The opinion of the court was delivered by: Korman, J.
On September 25, 2008 ("Sept. 2008 Order"), I granted rehearing sua sponte of the order granting summary judgment in favor of defendant Marco Cardenas, a New York City Administration of Children's Services ("ACS") caseworker. I also directed the Corporation Counsel, who represents Cardenas, to file memorandum addressing the concerns that led me to grant rehearing. I assume familiarity with the underlying facts of this case, the relevant portions of which I discuss below, and the general background of which may be found in Friedman v. N.Y. City Admin. for Children's Servs., No. 04-cv-3077, 2005 WL 2336219 (E.D.N.Y. Sept. 30, 2005). Briefly, the case arose out of a neglect petition filed against plaintiff Steven Friedman, which was based on information provided by Dr. Daniel Cohen, who was involved in a romantic relationship with Jennifer Masnick, the sister of Mr. Friedman's estranged wife. The central issue is whether Cardenas's failure to disclose his knowledge of this fact -- which he conceded was material -- to his superiors and in the neglect petition filed in the Family Court subjects him to liability for interfering in the fundamental liberty interest of natural parents in the care, custody and management of their children.
The relevant facts are not in dispute. Mr. Friedman informed Cardenas on July 29, 2003, approximately 2 months before the neglect petition was filed, that Dr. Cohen and Jennifer Masnick were romantically involved (the "Cohen/Masnick relationship"). (Neglect Hr'g Tr. 100-101, Nov. 21, 2003.) While Cardenas's testified at the Neglect Hearing that he first learned of the Cohen/Masnick relationship from Mr. Friedman (id. at 101), he was on notice of the existence of the relationship earlier. Indeed, Cardenas reviewed the files of previous cases involving the Friedman family and spoke with the caseworkers and supervisors who had handled those cases. (See Sept. 2008 Order at 3-4.) One of the files Cardenas reviewed -- a "Child Protective Record Summary" for a complaint Mr. Friedman lodged with ACS against his ex-wife, Helene Friedman, on April 6, 2003 -- included notes on a May 27, 2003 call to ACS by Dr. Cohen. Those notes indicate that "Dr. Cohen stated [to ACS] that he is involved in a relationship with . . . Mrs. Friedman's sister." (Dec. of Martin Kaufman, dated April 13, 2007 ("Kaufman Dec."), Ex. 5.)
Putting aside for the moment whether Cardenas learned of the Cohen/Masnick relationship when he reviewed the files, it is beyond dispute that, by no later than late-July 2003, he not only was aware of the relationship but understood that it was material to his investigation of Dr. Cohen's allegations of abuse against Mr. Friedman. Indeed, although he testified at his deposition that he could not recall whether Mr. Friedman had told him that Dr. Cohen was the boyfriend of Mrs. Friedman's sister, he testified at the Neglect Proceeding that "Mr. Friedman told" him "that Dan Cohen is the boyfriend" of Mrs. Friedman's sister. (Neglect Hr'g Tr. 100-01.) He also testified that when he asked Mrs. Friedman about the nature of the relationship between Dr. Cohen and her sister, she did not deny it. Instead, she said they were very good friends. (Id. 101-03.)
Subsequently, at his deposition, he acknowledged that the existence of such a romantic relationship would have been "an important piece of information" relevant to his investigation, which would have "raise[d] questions and doubts" "as to why would a boyfriend be calling in a report." (Declaration of Kimberly Conway, Ex. A, Deposition of Marco Cardenas 44, 69; see id. 67-68.) Moreover, Cardenas's manager, defendant Sonia Ricketts-Hubbard, who made the decision to bring the Neglect Proceeding against Mr. Friedman, testified at her deposition that she was not told of the existence of the Cohen/Masnick relationship when she made the decision and that "[i]t certainly would have been [something that she would have liked to know]." (Conway Dec., Ex. D, Depostion of Sonia Ricketts-Hubbard 53-54.) Indeed, Dr. Cohen had even suggested "that the children . . . be seen by another child psychologist for a more formal evaluation and ongoing psychotherapy" because it would be inappropriate for him, as a family friend, to evaluate and counsel the children. (Kaufman Dec., Ex. 3 at C0001-02.) Specifically, Dr. Cohen offered "to refer the children to a good friend and colleague, Dr. Lubit," a psychiatrist at St. Vincent's Hospital in New York. (Kaufman Dec., Ex. 4 at C0015.) Cardenas, however, made no effort to obtain an independent diagnosis of the children: he never contacted Dr. Lubit (Cardenas Dep. 56); nor did he contact the independent forensic psychologist appointed by the New York State Supreme Court in connection with the Friedman's matrimonial proceedings -- a collateral source that his manager Ricketts-Hubbard believed he should have contacted (Ricketts-Hubbard Dep. 58).
In sum, Cardenas knew that Dr. Cohen was involved romantically with Jennifer Masnick, when, on September 22, 2003, he filed the neglect petition, in which he adopted, without attribution, the exact same language in "diagnosing" the children's condition as Dr. Cohen had in his August 10, 2003 letter. (Compare Dr. Cohen's letter, Kaufman Dec., Ex. 3 at C0001 ("As a consequence of their father's action the children appear to suffer from symptoms of an adjustment disorder with mixed anxiety and depressed mood"); with Conway Dec., Ex. F (neglect petition), at C0053 ("As a result of the foregoing, the subject children have been suffering from symptoms of an adjustment disorder with mixed anxiety and depressed mood.").)
Based on the neglect petition prepared by Cardenas, which was approved by his supervisors, defendants Ricketts-Hubbard and Patrice McFarlan-Wooden, and filed with the Family Court, ACS procured an ex parte Order of Protection restricting Mr. Friedman's access to his children. Prior to the Order, Mr. Friedman "spent weekends, Jewish holidays and evenings with his children on a regular basis. He enjoyed daily telephone contact with his children, and developed an extremely close relationship with [them]." Friedman, 2005 WL 2336219, at *6. Pursuant to the Order, however, Mr. Friedman "was able to visit with his children for only two hours a week, in the offices of ACS, under agency supervision." Id.
On the return date, the Neglect Proceeding was transferred to the New York State Supreme Court, where it was consolidated with the Friedman's matrimonial action. The Order of Protection was extended at the same time. On April 19, 2004, the Supreme Court ordered the petition against Mr. Friedman be dismissed. Significantly, the Supreme Court held that
[t]he only testimony offered of the children's alleged suffering is the statement contained in the petition [prepared by Cardenas] that is a direct quote from Dr. Cohen. . . . The court rejects such a "finding" by Dr. Cohen not only on the basis of his obvious bias in this matter, but also on the grounds that it is admittedly not based on a professional diagnosis or personal observation by him. (Kaufman Dec., Ex. 6, Determination Upon Fact Finding Hearing, dated Apr. 19, 2004, at 7 (emphasis added).)
Shortly, thereafter, on July 21, 2004, Mr. Friedman brought the present action.
Section 1983 provides a civil claim for damages against any person who, acting under color of state law, deprives another of a right, privilege, or immunity secured by the Constitution or laws of the United States. See 42 U.S.C. § 1983; Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970). "[S]section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating rights elsewhere conferred." Albright v. Olivier, 510 U.S. 266, 271 (1994) (internal quotation marks omitted). Cardenas argues that "plaintiff has failed to point to any facts to establish the deprivation of an actual constitutional right" and even assuming there was such a deprivation, defendant Cardenas is immune from liability under the doctrine of qualified immunity. Defs.' Mem. at 16. Until recently it was the rule that "[a] court evaluating a claim of qualified immunity must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all" before examining whether the defendant is immune from liability. Wilkinson, 182 F.3d at 102-03. While the Supreme Court has made clear that ...