT OF FACTS
12.
On or around May 6, 2016, Mr. Cherner
filed for custody of his children in New York State
Family Court.
13.
On August 30, 2016, Mr. Cherner filed
an amended custody petition which detailed more
facts, including: (i) on May 8, 2016, the adverse
A25
party in the custody petition (Ospina) tried to grab
Mr. Cherner’s children and force herself on them
physically; when they responded affirmatively to her
question as to whether they wanted to reside with
Mr. Cherner full-time, she told them to leave; (ii) on
May 30, 2016, Mr. Cherner’s children were
scheduled to study for their final examinations, yet
Ospina forced them into a vehicle on threat of
physical violence and prevented them from studying;
(iii) on June 6, 2016, Ospina forced Mr. Cherner’s
children to sit with her and she began reading from
Mr. Cherner’s custody petition and asking them
questions about it; (iv) on June 25, 2016, as Mr.
Cherner and one of his children were walking to a
high school graduation ceremony, where the other
child was performing, Ospina stalked them in her
car, tried to confront Mr. Cherner’s child, and, when
Mr. Cherner told her to stop, she stated “I don’t have
to speak with you”, and then started yelling “I am a
woman, I am a woman” as she drove away; (v) on
July 8, 2016, Mr. Cherner’s children were each
spending the day with friends, with Ospina’s
knowledge, yet she threatened them and tracked
them down, and forced them to go with her, and then
proceeded to lock them in separate rooms for the
remainder of the day.
14.
In fact, in 2013, Mr. Cherner had filed a
petition for an order of protection on behalf of his
children and against Ospina, in Family Court in
2013, based on repeated threats of physical violence
made by Ospina to Mr. Cherner’s children.
A26
15.
On September 29, 2016, defendants
WJCS and McKay were appointed as the forensic
evaluator in the custody matter.
16.
The “Order for Forensic Evaluation”
ordered that the forensic evaluator “conduct a
complete forensic evaluation” of Mr. Cherner, his
children, and 0 spina, including “evaluations of each
parent, the children and each parent with the
children.”
17.
Defendants were and aware, or should
have been aware, that evaluating children with each
parent is essential to a forensic evaluation, as case
law makes clear that a forensic evaluation and
report have no evidentiary value and are not taken
into consideration if there is no evaluation of the
children with each parent.
18.
The order also ordered that “the
forensic evaluator shall conduct the necessary
interviews and investigations, and thereafter shall
submit to the court a report within 60 days from
the date of this Order unless the court, upon
application, shall provide otherwise, (emphasis in
original).
19.
On October 31, 2016, by court order,
Mr. Cherner was granted temporary primary
physical custody of his children.
20.
Upon information and belief, the court
amended the original forensic evaluation order so as
to require Mr. Cherner and the other party to pay
defendants, i.e., “private pa/’ as opposed to payment
A27
being made by New York State. Upon information
and belief, defendants and defendant McKay refused
to begin work until the order was so modified, which
was done, upon information and belief, in December
2016.
21.
The original order required defendants
and defendant McKay to submit a report to the court
no later than November 23, 2016; however,
defendants did not even begin work in this regard
until January 2017. Even if defendants had 60 days
from the date of a modified order, they would have
been required to submit a report to the court no later
than, upon information and belief, the end of
February, 2017.
22.
In fact, defendants constantly and
deliberately delayed their work, and delayed
issuance of a report to the court. At no time did
defendants ever make any application to the court
for an extension of time to submit a report to the
court.
23.
Meanwhile, Ospina had yet another
outburst when, on November 26, 2016, she
threatened Mr. Cherner’s children and put them in
fear of their physical safety as they were leaving a
visitation with her. Ospina’s behavior was so
extreme that Mr. Cherner had to call the police and
have them appear so as to ensure his children’s
safety.
24.
When Mr. Cherner first met with
defendant McKay on January 23, 2017, he explained
to her that her work and report were delayed, and
A28
explained that there was a court date in April, 2017.
McKay stated clearly that she could get her work
done and issue a report in advance of that court
date, but immediately stated that she would not
issue a report until she got paid.
25.
Mr. Cherner and the other party were
ordered to pay defendant McKay $7,500.00 each - in
other words, the court decided that this was a
“private pay” matter as opposed to the court system
paying for the evaluation. Defendant McKay
expressed to Mr. Cherner her further willingness to
violate the court’s order by stating that she would
not issue her report until she was paid.
Nowhere in the court order is there any
26.
provision for defendants’ report to the court being
contingent on being paid.
27.
Defendant McKay also told Mr.
Cherner on January 23, 2017, that her work would
include observing Mr. Cherner’s children with each
parent, as required by the court order. Despite this
acknowledgement of the court’s order and material
representation to Mr. Cherner, defendants and
defendant McKay deliberately failed and refused to
comply with the court order in this regard.
Defendant McKay also promised to Mr. Cherner
that she would obtain the other party’s therapist’s
records, as required by court order.
28.
Mr. Cherner made defendant McKay
aware of the incidents mentioned his amended
petition, as well as the incident in November, 2016,
as well as the incidents surrounding the 2013
A29
petition, as well as many other incidents by the
other party where she threatened Mr. Cherner’s
children with physical violence, encroached on their
physical space, engaged in intimidation and
intimidation tactics, disparaged him to them on a
regular basis, and, in general, engaged and
attempted to engage in a reign of terror.
29.
Mr. Cherner made it clear to defendant
McKay that the other party’s actions were part of an
ongoing and deliberate pattern of behavior designed
to harm his children.
30.
Mr. Cherner also informed defendant
McKay of several financial crimes that the other
party had committed over an extended period of
time, which he had discovered during the course of a
prior matrimonial action.
31.
Mr. Cherner also informed defendant
McKay that the other party had told him that she
had been in therapy, and that she had told him that
she had been diagnosed with some type of disorder.
32.
Over time, defendant McKay made it
clear that she was not interested in such
information, but, rather, she was interested in trying
to demonize Mr. Cherner and cast him in a bad light,
based, in part, on her discriminatory animus
towards Mr. Cherner based on gender.
33.
Thus, defendant McKay asked Mr.
Cherner principally about his past, going back
decades, and sought to ridicule him. Such queries .
had little, if any, relevance to defendants’ task.
A30
34.
Defendant McKay asked little or
nothing about his parenting of his children, his view
of the parenting - and lack thereof - of the other
party, and other relevant lines of inquiry which were
pertinent to her task and the order of the court.
35.
To Mr. Cherner’s knowledge,
defendants never sought to obtain and never did
obtain the records of the therapist seen by the other
party, records which, upon information and belief,
would have had major relevance to defendant
McKay’s appointed task.
36.
After Mr. Cherner’s first meeting with
defendant McKay, her behavior became more and
more inappropriate.
37.
Mr. Cherner met with defendant
McKay three times, the last time being February 7,
2017. On that date, defendant McKay stated told
Mr. Cherner that the next meeting would be with
him and his children, and that she would reach out
to him to schedule. She explained that she still had
another meeting with the other party, and that she
would then schedule meetings with each party and
the children.
38.
There was never any further attempt by
defendant McKay to schedule a meeting with Mr.
Cherner and his children.
39.
Instead, defendant McKay conspired
with the other party to demonize Mr. Cherner and
put his children at risk.
A31
40.
As part of this conspiracy, defendants
and defendant McKay deliberately and intentionally
decided not to follow the court’s order, not to observe
the children with each parent, not to issue an
impartial and objective report, and, instead, to
infringe on Mr. Cherner’s Constitutional and legal
rights and violate them.
41.
Defendant McKay also decided to
commit multiple violations of the American
Psychological Association’s (APA) Code of Ethics. As
a member of the APA, defendant McKay is bound to
follow these ethical requirements.
42.
Instead of scheduling meetings with
each parent and the children, as required by the
court’s order, defendant McKay decided, with the
other party, to appear at the other party’s residence
and question Mr. Cherner’s children, without prior
notification to Mr. Cherner’s childrens’ attorney (law
guardian), and without seeking any consent from the
law guardian to engage in such activity.
43.
Thus, on April 4, 2017, Mr. Cherner’s
youngest child was studying for an exam at a
friend’s residence after school, with the knowledge of
Mr. Cherner and the other party.
44.
The other party contacted Mr.
Cherner’s child at 3:55 p.m., and told her that she
was going to pick her up at 5:00 p.m. (for her
scheduled visitation); Mr. Cherner’s child told her
she would not yet be done studying.
A32
45.
The other party started yelling at Mr.
Cherner’s child, telling her that does not get to
decide what she is going to do, and that she was
going to pick her up at 5:00 p.m., and then hung up
the phone.
46.
The temporary order of custody made it
clear that the other party could not interfere with
the extracurricular activities of Mr. Cherner’s
children; this restriction included after-school
studying.
47.
The reason for this outburst soon
became clear. When Mr. Cherner’s oldest child
arrived at the other party’s residence around 5:00
p.m., defendant McKay was present, introduced
herself, and proceeded to ask her some questions.
48.
In other words, defendant McKay
conspired with the other party to appear
unannounced, without notice to the law guardian,
and inappropriately question Mr. Cherner’s children.
49.
Such inappropriate behavior by
defendant McKay, in which she appeared
unannounced, without notice to the law guardian,
was a clear indication that defendant McKay had
decided to inappropriately align herself with the
other party, and clearly intended to violate Mr.
Cherner’s Constitutional and legal rights.
50.
Defendants and defendant McKay’s
inappropriate behavior continued. Defendant
McKay scheduled meetings with the other party to
meet with Mr. Cherner’s children without consulting
<a
A33
the law guardian, as would have been appropriate.
Such meetings were scheduled for April 20, 2017 and
May 9, 2017, even though such dates interfered with
Mr. Cherner’s childrens’ extracurricular activities —
in context, the Family Court judge had made it
explicitly clear that such meetings were to be
scheduled so as not to interfere with such
extracurricular activities.
51.
When the law guardian got involved to
schedule dates, dates were scheduled without
interfering with extracurricular activities; however,
when defendant McKay met with Mr. Cherner’s
children, she met with each of them separately,
outside the presence of the other party and any other
individuals.
52.
Defendant McKay never told Mr.
Cherner that she wanted to or planned to meet with
his children separately. Defendant McKay never
reached out to Mr. Cherner to ask him or seek to
have him bring his children for a meeting with her.
53.
Instead, defendant McKay conspired
with the other party to seek to find some way to
violate Mr. Cherner’s Constitutional and legal rights
and to issue a report demonizing him and
minimizing the other party’s continual and ongoing
abuse and threats of violence.
54.
Thus, when defendant McKay’s
inappropriate behavior on April 4, 2017, was brought
to light, she inappropriately sought to characterize it
is a “home inspection” and claimed to Mr. Cherner
that she wanted to do a “home inspection.”
A34
Defendant McKay never followed up on this
supposed intention.
55.
On June 9, 2017, Mr. Cherner sought
to understand these behaviors from defendant
McKay and to understand what else needed to be
done to complete her assignment.
56.
In response, defendant McKay falsely
claimed that she had sent Mr. Cherner an email
requesting his assistance in facilitating
appointments with the other party and his children,
and that when he did not respond, she “assumed”
that he was “no longer going to comply.”
57.
Such outrageous and false claims exist
as further proof of defendants and defendant
McKay’s intentional alignment with the other party
and her deliberate intent to violate Mr. Cherner’s
Constitutional and legal rights.
58.
In that response, defendant McKay also
informed Mr. Cherner that she had to meet with the
other party another one or two times, she was most
likely done meeting with his children, and would like
to meet with him again.
59.
Mr. Cherner informed defendant
McKay that it is always improper to assume, and
that she could have easily reached out to him and
communicated directly. He also informed defendant
McKay of his availability, and she stated that she
would get back to him to schedule a meeting.
Defendant McKay never got back to Mr. Cherner nor
A35
did she ever seek to schedule a meeting with Mr.
Cherner and his children.
60.
Instead, Mr. Cherner reached out to
defendant McKay on September 22, 2017 and let her
know of his availability to meet. Defendant McKay
responded by stating that it did not appear to her
that she needed to meet, but would let him know the
following week. Defendant McKay never reached
out to Mr. Cherner beyond that date.
61.
Instead, defendant McKay continued
her ongoing conspiracy and alignment with the other
party to demonize Mr. Cherner and violate his
Constitutional and legal rights.
62.
Defendant McKay also deliberately
delayed the issuance of her report to try and create a
situation where Mr. Cherner, and, most importantly,
Mr. Cherner’s expert witness and attorney, had very
little time to review the report and properly prepare
and refute it at the custody hearing.
63.
Thus, for a hearing scheduled on
November 6, 2017, defendants and defendant McKay
issued a report dated October 6, 2017, knowing that
(i) the report goes to the court, (ii) Mr. Cherner’s
attorney and expert witness have to go to the court
and get a copy of it and then review it.
64.
Defendants and defendant McKay
issued a report that was outlandish and
inappropriate, and of no evidentiary value.
Defendant McKay violated the court’s order by
deliberately refusing to meet with the children and
A36
each parent, because she knew that such meetings
would obligate her to speak to the ongoing and
continuous violence and threats of violence and
wrongful acts of the other party.
Defendant McKay also failed and
65.
refused to obtain the therapist’s records, which, upon
information and belief, would have given valuable
and relevant evidence. The other party and her
attorney spent the entirety of the proceeding trying
to prevent Mr. Cherner from obtaining such records,
to which he was entitled. Upon information and
belief, defendant McKay conspired with these
individuals from keeping such records from being
obtained.
Instead, defendant McKay improperly
66.
included hearsay in her report and outlandish and
outrageous conclusion.
67.
Thus, defendants and defendant McKay
sought to demonize Mr. Cherner by including in the
report hearsay allegations about him which were
and are patently false and defamatory. Defendant
McKay never mentioned this hearsay to Mr. Cherner
and sought his response. Further, based on
information provided by Mr. Cherner to defendant
McKay, she knew or should have known such
allegations were false.
68.
Incredibly, defendant McKay, in her
report, sought to minimize the ongoing and
continuous outbursts and threats of violence against
the other party, by falsely claiming that the other
party’s behavior was the fault of Mr. Cherner’s
A3 7
children, for not being “empathic” enough to
understand the “triggers” that cause the other party
to engage in such outbursts and threats.
69.
The entire report was an attempt to
demonize Mr. Cherner and to minimize the other
party’s behavior, and an attempt to violate Mr.
Cherner’s Constitutional and legal rights and to
harm him and his children.
70.
Mr. Cherner’s expert found the report
to be as much. Specifically, he found that defendant
McKay’s “report does not comport with APA
Guidelines for Forensic Psychology”, and that
defendant McKay’s report did not address the issue
of confirmation bias, in which the evaluator ends up
“utilizing data non-scientifically and opining based
on speculation as opposed to supporting analyses
with a scientific foundation derived from empirical
literature”, and that “there was little if any effort to
address the issue of confirmatory bias. The report
was essentially one-sided.”
71.
Specifically, Mr. Cherner’s expert found
that defendants and defendant McKay’s report
violated APA Guideline 2.05, “Knowledge of the
Scientific Foundation for Opinions and Testimony”,
in that defendant McKay “does not provide a single
source or reference to support her conclusory
statements or how her methodology supports her
conclusions . . . this responsibility was not
undertaken through the entirety of the report, which
has resulted in speculative and unsupported
conclusions.”
A38
72.
Specifically, Mr. Cherner’s expert found
that defendants and defendant McKay’s report
violated APA Guideline 9.02, “Use of Multiple
Sources of Information”, in that defendant McKay
used multiple sources of information “in a
perfunctory way and makes no attempt to apply
caveats as to the strengths and limitations of her
findings . . . [defendant] McKay does not do an
adequate job of identifying potential problems
associated with relying on self-report and as a result
is overconfident in the generation of her
conclusions.”
73.
Specifically, Mr. Cherner’s expert found
that defendants and defendant McKay’s report
violated APA Guideline 10.02, “Selection and Use of
Assessment Procedures”, in that defendant McKay
“did not conduce an interview with father and
children and did not conduct an interview with
mother and children either. [Defendant] McKay was
directed by Court order to conduct such interviews
and she failed to do so. Such interviews and
observations of each parent with the children are
essential in a custody evaluation. As a result, the
most important and substantial data in the study
was not collected.”
74.
Specifically, Mr. Cherner’s expert found
that defendants and defendant McKay’s report
violated APA Guideline 11.02, “Differentiating
Observations, Inferences, and Conclusions”, in that
defendant McKay “does not distinguish between
what she observes and speculates about with any
unified theory which could be cross-referenced to the
science of her methods or the underlying foundation
A39
supporting her conclusions. The vast majority of her
conclusions were “inferential”, without any unified
theory of what supports them.”
75.
Specifically, Mr. Cherner’s expert found
that defendants and defendant McKay’s report did
not comport with APA Guidelines for custody
evaluation, and violated Section I (“Orienting
Guidelines: Purpose of the Child Custody
Evaluation Subsection 3: The evaluation focuses
upon parenting attributes, the child’s psychological
needs, and the resulting fit”), in that defendant
McKay specifically criticized Mr. Cherner personally
but “does not spend any significant effort explaining
how his parenting attributes fit the needs of his
children at the present time and at the children’s
current state of need.”
76.
Specifically, Mr. Cherner’s expert found
that defendants and defendant McKay’s report did
not comport with Section I Subsection 5 (“Impartial
Evaluators”) in that defendant McKay “spends little
if any effort describing the complexities of the family
dynamic, nor does she delve into the contributions
each family makes to the current circumstances.
Instead, effort was taken to highlight father’s
weaknesses and ignore his potential strengths; and
also to ignore the mother’s weaknesses and minimize
them.”
77.
Specifically, Mr. Cherner’s expert found
that defendants and defendant McKay’s report did
not comport with Section 12 (“Psychologists strive to
complement the evaluation with the appropriate
combination of examinations”), in that defendant
A40
McKay “failed to interview/observe the father with
the children and also failed to interview/observe the
mother with the children. Without such an
interview the evaluator is at a serious disadvantage
in providing underlying support for the criticism she
levels at Mr. Cherner in the conclusory section of her
report and for her minimalization of the mother’s
issues. Further, such interviews/observations are
essential to this type of forensic examination/custody
evaluation.”
78.
Mr. Cherner did not start to learn of the
contents of the report until October 13, 2017.
79.
It is clear from McKay’s failures and
refusals to follow the court’s order; from her
numerous ethics violations; and from her outlandish
and inappropriate report; that she was attempting to
run a racket, in which she improperly aligned herself
with the other party, ignored and minimized the
unacceptable and inappropriate behaviors of the
other party, and tried to demonize Mr. Cherner, to
create a situation in which she could entrap Mr.
Cherner’s children and deceive the court into
ordering therapy, from which she and defendant
WJCS would profit and benefit from financially.
80.
Defendants and defendant McKay took
such actions in violation of Mr. Cherner’s
Constitutional and legal rights.
81.
Upon information and belief,
defendants and defendant McKay have done this in
other matters and continue to engage in such illegal
and unacceptable behavior.
A41
82.
On November 6, 2017, the Family Court
issued a final order giving Mr. Cherner primary
physical custody of his children.
Defendants were state actors
83.
Both of the defendants were named in
the Court’s order, and both are state actors, as (i)
New York State created the legal framework
governing the defendants’ conduct — they are
directed specifically as to what their assignment is,
within the body of the order; and (ii) New York state
delegated its authority to conduct a forensic analysis
to the defendants.
84.
The defendants were able to so act only
because they were clothed with authority under
state law, so their actions were actions taken “under
color of’ state law.
Defendants are not entitled to absolute
immunity
85.
While individuals and/or entities may
be entitled to absolute immunity in performing
judicial functions that have been delegated to them,
such individuals and/or entities are not entitled to
absolute immunity when they act outside the scope
of their authority.
86.
In this matter, the defendants acted
outside the scope of their authority, in that they
refused and failed to carry out the directives as given
A42
in the court order, and, thus, are not entitled to
absolute immunity.
87.
Defendants acted outside the scope of
the authority granted to them, and, as a result, they
are not entitled to absolute immunity.
88.
Just as a prosecutor, for example, loses
his or her immunity when directing an arrest, for
example, which is outside the scope of prosecutorial
authority, defendants lose any absolute immunity
that they might have when they act, as in this
matter, outside of the scope of their authority.
89.
To allow otherwise would not only
stand the law on its head, but lead to a result where
a forensic examiner could blatantly (as in this
matter) violate a court order, act outside the scope of
his/her/its authority, in a manner intended to abuse
and prey on vulnerable children, and not be held
accountable in this regard.
Defendants are not entitled to qualified
immunity
90. Defendants are not entitled to qualified
immunity either. The causes of action herein involve
clearly established statutory and Constitutional
rights of which a reasonable person would have
known.
A43
Defendants are not entitled to Xlth
Amendment immunity
91.
Defendants are state actors, not a State
and not a state official or employee, and, accordingly,
defendants are not entitled to Xlth Amendment
immunity.
CLASS ALLEGATIONS
92.
Upon information and belief,
defendants and defendant McKay routinely receive
court appointments to act as a forensic evaluator
custody cases.
93.
Upon information and belief,
defendants and defendant McKay routinely aligns
herself, inappropriately and illegally, with one party
in a custody matter.
94.
Upon information and belief,
defendants and defendant McKay routinely and
deliberately refuse to comply with court orders,
including refusing and failing to meet with children
and each parent together.
95.
Upon information and belief,
defendants and defendant McKay routinely violate
the Constitutional and legal rights of litigants in
custody cases, and attempt to cause harm to
litigants and children in so doing.
96.
There are questions of law or fact which
are common to such class.
A44
97.
The claims of plaintiff are typical of the
claims of the class.
98.
Plaintiff will fairly and adequately
protect the interests of the class.
AS AND FOR A FIRST CAUSE OF ACTION
42 U.S.C. § 1983: 1st and 14th Amendments
Liberty Interest in Retaining Custody
99.
Plaintiff repeats and realleges
paragraphs 1 through 98 above as though set forth
herein.
100. Prior to defendants’ involvement, Mr.
Cherner was granted temporary full custody.
101. Mr. Cherner had a liberty interest in
retaining custody of his children.
102. Defendants violated that liberty
interest, in violation of the 1st and 14th amendments
to the U.S. Constitution and other laws.
103. In this regard, defendants
discriminated against Mr. Cherner based on gender.
104. For example, defendants ignored and/or
minimized the other party’s (i) mental health
records, (ii) numerous outbursts and threats of
violence; (iii) the Family Court petition filed against
her in 2013; (iv) numerous police reports detailing
her behavior, etc.
A45
105. Defendants also gave the other party
opportunity to present individuals (whose hearsay
testimony wound up in their report) and did not
afford the same to Mr. Cherner.
106. Defendants also coordinated with the
other party to “show up” one afternoon without Mr.
Cherner’s knowledge and without the knowledge or
consent or presence of the children’s attorney.
107. Defendants interfered with and violated
Mr. Cherner’s rights by refusing to comply with the
court’s order as noted above, and, specifically, by
refusing and failing to observe Mr. Cherner’s
children with each parent and by deliberately
delaying completion of their assignment in violation
of the court’s order, and by acting inappropriate also
as noted above.
108. Such delay and refusal interfered with
Mr. Cherner’s liberty interest in retaining custody of
his children in violation of the 1st and 14th
Amendments to the U.S. Constitution.
109. Plaintiff is entitled to damages
pursuant to 42 U.S.C. § 1983.
AS AND FOR A SECOND CAUSE OF ACTION
42 U.S.C. § 1983: 1st and 14th Amendments
Right to Personal Privacy and Family
Relationships
110. Plaintiff repeats and realleges
paragraphs 1 through 109 above as though set forth
herein.
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111. At all times herein, Mr. Cherner had
and has a right to personal privacy and family
relationships, protected by the 1st and 14th
Amendment to the U.S. Constitution and other laws.
112. Defendants violated these rights by
refusing to observe the children with each parent, as
required by the court order; by failing and refusing
to conduct the assigned work in a timely manner and
to issue a report within the time frame required by
the Family Court; by failing and refusing to obtain
the other party’s therapist’s records; and by aligning
themselves with the other party inappropriately, and
seeking to inappropriately demonize Mr. Cherner
and inappropriately interfere with his rights.
113. In this regard, defendants
discriminated against Mr. Cherner based on gender.
114. For example, defendants ignored and/or
minimized the other party’s (i) mental health
records, (ii) numerous outbursts and threats of
violence; (iii) the Family Court petition filed against
her in 2013; (iv) numerous police reports detailing
her behavior, etc.
115. Defendants also gave the other party
opportunity to present individuals (whose hearsay
testimony wound up in their report) and did not
afford the same to Mr. Cherner.
116. Defendants also coordinated with the
other party to “show up” one afternoon without Mr.
A47
Cherner’s knowledge and without the knowledge or
consent or presence of the children’s attorney.
117. Such wrongful acts were in violation of
Mr. Cherner’s rights as noted above.
118. Plaintiff is entitled to damages
pursuant to 42 U.S.C. § 1983.
AS AND FOR A THIRD CAUSE OF ACTION
42 U.S.C. § 1983: 1st and 14th Amendment
violations of Mr. Cherner’s liberty interest in
preserving the integrity and stability of his
family from intervention without due process
of law
119. Plaintiff repeats and realleges
paragraphs 1 through 118 above as though set forth
herein.
120. At all times herein, Mr. Cherner had
and has a liberty interest in preserving the integrity
and stability of his family from intervention without
due process of law, protected by the 1st and 14th
Amendment to the U.S. Constitution and other laws
121. Defendants violated these rights by
refusing to observe the children with each parent, as
required by the court order; by failing and refusing
to conduct the assigned work in a timely manner and
to issue a report within the time frame required by
the Family Court; by failing and refusing to obtain
the other party’s therapist’s records; and by aligning
themselves with the other party inappropriately, and
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128. Plaintiff repeats and realleges
paragraphs 1 through 127 above as though set forth
herein.
129. At all times herein, Mr. Cherner had
and has a right to raise his children free from state
interference absent some compelling justification for
interference, protected by the 1st and 14th
Amendment to the U.S. Constitution and other laws.
130. Defendants violated these rights by
refusing to observe the children with each parent, as
required by the court order; by failing and refusing
to conduct the assigned work in a timely manner and
to issue a report within the time frame required by
the Family Court; by failing and refusing to obtain
the other party’s therapist’s records; and by aligning
themselves with the other party inappropriately, and
seeking to inappropriately demonize Mr. Cherner
and inappropriately interfere with his rights.
131. In this regard, defendants
discriminated against Mr. Cherner based on gender.
132. For example, defendants ignored and/or
minimized the other party’s (i) mental health
records, (ii) numerous outbursts and threats of
violence; (iii) the Family Court petition filed against
her in 2013; (iv) numerous police reports detailing
her behavior, etc.
133. Defendants also gave the other party
opportunity to present individuals (whose hearsay
testimony wound up in their report) and did not
afford the same to Mr. Cherner.
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134. Defendants also coordinated with the
other party to “show up” one afternoon without Mr.
Cherner’s knowledge and without the knowledge or
consent or presence of the children’s attorney.
135. Such wrongful acts were in violation of
Mr. Cherner’s rights as noted above.
136. Plaintiff is entitled to damages
pursuant to 42 U.S.C. § 1983.
AS AND FOR A FIFTH CAUSE OF ACTION
42 U.S.C. § 1983: 1st and 14th Amendment
violations of Mr. Cherner’s liberty interest in
the care, custody, and management of his
children
137. Plaintiff repeats and realleges
paragraphs 1 through 136 above as though set forth
herein.
138. At all times herein, Mr. Cherner had
and has a liberty interest in the care, custody, and
management of his children, protected by the 1st and
14th Amendment to the U.S. Constitution and other
laws.
139. Defendants violated these rights by
refusing to observe the children with each parent, as
required by the court order; by failing and refusing
to conduct the assigned work in a timely manner and
to issue a report within the time frame required by
the Family Court; by failing and refusing to obtain
the other party’s therapist’s records; and by aligning
A51
themselves with the other party inappropriately, and
seeking to inappropriately demonize Mr. Cherner
and inappropriately interfere with his rights.
140. In this regard, defendants
discriminated against Mr. Cherner based on gender.
141. For example, defendants ignored and/or
minimized the other party’s (i) mental health
records, (ii) numerous outbursts and threats of
violence; (iii) the Family Court petition filed against
her in 2013; (iv) numerous police reports detailing
her behavior, etc.
142. Defendants also gave the other party
opportunity to present individuals (whose hearsay
testimony wound up in their report) and did not
afford the same to Mr. Cherner.
143. Defendants also coordinated with the
other party to “show up” one afternoon without Mr.
Cherner’s knowledge and without the knowledge or
consent or presence of the children’s attorney.
144. Such wrongful acts were in violation of
Mr. Cherner’s rights as noted above.
145. Plaintiff is entitled to damages
pursuant to 42 U.S.C. § 1983.
A52
AS AND FOR A SIXTH CAUSE OF ACTION
FRAUD
146. Plaintiff repeats and realleges
paragraphs 1 through 145 above as though set forth
herein.
147. On January 23, 2017, defendant McKay
told Mr. Cherner (i) that her work would include
observing his children with each parent, as required
by court order; (ii) that she would get the work done
and a report to the court in advance of the April,
2017 court date; and (iii) that she would comply with
all aspects of the court order.
148. These statements were both material
and false. Further, defendant McKay never
intended to observe Mr. Cherner’s children with each
parent, nor did she intend to issue a report in a
timely manner, both as required by court order, nor
did she intend to comply with other aspects of the
court order. Defendant McKay intended to deceive
Mr. Cherner.
149. Mr. Cherner relied on these
representations and statements by defendant
McKay, and such reliance was reasonable.
150. Defendants are not entitled to any type
of immunity under state law, as they manipulated
the legal process, and they acted in bad faith and
without a reasonable basis.
151. Mr. Cherner suffered injuries as a
result of defendants’ fraud, including but not limited
A53
to: interference with his Constitutional rights as
noted above; additional attorney’s fees and expenses
incurred; emotional distress; and physical distress
due to emotional distress.
AS AND FOR A SEVENTH CAUSE OF ACTION
NEGLIGENT INFLICTION OF EMOTIONAL
DISTRESS
152. Plaintiff repeats and realleges
paragraphs 1 through 151 above as though set forth
herein.
153. On January 23, 2017, defendant McKay
told Mr. Cherner (i) that her work would include
observing his children with each parent, as required
by court order; (ii) that she would get the work done
and a report to the court in advance of the April,
2017 court date; and (iii) that she would comply with
all aspects of the court order.
154. These statements were both material
and false. Further, defendant McKay never
intended to observe Mr. Cherner’s children with each
parent, nor did she intend to issue a report in a
timely manner, both as required by court order, nor
did she intend to comply with other aspects of the
court order. Defendant McKay intended to deceive
Mr. Cherner.
155. Mr. Cherner relied on these
representations and statements by defendant
McKay, and such reliance was reasonable.
/
A54
156. Further, defendants failed and refused
to observe Mr. Cherner’s children with each parent
as required by court order; failed and refused to
issue a report in a timely manner as required by
court order; failed and refused to seek and obtain the
therapist’s records of the other party, as required by
court order; included hearsay (which was false)
provided by individuals at the other party’s behest,
but failed to afford to Mr. Cherner the opportunity to
provide witnesses to substantiate the information
provided by him; failed to obtain the other party’s
therapist’s records; sought to demonize Mr. Cherner;
and violated several APA ethical guidelines.
157. Defendant McKay had a duty to comply
and carry out the court’s order, and to act and
conduct herself within the ethical guidelines of the
APA; her failure to do so was intentional and
deliberate, reckless, and negligent.
158. As a direct result of defendant McKay’s
improper conduct in this regard, Mr. Cherner
suffered emotional distress, and also physical
distress caused by emotional distress.
159. Defendants are not entitled to any
immunity under state law, as they acted in bad
faith, manipulated the legal process, acted without a
reasonable basis.
160. Mr. Cherner is entitled to damages as a
result of defendants’ negligent infliction of emotional
distress.
_/
A55
PRAYER FOR RELIEF
161.
Plaintiff requests the following relief:
(a) On the First through Seventh causes of
action, actual damages as permitted by law,
including for the proposed class, in excess of $75,000;
(b) An injunction enjoining defendant McKay
and anyone acting on behalf of or working for
defendant WJCS and/or defendant McKay from
accepting any assignments from any court to act as a
forensic evaluator, pending the resolution of this
matter;
(c) An injunction enjoining defendant McKay
and anyone acting on behalf of or working for
defendant WJCS and/or defendant McKay from
working on any current assignments from any court
to act as a forensic evaluator, pending the resolution
of this matter;
(d) Appointment of a monitor to oversee and
report to the Court on a periodic basis, the status of
any current forensic evaluator assignments made to
defendant WJCS or defendant McKay or anyone
working for or on behalf of defendant WJCS;
(e) An order prohibiting defendants and
anyone acting on their behalf from violating any and
all court orders with respect to forensic evaluator
assignments;
(f) Attorney’s fees and costs as to which
plaintiff may/be entitled;
A56
(g) An order certifying the proposed class and
designating plaintiff as representative of the class;
(h) An order entering judgment in favor of
plaintiff and the class against the defendants;
(i) Such other and further relief as the Court
may deem appropriate.
Respectfully submitted,
Is/
THE CHERNER FIRM
By: Dan Cherner (DC-1905)
411 Theodore Fremd Ave. Suite 206S
Rye, NY 10580
(917) 310-9800
fedctsdc@gmail.com
Dated: April 1, 2021
Rye, New York
A57
APPENDIX E
FAMILY COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
Honorable: Gail B. Rice
In the Matter of a Proceeding for Custody and/or
Family Visitation Pursuant to Family Court Act
Article 6
ANA OSPINA
vs.
ORDER FOR FORENSIC
EVALUATION
DANIEL CHERNER
FAMILY UNIT # 114328
DOCKET: V-6884-16/16A, V-6152-16/16A,
V-6885-16/16A, V-6161-16/16A
ORDER FOR FORENSIC EVALUATION
THE ABOVE-NAMED PARTIES, having placed in
issue the custody and/or visitation of their children,
and
IT APPEARING TO THE COURT that a neutral
forensic evaluation will be of assistance to the Court
in determining the issue(s):
NOW, THEREFORE, IT IS HEREBY ORDERED
that the following agency be appointed as the
forensic evaluator with respect to this matter:
A58
Kathleen E. McKay, Phd,
Westchester Jewish Community Services
141 N. Central Ave
Hartsdale, NY 10530
and it is further ORDERED THAT the forensic
evaluator shall conduct the forensic evaluation in
accordance with the following provisions:
NATURE OF THE EVALUATION
The forensic evaluator shall conduct a complete
forensic evaluation of the following ADULT parties:
Adult
Last
Name
0 spina
Cherner
First
Name
Street
Addre
ss
Ci
ty
Stat
Zi
Phon
e
P
e
Ana
Daniel
and the MINOR CHILDREN:
Child
Last
Name
Cherner
Child
First
Name
[red’td]
Gende
r
DOB
Lives
With
F
[red’td]
Cherner
[red’td]
F
[red’td]
Daniel
Cherner
Daniel
Cherner
A59
ATTORNEY INFORMATION
Attorney
Name
Douglas
Martino,
Esq.
Lidia
Antoncic,
Esq.
Lisa
Goldman,
Esq._____
Person
Representing
Petitioner
Phone #
[redacted]
Address
[redacted]
Respondent
[redacted]
[redacted]
Children
[redacted]
[redacted]
in the matter, including but not limited to evaluation
of each parent, the children and each parent with
the children, in such environments and
circumstances as the forensic evaluator finds
appropriate, as well as interviews with any such
extended family members or persons affiliated with
either party’s households with whom the evaluator
wishes to speak.
FOCUS OF THE EVALUATION: The forensic
evaluator shall focus specifically on the following
issues:
Standard Evaluation will address the following
issues:
•
•
•
Risk Assessment
Parental Functioning Assessment
General Psychological Psychiatric Functioning
of All Parties
A60
Please Indicate or Write In Any Additional Foci of
Evaluation:
X Interference
with
Parental
Rights
X Gatekeepin
g
X Decision
Making
X Parental
Alienation
X Access
Schedule
Relocation
Substance
Abuse
Serious
Mental
Illness
Allegation
s of sexual
abuse
X Ability to
foster
relationship
with other
parent_____
FORENSIC EVALUATOR’S FEE:
In the case of full paving litigants with combined
income between $100000-$200000
Based on inquiry regarding the income and assets of
each party, the forensic evaluator’s fee will be:
Adult Party 1
Last
First Name:
Name:
Ana
Ospina
Judge’s
Fee Amount
Initial
GBR
To pay 50%
of full fee
Adult Party 2
Last
First Name:
Name:
Daniel
Cherner
Judge’s
Fee Amount
Initial
GBR
To pay 50%
of full fee
A61
FORENSIC EVALUATOR’S REPORT: The forensic
evaluator shall conduct the necessary interviews and
investigations, and thereafter shall submit to the
Court a report within 60 days from the date of
this Order unless the Court, upon application, shall
provide otherwise. The report shall set forth the
evaluator’s findings and the factual and analytical
bases thereof, including any diagnosis made by the
forensic evaluator of any child or party, any
recommendations for treatment that the forensic
evaluator finds to be appropriate. A
recommendation as to residence and access
arrangements that best suit the children’s
emotional, developmental, and psychological needs,
a recommendation with respect to the custody of the
children and each parent’s ability to make
appropriate decisions for them, and any other issues
with respect to which the forensic evaluator believes
is appropriate to advise the Court.
CONFIDENTIALITY OF FORENSIC
EVALUATOR’S REPORT: The forensic evaluator’s
report is confidential and shall not be copied or
disclosed to any person except in accordance with the
terms of this order. The forensic evaluator shall
provide copies of his or her report to the Court
directly. No further copying of the report shall be
permitted. The Court shall, at its discretion, make
available copies of the report to counsel.
ADMISSIBILITY OF FORENSIC EVALUATOR’S
REPORT: The neutral evaluator’s report shall be
admitted as evidence in chief, without the necessity
A62
s
for independent foundation testimony or evidence,
pursuant to the INDIVIDUAL PART RULES FOR
THE HON. HAL B. GREENWALD. Any party that
wishes to cross examine the forensic evaluator, as
permitted by the Uniform Rules, shall bear the cost
of the forensic evaluator’s services in preparing for
such testimony, travel and testifying, unless
otherwise directed by the Court.
CONDUCT OF COUNSEL: No counsel shall
communicate with the forensic evaluator for reasons
other than those that pertain to administration and
evaluation progress or completion. If any attorney
wishes to submit papers to the forensic evaluator, a
list and a copy of all items submitted must be sent to
all other counsel.
SO ORDERED THIS THE 29* DAY OF THE
MONTH SEPTEMBER, THE YEAR 2016.
O
-
>U
Dated: September 29, 2016
ENTER:
City: New Rochelle
State: New York
/s/
HON. Gail B. Rice
Acting Judge of the Family Court
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.