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Decter v. Second Nature therapeutic Program, LLC

United States District Court, E.D. New York

September 5, 2014

KENNETH DECTER AND ANDREW DECTER, a minor over the age of 14 by his father, KENNETH DECTER, Plaintiffs,

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For Plaintiffs: Timothy Kilgannon, Kilgannon & Kilgannon, Mineola, NY.

For Second Nature, Defendant: Joan M. Gilbride, Kaufman Borgeest & Ryan, New York, NY.

For Right Direction, Skezics, and Brian Shepherd, Defendants: Cristina Roseann Yannucci, Lewis Brisbois Bisgaard & Smith LLP, New York, NY.

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JOSEPH F. BIANCO, United States District Judge.

JOSEPH F. BIANCO, District Judge: Plaintiffs Kenneth Decter (" Kenneth" ) and his son Andrew Decter (" Andrew" ) bring this action alleging that defendants Right Direction Crisis Intervention (" Right Direction" ) and Skezics Corp. (" Skezics" ) abducted, falsely imprisoned, and assaulted Andrew when they transported him from New York to Utah to attend a therapeutic wilderness camp run by defendant Second Nature Therapeutic Program (" Second Nature" ). In doing so, plaintiffs allege that defendants also intentionally inflicted emotional distress upon them and interfered with Kenneth's visitation rights with Andrew, pursuant to a Judgment of Divorce which awarded full custody of Andrew to his mother, Ellyn Sosin Decter (" Ellyn" ).

Defendants argue that Ellyn authorized defendants to transport Andrew to Utah and attend the wilderness camp, by hiring defendants and executing a power of attorney which granted Second Nature all the powers of a custodial parent. Plaintiffs do not dispute the authenticity of the power of attorney or its terms, nor do they dispute that Ellyn hired defendants. Based on Ellyn's consent to their conduct, defendants have moved to dismiss the amended complaint or, in the alternative, for summary judgment. Plaintiffs have moved to amend the amended complaint, in order to allow Andrew to assert his claims as an adult, because he recently turned 18.

For the reasons explained below, the Court grants summary judgment on all claims brought by Kenneth Decter, on behalf of himself. Plaintiffs have not cited authority from New York (or any other jurisdiction) supporting the existence of a tort cause of action by a non-custodial parent against a third party for violation of visitation rights, particularly where the custodial parent has consented to the alleged interference. Here, it is uncontroverted that (1) Ellyn had sole legal and physical custody of Andrew; and (2) Ellyn executed a power of attorney that, among other things, delegated to Second Nature, while Andrew was in their custody, the powers of a parent or guardian with respect to his care and custody. Thus, in the instant case, the Court holds that the non-custodial parent in this case has no tort cause of action against a third party under New York law for alleged interference with his visitation rights (pursuant to a Stipulation of Settlement in a Judgment of Divorce) where the custodial parent consented to the child being placed in the custody of that third party for a period of approximately 30 days, and thereby allegedly deprived the non-custodial parent of his visitation rights. Accordingly, summary judgment on Kenneth's claims brought on behalf of himself--namely, false imprisonment, intentional infliction of emotional distress, tortious interference with parental and visitation rights, alienation of affection, abduction of child, conspiracy and piercing the corporate veil--is warranted in defendants' favor. In reaching this decision, the Court emphasizes that it is not concluding that Kenneth would have no recourse against the custodial parent. Similarly, the Court is not concluding that a custodial parent would have no cause of action against a third party for knowingly assisting in an unlawful abduction of a child. Instead, the Court's narrow ruling is that the non-custodial

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parent has no cause of action against a third party where the custodial parent consented to the custody by the third party. To hold otherwise would create a novel claim under New York law that would potentially create liability to various institutions--such as schools, camps, and day-care centers--who are caught in the middle of a marital dispute over visitation rights involving the child. This Court finds no basis for the creation of this cause of action under current New York law.

Similarly, because it is uncontroverted that the custodial parent gave consent to the defendants to take custody of Andrew, the claims brought by Kenneth, on behalf of Andrew, based solely on the fact that defendants exercised custody over Andrew--namely, false imprisonment, abduction, and alienation of affections--cannot survive summary judgment. However, the claims regarding Andrew's treatment while in the custody of the third party defendants--namely, intentional infliction of emotional distress and assault--are not necessarily foreclosed by the fact that Ellyn consented to custody pursuant to the Power of Attorney. In other words, accepting all of the facts in the Amended Complaint as true and drawing all reasonable inferences in plaintiffs' favor, plausible claims for intentional infliction of emotional distress and assault have been stated. Thus, the motion to dismiss those claims is denied. To the extent that defendants seek to have the Court consider those claims under a summary judgment standard (and have submitted affidavits rebutting and explaining Andrew's allegations of harsh treatment), the Court declines, in its discretion, to consider a summary judgment motion on these claims at this time. Plaintiff is entitled to discovery related to his claims of assault and intentional infliction of emotional distress, and defendants may renew their summary judgment motion on these claims at the conclusion of discovery, if they wish.

Finally, plaintiffs' motion to amend to assert claims on behalf of Andrew as an adult, because he has now turned 18, is granted to the extent that Andrew may submit an amended complaint containing claims for intentional infliction of emotional distress and assault. Any other amendments would be futile given the legal defects that the Court has identified with respect to the other claims asserted by Kenneth or Andrew.

I. Background

A. Factual Background

The following facts are taken from the Amended Complaint (" AC" ), including documents incorporated by reference therein (such as the Judgment of Divorce and Stipulation of Settlement regarding custody and visitation), and they are not findings of fact by the Court. The Court assumes these facts to be true for the purpose of deciding this motion and construes them in the light most favorable to plaintiffs, the non-moving parties. For purposes of the summary judgment motion, the Court has also considered the Power of Attorney executed between Ellyn and Second Nature, and the Declaration of Authority granted by Ellyn to Right Direction, which are not disputed by the plaintiffs.[1]

Plaintiffs are a father and his minor son. (AC ¶ ¶ 10-11.) In 2002, Kenneth divorced Andrew's mother, Ellyn, who received " sole legal and physical custody" of Andrew, while Kenneth was granted visitation

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twice per week and daily telephone contact. ( Id. ¶ ¶ 12, 41; Ex. C[2] to Pl. Mot. to Amend at 3, 30.)

In the summer of 2012, Andrew was between his junior and senior years of high school and living with his mother in Manhasset, New York. (AC ¶ 14.) In the early morning of June 20, 2012, Andrew awoke at approximately 5:00 a.m. with three large men in his bedroom, two of whom were standing over him while the third blocked the door. ( Id. ¶ 15.) The men displayed handcuffs, and " [a] struggle ensued as . . . Andrew tried desperately to escape." ( Id. ¶ ¶ 15, 17.) The men told Andrew that they were taking him to Utah, and that they would stop any attempt by him to escape. ( Id. ¶ ¶ 17-18.) Andrew asked to speak with his father, or with a friend or attorney, but the men refused. ( Id. ¶ ¶ 20-21.) Andrew briefly attempted to flee, but to no avail. ( Id. ¶ 22.)

The men in Andrew's room were employees or agents of defendant Skezics, ( id. ¶ 16), who Ellyn hired to take Andrew to Second Nature's wilderness camp in Utah. Skezics is a Utah corporation, and the AC describes defendant Brian Shepherd as a Utah resident and " a principal of Skezics and/or Right Direction." ( Id. ¶ ¶ 6-9, 117.) Defendant Second Nature is also a Utah corporation, and runs the wilderness camp in Utah to which Andrew was taken. ( Id. ¶ ¶ 6, 23-27.) On May 30, 2012, Ellyn executed a power of attorney " in order that Second Nature may, if necessary, in its judgment, authorize or provide care and treatment to [Andrew]" and " to delegate to Second Nature while [Andrew] is in Second Nature's custody, any of the powers of the parent or guardian with respect to [Andrew] regarding his care and custody." (Second Nature 56.1 ¶ 6.) Likewise, Ellyn executed a separate Declaration of Authority authorizing Andrew's transport to Second Nature. (Ex. C to Skezics Mot.)[3]

Once he arrived at Second Nature, Andrew was forced to wear an orange jumpsuit, hike several miles through difficult terrain with a backpack, eat freeze-dried food, and bathe from a bag of water. (AC ¶ ¶ 28-37.) His boots were taken from him each night, and he lost 25 pounds. ( Id. ¶ ¶ 31-32.) He repeatedly asked to speak with his father or an attorney, but defendants refused his requests until July 17, 2012, when he was released from Second Nature and first able to speak with his father by phone. ( Id. ¶ ¶ 36-37, 50.)

Kenneth did not know that Andrew was going to Second Nature, and became alarmed when he did not speak to Andrew on June 20, 2012. ( Id.¶ 42.) Prior to that date, he and Andrew spoke on the phone at least once a day and spent at least two days each week together, as was provided

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for in Kenneth's Judgment of Divorce and the Stipulation of Settlement he reached with Ellyn. ( Id. ¶ ¶ 38-41; Ex. C. to Pl. Mot. to Amend, at 3, 30.) When Kenneth learned that Andrew went to Second Nature, he called Second Nature and demanded to know whether Andrew was there, but the Second Nature employee who answered would neither confirm nor deny Andrew's presence. ( Id. ¶ 44.) Kenneth's attorney made similar inquiries, which were also refused. ( Id. ΒΆ 45.) The AC states that defendants prevented Kenneth from speaking to his son despite their knowledge of his right to daily telephone contact and weekly visitation, as outline in the divorce judgment and the Stipulation of Settlement, although at some point they allowed Kenneth to speak with a therapist, ...

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