author: Chief Judge Kaye.

text:
    [820 NE2d 840, 787 NYS2d 196]
    Sharwline Nicholson, on Behalf of Herself, Her Infant Children, Destinee B. and Another, and All Others Similarly Situated, et al., Respondents, v Nicholas Scoppetta, Individually and as Commissioner of Administration for Children’s Services, et al., Appellants, et al., Defendants.
    Argued September 7, 2004;
    decided October 26, 2004

      POINTS OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Alan G. Krams, Leonard Koerner, Jonathan Pines, Martha A. Calhoun, Carolyn Wolpert and Kristin M. Helmers of counsel), for appellants.
    I. A child can be neglected within the meaning of section 1012 (f) (i) (B) of the Family Court Act when a parent who is a victim of domestic violence fails to take appropriate steps to protect her child from actual harm, or the risk thereof, resulting from witnessing the violence. (Matter of Nicole V., 71 NY2d 112; Matter of Tompkins County Support Collection Unit v Chamberlin, 99 NY2d 328; Matter of Jessica YY., 258 AD2d 743; People v Carroll, 93 NY2d 564; Matter of Peterson Children, 185 Misc 2d 351; Matter of Daphne G., 308 AD2d 132; People v Johnson, 95 NY2d 368; People v Malone, 180 Misc 2d 744; People v Hitchcock, 98 NY2d 586; People v Parr, 155 AD2d 945.) II. In some cases, the risks of emotional injury arising from witnessing domestic violence can constitute imminent danger to life and health warranting removal. (Matter of Commissioner of Social Servs. [R./S. Children], 168 Misc 2d 11; Matter of Robert H., 307 AD2d 293; Tenenbaum v Williams, 193 F3d 581; Matter of Christopher JJ., 281 AD2d 720; Matter of Erika B., 268 AD2d 586; Matter of Maria M., 244 AD2d 255; Matter of Kasheena M., 245 AD2d 231.) III. The decision to remove or place a child because of witnessing domestic violence is based on an assessment of case-specific facts, not on a presumption that removal is necessary. (Friederwitzer v Friederwitzer, 55 NY2d 89; Matter of Philip M., 82 NY2d 238; Matter of Tami G., 209 AD2d 869, 85 NY2d 804; Matter of Athena M., 253 AD2d 669; Matter of Lonell J., 242 AD2d 58; Matter of Deandre T., 253 AD2d 497; Matter of Eric B., 299 AD2d 754; Matter of Carlos M., 293 AD2d 617; Matter of Marino S., 100 NY2d 361; Matter of Marie B., 62 NY2d 352; Matter of Bennett v Jeffreys, 40 NY2d 543.)

      Lansner & Kubitschek, New York City (David J. Lansner and Carolyn A. Kubitschek of counsel), and Sanctuary for Families, Center for Battered Women’s Legal Services (Jill M. Zuccardy of counsel), for Subclass A respondents.
    I. A battered mother has not neglected her child where the sole allegation is that her child witnessed domestic violence against her. (Matter of Scott M., 284 AD2d 589; Matter of Jessica R., 230 AD2d 108; People v Johnson, 95 NY2d 368; People v Jenkins, 282 AD2d 926; People v Alexander, 97 NY2d 482; Matter of H./R. Children, 302 AD2d 288; Matter of E.R. v G.S.R., 170 Misc 2d 659; Wissink v Wissink, 301 AD2d 36; Samala v Samala, 309 AD2d 798; Matter of Finkbeiner v Finkbeiner, 270 AD2d 417.) II. Possible future emotional harm to a child who has witnessed domestic violence does not justify removal from the victim parent. (Matter of Dominique A., 307 AD2d 888; Moodian v County of Alameda Social Servs. Agency, 206 F Supp 2d 1030; Tenenbaum v Williams, 193 F3d 581, cert denied sub nom. City of New York v Tenenbaum, 529 US 1098; Matter of Marie B., 62 NY2d 352; Matter of Ronald FF. v Cindy GG., 70 NY2d 141; Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196; Matter of Tammie Z., 66 NY2d 1; Matter of Ella B., 30 NY2d 352; Matter of Karen L., 80 AD2d 681; Matter of Roy Anthony A., 59 AD2d 662.) III. The City of New York must offer particularized evidence to justify removal of a child, including proof that the harm of remaining in the home exceeds the harm of removal. (Matter of John B. v Niagara County Dept. of Social Servs., 289 AD2d 1090; Matter of Kimberly H., 242 AD2d 35; Matter of Robert H., 307 AD2d 293; Matter of Tantalyn TT., 115 AD2d 799; Matter of Tammie Z., 66 NY2d 1; Matter of Ella B., 30 NY2d 352; Matter of Hofbauer, 47 NY2d 648; Matter of Ronald FF. v Cindy GG., 70 NY2d 141; Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196.)

      Legal Aid Society, Juvenile Rights Division, New York City (Judith Waksberg and Monica Drinane of counsel), and Lawyers For Children, Inc. (Karen Freedman of counsel), for Subclass B respondents.
    I. The definition of a “neglected child” under Family Court Act § 1012 (f) and (h) does not include instances in which the sole allegation of neglect is that the parent or other person legally responsible for the child’s care allows the child to witness domestic abuse against the caretaker. (Matter of Jason T., 2 AD3d 738; Matter of Theresa CC., 178 AD2d 687; Matter of Lonell J., 242 AD2d 58; Matter of Nassau County Dept. of Social Servs. [Dante M.] v Denise J., 87 NY2d 73; Matter of Jeremiah M., 290 AD2d 450; Matter of Tami G., 209 AD2d 869; People v Johnson, 95 NY2d 368; Matter of Michael G., 300 AD2d 1144; Matter of Francis S., 296 AD2d 507; Matter of Athena M., 253 AD2d 669.) II. The injury or possible injuiy, if any, that results to a child who has witnessed domestic abuse against a parent or other caretaker cannot constitute “danger” or “risk” to the child’s “life or health,” as those terms are defined in Family Court Act §§ 1022, 1024, 1026 and 1028. (Kia P. v McIntyre, 235 F3d 749; Tenenbaum v Williams, 193 F3d 581; Gottlieb v County of Orange, 84 F3d 511; Hurlman v Rice, 927 F2d 74; Good v Dauphin County Social Servs. for Children & Youth, 891 F2d 1087; Duchesne v Sugarman, 566 F2d 817; Matter of Robert H., 307 AD2d 293; Matter of Maria M., 244 AD2d 255; Franz v Lytle, 997 F2d 784; Matter of Kimberly H., 242 AD2d 35.) III. The fact that the child witnessed such abuse does not suffice to demonstrate that “removal is necessary” under Family Court Act §§ 1022, 1024 and 1027, or that “removal was in the child’s best interests” under Family Court Act §§ 1028 and 1052 (b) (i) (A), without the child protective agency offering additional particularized evidence to justify removal. (Matter of Nicole V., 71 NY2d 112; Matter of Nassau County Dept. of Social Servs. [Dante M.] v Denise J., 87 NY2d 73; Matter of Philip M., 82 NY2d 238; Matter of Marie B., 62 NY2d 352; Matter of Cruz, 121 AD2d 901; Matter of Isaiah Keith B., 306 AD2d 343; Matter

      of Ronald M., 254 AD2d 838; Matter of Daniella HH., 236 AD2d 715; Matter of William T., 185 AD2d 413; Matter of Synovia G., 163 AD2d 257.)

      Greenberg Traurig LLP, New York City (Alan Mansfield, Stephen L. Saxl, Hilary Ames and Jae J. Kim of counsel), for National Coalition Against Domestic Violence and others, amici curiae.
    I. An interpretation of article 10 of the Family Court Act that would permit removal or neglect proceedings based solely on the fact that the custodial parent has been the victim of domestic violence would violate substantive due process. (Troxel v Granville, 530 US 57; Washington v Glucksberg, 521 US 702; Tenenbaum v Williams, 193 F3d 581; Lehr v Robertson, 463 US 248; Meyer v Nebraska, 262 US 390; Duchesne v Sugarman, 566 F2d 817; Parham v J.R., 442 US 584; Pierce v Society of Sisters of Holy Names of Jesus & Mary, 268 US 510; Matter of Bennett v Jeffreys, 40 NY2d 543; Moore v City of E. Cleveland, Ohio, 431 US 494.) II. An interpretation of article 10 of the Family Court Act that would permit ex parte removal without a hearing or court ordered removal or neglect proceedings based solely on the fact that the custodial parent has been the victim of domestic violence would violate the procedural due process rights of plaintiff classes. (Matter of Deanna E., 150 Misc 2d 1074; Stanley v Illinois, 405 US 645; Wallis v Spencer, 202 F3d 1126; Mathews v Eldridge, 424 US 319; Tenenbaum v Williams, 193 F3d 581; Batten v Gomez, 324 F3d 288; Armstrong v Manzo, 380 US 545; Jordan by Jordan v Jackson, 15 F3d 333; Dykes v Hosemann, 743 F2d 1488; Matter of Adrian J., 119 Misc 2d 900.)

      Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC., Washington, D.C. (Michael C. Bisignano of counsel), for National Network to End Domestic Violence, Inc., and others, amici curiae.
    I. Labeling a child who witnesses abuse “neglected” is wrong as a matter of law and policy. (Planned Parenthood of Southeastern Pa. v Casey, 505 US 833; United States v Morrison, 529 US 598.) II. The dangers and risks attendant to a child witnessing domestic violence must be balanced with dangers and risks of removal. III. New York law should require a particularized showing of harm.

      Suzanne E. Tomkins, Buffalo, for New York State Coalition Against Domestic Violence and others, amici curiae.
    I. The findings in Nicholson v Williams (203 F Supp 2d 153 [2002]) are consistent with the model policies for child welfare cases involving domestic violence adopted by the State of New York. (Thur

      man v City of Torrington, 595 F Supp 1521; Matter of Lonell J., 242 AD2d 58; Matter of Griselua A., 304 AD2d 659; Matter of Carlos M., 293 AD2d 617; Matter of Francis S., 296 AD2d 507; Matter of James MM. v June OO., 294 AD2d 630; Matter of Michael G., 300 AD2d 1144; Matter of Athena M., 253 AD2d 669.) II. This Court should reject any per se standards in child welfare cases involving domestic violence. (Matter of Billy Jean II., 226 AD2d 767; Matter of Tammie Z., 105 AD2d 463; Matter of Tami G., 209 AD2d 869; Matter of Nichole SS., 296 AD2d 618; Matter of Jasmine R., 258 AD2d 361; Matter of Kenny C., 245 AD2d 32.) III. Abused mothers and their children can remain together safely. IV The most effective way to achieve safety for children is to pursue safety for mothers who are abused and to hold offenders accountable.

      Arent Fox PLLC, Washington, D.C. (Evan Stolove, Janine Carian, Jennifer Myron and Marcy L. Karin of counsel), for Pennsylvania Coalition Against Domestic Violence and others, amici curiae.
    I. Witnessing domestic violence does not constitute “neglect” by the battered mother. (Matter of Lonell J., 242 AD2d 58; Matter of Barber v Stanley, 260 AD2d 744; Matter of Bryan L., 149 Misc 2d 899; Matter of Megan G., 291 AD2d 636; People v Koertge, 182 Mise 2d 183.) II. Forced separation of children from their nonabusive, protective mothers is not in their best interests. (Matter of Loraida G., 183 Misc 2d 126; Marisol A. by Forbes v Giuliani, 929 F Supp 662.) III. The plain language and the legislative history of the Family Court Act do not permit the State of New York to remove children from their mothers because of witnessing domestic violence. IV It is the system— not mothers—that is failing to protect children.

      Deborah A. Widiss, New York City, Christina Brandt-Young and Jennifer K. Brown for Legal Momentum and others, amici curiae.
    I. Widespread persistent gender bias compromises government’s response to domestic violence, particularly when children are involved. (Mississippi Univ. for Women v Hogan, 458 US 718; Craig v Boren, 429 US 190; Linda R. v Richard E., 162 AD2d 48; Stanton v Stanton, 421 US 7; United States v Virginia, 518 US 515.) II. This Court should interpret the Family Court Act to require a particularized showing of actions (or inactions) that constitute a failure to exercise a minimum degree of care. (Childs v Childs, 69 AD2d 406.) III. This Court should respond to the certified questions with guidelines that deter reliance on gender-based stereotypes.

      Piper Rudnick LLP, Easton, Maryland (Ray L. Earnest of counsel), for Appellate Advocacy Network and others, amici curiae.
    This Court should construe the Family Court Act as requiring that, in every proceeding to remove a child from his/her home, the court make a thorough inquiry into whether the child protection agency has made reasonable efforts to avoid removal. (Stanley v Illinois, 405 US 645; Griswold v Connecticut, 381 US 479; Prince v Massachusetts, 321 US 158; Meyer v Nebraska, 262 US 390; Duchesne v Sugarman, 566 F2d 817; Covington v Harris, 419 F2d 617; Matter of Jacob, 86 NY2d 651; Kia P. v McIntyre, 235 F3d 749; Mathews v Eldridge, 424 US 319; May v Anderson, 345 US 528.)

      Yisroel Schulman, New York City, and Kim Susser for New York Legal Assistance Group and others, amici curiae.
    I. Appellant misappropriates the legislative history of Domestic Relations Law § 240 to support charges of neglect against battered mothers for failing to protect their children from exposure to domestic violence. (People v Johnson, 95 NY2d 368; Matter of Bennett v Jeffreys, 40 NY2d 543.) II. Appellant’s policies and practice result in inconsistent and unrealistic demands imposed on battered mothers in custody and visitation proceedings and child protective proceedings. (Matter of Blake v Blake, 106 AD2d 916; Matter of Smith v Purnell, 256 AD2d 619; Furman v Furman, 298 AD2d 627; Lorin B. v Michael S., 254 AD2d 126; Matter of Thompson v Gibeault, 305 AD2d 873; Matter of J.D. v N.D., 170 Misc 2d 877; Matter of E.R. v G.S.R., 170 Misc 2d 659; Matter of Wissink v Wissink, 301 AD2d 36; Finn v Finn, 176 AD2d 1132; Entwistle v Entwistle, 61 AD2d 380.) III. Appellants ignore successful models that exist to protect battered mothers and their children.

      Wilbur McReynolds, amicus curiae.

      Legal Aid Society, Cleveland, Ohio (Alexandra M. Ruden of counsel), and Michael R. Smalz, Columbus, Ohio, for Ohio Domestic Violence Network and another, amici curiae.
    I. An individualized assessment of harm to the child needs to be conducted. II. Removal is not always necessary or in the best interests of the child. (Croft v Westmoreland County Children & Youth Servs., 103 F3d 1123.) III. Children should not be removed from a nonabusive parent because of exposure to parental domestic violence without a showing of harm to that child.

      Paul Chill, Hartford, Connecticut, for Joseph L. Woolston and others, amici curiae.
    I. Removal from parents causes children severe psychological harm, some of which may be mitigated if children are placed with relatives rather than strangers. (Jordan by Jordan v Jackson, 15 F3d 333.) II. No decision to remove a child should be made without considering the likely effects of the removal on the child’s psychological health and without making a specific determination that the likely physical and psychological risk of continued exposure to violence outweighs the developmental risk likely to be caused by removal.
   OPINION OF THE COURT

Chief Judge Kaye.

In this federal class action, the United States Court of Appeals for the Second Circuit has certified three questions centered on New York’s statutory scheme for child protective proceedings. The action is brought on behalf of mothers and their children who were separated because the mother had suffered domestic violence, to which the children were exposed, and the children were for that reason deemed neglected by her.

In April 2000, Sharwline Nicholson, on behalf of herself and her two children, brought an action pursuant to 42 USC § 1983 against the New York City Administration for Children’s Services (ACS). The action was later consolidated with similar complaints by Sharlene Tillet and Ekaete Udoh—the three named plaintiff mothers. Plaintiffs alleged that ACS, as a matter of policy, removed children from mothers who were victims of domestic violence because, as victims, they “engaged in domestic violence” and that defendants removed and detained children without probable cause and without due process of law. That policy, and its implementation—according to plaintiff mothers—constituted, among other wrongs, an unlawful interference with their liberty interest in the care and custody of their children in violation of the United States Constitution.

In August 2001, the United States District Court for the Eastern District of New York certified two subclasses: battered custodial parents (Subclass A) and their children (Subclass B) (Nicholson v Williams, 205 FRD 92, 95, 100 [ED NY 2001]). For each plaintiff, at least one ground for removal was that the custodial mother had been assaulted by an intimate partner and failed to protect the child or children from exposure to that domestic violence.

In January 2002, the District Court granted a preliminary injunction, concluding that the City “may not penalize a mother, not otherwise unfit, who is battered by her partner, by separating her from her children; nor may children be separated from the mother, in effect visiting upon them the sins of their mother’s batterer” (In re Nicholson, 181 F Supp 2d 182, 188 [ED NY 2002]; see also Nicholson v Williams, 203 F Supp 2d 153 [ED NY 2002] [108-page elaboration of grounds for injunction]).

The court found that ACS unnecessarily, routinely charged mothers with neglect and removed their children where the mothers—who had engaged in no violence themselves—had been the victims of domestic violence; that ACS did so without ensuring that the mother had access to the services she needed, without a court order, and without returning these children promptly after being ordered to do so by the court; that ACS caseworkers and case managers lacked adequate training about domestic violence, and their practice was to separate mother and child when less harmful alternatives were available; that the agency’s written policies offered contradictory guidance or no guidance at all on these issues; and that none of the reform plans submitted by ACS could reasonably have been expected to resolve the problems within the next year (203 F Supp 2d at 228-229).

The District Court concluded that ACS’s practices and policies violated both the substantive due process rights of mothers and children not to be separated by the government unless the parent is unfit to care for the child, and their procedural due process rights (181 F Supp 2d at 185). The injunction, in relevant part, “prohibited] ACS from carrying out ex parte removals ‘solely because the mother is the victim of domestic violence,’ or from filing an Article Ten petition seeking removal on that basis” (Nicholson v Scoppetta, 344 F3d 154, 164 [2d Cir 2003] [internal citations omitted]).

On appeal, the Second Circuit held that the District Court had not abused its discretion in concluding that ACS’s practice of effecting removals based on a parent’s failure to prevent his or her child from witnessing domestic violence against the parent amounted to a policy or custom of ACS, that in some circumstances the removals may raise serious questions of federal constitutional law, and that the alleged constitutional violations, if any, were at least plausibly attributable to the City (344 F3d at 165-167, 171-176). The court hesitated, however, before reaching the constitutional questions, believing that resolution of uncertain issues of New York statutory law would avoid, or significantly modify, the substantial federal constitutional issues presented (id. at 176).

Given the strong preference for avoiding unnecessary constitutional adjudication, the importance of child protection to New York State and the integral part New York courts play in the removal process, the Second Circuit, by three certified questions, chose to put the open state statutory law issues to us for resolution. We accepted certification (1 NY3d 538 [2003]), and now proceed to answer those questions.

Certified Question No. 1: Neglect

“Does the definition of a ‘neglected child’ under N.Y. Family Ct. Act § 1012(f), (h) include instances in which the sole allegation of neglect is that the parent or other person legally responsible for the child’s care allows the child to witness domestic abuse against the caretaker?” (344 F3d at 176.)

We understand this question to ask whether a court reviewing a Family Court Act article 10 petition may find a respondent parent responsible for neglect based on evidence of two facts only: that the parent has been the victim of domestic violence, and that the child has been exposed to that violence. That question must be answered in the negative. Plainly, more is required for a showing of neglect under New York law than the fact that a child was exposed to domestic abuse against the caretaker. Answering the question in the affirmative, moreover, would read an unacceptable presumption into the statute, contrary to its plain language.

Family Court Act § 1012 (f) is explicit in identifying the elements that must be shown to support a finding of neglect. As relevant here, it defines a “neglected child” to mean:

“a child less than eighteen years of age
“(i) whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care . . .
“(B) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment; or by misusing a drug or drugs; or by misusing alcoholic beverages to the extent that he loses self-control of his actions; or by any other acts of a similarly serious nature requiring the aid of the court.”

Thus, a party seeking to establish neglect must show, by a preponderance of the evidence (see Family Ct Act § 1046 [b] [i]), first, that a child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship. The drafters of article 10 were “deeply concerned” that an imprecise definition of child neglect might result in “unwarranted state intervention into private family life” (Besharov, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 1012, at 320 [1999 ed]).

The first statutory element requires proof of actual (or imminent danger of) physical, emotional or mental impairment to the child (see Matter of Nassau County Dept. of Social Servs. [Dante M.J v Denise J., 87 NY2d 73, 78-79 [1995]). This prerequisite to a finding of neglect ensures that the Family Court, in deciding whether to authorize state intervention, will focus on serious harm or potential harm to the child, not just on what might be deemed undesirable parental behavior. “Imminent danger” reflects the Legislature’s judgment that a finding of neglect may be appropriate even when a child has not actually been harmed; “imminent danger of impairment to a child is an independent and separate ground on which a neglect finding may be based” (Dante M., 87 NY2d at 79). Imminent danger, however, must be near or impending, not merely possible.

In each case, additionally, there must be a link or causal connection between the basis for the neglect petition and the circumstances that allegedly produce the child’s impairment or imminent danger of impairment. In Dante M., for example, we held that the Family Court erred in concluding that a newborn’s positive toxicology for a controlled substance alone was sufficient to support a finding of neglect because the report, in and of itself, did not prove that the child was impaired or in imminent danger of becoming impaired (87 NY2d at 79). We reasoned, “[r]elying solely on a positive toxicology result for a neglect determination fails to make the necessary causative connection to all the surrounding circumstances that may or may not produce impairment or imminent risk of impairment in the newborn child” (id.). The positive toxicology report, in conjunction with other evidence—such as the mother’s history of inability to care for her children because of her drug use, testimony of relatives that she was high on cocaine during her pregnancy and the mother’s failure to testify at the neglect hearing—supported a finding of neglect and established a link between the report and physical impairment.

The cases at bar concern, in particular, alleged threats to the child’s emotional, or mental, health. The statute specifically defines “[impairment of emotional health” and “impairment of mental or emotional condition” to include

“a state of substantially diminished psychological or intellectual functioning in relation to, but not limited to, such factors as failure to thrive, control of aggressive or self-destructive impulses, ability to think and reason, or acting out or misbehavior, including incorrigibility, ungovernability or habitual truancy” (Family Ct Act § 1012 [h]).

Under New York law, “such impairment must be clearly attributable to the unwillingness or inability of the respondent to exercise a minimum degree of care toward the child” (id.). Here, the Legislature recognized that the source of emotional or mental impairment—unlike physical injury—may be murky, and that it is unjust to fault a parent too readily. The Legislature therefore specified that such impairment be “clearly attributable” to the parent’s failure to exercise the requisite degree of care.

Assuming that actual or imminent danger to the child has been shown, “neglect” also requires proof of the parent’s failure to exercise a minimum degree of care. As the Second Circuit observed, “a fundamental interpretive question is what conduct satisfies the broad, tort-like phrase, ‘a minimum degree of care.’ The Court of Appeals has not yet addressed that question, which would be critical to defining appropriate parental behavior” (344 F3d at 169).

‘‘[M]inimum degree of care” is a “baseline of proper care for children that all parents, regardless of lifestyle or social or economic position, must meet” (Besharov at 326). Notably, the statutory test is “minimum degree of care”—not maximum, not best, not ideal—and the failure must be actual, not threatened (see e.g. Matter of Hofbauer, 47 NY2d 648, 656 [1979] [recognizing, in the context of medical neglect, the court’s role is not as surrogate parent and the inquiry is not posed in absolute terms of whether the parent has made the “right” or “wrong” decision]).

Courts must evaluate parental behavior objectively: would a reasonable and prudent parent have so acted, or failed to act, under the circumstances then and there existing (see Matter of Jessica YY., 258 AD2d 743, 744 [3d Dept 1999]). The standard takes into account the special vulnerabilities of the child, even where general physical health is not implicated (see Matter of Sayeh R., 91 NY2d 306, 315, 317 [1997] [mother’s decision to demand immediate return of her traumatized children without regard to their need for counseling and related services “could well be found to represent precisely the kind of failure ‘to exercise a minimum degree of care’ that our neglect statute contemplates”]). Thus, when the inquiry is whether a mother— and domestic violence victim—failed to exercise a minimum degree of care, the focus must be on whether she has met the standard of the reasonable and prudent person in similar circumstances.

As the Subclass A members point out, for a battered mother— and ultimately for a court—what course of action constitutes a parent’s exercise of a “minimum degree of care” may include such considerations as: risks attendant to leaving, if the batterer has threatened to kill her if she does; risks attendant to staying and suffering continued abuse; risks attendant to seeking assistance through government channels, potentially increasing the danger to herself and her children; risks attendant to criminal prosecution against the abuser; and risks attendant to relocation. Whether a particular mother in these circumstances has actually failed to exercise a minimum degree of care is necessarily dependent on facts such as the severity and frequency of the violence, and the resources and options available to her (see Matter of Melissa U., 148 AD2d 862 [3d Dept 1989]; Matter of James MM. v June OO., 294 AD2d 630 [3d Dept 2002]).

Only when a petitioner demonstrates, by a preponderance of evidence, that both elements of section 1012 (f) are satisfied may a child be deemed neglected under the statute. When “the sole allegation” is that the mother has been abused and the child has witnessed the abuse, such a showing has not been made. This does not mean, however, that a child can never be “neglected” when living in a household plagued by domestic violence. Conceivably, neglect might be found where a record establishes that, for example, the mother acknowledged that the children knew of repeated domestic violence by her paramour and had reason to be afraid of him, yet nonetheless allowed him several times to return to her home, and lacked awareness of any impact of the violence on the children, as in Matter of James MM. (294 AD2d at 632); or where the children were exposed to regular and continuous extremely violent conduct between their parents, several times requiring official intervention, and where caseworkers testified to the fear and distress the children were experiencing as a result of their long exposure to the violence (Matter of Theresa CC., 178 AD2d 687 [3d Dept 1991]).

In such circumstances, the battered mother is charged with neglect not because she is a victim of domestic violence or because her children witnessed the abuse, but rather because a preponderance of the evidence establishes that the children were actually or imminently harmed by reason of her failure to exercise even minimal care in providing them with proper oversight.

Certified Question No. 2: Removals

Next, we are called upon to focus on removals by ACS, in answering the question:

“Can the injury or possible injury, if any, that results to a child who has witnessed domestic abuse against a parent or other caretaker constitute ‘danger’ or ‘risk’ to the child’s ‘life or health,’ as those terms are defined in the N.Y. Family Ct. Act §§ 1022, 1024, 1026-1028?” (344 F3d at 176-177.)

The cited Family Court Act sections relate to the removal of a child from home. Thus, in essence, we are asked to decide whether emotional injury from witnessing domestic violence can rise to a level that establishes an “imminent danger” or “risk” to a child’s life or health, so that removal is appropriate either in an emergency or by court order.

While we do not reach the constitutional questions, it is helpful in framing the statutory issues to note the Second Circuit’s outline of the federal constitutional questions relating to removals. Their questions emerge in large measure from the District Court’s findings of an “agency-wide practice of removing children from their mother without evidence of a mother’s neglect and without seeking prior judicial approval” (203 F Supp 2d at 215), and Family Court review of removals that “often fails to provide mothers and children with an effective avenue for timely relief from ACS mistakes” (id. at 221).

Specifically, as to ex parte removals, the Circuit Court identified procedural due process and Fourth Amendment questions focused on whether danger to a child could encompass emotional trauma from witnessing domestic violence against a parent, warranting emergency removal. Discussing the procedural due process question, the court remarked that:

“there is a strong possibility that if New York law does not authorize ex parte removals, our opinion in Tenenbaum at least arguably could weigh in favor of finding a procedural due process violation in certain circumstances. If New York law does authorize such removals, Tenenbaum likely does not prohibit us from deferring to that judgment. In either case, the underlying New York procedural rules will also be an important component of our balancing. Thus, the state-law question of statutory interpretation will either render unnecessary, or at least substantially modify, the federal constitutional question” (344 F3d at 172).

The court also questioned whether “in the context of the seizure of a child by a state protective agency the Fourth Amendment might impose any additional restrictions above and beyond those that apply to ordinary arrests” (id. at 173).

As to court-ordered removals, the Second Circuit recognized challenges based on substantive due process, procedural due process—the antecedent of Certified Question No. 3—and the Fourth Amendment. The substantive due process question concerned whether the City had offered a reasonable justification for the removals. The Second Circuit observed that “there is a substantial Fourth Amendment question presented if New York law does not authorize removals in the circumstances alleged” (id. at 176).

Finally, in certifying the questions to us, the court explained that:

“[t]here is . . . some ambiguity in the statutory language authorizing removals pending a final determination of status. Following an emergency removal, whether ex parte or by court order, the Family Court must return a removed child to the parent’s custody absent ‘an imminent risk’ or ‘imminent danger’ to ‘the child’s life or health.’ At the same time, the Family Court must consider the ‘best interests of the child’ in assessing whether continuing removal is necessary to prevent threats to the child’s life or health. Additionally, in order to support removal, the Family Court must ‘find[ ] that removal is necessary to avoid imminent risk.’ How these provisions should be harmonized seems to us to be the province of the Court of Appeals” (344 F3d at 169 [internal citations omitted]).

The Circuit Court summarized the policy challenged by plaintiffs and found by the District Court as “the alleged practice of removals based on a theory that allowing one’s child to witness ongoing domestic violence is a form of neglect, either simply because such conduct is presumptively neglectful or because in individual circumstances it is shown to threaten the "child’s physical or emotional health” (id. at 166 n 5).

It is this policy, viewed in light of the District Court’s factual findings, that informs our analysis of Certified Question No. 2. In so doing, we acknowledge the Legislature’s expressed goal of “placing increased emphasis on preventive services designed to maintain family relationships rather than responding to children and families in trouble only by removing the child from the family” (see Mark G. v Sabol, 93 NY2d 710, .719 [1999] [emphasis omitted] [construing Child Welfare Reform Act of 1979 (L 1979, chs 610, 611)]). We further acknowledge the legislative findings, made pursuant to the Family Protection and Domestic Violence Intervention Act of 1994, that

“[t]he corrosive effect of domestic violence is far reaching. The batterer’s violence injures children both directly and indirectly. Abuse of a parent is detrimental to children whether or not they are physically abused themselves. Children who witness domestic violence are more likely to experience delayed development, feelings of fear, depression and helplessness and are more likely to become batterers themselves” (L 1994, ch 222, § 1; see also People v Wood, 95 NY2d 509, 512 [2000] [though involving a batterer, not a victim]).

These legislative findings represent two fundamental— sometimes conflicting—principles. New York has long embraced a policy of keeping “biological families together” (Matter of Marino S., 100 NY2d 361, 372 [2003]). Yet “when a child’s best interests are endangered, such objectives must yield to the State’s paramount concern for the health and safety of the child” (id.).

As we concluded in response to Certified Question No. 1, exposing a child to domestic violence is not presumptively neglectful. Not every child exposed to domestic violence is at risk of impairment. A fortiori, exposure of a child to violence is not presumptively ground for removal, and in many instances removal may do more harm to the child than good. Part 2 of article 10 of the Family Court Act sets forth four ways in which a child may be removed from the home in response to an allegation of neglect (or abuse) related to domestic violence: (1) temporary removal with consent; (2) prehminary orders after a petition is filed; (3) preliminary orders before a petition is filed; and (4) emergency removal without a court order. The issue before us is whether emotional harm suffered by a child exposed to domestic violence, where shown, can warrant the trauma of removal under any of these provisions.

The Practice Commentaries state, and we agree, that the sections of part 2 of article 10 create a “continuum of consent and urgency and mandate a hierarchy of required review” before a child is removed from home (see Besharov, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 1021, at 5 [1999 ed]).

Consent Removal

First, section 1021 provides that a child may be removed “from the place where he is residing with the written consent of his parent or other person legally responsible for his care, if the child is an abused or neglected child under this article” (Family Ct Act § 1021; see Tenenbaum v Williams, 193 F3d 581, 590 n 5 [2d Cir 1999]; Matter of Jonathan P., 283 AD2d 675 [3d Dept 2001]). This section is significant because “many parents are willing and able to understand the need to place the child outside the home and because resort to unnecessary legal coercion can be detrimental to later treatment efforts” (Besharov at 6).

Postpetition Removal

If parental consent cannot be obtained, section 1027, at issue here, provides for preliminary orders after the filing of a neglect (or abuse) petition. Thus, according to the statutory continuum, where the circumstances are not so exigent, the agency should bring a petition and seek a hearing prior to removal of the child. In any case involving abuse—or in any case where the child has already been removed without a court order—the Family Court must hold a hearing as soon as practicable after the filing of a petition, to determine whether the child’s interests require protection pending a final order of disposition (Family Ct Act § 1027 [a]). As is relevant here, the section further provides that in any other circumstance (such as a neglect case), after the petition is filed any person originating the proceeding (or the Law Guardian) may apply for—or the court on its own may order—a hearing to determine whether the child’s interests require protection, pending a final order of disposition (id.).

For example, in Matter of Adam DD. (112 AD2d 493 [3d Dept 1985]), after filing a child neglect petition, petitioner Washington County Department of Social Services sought an order under section 1027. At a hearing, evidence demonstrated that respondent mother had told her son on several occasions that she intended to kill herself, and Family Court directed that custody be placed with petitioner on a temporary basis for two months. At the subsequent dispositional hearing, a psychiatrist testified that respondent was suffering from a type of paranoid schizophrenia that endangered the well-being of the child, and recommended the continued placement with petitioner. A second psychiatrist concurred. The Appellate Division concluded that the record afforded a basis for Family Court to find neglect because of possible impairment of the child’s emotional health, and continued placement of the child with petitioner.

While not a domestic violence case, Matter of Adam DD. is instructive because it concerns steps taken in the circumstance where a child is emotionally harmed by parental behavior. The parent’s repeated threats of suicide caused emotional harm that could be akin to the experience of a child who witnesses repeated episodes of domestic violence perpetrated against a parent. In this circumstance, the agency did not immediately remove the child, but proceeded with the filing of a petition and a hearing.

Upon such a hearing, if the court finds that removal is necessary to avoid imminent risk to the child’s life or health, it is required to remove or continue the removal and remand the child to a place approved by the agency (Family Ct Act § 1027 [b] [i]). In undertaking this inquiry, the statute also requires the court to consider and determine whether continuation in the child’s home would be contrary to the best interests of the child (id.).

The Circuit Court has asked us to harmonize the “best interests” test with the calculus concerning “imminent risk” and “imminent danger” to “life or health” (344 F3d at 169). In order to justify a finding of imminent risk to life or health, the agency need not prove that the child has suffered actual injury (see Matter of Kimberly H., 242 AD2d 35, 38 [1st Dept 1998]). Rather, the court engages in a fact-intensive inquiry to determine whether the child’s emotional health is at risk. Section 1012 (h), moreover, sets forth specific factors, evidence of which may demonstrate “substantially diminished psychological or intellectual functioning” (see also Matter of Sayeh R., 91 NY2d 306, 314-316 [1997]; Matter of Nassau County Dept. of Social Servs. [Dante M.] v Denise J., 87 NY2d 73, 78-79 [1995]). As noted in our discussion of Certified Question No. 1, section 1012 (h) contains the caveat that impairment of emotional health must be “clearly attributable to the unwillingness or inability of the respondent to exercise a minimum degree of care toward the child” (see Matter of Theresa CC., 178 AD2d 687 [3d Dept 1991]).

Importantly, in 1988, the Legislature added the “best interests” requirement to the statute, as well as the requirement that reasonable efforts be made “to prevent or ehminate the need for removal of the child from the home” (L 1988, ch 478, § 5). These changes were apparently necessary to comport with federal requirements under title IV-E of the Social Security Act (42 USC §§ 670-679D, which mandated that federal “foster care maintenance payments may be made on behalf of otherwise eligible children who were removed from the home of a specified relative pursuant to a voluntary placement agreement, or as the result of a ‘judicial determination to the effect that continuation therein would be contrary to the welfare of the child and . . . that reasonable efforts [to prevent the need for removal] have been made’ ” (Policy Interpretation Question of US Dept of Health & Human Servs, May 3, 1986, Bill Jacket, L 1988, ch 478, at 32-33). The measures “ensure[d] that children involved in the early stages of child protective proceedings and their families receive appropriate services to prevent the children’s removal from their homes whenever possible” (Mem from Cesar A. Perales to Evan A. Davis, Counsel to Governor, July 27, 1988, Bill Jacket, L 1988, ch 478, at 14).

By contrast, the City at the time took the position that

“[t]he mixing of the standards ‘best interest of the child’ and ‘imminent risk’ is confusing. It makes no sense for a court to determine as part of an ‘imminent risk’ decision, what is in the ‘best interest of the child.’ If the child is in ‘imminent risk’, his/her ‘best interest’ is removal from the home. A ‘best interest’ determination is more appropriately made after an investigation and a report have been completed and all the facts are available” (Letter from Legis Rep James Brennan, City of New York Off of Mayor, to Governor Mario M. Cuomo, July 27, 1988, Bill Jacket, L 1988, ch 478, at 23).

In this litigation, the City posits that the “best interests” determination is part of the Family Court’s conclusion that there is imminent risk warranting removal, and concedes that whether a child will be harmed by the removal is a relevant consideration. The City thus recognizes that the questions facing a Family Court judge in the removal context are extraordinarily complex. As the Circuit Court observed, “it could be argued that the exigencies of the moment that threaten the welfare of a child justify removal. On the other hand, a blanket presumption in favor of removal may not fairly capture the nuances of each family situation” (344 F3d at 174).

The plain language of the section and the legislative history supporting it establish that a blanket presumption favoring removal was never intended. The court must do more than identify the existence of a risk of serious harm. Rather, a court must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal. It must balance that risk against the harm removal might bring, and it must determine factually which course is in the child’s best interests.

Additionally, the court must specifically consider whether imminent risk to the child might be eliminated by other means, such as issuing a temporary order of protection or providing services to the victim (Family Ct Act § 1027 [b] [iii], [iv]). The Committee Bill Memorandum supporting this legislation explains the intent that “[w]here one parent is abusive but the child may safely reside at home with the other parent, the abuser should be removed. This will spare children the trauma of removal and placement in foster care” (Mem of Children and Families Standing Comm, Bill Jacket, L 1989, ch 727, at 7).

These legislative concerns were met, for example, in Matter of Naomi R. (296 AD2d 503 [2d Dept 2002]), where, following a hearing pursuant to section 1027, Family Court issued a temporary order of protection against a father, excluding him from the home, on the ground that he allegedly sexually abused one of his four children. Evidence established that the father’s return to the home, even under the mother’s supervision, would present an imminent risk to the health and safety of all of the children. Thus, pending a full fact-finding hearing, Family Court took the step of maintaining the integrity of the family unit and instead removed the abuser.

Ex Parte Removal by Court Order

If the agency believes that there is insufficient time to file a petition, the next step on the continuum should not be emergency removal, but ex parte removal by court order (see e.g. Matter of Nassau County Dept. of Social Servs. [Dante M.] v Denise J., 87 NY2d 73 [1995]). Section 1022 of the Family Court Act provides that the court may enter an order directing the temporary removal of a child from home before the filing of a petition if three factors are met.

First, the parent must be absent or, if present, must have been asked and refused to consent to temporary removal of the child and must have been informed of an intent to apply for an order. Second, the child must appear to suffer from abuse or neglect of a parent or other person legally responsible for the child’s care to the extent that immediate removal is necessary to avoid imminent danger to the child’s life or health. Third, there must be insufficient time to file a petition and hold a preliminary hearing.

Just as in a section 1027 inquiry, the court must consider whether continuation in the child’s home would be contrary to the best interests of the child; whether reasonable efforts were made prior to the application to prevent or eliminate the need for removal from the home; and whether imminent risk to the child would be eliminated by the issuance of a temporary order of protection directing the removal of the person from the child’s residence. Here, the court must engage in a fact-finding inquiry into whether the child is at risk and appears to suffer from neglect.

The Practice Commentaries suggest that section 1022 may be unfamiliar, or seem unnecessary, to those in practice in New York City, “where it is common to take emergency protective action without prior court review” (Besharov, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 1022, at 10 [1999 ed]). If, as the District Court’s findings suggest, this was done in cases where a court order could be obtained, the practice contravenes the statute. Section 1022 ensures that in most urgent situations, there will be judicial oversight in order to prevent well-meaning but misguided removals that may harm the child more than help. As the comment to the predecessor statute stated, “[t]his section . . . [is] designed to avoid a premature removal of a child from his home by establishing a procedure for an early judicial determination of urgent need” (Committee Comments, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 322 [1963 ed]).

Whether analyzing a removal application under section 1027 or section 1022, or an application for a child’s return under section 1028, a court must engage in a balancing test of the imminent risk with the best interests of the child and, where appropriate, the reasonable efforts made to avoid removal or continuing removal. The term “safer course” (see e.g. Matter of Kimberly H., 242 AD2d 35 [1st Dept 1998]; Matter of Tantalyn TT., 115 AD2d 799 [3d Dept 1985]) should not be used to mask a dearth of evidence or as a watered-down, impermissible presumption.

Emergency Removal Without Court Order

Finally, section 1024 provides for emergency removals without a court order. The section permits removal without a court order and without consent of the parent if there is reasonable cause to believe that the child is in such urgent circumstance or condition that continuing in the home or care of the parent presents an imminent danger to the child’s life or health, and there is not enough time to apply for an order under section 1022 (Family Ct Act § 1024 [a]; see generally Matter of Joseph DD., 300 AD2d 760, 760 n 1 [3d Dept 2002] [noting that removal under such emergency circumstances requires the filing of an article 10 petition “forthwith” and prompt court review of the nonjudicial decision pursuant to Family Ct Act § 1026 (c) and § 1028]; see also Matter of Karla V., 278 AD2d 159 [1st Dept 2000]). Thus, emergency removal is appropriate where the danger is so immediate, so urgent that the child’s life or safety will be at risk before an ex parte order can be obtained. The standard obviously is a stringent one.

Section 1024 establishes an objective test, whether the child is in such circumstance or condition that remaining in the home presents imminent danger to life or health. In construing “imminent danger” under section 1024, it has been held that whether a child is in “imminent danger” is necessarily a fact-intensive determination. “It is not required that the child be injured in the presence of a caseworker nor is it necessary for the alleged abuser to be present at the time the child is taken from the home. It is sufficient if the officials have persuasive evidence of serious ongoing abuse and, based upon the best investigation reasonably possible under the circumstances, have reason to fear imminent recurrence” (Gottlieb v County of Orange, 871 F Supp 625, 628-629 [SD NY 1994], citing Robison v Via, 821 F2d 913, 922 [2d Cir 1987]). The Gottlieb court added that, “[s]inee this evidence is the basis for removal of a child, it should be as reliable and thoroughly examined as possible to avoid unnecessary harm to the family unit” (871 F Supp at 629).

Section 1024 concerns, moreover, only the very grave circumstance of danger to life or health. While we cannot say, for all future time, that the possibility can never exist, in the case of emotional injury—or, even more remotely, the risk of emotional injury—caused by witnessing domestic violence, it must be a rare circumstance in which the time would be so fleeting and the danger so great that emergency removal would be warranted.

Certified Question No. 3: Process

Finally, the Second Circuit asks us:

“Does the fact that the child witnessed such abuse suffice to demonstrate that ‘removal is necessary,’ N.Y Family Ct. Act §§ 1022, 1024, 1027, or that ‘removal was in the child’s best interests,’ N.Y. Family Ct. Act §§ 1028, 1052(b)(i)(A), or must the child protective agency offer additional, particularized evidence to justify removal?” (344 F3d at 177.)

The Circuit Court has before it the procedural due process question whether, if New York law permits a presumption that removal is appropriate based on the witnessing of domestic violence, that presumption would comport with Stanley v Illinois (405 US 645 [1972] [recognizing a father’s procedural due process interest in an individualized determination of fitness]). All parties maintain, however, and we concur, that under the Family Court Act, there can be no “blanket presumption” favoring removal when a child witnesses domestic violence, and that each case is fact-specific. As demonstrated in our discussion of Certified Question No. 2, when a court orders removal, particularized evidence must exist to justify that determination, including, where appropriate, evidence of efforts made to prevent or eliminate the need for removal and the impact of removal on the child.

The Circuit Court points to two cases in which removals occurred based on domestic violence without corresponding expert testimony on the appropriateness of removal in the particular circumstance (Matter of Carlos M., 293 AD2d 617 [2d Dept 2002]; Matter of Lonell J., 242 AD2d 58 [1st Dept 1998]). Both cases were reviewed on the issue whether there was sufficient evidence to support a finding of neglect. In Carlos M., the evidence showed a 12-year history of domestic violence between the parents which was not only witnessed by the children but also often actually spurred their intervention. In Lonell J., caseworkers testified at a fact-finding hearing about the domestic violence perpetrated by the children’s father against their mother, as well as the unsanitary condition of the home and the children’s poor health.

We do not read Carlos M. or Lonell J. as supportive of a presumption that if a child has witnessed domestic violence, the child has been harmed and removal is appropriate. That presumption would be impermissible. In each case, multiple factors formed the basis for intervention and determinations of neglect. As the First Department concluded in Lonell J., moreover, “nothing in section 1012 itself requires expert testimony, as opposed to other convincing evidence of neglect” (242 AD2d at 61). Indeed, under section 1046 (a) (viii), which sets forth the evidentiary standards for abuse and neglect hearings, competent expert testimony on a child’s emotional condition may be heard. The Lonell J. court expressed concern that while older children can communicate with a psychological expert about the effects of domestic violence on their emotional state, much younger children often cannot (242 AD2d at 62). The court believed that “[t]o require expert testimony of this type in the latter situation would be tantamount to refusing to protect the most vulnerable and impressionable children. While violence between parents adversely affects all children, younger children in particular are most likely to suffer from psychosomatic illnesses and arrested development” (id.).

Granted, in some cases, it may be difficult for an agency to show, absent expert testimony, that there is imminent risk to a child’s emotional state, and that any impairment of emotional health is “clearly attributable to the unwillingness or inability of the respondent to exercise a minimum degree of care toward the child” (Family Ct Act § 1012 [h]). Yet nothing in the plain language of article 10 requires such testimony. The tragic reality is, as the facts of Lonell J. show, that emotional injury may be only one of the harms attributable to the chaos of domestic violence.

Accordingly, the certified questions should be answered in accordance with this opinion.

Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the questions by this Court pursuant to section 500.17 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.17), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified questions answered in accordance with the opinion herein.

      . “ACS” includes all named city defendants, including the City of New York. Apart from defendant John Johnson (Commissioner of the State Office of Children and Family Services, which oversees ACS), state officials are named in the complaint with respect to the assigned counsel portion of the case, which is not before us.

      . The District Court cited the testimony of a child protective manager that it was common practice in domestic violence cases for ACS to wait a few days before going to court after removing a child because “after a few days of the children being in foster care, the mother will usually agree to ACS’s conditions for their return without the matter ever going to court” (203 F Supp 2d at 170).

      . The injunction was stayed for six months to permit ACS to attempt reform on its own, free of the court’s involvement, and to allow for an appeal. Thereafter, the City and ACS appealed, challenging the District Court’s determination. The Second Circuit denied the City’s request for an additional stay pending appeal.

      . Chief Judge Walker dissented, concluding that the injunction should be vacated because the evidence did not support the District Court’s findings underpinning the injunction. In his view, the District Court’s central factual finding that ACS had a policy of regularly separating battered mothers and children unnecessarily was “simply unsustainable” (id. at 177).

      . We are not asked to, nor do we, apply our answers to the trial record, though recognizing that in the inordinately complex human dilemma presented by domestic violence involving children, the law may be easier to state than apply.

      . The Legislature has recognized this “quandary” that a victim of domestic violence encounters (Senate Mem in Support, 2002 McKinney’s Session Laws of NY, at 1861). To avoid punitive responses from child protective services agencies, the Legislature attempted to increase awareness of child protective agencies of the dynamics of domestic violence and its impact on child protection by amending the Social Services Law to mandate comprehensive domestic violence training for child protective services workers (id.).

      . In Tenenbaum v Williams (193 F3d 581 [2d Cir 1999]), a child’s parents brought an action pursuant to 42 USC § 1983 challenging the New York City Child Welfare Administration’s removal of their five year old from her kindergarten class—under the emergency removal provision of Family Court Act § 1024—and taking her to the emergency room where a pediatrician and a gynecologist examined her for signs of possible sexual abuse. When they found none, the child was returned to her parents. The Second Circuit reversed the District Court’s judgment in pertinent part and held that a jury could have concluded that the emergency removal for the medical examination violated the parents’ and child’s procedural due process rights, and the child’s Fourth Amendment rights.

      . Under section 1028, a parent or person legally responsible for the care of a child may petition the court for return of the child after removal, if he or she was not present or given an adequate opportunity to be present at the section 1027 hearing. The factors to be considered when returning a child removed in an emergency mirror those considered in an initial determination under sections 1027 and 1022—best interests, imminent risk, and reasonable efforts to avoid removal.

      . The order must state the court’s findings which support the necessity of removal, whether the parent was present at the hearing, what notice was given to the parent of the hearing and under what circumstances the removal took place (Family Ct Act § 1027 [b] [i]).

      . The Legislature added these provisions to sections 1022 and 1028 as well.

      . The order must state the court’s findings concerning the necessity of removal, whether respondent was present at the hearing and what notice was given.

      . Section 1022 also requires that the child be brought immediately to a social services department, that the agency make every reasonable effort to inform the parent where the child is and that the agency give written notice to the parent of the right to apply to Family Court for return of the child.

      . Section 1026 permits the return of a child home, without court order, in a case involving neglect, when an agency determines in its discretion that there is no imminent risk to the child’s health in so doing (Family Ct Act § 1026 [a], [b]). If the agency does not return the child for any reason, the agency must file a petition forthwith, or within three days if good cause is shown (Family Ct Act § 1026 [c]).


source: Caselaw Access Project

author:
Rosenblatt, J.
      Graffeo, J. (dissenting).

license: Public Domain

text:
    [821 NE2d 108, 787 NYS2d 683]
    The People of the State of New York, Respondent, v Rene Resek, Appellant.
    Argued October 21, 2004;
    decided November 23, 2004

      POINTS OF COUNSEL

      Office of the Appellate Defender, New York City (Richard M. Greenberg of counsel), for appellant.
    I. Rene Resek was denied his constitutional rights to a fair trial and due process of law where the trial court allowed the admission of evidence of a crime—possession of a stolen automobile—that was irrelevant to the charged crime and that previously had been considered and dismissed by the grand jury. (People v Till, 87 NY2d 835; People v Hudy, 73 NY2d 40; People v Alvino, 71 NY2d 233; People v Beam, 57 NY2d 241; People v Allweiss, 48 NY2d 40; People v Ely, 68 NY2d 520; People v Ventimiglia, 52 NY2d 350; People v Molineux, 168 NY 264; People v Vails, 43 NY2d 364; People v Tosca, 98 NY2d 660.) II. Detective Dailey’s expert testimony that an individual who, like Rene Resek, possesses 23 glassine envelopes of heroin is “probably a dealer” improperly and unfairly usurped the jury’s function with respect to the ultimate issue in the case and rendered the trial fundamentally unfair. (People v Brown, 97 NY2d 500; People v Lee, 96 NY2d 157; People v Taylor, 75 NY2d 277; People v Cronin, 60 NY2d 430; Van Wycklyn v City of Brooklyn, 118 NY 424; People v Ingram, 2 AD3d 211; People v Tarver, 292 AD2d 110, 98 NY2d 702; People v Wright, 283 AD2d 712; People v Pratt, 266 AD2d 318; People v Lamont, 227 AD2d 873.)

      Robert M. Morgenthau, District Attorney, New York City (Walter J. Storey and Donald J. Siewert of counsel), for respondent.
    I. Defendant has failed to preserve his contention that Justice Cropper deprived him of his constitutional rights by admitting evidence that he was arrested in a stolen car. On the merits, Justice Cropper did not abuse her discretion in admitting the evidence at issue: it explained the police conduct leading to defendant’s arrest, and the Judge delivered clear and forceful instructions limiting the jury’s consideration of the evidence to that issue alone. (People v Stephens, 84 NY2d 990; People v Iannelli, 69 NY2d 684; People v Santiago, 52 NY2d 865; People v Alvino, 71 NY2d 233; People v Ventimiglia, 52 NY2d 350; People v Vails, 43 NY2d 364; People v Molineux, 168 NY 264; People v Till, 87 NY2d 835; People v Montanez, 41 NY2d 53; People v Gines, 36 NY2d 932.) II. Defendant has failed to preserve his challenge to a police expert’s testimony that a person who possesses 23 glassines of heroin is “probably a dealer.” In any case, the expert’s testimony was helpful to the jury and did not remove the issue of defendant’s intent from the jury. Any error in the witness’s testimony was harmless. (People v Patterson, 39 NY2d 288, 432 US 197; People v Graves, 85 NY2d 1024; People v Garcia, 83 NY2d 817; People v Tevaha, 84 NY2d 879; People v Harris, 98 NY2d 452; People v Padro, 75 NY2d 820; People v Taylor, 75 NY2d 277; People v Cronin, 60 NY2d 430; People v Hicks, 2 NY3d 750; People v Lee, 96 NY2d 157.)
   OPINION OF THE COURT

Rosenblatt, J.

Defendant was convicted of criminal possession of a controlled substance with intent to sell, based in part on a search of the car he was driving. To enable the prosecution to explain why defendant was arrested, the trial court allowed police officers to testify that they had monitored the vehicle, based on a report that it was stolen. In fact, and unbeknownst to the trial jury, the grand jury had refused to indict defendant for possession of a stolen car. Under the circumstances, the testimony relating to defendant’s possession of a stolen car deprived him of a fair trial.

I.

While conducting surveillance of a reportedly stolen car, police saw defendant enter the vehicle and drive off. They followed and arrested him when he stopped at a gas station. During an inventory search of the car, police recovered nine glassines of heroin from the glove compartment and 14 more when searching defendant at the station house. Based on his possession of the 23 glassines of heroin, a grand jury indicted defendant for criminal possession of a controlled substance with intent to sell, but dismissed the charge of criminal possession of a stolen car.

Before jury selection, the prosecution asked the court to permit the arresting officers to testify as to why they arrested defendant. The prosecutor asserted that if this evidence was kept from the jury, it might speculate that the police simply accosted defendant for no reason. Defendant (initially proceeding pro se) objected, arguing that the grand jury had “acquitted” him of charges relating to the stolen car and that introducing those charges at tried would be prejudicial. Agreeing with the prosecution, the court ruled that it was entitled to introduce evidence of the allegation of the stolen car to explain the actions of the police. Defendant’s attorney pressed the objection, again pointing out that the grand jury dismissed the stolen car charges. The court, however, adhered to its ruling after reciting its proposed limiting instruction, telling defendant’s attorney that “[y]ou have an exception.”

At trial, when the court reaffirmed its intention to allow evidence as to the stolen car, defendant’s attorney again objected, stating, “And I just voice my prior objection to including uncharged crimes as evidence before the jury when they are not probative of the crime before the court, that being whether or not—.” At that point, the court cut him off, reiterating its position and stating, “Well, counsel you have your exception and you can have it as many times as you want.”

After the testimony of one of the police officers, the court instructed the jury that it could consider the evidence as to the stolen car only to explain the action of the officers. Moreover, even though it had been made aware that the grand jury had dismissed the stolen property charge against defendant, the court gave a “limiting” instruction to the jury that “[i]t is not in any way to be inferred by you that the defendant did or did not steal the car or anything of the kind.” (Emphasis added.) The jury found defendant guilty and a divided Appellate Division affirmed. A Justice of the Appellate Division granted leave to appeal to this Court, and we now reverse.

In People v Tosca (98 NY2d 660 [2002]), we held that the trial court did not abuse its discretion in admitting the police officers’ testimony concerning an unidentified cab driver’s report of a recent (uncharged) encounter with the armed defendant. The trial court allowed the testimony not for its truth but—as in the case before us—to explain how and why the police pursued and confronted the defendant. Similarly, in People v Till (87 NY2d 835 [1995]), evidence of an uncharged robbery served to establish a motive for the defendant’s attempt to kill or assault the off-duty police officer and thus avoid capture. These cases and others like them may justify this type of evidence, in the court’s discretion.

Under certain circumstances, and when coupled with proper limiting instructions, testimony of this kind may fill in gaps in “interwoven events” (id. at 837) and thus help the jury understand the case in context. But it is a delicate business, and there is the danger that uncharged crime testimony may improperly divert the jury from the case at hand or introduce more prejudice than evidentiary value (see generally People v Rojas, 97 NY2d 32, 37 [2001]). Here, in contrast to Tosca and Till, the prejudice to defendant outweighed the probative value of the evidence. Admission of the testimony under these circumstances was therefore error.

In seeking to introduce the stolen car testimony, the People pointed out that unless the jurors knew why the police arrested defendant, they might conclude that the police wrongfully targeted him or otherwise abused their authority. This was a legitimate concern, but by allowing the evidence to be given over objection and in the one-sided form requested by the prosecution, the court left the jury with an incomplete and prejudicial narrative. This was reversible error and was not ameliorated by the court’s limiting instruction. Indeed, the instruction made matters worse. Rather than simply reveal to the jury that the grand jury dismissed the charge for possession of a stolen car, the court told the jurors that they should not infer that defendant did or did not steal the car. The case before us is thus critically different from Tosca and Till. There was nothing in either of those cases to suggest that the defendant was cleared of the uncharged crime.

Our dissenting colleagues contend that the trial court acted within its discretion in allowing the stolen car testimony “to complete the narrative.” (Dissenting op at 391.) While in a Molineux context we have used this phrase in several cases (People v Molineux, 168 NY 264 [1901]), these decisions should not be interpreted as automatically allowing the prosecution to introduce evidence of uncharged crimes merely because the evidence is said to complete the narrative or furnish background information. On the contrary, under our Molineux jurisprudence, we begin with the premise that uncharged crimes are inadmissible and, from there, carve out exceptions (see People v Rojas, 97 NY2d 32 [2001]; see also Prince, Richardson on Evidence §§ 4-501—4-516, at 175-194 [Farrell 11th ed 1995]).

In appropriate instances, evidence of uncharged crimes may be allowable as background or narrative because juries might “wander helpless” trying to sort out ambiguous but material facts (People v Green, 35 NY2d 437, 441 [1974]). Here, however, there was no ambiguity that could not have been easily dealt with by far less prejudicial means. In order to allay the prosecutor’s concern that the jury might, without guidance, stray from its appointed task, it would have sufficed to instruct the jurors that the arrest was lawful and that they were not to speculate as to its reasons. Of course, if defendant had placed the propriety of the police action in issue, the events leading up to his arrest ought properly have been admitted to rebut the claim. Here, however, defendant conceded his possession of the recovered drugs he was charged with intending to sell.

Our result is congruent with cases in which we have held that uncharged crimes, although used to complete the narrative, were too prejudicial to be admitted (see, e.g., People v Cook, 42 NY2d 204 [1977]; People v Stanard, 32 NY2d 143 [1973]). We are unable to accept the dissent’s view that the trial court properly chose to “inform jurors about the underlying facts and circumstances” with detailed instructions on the limited purpose of the evidence (dissenting op at 391). Had the narrative in fact been completed, and the trial court told the jury all of the facts and circumstances, the jury would have learned that the grand jury cleared defendant of the stolen car charge.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Graffeo, J. (dissenting).

Our recent decisions in People v Tosca (98 NY2d 660 [2002]) and People v Till (87 NY2d 835 [1995]) illustrate that, in some circumstances, a trial court has the discretion to admit evidence of uncharged crimes closely related to the charges levied to provide the jury with necessary background information or to complete the narrative of relevant events if the probative value of such evidence exceeds its potential for prejudice. Discretion, by its very nature, provides a court with the flexibility to choose among viable alternative courses of action after considering relevant facts and circumstances with due regard for fundamental fairness to the accused. The trial court in this case faced a dilemma—suppress evidence that defendant possessed a stolen vehicle, which would possibly encourage speculation among the jury regarding the reason the police initially approached defendant, or inform jurors about the underlying facts and circumstances with detailed instructions on the limited purpose being served by the evidence. The court in this case, as we approved in Tosca and Till, chose the latter option. Under our precedent, that decision was not an abuse of discretion. I therefore dissent and would affirm the order of the Appellate Division.

My disagreement with the majority stems not from its view of the facts but from its failure to recognize that the outcome of this case is controlled by our decision in People v Tosca (98 NY2d 660 [2002]). There, the defendant was arrested for criminal possession of a weapon after the driver of a taxicab alerted the police that he had seen a handgun protruding from the defendant’s waist when he tried to hail the cab. During the trial, the People were allowed to introduce evidence of this encounter in order to give the jury an explanation for why the police initially approached the defendant. We found no error by the trial court because “[t]he testimony was admitted not for its truth, but to provide background information as to how and why the police pursued and confronted [the] defendant” (id. at 661). We also noted that the jury had been instructed twice “on the limited use it could make of the testimony and that the testimony was not to be considered proof of the uncharged crime” (id.).

The facts of this case are parallel in all relevant respects. As in Tosca, the trial court in this case admitted evidence that defendant was driving a stolen car in order to explain the actions of the police and thereby prevent the jury from speculating that he may have been approached and arrested without adequate justification. Here, too, the jury was twice instructed on the limited purpose for which the testimony was being admitted. The first instruction, issued immediately after the People’s opening statement, informed the jury that the evidence would be admitted “for only one purpose and that is to explain whatever it is the police officer said he did thereafter, but there may be no inference whatever against the accused with respect to the theft of the car, whether it was stolen or anything of the sort.” The second limiting instruction was given during the testimony of one of the police officers and reiterated that:

“the only purpose of the evidence that you have heard here with respect to the stolen vehicle is to explain the action of this officer with respect to that. It is not in any way to be inferred by you that the defendant did or did not steal the car or anything of the kind. It is not for that purpose. You may not draw any inferences whatever from it. The only weight that you may give it is whether or not it adequately explains the actions taken by the police thereafter.”*

Despite the fact that defendant objected to the introduction of the factual background information at the outset of the trial, the record indicates that defendant was satisfied with the cautionary instructions provided to the jury. At no time did he object to either instruction, ask the court to supplement its instructions with more detailed language or seek to substitute another corrective charge. The defense also did not request any further clarification regarding the stolen vehicle in the judge’s final charge to the jury. In the absence of a timely and specific request or objection to the instruction by defendant, it is unnecessary to reverse the conviction solely on an unpreserved argument regarding the adequacy of jury instructions (see People v Whalen, 59 NY2d 273, 280 [1983]; People v Santiago, 52 NY2d 865, 866 [1981]).

Nor do I see evidence in the record that the jury was “divert[ed]” (majority op at 389) from the charges defendant was facing or that defendant was unduly prejudiced by the actions of the trial court. The record in Tosca had the potential for greater prejudice to the defense than the case before us. At trial in Tosca, the People were permitted to characterize the defendant’s encounter with the taxi driver as an “attempted robbery.” Critically, however, there was nothing to suggest that Tosca actually had attempted to rob the taxicab driver—there was no evidence to indicate that the taxicab driver had been threatened with the firearm or that the defendant had tried to procure the driver’s property, and Tosca was not charged with robbery or any other crime arising from the interaction with the taxi driver. We affirmed Tosca’s conviction even though his jury was not told that he had been (to use the majority’s terminology) “cleared” of the robbery (majority op at 389).

The majority’s attempt to distinguish People v Till (87 NY2d 835 [1995]) is similarly unpersuasive. Charged with the attempted murder of a police officer, the defendant in Till challenged the admission of evidence regarding a series of robberies he allegedly committed, which had led to the confrontation with the police officer. Although Till was originally indicted for the robberies and the attempted murder, the People ultimately obtained a superceding indictment that did not charge robbery. The jury was not informed that the defendant had not been indicted for robbery by the second grand jury. Yet we found no error because the trial court twice cautioned the jury that “the uncharged robbery testimony was provided to it solely ‘for the purpose of background information’ and ‘for the continuity of the events’ and was not to be considered as proof of the crimes at issue” (id. at 837).

Those instructions, as in Tosca, are materially similar to the cautionary language utilized by the trial court in this case. No compelling justification has been advanced by the majority for its conclusion that the Till jury did not have to be told about the outcome of the grand jury proceeding but that the jury in this case should have been even in the absence of such a request by defendant. In the end, Till, like Tosca, supports the trial court’s exercise of discretion and, in this case, undermines defendant’s claim that he was deprived of a fair trial.

I disagree with the majority’s conclusion that the situations in People v Cook (42 NY2d 204 [1977]) and People v Stanard (32 NY2d 143 [1973]) are “congruent” (majority op at 390) to the evidentiary determination in this case. To the contrary, in the residential burglary prosecution in Cook, the People introduced evidence that the defendant, one of three intruders, had exposed himself to the female victim and sexually assaulted her. We determined that “the prosecution . . . transcended] legitimate bounds by probing the lurid and intimate details of the uncharged sex crime” because “there [wa]s no indication in the record, apart from the prosecutor’s totally unfounded and highly improper suggestions on summation, that Cook was the individual who sexually abused” the victim (42 NY2d at 208-209). Here, of course, no claim is made that defendant was misidentified as the person who had been driving the stolen vehicle.

The perjury prosecution of a police officer in Stanard relied on extensive testimony by a fellow officer, Frank Serpico, whose testimony “embroiled the defendant and other officers in corruption involving a number of . . . specific transactions with specific gamblers at specific times and places” that were not remotely involved with the pending charges involving false statements to a grand jury (32 NY2d at 145-146). We reversed the defendant’s conviction because Serpico’s testimony of widespread, systemic police corruption, “none of which had any relevancy to the perjury charges . . . added facts involving the defendant and others in a web of activity which could only be considered by the jury reprehensible, resulting in the perjury testimony becoming only background for the evidence of police corruption” (id. at 147). In contrast to the record in this case, it cannot be said that the admission of the police officer’s testimony referring to the stolen car was so prejudicial that the trial court exceeded the permissible boundaries of discretion. Thus, the prejudicial effect of the uncharged crime evidence in Cook and Stanard far exceeded the prejudicial potential of the testimony that was introduced in this case.

I further reject defendant’s contention that the trial court abused its discretion by allowing a police officer to testify as an expert on the packaging and quantity of the narcotics recovered from defendant. It is now settled that, in an appropriate case such as this, the People may introduce expert testimony to inform the jury about facts and circumstances indicative of an intent to sell drugs (see People v Hicks, 2 NY3d 750, 751 [2004]). In addition, to the extent defendant now complains that the expert’s testimony strayed impermissibly into the “ultimate issue” in the case (whether defendant intended to sell or personally use the drugs), that argument was not preserved at trial (see generally People v Everson, 100 NY2d 609, 610 [2003]). Accordingly, in the absence of error by the trial court, defendant received a fair trial and his conviction should be upheld.

Chief Judge Kaye and Judges G.B. Smith and Ciparick concur with Judge Rosenblatt; Judge Graffeo dissents and votes to affirm in a separate opinion in which Judges Read and R.S. Smith concur.

Order reversed, etc.

      . [2] Given defendant’s persistent and pointed protests, we cannot agree with the dissenters that defendant did not preserve his claim. After the court assured the defense that it had an exception (in what sounded very much like exasperation or a rebuke to desist in pressing the point for a fourth time), it is difficult to imagine what more defendant could have done. We will not impose a preservation rule so extreme that defendant, to succeed, would have to antagonize the court or test its patience even further. Such a rule would do nothing to advance the objectives of our preservation doctrine.

      . We used this language for the first time in People v Gines (36 NY2d 932, 932 [1975]), followed by People v Cook (42 NY2d 204, 208 [1977]) and most recently in People v Till (87 NY2d 835, 837 [1995]). In other cases we referred to the concept using words like “background material” or “background information” (see, e.g., People v Montanez, 41 NY2d 53, 58 [1976]; People v Green, 35 NY2d 437, 442 [1974]; People v Stanard, 32 NY2d 143, 147 [1973]; People v Tosca, 98 NY2d 660, 661 [2002]).

      . One of the instructions in Tosca informed the jury that the evidence was:
      “offered solely for the purpose of giving you the full story of the events as they unfolded or completing the narrative as to possibly explain why the police focused on the defendant, chased him, and ultimately arrested him.
      “I charge you that such evidence may be considered by you only for this limited purpose and nothing else. It is not offered to show that the defendant [], in fact, had a dispute or altercation or any contact with a taxicab driver.”

      . Nor did the trial court’s efforts to ameliorate any prejudice to defendant cease at this point; the court also ordered that all references to the stolen car be redacted from defendant’s statement to the police.

      . The majority misunderstands my posture on this issue. I agree that defendant preserved his objection to the introduction of the uncharged crime evidence. What he did not challenge were the limiting instructions issued by the trial court. As such, the propriety of those instructions is a question that is not properly before us, as our jurisdictional precedent establishes (see Whalen, 59 NY2d at 280; Santiago, 52 NY2d at 866).

      . One final comment is necessary. The erroneous admission of uncharged crimes evidence does not necessarily require a new trial. Rather, such an error is amenable to harmless error analysis (see e.g. People v Ventimiglia, 52 NY2d 350, 361 [1981]; People v Cook, 42 NY2d at 208-209). The majority has apparently dispensed with harmless error analysis in this case.


author: CIPARICK, J.

text:
    [820 NE2d 860, 787 NYS2d 216]
    Artemus Lyles, Appellant, v State of New York, Respondent.
    (Claim No. 105774.)
    Argued October 13, 2004;
    decided November 30, 2004

      POINTS OF COUNSEL

      New York Civil Liberties Union Foundation, New York City (Arthur N. Eisenberg of counsel), for appellant.
    I. Appellant Artemus Lyles is not foreclosed from pursuing state constitutional claims in the Court of Claims. (Brown v State of New York, 89 NY2d 172; Martinez v City of Schenectady, 97 NY2d 78; Lehman v Kornblau, 134 F Supp 2d 281; Csoka v County of Suffolk, 85 F Supp 2d 117; Costantakos v Board of Educ., 105 AD2d 825; Harby Assoc. v City of Gloversville, 82 AD2d 1003; Almor Assoc. v Town of Skaneateles, 231 AD2d 863; New York Pub. Interest Research Groups v Levitt, 62 AD2d 1074; Cerilli v Kezis, 306 AD2d 430; Chevron Oil Co. v Huson, 404 US 97.) II. Appellant Artemus Lyles is not foreclosed from pursuing causes of action in the Court of Claims directly under the Fourth Amendment to the Federal Constitution. (Brown v State of New York, 89 NY2d 172; Jett v Dallas Ind. School Dist., 491 US 701; Bivens v Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 US 388; Mapp v Ohio, 367 US 643; Owens v Okure, 488 US 235; Board of Regents of Univ. of State of N.Y. v Tomanio, 446 US 478; Wilson v Garcia, 471 US 261; Pauk v Board of Trustees of City Univ. of N.Y., 654 F2d 856; Chin v Bowen, 833 F2d 21.)

      Eliot Spitzer, Attorney General, Albany (Denise A. Hartman, Caitlin J. Halligan, Daniel Smirlock and Peter H. Schiff of counsel), for respondent.
    I. The claim must be dismissed because claimant did not file or serve his claim within the jurisdictional time limitations of the Court of Claims Act. (Alston v State of New York, 97 NY2d 159; Lepkowski v State of New York, 1 NY3d 201; Brown v State of New York, 89 NY2d 172; Owens v Okure, 488 US 235; Santulli v Englert, Reilly & McHugh, 78 NY2d 700; Rutzinger v Lewis, 302 AD2d 653; Havell v Islam, 292 AD2d 210; Lichtenstein v State of New York, 93 NY2d 911; Finnerty v New York State Thruway Auth., 75 NY2d 721; Dreger v New York State Thruway Auth., 81 NY2d 721.) II. In view of claimant’s alternative common-law tort remedies, the courts below properly dismissed his state constitutional claims because implying a constitutional damages remedy in this case is neither necessary to effectuate the purposes of the state constitutional provisions at issue nor appropriate to ensure full realization of claimant’s rights. (Brown v State of New York, 89 NY2d 172; Bivens v Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 US 388; Martinez v City of Schenectady, 97 NY2d 78; People v Stultz, 2 NY3d 277; People v Robinson, 97 NY2d 341; Whren v United States, 517 US 806; Augat v State of New

      York, 244 AD2d 835, 91 NY2d 814; Remley v State of New York, 174 Misc 2d 523; Bullard v State of New York, 307 AD2d 676; Harvey v State of New York, 281 AD2d 846.) III. There is no basis for the Court to recognize a federal constitutional tort claim against the State of New York in the Court of Claims. (Brown v State of New York, 89 NY2d 172; Matter of Thomasel v Perales, 78 NY2d 561; Federal Deposit Ins. Corp. v Meyer, 510 US 471; Bivens v Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 US 388; Carlson v Green, 446 US 14.)
   OPINION OF THE COURT

CIPARICK, J.

This claim against the State of New York to recover damages for alleged violations of state and federal constitutional rights arose out of an early morning State Police traffic stop on March 27, 1999. Claimant Artemus Lyles was driving home from Westchester County in a 1986 Cadillac that he had recently purchased at an auction. As he traveled on Interstate 287, two New York State Troopers pulled him over explaining that his vehicle’s exhaust pipe was emitting fumes. During the stop, the State Troopers issued claimant a ticket for the offense and conducted a consent search of his person. One of the troopers searched his car without his consent. Nothing remarkable was discovered and, after detaining claimant for an hour and 20 minutes, the State Troopers permitted him to drive away.

Shortly thereafter, the same officers stopped claimant a second time for driving with an obstructed windshield. They detained him for another hour during which a State Police sergeant arrived at the scene. According to claimant, he was handcuffed and made to open the car trunk for inspection. A search of its contents revealed only lawful items, which were allegedly thrown onto the road before being returned to the trunk. No ticket was issued and claimant was eventually allowed to leave.

On June 22, 1999, claimant served a timely notice of intention to file a claim for damages against the State. Detailing the incident, the notice set forth causes of action for unreasonable search and seizure, assault and battery, false imprisonment, denial of equal protection, and intentional and negligent injury to property. The claim was not served upon the Attorney General’s office until March 18, 2002, and was filed with the Court of Claims on March 19, 2002. It sought damages exclusively for federal and state constitutional violations (see Brown v State of New York, 89 NY2d 172, 183 [1996] [concluding that “claims against the State based upon violations of the State Constitution come within the jurisdiction of the Court of Claims”]; see also Martinez v City of Schenectady, 97 NY2d 78 [2001]). Specifically, the claim alleged that the search and seizure of claimant’s person and vehicle violated the Fourth Amendment of the United States Constitution and article I, § 12 of the New York State Constitution. Claimant further alleged that the State Troopers’ conduct was racially motivated and violated the Equal Protection Clauses of the Federal and State Constitutions (see US Const, 14th Amend, § 1; NY Const, art I, § 11).

The State moved to dismiss the claim on the ground that the court lacked subject matter jurisdiction because claimant failed to file his claim within the jurisdictional time limitations of Court of Claims Act § 10. In opposition, claimant essentially argued that section 10 governs only the filing deadlines for traditional common-law torts, not constitutional torts. He urged the court to determine the timeliness of his claim based on the statute of limitations period set forth in CPLR 213 (1), proposing a six-year limitations period for state constitutional claims and a three-year limitations period for federal constitutional claims.

The Court of Claims granted the State’s motion and dismissed the claim. The Appellate Division affirmed, holding that state constitutional tort claims cannot be maintained where alternative common-law tort remedies exist for the alleged wrongs. It further held that the Court of Claims properly dismissed the federal constitutional claims for lack of subject matter jurisdiction. The Court explicitly declined to address “the issue of the applicable statute of limitations” (2 AD3d 694, 696 [2003]). Claimant appeals to this Court as a matter of right, and we now affirm the order of the Appellate Division on different grounds.

The dispositive issue here is whether, under the terms of the waiver of sovereign immunity found in Court of Claims Act § 8, the State retained its immunity as to this claim because claimant failed to comply with the time limitations set forth in Court of Claims Act § 10. We conclude that the State retained its immunity and therefore that the claim was properly dismissed.

Preliminarily, a distinction must be drawn between statutes of limitations generally and the filing limitations of the Court of Claims Act. It is well settled that statutes of limitations are designed to promote justice by preventing the revival of stale claims (see Blanco v American Tel. & Tel. Co., 90 NY2d 757, 773 [1997] [citation omitted]). The primary purpose of a limitations period, we have noted, is to ensure fairness to a defendant (see Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427, 429 [1969]). The time limitations in the Court of Claims Act, however, are distinctly concerned with the subject matter jurisdiction of the Court of Claims as the State has waived its sovereign immunity against suit only to the extent that claimants comply with the provisions of the statute (see Alston v State of New York, 97 NY2d 159, 163 [2001]).

Section 8 of the Court of Claims Act provides:

“The state hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations, provided the claimant complies with the limitations of this article” (emphasis added).

“Article II, section 10 of the Court of Claims Act could not be any clearer . . . that ‘[n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied’ with the time limitations established in that section” (Alston, 97 NY2d at 163, quoting Court of Claims Act § 10).

Where the notice of intention to file a claim has been timely filed, Court of Claims Act § 10 (3) provides:

“[a] claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee . . . shall be filed and served upon the attorney general within two years after the accrual of such claim.”

In contrast, also assuming a timely served notice of intention, a claim to recover for damages arising from an intentional tort of an officer or employee of the State “shall be filed and served upon the attorney general within one year after the accrual of such claim” (Court of Claims Act § 10 [3-b]).

Here, it is undisputed that claimant’s cause of action for federal and state constitutional torts accrued on March 27, 1999, and that he timely served his notice of intention to file a claim. Claimant, however, did not file and serve his claim until March 2002—almost three years after the action accrued. Because claimant’s late filing and service places him beyond the two-year outer limits of section 10, and claimant did not seek late filing relief under Court of Claims Act § 10 (8) (a), the State was entitled to dismissal of this claim on sovereign immunity grounds. We need not determine whether the constitutional torts at issue should be categorized as negligent, unintentional or intentional torts for purposes of the court’s jurisdiction over this matter. As the claim is untimely under either Court of Claims Act § 10 (3) or (3-b), it was properly dismissed.

In light of our conclusion, the merits of claimant’s constitutional tort claims are not properly before us. Thus, we do not address the issue of whether a constitutional tort action may be maintained where alternative common-law tort remedies exist.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Kaye and Judges G.B. Smith, Rosenblatt, Gbaffeo, Read and R.S. Smith concur.

Order affirmed, with costs.