Opinion
Index No. 61082/2021
04-12-2024
D.S.P., Plaintiff, v. Westchester County, JEWISH BOARD FOR FAMILY & CHILDREN'S SERVICES f/k/a JEWISH BOARD OF GUARDIANS, HAWTHORNE CEDAR KNOLLS RESIDENTIAL TREATMENT CENTER and DOES 1-10, Defendants.
Deirdre E. Tracey, Esq., Aaronson Rappaport Feinstein & Deutsch, LLP, Attorneys for: JEWISH BOARD FOR FAMILY AND CHILDREN'S SERVICES, INC. s/h/a JEWISH BOARD FOR FAMILY & CHILDREN'S SERVICES f/k/a JEWISH BOARD OF GUARDIANS, HAWTHORNE CEDAR KNOLLS RESIDENTIAL TREATMENT CENTER Nicole T.C. Marques, Esq., Herman Law Attorneys for: Plaintiff D.S.P. Kelly A. Hodges, Esq., Hodges Walsh & Burke, LLP Attorneys For: WESTCHESTER COUNTY
Deirdre E. Tracey, Esq., Aaronson Rappaport Feinstein & Deutsch, LLP, Attorneys for: JEWISH BOARD FOR FAMILY AND CHILDREN'S SERVICES, INC. s/h/a "JEWISH BOARD FOR FAMILY & CHILDREN'S SERVICES f/k/a JEWISH BOARD OF GUARDIANS, HAWTHORNE CEDAR KNOLLS RESIDENTIAL TREATMENT CENTER"
Nicole T.C. Marques, Esq., Herman Law Attorneys for: Plaintiff D.S.P.
Kelly A. Hodges, Esq., Hodges Walsh & Burke, LLP Attorneys For: WESTCHESTER COUNTY
Doris M. Gonzalez, J.
The following papers were read on the above referenced motions.
PAPERS NUMBERED
Motion Seq. No. 5 73-82, 94-100, 101
Motion Seq. No. 6 83-93, 94-100, 102
In Motion Sequence No. 5, defendant Jewish Board For Family And Children's Services, Inc. S/H/A "Jewish Board For Family & Children's Services F/K/A Jewish Board Of Guardians, Hawthorne Cedar Knolls Residential Treatment Center (hereinafter, "the JBFCS Defendants" or JBFCS), moves for summary judgment pursuant to CPLR 3212 dismissing the complaint against it.
In Motion Sequence No. 6, defendant Westchester County cross-moves for summary judgment pursuant to CPLR 3212 dismissing the complaint against it.
Facts
Plaintiff commenced the instant action under the Child Victims Act ("CVA") arising from allegations he was sexually abused as a resident at the Hawthorne Cedar Knolls Residential Treatment Center ("Hawthorne") in the late 1970's. According to the amended complaint, plaintiff was placed at Hawthorne in or about 1977 when he 14 years-old, where he subjected to physical and sexual abuse by other residents. Further, in 1978, an unnamed maintenance worker groped his genitals under the guise of measuring his penis. Thereafter, plaintiff alleges, he was taken by an unnamed counselor to the counselor's apartment, where he was sexually abused. Upon their return to the facility, the counselor was terminated from employment at Hawthorne.
The plaintiff testified at his deposition that he was raised in an abusive household. His parents were separated, and he lived with his alcoholic mother in the basement of his grandmother's home. He sustained a brain injury at the age of 2 or 3 and found learning difficult. He was sent to Siwanoy Pelham Manor grade school, and repeated kindergarten, but was "kicked out." He later attended a special program at Cornell Medical Center, until he was sent to Pelham Memorial Junior High School. He finished 7th Grade, but due to his learning disabilities, in 8th Grade he stopped attending school, started smoking cigarettes, marijuana, and began staying out all night.
In 1977, he was placed in Cornell for observation for 90 days. When released, his grandmother arranged with Westchester County for his placement at Hawthorne. At Hawthorne, plaintiff was placed in Cottage 7. The cottage had a dorm room which housed six residents, and three private rooms. Counselors did not live in the Cottage but were staffed during the day and night.
According to the plaintiff, Cottage 7 was a "free-for all," no one cared about anything, and supervision was minimal. The plaintiff was initially housed in the dorm area. From the beginning of his stay at Cattage 7, plaintiff was subjected to non-sexual physical abuse by other residents. He did not describe in detail any particular incident of abuse during his initial stay at Cottage 7, other than to briefly describe two occasions when he was punched in the face. After a few months he was moved into a private room in Cottage 7. The door to the room did not have a lock, and he testified that "the kids would throw pee on me and everything." He continued to be the subject of physical abuse.
During his time in Cottage 7, plaintiff engaged in one consensual sexual relation with another resident in his dorm room. Plaintiff disclosed he was bi-sexual and did not want to discuss the specifics of his relationship with the other resident.
Two months after his placement at Hawthorne, a janitor persuaded the plaintiff and three other residents to "measure" their private parts in an outside area of the facility. Each of the four boys exposed themselves to the janitor. This incident was not reported to anyone. Four months after arriving at Cottage 7, another resident sexually assaulted him in one of the dorm rooms. Plaintiff did not report this sexual assault to anyone.
Plaintiff did report the physical abuse to a staff member named Mitch, as well as to his grandmother, and Mr. Brooks who was in charge of Hawthorne. No immediate action was taken, but after another incident where plaintiff was punched and lost a tooth, he was transferred from Cottage 7 to Cottage 15. Plaintiff testified that Cottage 15 was more organized and better staffed than Cottage 7. He was not physically or sexually abused by any residents while living in Cottage 15.
However, while in Cottage 15, plaintiff was "befriended" by a counselor who was assigned to watch the residents of the cottage during the night shift. He described the counselor as an African American male. The plaintiff left the door to his single room open at night so that he could converse with the counselor, who would stand outside of his door. He believed that the other residents were probably sleeping and did not hear these conversations or interactions with the counselor. After the counselor's third or fourth visit, approximately a month or two in Cottage 15, it was suggested that plaintiff join him for a weekend off premises. At that time, plaintiff wanted to join the counselor off premises because no one at Hawthorne liked him. Approximately one week later, plaintiff left the premises with the counselor on a Friday or Saturday, to go to Greenwich Village in New York City. Plaintiff did not tell anyone he was leaving with the counselor. Upon arriving at the counselor's apartment, plaintiff recalled he consumed alcohol and ingested cocaine. The counselor "moved in on him," and engaged in sexual relations with him during the weekend. On Sunday, he returned to Hawthorne in time for the 6:00 p.m. check. He told the other residents that they had "gone fishing," as he was instructed by the counselor to say. Less than an hour later, the counselor was fired.
Plaintiff testified that he never told anyone at Hawthorne about the sexual abuse, nor did he discuss the incident with anyone, or report it to the police or any other authorities. There was no investigation, and he was never questioned about the weekend by any representatives of Hawthorne or the County.
There is no indication in the record that the sexual abuse by the counselor was reported to the police or otherwise investigated.
Alexandra Davitt, the Deputy Executive Director of Clinic Business Operations, was deposed on behalf of JBFCS. She was responsible for overseeing business operations for mental health clinics operated by JBFCS. She personally organized the extant resident records at Hawthorne by the residents' date of birth between 2019 and 2022. The records were maintained on papers in boxes throughout the various building on campus and consisted generally of folders with some papers inside. The sole document pertaining to plaintiff was an index card indicating plaintiff's name, date of birth, and dates of admission to Hawthorne. Ms. Davitt had no other information pertaining to plaintiff or his time at Hawthorne, or any knowledge of the policies, practices, and procedures in effect at Hawthorne for the relevant time period, regarding reported claims of physical or sexual abuse.
Patricia Quattrocchi, the Director of Child Welfare for the Westchester County Department of Social Services (DSS), testified as the representative of Westchester County. She testified that currently, case managers work in collaboration with voluntary agencies, and the agencies provide day-to-day services and have a case planner for children that the County places at their facilities. "Those children [in residential care facilities] are in the care and custody of Westchester County so we bear a responsibility to collaborate with the voluntary agencies to ensure any child's safety that's in our care and custody."
Under the present-day procedures, a DSS case manager would oversee a child's case while the child resided in a congregate care setting. She stated:
"They [DSS case managers] work directly with the [agency's] assigned case planner to ensure that the children that are placed through Westchester County, their needs are being met during that - in that facility.ú So they - they read their case notes, they're invited to any planning meetings, they collaborate on filling out the family assessment service plan, any permanency hearing reports for - for court involvement...
"So essentially, they are ensuring that the agency in tandem with the Department are working to achieve permanency for any individuals and that their needs are being met: their school needs, their medical needs, mental health, and that they're maintaining úcontact with their parent or caretaker, so whoever we're working with in the community."
Under present procedures, a sexual assault by a resident or agency staff would be reported immediately to the County and the police. Ms. Quattrocchi was unaware whether case managers were in place to oversee congregate settings in the period 1977 to 1980 but testified that she had no reason to believe that the County would not have expected the abuse to be immediately reported during the period concerned in this case. She further testified that under no circumstance would a resident be permitted to leave the residential facility for a weekend in the company of agency staff.
The witness had no knowledge of any documents from the time period in question governing the policies, practices and procedures followed by the County with respect to sexual assaults at Hawthorne or other residential settings. She had no knowledge of any witness who was familiar the practices and procedures followed in the late 1970's. The only document relating to the plaintiff in the County's possession was a foster care index card containing cursory information relating to the dates of plaintiff's placement while in the foster care. She testified that Hawthorne Cedar Knolls Residential Treatment Center is no longer operating but does not know when it stopped operation. No contract between the County and Hawthorne for the relevant time period can be located.
The County's current contracts with foster care providers are held in an electronic database, which became operational in 2009, and contains documents created in 2009 and later. The witness testified that a contract would have been entered into with JBFCS for placements at Hawthorne. At the time of plaintiff's placement, contracts would generally be retained for seven years after expiration, and then destroyed. Some contracts could also have been sent to a County-wide retention center. The Contract Division performed a search of DSS and retention center records, and no contract between the County and JBFCS could be located.
ARGUMENT
Motion Sequence No. 5
As to negligent hiring, retention and supervision, the JBFCS Defendants argue that plaintiff must show that the defendant, here JBFCS, had notice of the unnamed alleged abusers' propensity for the specific injury causing conduct. They therefore argue that because plaintiff cannot identify his alleged assailants, either the unnamed residents in Cottage 7, or the unnamed maintenance man or the unnamed counselor, the complaint must be dismissed for a lack of notice. In addition, to the extent plaintiff relies on his allegations of systemic problems in foster care and at Hawthorne, such general claims are insufficient as a matter of law to establish notice. In that regard, they argue that the law is well-settled in New York that "a necessary element of [plaintiff's] causes of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury."
The JBFCS Defendants concede that plaintiff has not pleaded a cause of action for negligent hiring, retention, and supervision, but they contend that bill of particulars allege such negligence.
The defendants further argue that respondeat superior liability does not exist under these circumstances. Further, as with all of plaintiff's other theories of negligence, any contention that JBFCS was negligent in its supervision of him as a minor, that also fails for a lack of notice. In order for JBFCS to be liable for harm caused by a third party to a minor, it must also be alleged that JBFCS had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated.
In opposition, plaintiff argues that JBFCS's motion for summary judgment is procedurally defective as it failed to include a Statement of Material Facts as required to under 22 NYCRR §202.8-g. Accordingly, plaintiff maintains, defendant JBFCS's motion should be denied in its entirety or alternatively, as plaintiff's Statement of Material Facts is unrefuted, the court must find that there exists genuine issues of material fact warranting denial of JBFCS' motion for summary judgment.
On the merits, plaintiff asserts that notice to defendants is not a prerequisite to liability in this case. Specifically, defendants are charged with a duty in loco parentis duty towards children in their legal custody. Plaintiff argues that this duty does not depend on actual, explicit notice to the defendants of the perpetrators' propensity for sexual abuse. Thus, plaintiff argues that the Fourth Department held that "a jury could find that [the alleged sexual assault] was a reasonably foreseeable consequence of the District's failure to provide adequate supervision... even in the absence of notice of a prior sexual assault," citing Doe v Fulton School Dist. (35 A.D.3d 1194, 1195 [4th Dept 2006].) Further, plaintiff maintains that schools have a duty to adequately supervise their students and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision where the third-party acts could reasonably have been anticipated, citing, inter alia, Liang v. Rosedale Group Home (19 A.D.3d 654, 799 N.Y.S.2d 69 [2d Dep't 2005].) Plaintiff contends that a reasonable jury could find that prior circumstances and dangerous conduct were sufficient to put defendants on notice that closer supervision was necessary when considering that plaintiff was the target of egregious maltreatment and harm from the outset as he testified at his deposition that upon arrival to Hawthorne.
With respect to the circumstance that plaintiff never specifically disclosed acts of sexual abuse to the defendants, plaintiff submits expert testimony as to the standard of care applied to the defendants' supervision of plaintiff while in residential care. The affidavit of Samantha A. Fried, LCSW (licensed clinical social worker) states that although Westchester County had no day-to-day responsibility for the supervision or inspection of the JBFCS placement, it did have a responsibility to supervise a child placed in a contract agency's residential treatment center. The expert stated:
"Had such minimal foster care services been provided to D.P. while he resided at Hawthorne, namely consistent visits with a known individual that included private conversations to assess his safety and wellbeing, it is reasonable to infer that he would have reported the abuse, or at the very least, provided information to trigger an investigation into the unsafe conditions he resided in throughout his time at Hawthorne. The burden of reporting and disclosure should never be on a young, vulnerable and traumatized child victim, and to state otherwise contradicts the foundational purpose of protecting foster children from abuse and maltreatment."
Further, the expert opined that there existed systematic failures in the management of JBFCS in managing and supervising its own residential treatment center. "These failures caused the injuries sustained by D.P. due to the chaotic culture on campus of no supervision and no therapeutic services, individuals such as maintenance workers having access to foster children in a supposedly therapeutic environment, and the ability of an employee to easily leave campus unapproved and unnoticed with a child resident to take them to a different city."
Motion Sequence No. 6
Defendant Westchester County argues that the plaintiff cannot recover against it absent a showing that the County had a "special duty" to the plaintiff. The County argues that where it engages in a discretionary governmental function, plaintiff must establish a special duty owed to the injured party (Memorandum of Law in Support, p. 7, 10). A special duty can arise in three situations: (1) plaintiff belonged to a class for whose benefit a statute was enacted, (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public in general, or (3) the County took positive control of a known and dangerous safety condition (Ferreira v City of Binghamton, 38 N.Y.3d 298 [2022]). The term special duty is used to distinguish the relationship between a plaintiff and a municipality from the general duty which a municipality owes to the public. However, where a municipality obtains custody and control over an infant plaintiff, the three-part analysis to determine whether a special duty exists is moot; "the custody over the plaintiff obtained by the government necessarily distinguishes its relationship to the plaintiff from that of the public at large" (RN v Orange County, 2023 WL 6807709 [Sup Ct, Orange County 2023]).
Defendant further argues that it is immune from suit pursuant to Social Services Law § 419. Moreover, the County argues that it cannot be held liable as it had no specific knowledge or notice that any of the alleged wrongdoers had a propensity to commit a sexual assault. In addition, the County argues that the actions of the plaintiff and Hawthorne employees constituted intervening, superseding acts which absolve the County of liability for any negligence in the placement of the plaintiff. Lastly, the defendant argues that punitive damages may not be awarded against the State or its subdivisions.
In opposition, plaintiff contends that defendant Westchester County's motion for summary judgment should be denied because: 1) Defendant has failed to sufficiently establish a defense to Plaintiff's negligence cause of action; 2) Defendant owed Plaintiffs a nondelegable duty as the legal custodian of minor foster children; 3) Defendant breached that duty as evidenced by the lack of casework contacts documenting sufficient and reasonable supervision of the Plaintiff in his placement at Hawthorne; and 4) the Defendant's argument that it is entitled to governmental or statutory immunity for its negligent supervision of Plaintiff while he was in its custody is meritless. Plaintiff argues that defendant Westchester's witness, Patricia Quattrocchi testified in no uncertain terms that there exist no circumstances under which an agency staff member would be given permission to take a child resident home with him for the weekend. Further, plaintiff maintains that a "culture of sexual abuse" existed based on the fact that a myriad of active cases against Hawthorne have been filed alleging sexual abuse that occurred at or prior to the time of abuse that plaintiff suffered from 1978 to 1980, which demonstrates "the pervasive culture of on-going abuse that bears directly on the question of whether defendants had constructive notice of same."
As to special duty, plaintiff cites numerous Second Department cases which, to the contrary, impose liability without any showing of the existence of a special duty. Plaintiff cites Stephanie Grabowski v. Orange County (219 A.D.3d 1314, 1314, 196 N.Y.S.3d 113, 114 [2d Dept. 2023]), which holds that, "Counties and foster care agencies may be sued to recover for damages for negligence in the selection of foster parents and in supervision of the foster home."
Discussion
The Child Victim's Act
The Child Victims Act, effective February 14, 2019, revived the statute of limitations to commence civil actions against any party for physical, psychological, or other injury suffered as a result of conduct that would constitute a sexual offense under certain specified sections of the Penal Law committed against a minor (CPLR § 214-g). Prior to the passage of the Child Victims Act, New York's restrictive statute of limitations required most survivors of child sexual abuse to file civil actions long before they were psychologically able to rationally consider seeking redress for the crimes committed against them (Fletcher v State of New York, 218 A.D.3d 647 [2d Dept 2023]). The primary intent of the legislation was to revive civil claims by survivors of childhood sexual abuse and provide a more generous statute of limitations for such claims in the future (see Vincent Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR § 214-g).
However, the fact that a claim is revived does not mean that the claim is substantively meritorious. As the Appellate Division recently observed:
"Only conduct meeting the requirements of CPLR 214-g suffices to revive causes of action asserted under the CVA. Revival, however, merely means that the statute of limitations does not bar the underlying cause of action. Revival does not establish the viability of a cause of action for CPLR 3211 (or other) purposes. That is a separate analysis, independent of whether a plaintiff has established sufficient predicate conduct permitting revival." (Doe v. Wilhelmina Models, Inc., 2024 NY App. Div. LEXIS 1052, *3 [1st Dep't 2024]).
To obtain summary judgment, the movant is required to sufficiently establish its cause of action or defense to warrant the court as a matter of law in directing judgment in its favor (CPLR § 3212[b]). The movant "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v New York University Medical Center, 64 N.Y.2d 851 [1985][internal citations omitted]). Once this showing has been made, the burden shifts to the party opposing the motion to produce evidence in admissible form sufficient to establish the existence of a triable issue of fact (Alvarez v Prospect Hospital, 68 N.Y.2d 320 [1986]). "A motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Ruiz v Griffin, 71 A.D.3d 1112 [2d Dept 2010][internal quotations omitted]). The evidence must be viewed in a light most favorable to the nonmoving party and it should be given the benefit of all favorable inferences (Gonzalez v Metropolitan Life Ins. Co., 269 A.D.2d 495 [2d Dept 2000]). Speculative and conclusory assertions are insufficient to defeat summary judgment (Hartman v Mt. Valley Brew Pub, Inc., 301 A.D.2d 570 [2d Dept 2003]). "[A]s a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof but must affirmatively demonstrate the merit of its claim or defense" (Martinez v 1261 Realty Co., LLC, 121 A.D.3d 955 [2d Dept 2014]).
Special Duty
As threshold matter with respect to the liability of Westchester County, this Court must determine whether the doctrine of "special duty" applies where the alleged negligence is in the provision of foster care services. This issue has been addressed by other courts, as indicated below.
To prevail on a negligence claim, a plaintiff must demonstrate a duty owed by the defendant to plaintiff, a breach of that duty, and injury proximately resulting therefrom (Mitchell v Icolari, 108 A.D.3d 600 [2d Dept 2013]). The existence of a legally recognized duty is a threshold issue before the court (Gilson v Metropolitan Opera, 5 N.Y.3d 574 [2005]). In Gilson v Metropolitan Opera, the Court of Appeals noted its reluctance to extend the duty of care where a defendant may become liable for failure to control the conduct of others, imposing such duty "only where the defendant's relationship with either the tortfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm and that the specter of limitless liability is not present" (Id.).
In general, when a negligence claim is asserted against a municipality, the threshold inquiry is whether the municipality was engaged in a proprietary function (in essence, an activity which may substitute for a traditional private enterprise) or acted in a governmental capacity (such as police and fire protection) with respect to the underlying claims. (Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 995 N.E.2d 131, 972 N.Y.S.2d 169 [2013].) Where the activity leading to injury constituted a governmental function, a "special duty" must exist before liability may be imposed. A special duty can arise in three situations: (1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition. (Applewhite v. Accuhealth, Inc., supra 21 N.Y.3d at 426.)
The requirement of a special duty was addressed in Q.G. v City of New York (2022 NY Misc. LEXIS 10202 [Sup. Ct., NY Co., Love, J.], aff'd 222 A.D.3d 443, 199 N.Y.S.3d 62 [1st Dept. 2023]), where the plaintiff alleged that she was sexually assaulted at two foster homes while in foster care. Plaintiff argued that the foster care relationship itself was sufficient to create a special duty. In rejecting this argument, the trial court relied on McLean v. City of New York (12 N.Y.3d 194, 905 N.E.2d 1167, 878 N.Y.S.2d 238 [2009] [no special duty existed for child injured in day care]) and Mark G. v. Sabol (93 N.Y.2d 710, 695 N.Y.S.2d 730, 717 N.E.2d 1067 [1999] [no private right of action based on Social Services Law against City of New York for abuse or neglect following placement in the foster homes; allowing plaintiffs to replead common law claims]). In concluding that the plaintiff was required to establish a special duty, the trial court found that Sean M. v. City of New York (20 A.D.3d 146, 795 N.Y.S.2d 539 [1st Dep't 2005]), Phillips v. City of New York, 453 F.Supp.2d 690 (S.D.NY 2006), and Merice v. County of Westchester (305 A.D.2d 383, 383, 757 N.Y.S.2d 903 [2d Dep't 2002]), to the extent they reached contrary results, were overruled by McLean. The First Department concluded that plaintiff was required to establish the existence of a special duty.
In McLean, a child was injured in day care. The City of New York had negligently renewed the license for the day care facility, as there were two prior, substantiated complaints that the licensee's husband dipped a child's hand into a bowl of hot oatmeal, and that a child had been left alone for over an hour in a nearby store. The Court of Appeals rejected arguments that Social Services Law § 390, which governs the licensing of child day care providers, created a statutory duty for the benefit of plaintiffs, and that the City voluntarily assumed a duty.
The First Department agreed with the lower court that Sean M. v. City of New York (supra) was overruled by McLean (supra). Accordingly, a special duty was required, and the mere placement of a child in foster care did not give rise to a special duty. No special duty could be predicated on a statutory violation, as the Social Services Law does not provide for any private right of action, and further, any such argument was foreclosed by the holding in Mark G. v. Sabol (supra). Lastly, the First Department found that the requirement of a special duty did not conflict with the legislative intent of the CVA, as the CVA specifically did not "abrogate 'any other defense and affirmative defense that may be available in accordance with law, rule or the common law' (CPLR 214-g [a])." (Q.G. v. City of New York, 222 A.D.3d at 445.)
The Fourth Department has similarly held that an action under the CVA for damages resulting from alleged sexual and physical abuse while in foster care requires a special duty, and that the special duty requirement is not satisfied by mere placement in foster care. (Weisbrod-Moore v. Cayuga County, 216 A.D.3d 1459, 189 N.Y.S.3d 345 94th Dept. 2023].) The Court held:
"Therefore, the issue whether plaintiff can establish the existence of a special duty based upon the County's alleged violation of its statutory duties turns on whether affording her a private right of action would be consistent with the legislative scheme...
"In Mark G. v Sabol (93 N.Y.2d 710, 717 N.E.2d 1067, 695 N.Y.S.2d 730 [1999]), the Court of Appeals analyzed provisions in the Social Services Law designed to protect foster children and to prevent child abuse generally and concluded that a private right of action was not consistent with the legislative scheme (see id. at 720-722; see also McLean, 12 N.Y.3d at 201). Notably, in McLean, the Court of Appeals cited Mark G. approvingly (see McLean, 12 N.Y.3d at 201). We therefore conclude that plaintiff cannot establish a special duty based upon the County's alleged violation of its duties under the Social Services Law. We note that, to the extent that there is case law in the First and Second Departments that would support a contrary conclusion, we decline to follow those cases (see e.g. George v Windham, 169 A.D.3d 876, 877, 94 N.Y.S.3d 363 [2d Dept 2019]; Sean M. v City of New York, 20 A.D.3d 146, 158-160, 795 N.Y.S.2d 539 [1st Dept 2005]; Bartels v County of Westchester, 76 A.D.2d 517, 520-521, 429 N.Y.S.2d 906 [2d Dept 1980])." (Weisbrod-Moore v. Cayuga County, 216 A.D.3d at 1461.)
The Fourth Department also concluded that no duty was voluntarily assumed.
The Second Department, on the other hand, without addressing the "special duty" or the foregoing caselaw and arguments, has held that a county may be sued for a negligent selection and supervision of foster parents. For example, in one case, the Second Department held:
"[C]ounties and foster care agencies may be sued to recover damages for negligence in the selection of foster parents and in supervision of the foster home (see Liang v Rosedale Group Home, 19 A.D.3d 654, 655, 799 N.Y.S.2d 69 [2005]; Merice v County of Westchester, 305 A.D.2d 383, 384, 757 N.Y.S.2d 903 [2003]; Bartels v County of Westchester, 76 A.D.2d 517, 521-522, 429 N.Y.S.2d 906 [1980]). In order to establish its prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleged that it engaged in negligent placement and supervision, the appellant had to establish, prima facie, that it did not have sufficiently specific knowledge or notice of the alleged dangerous conduct which caused the infant's injuries (see Andrew S. v Gristina, 97 A.D.3d 651, 652, 950 N.Y.S.2d 137 [2012]; McCabe v Dutchess County, 72 A.D.3d 145, 151, 895 N.Y.S.2d 446 [2010]; M.S. v County of Orange, 64 A.D.3d 560, 561, 884 N.Y.S.2d 74 [2009]). In other words, the appellant had to show that the third-party acts could not have been reasonably anticipated (see Andrew S. v Gristina, 97 A.D.3d at 652; M.S. v County of Orange, 64 A.D.3d at 561; Liang v Rosedale Group Home, 19 A.D.3d at 655).(Keizer v SCO Family of Servs., 120 A.D.3d 475, 476-477, 991 N.Y.S.2d 103, 104-105 [2d Dept. 2014].) Although decided after both McLean (supra) and Mark G. v. Sabol (supra), the Second Department failed to address either of those cases.
More recently, in an action alleging that plaintiff was sexually abused in a foster home where she was placed by defendant Orange County, the Second Department again cited Keizer v SCO Family of Servs. (supra) for the proposition that a county may be sued in negligence for foster care placements. (Grabowski v. Orange County, 219 A.D.3d 1314, 1314, 196 N.Y.S.3d 113, 114 [2d Dept. 2023].) The Third Department also cited Keizer v SCO Family of Servs. (supra) for the same proposition. (Grant v. Temple, 216 A.D.3d 1351, 189 N.Y.S.3d 806 [3d Dept. 2023].)
There is clearly a split between the First and Fourth Departments, on the one hand, and the Second and Third Departments, on the other. This Court agrees with, and in any event is constrained to follow, the Second Department's precedent. The Second Department has steadfastly adhered to Keizer v SCO Family of Servs. (supra). On constraint of that authority, this Court is obligated to deny the County's argument to the extent it is based on the absence of a special duty in favor of the plaintiff.
Defendant Westchester County further argues that it is immune from suit pursuant to Social Services Law § 419. That section provides, in part:
"Any person, official, or institution participating in good faith in the providing of a service pursuant to section four hundred twenty-four of this title, the making of a report, the taking of photographs, the removal or keeping of a child pursuant to this title, or the disclosure of child protective services information in compliance with sections twenty, four hundred twenty-two and four hundred twenty-two-a of this chapter shall have immunity from any liability, civil or criminal, that might otherwise result by reason of such actions."
The County's argument that this provision immunizes it from liability under these circumstances was squarely rejected in Grabowski v. Orange County (supra), in which the court held:
"Contrary to the Supreme Court's determination, the County was not entitled to qualified immunity pursuant to Social Services Law § 419, as qualified immunity does not bar recovery for the negligent supervision of children in foster care (see Sean M. v City of New York, 20 A.D.3d 146, 160, 795 N.Y.S.2d 539; Liang v Rosedale Group Home, 19 A.D.3d at 655; Barnes v County of Nassau, 108 A.D.2d at 55)."(Grabowski v. Orange County, supra, 219 A.D.3d at 1315.)
Negligent Selection, Retention, Supervision and Training of Employees, and Common Law Negligence
The New York Social Services Law imposes a duty on the County to supervise the care and welfare of children in its charge, including the responsibility to place children in foster homes or other institutions under proper safeguards, to supervise the children while in foster homes, and to remove them from the foster home when necessary (see Social Services Law §§ 398.6[g], [h] and 400; Bartels v County of Westchester, supra.) That duty must be deemed to be nondelegable in the sense that the appellants are "required to exercise due care in the selection of foster parents and to oversee diligently the rendition of proper care by the foster parents." (Id. at 523.) Similarly, the JBFCS Defendants had a duty to supervise the students and staff to protect the students from harm. (Keizer v SCO Family of Servs., supra, 120 A.D.3d 475, 476-477.)
To establish a cause of action for negligent retention or negligent supervision of an employee, plaintiff must demonstrate that "the employer knew or should have known of the employee's propensity for the conduct which caused the injury" (Fuller v Family Servs. of Westchester, Inc., 209 A.D.3d 983 [2d Dept 2022]). An employer is on notice of an employee's dangerous conduct "if a reasonably prudent employer, exercising ordinary care under the circumstances, would have been aware of the employee's propensity to engage in the injury-causing conduct" (Moore Charitable Found. v PJT Partners, Inc., 40 N.Y.3d 150, 158-159, 195 N.Y.S.3d 436, 217 N.E.3d 8 [2023]). "The employer's negligence lies in having placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the hiring[,]... retention[, or supervision] of the employee" (D.T. v Sports & Arts in Schs. Found., Inc., 193 A.D.3d 1096, 1097, 147 N.Y.S.3d 622 [internal quotation marks omitted].)
"Counties and foster care agencies cannot be vicariously liable for the negligent acts of foster parents, who are essentially contract service providers... However, counties and foster care agencies may be sued to recover damages for negligence in the selection of foster parents and in supervision of the foster home" (George v Windham, 169 A.D.3d 876 [2d Dept 2019]; Keizer v SCO Family Servs., 120 A.D.3d 475 [2d Dept 2014]). In order to find that a county or childcare agency breached its duty to adequately supervise the children in its care, a plaintiff must establish that the defendant "had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated" (Grabowski v Orange County, supra [2d Dept 2023]). A county or foster care agency moving for summary judgment dismissing plaintiff's negligent placement and supervision claim must demonstrate, prima facie, that it did not have sufficiently specific knowledge or notice of the alleged dangerous conduct which cause plaintiff's injuries. In other words, the movant must show that the third party's acts could not have been reasonably anticipated (Keizer v SCO Family Servs., 120 A.D.3d 475 [2d Dept 2014]).
In addition, "[a]n entity to whom the custody of a child is entrusted has a duty to adequately supervise children in its charge and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision." (Carpaneto v Middle Bay Golf Club, 184 A.D.3d 799, 800, 2020 NY App. Div. LEXIS 3607, *2-3 [2d Dep't 2020].) The plaintiff does not argue that the defendants had actual notice of the proclivity of any particular staff member or resident to commit sexual assaults. Instead, plaintiff generally relies on the theory that "[s]imply put, a pervasive culture of sexual abuse as a matter of law is sufficient to create a genuine issue of material fact with respect to constructive notice."
It is true that generally in a foster care setting, where sexual abuse occurs, there must be notice that the defendant knew that the wrongdoer had a propensity to commit acts of sexual misconduct. (See, Easterbrooks v. Schenectady County, 218 A.D.3d 969, 194 N.Y.S.3d 173 [3d Dept. 2023] [in CVA case, dismissing claims based on acts of foster parent, where acts were not reported to County].) However, in the context of a residential setting where the defendants had a duty to monitor and supervise the plaintiff, and actively oversee his safety, the failure to supervise may give rise to constructive notice. Recently, the Second Department considered a CVA case predicated on sexual abuse occurring by one teacher in the same classroom over the course of three years, in which the defendant school's potential liability was based on constructive notice and the lack of adequate supervision. In finding that constructive notice existed, the Second Department focused on, inter alia, the frequency of the abuse and the failure of the school district to monitor the interaction between teacher and student. The Court stated as follows:
"Here, the defendants failed to establish, prima facie, that they lacked constructive notice of the teacher's alleged abusive propensities and conduct (see Palpoli v Sewanhaka Cent. High Sch. Dist., 166 A.D.3d 639, 641; Johansmeyer v New York City Dept. of Educ., 165 A.D.3d at 636). In particular, given the frequency of the alleged abuse, which occurred over a three-year period, and always occurred inside the same classroom during the school day, the defendants did not eliminate triable issues of fact as to whether they should have known of the abuse (see Nizen-Jacobellis v Lindenhurst Union Free Sch. Dist., 191 A.D.3d at 1008; Johansmeyer v New York City Dept. of Educ., 165 A.D.3d at 636). Additionally, the defendants failed to eliminate triable issues of fact as to whether their supervision of the teacher or the plaintiff was not negligent, in light of, among other things, the teacher was on 'probationary' status during the relevant period, the special education lessons during which the alleged abuse occurred were one-on-one and behind closed doors, the plaintiff testified at his deposition that the school principal 'never came in' or 'checked' on him during the lessons, and only a single observation report from Columbus Avenue Elementary School is available in the teacher's employment file during the relevant period."(MCVAWCD-DOE v. Columbus Ave. Elementary Sch., 2024 NY App. Div. LEXIS 1752, *4-5, 2024 NY Slip Op 01703, 2 [2d Dept. 2024]; see also, J. B. v. Monroe-Woodbury Cent. Sch. Dist., 224 A.D.3d 722, 2024 NY App. Div. LEXIS 855 [2d Dept. 2024] [in CVA action, defendants failed to eliminate triable issues of fact as to whether it was negligent to permit the plaintiff to be alone behind closed doors with a physician during medical examinations, in contravention of the School District's own policy].)
Here, as in MCVAWCD-DOE v. Columbus Ave. Elementary Sch., there was no evidence of actual knowledge of the wrongdoer's propensity to sexually abuse children, nor any evidence that inappropriate conduct was observed, or that the abuse was reported. Rather, liability may arise from a failure to supervise the wrongdoing employees, as well as the failure to supervise the plaintiff. Plaintiff's testimony indicated that physical assaults were common, and that the students were essentially unwatched and unattended for long periods of time. In his words, it was a "free-for all." Sexual acts were allegedly performed in public spaces outside (i.e., the alleged abuse by the janitor), and supervision was so lax that plaintiff was allegedly able to leave the premises in the company of an instructor. Plaintiff's testimony is sufficient to create an issue for the trier of fact as to whether the defendants adequately monitored the employees, residents, and conditions at Hawthorne, and should have discovered that sexual abuse was foreseeable - if not rampant, as alleged by the plaintiff.
Lastly, while the sexual abuse arising out of the incident involving the counselor occurred off-premises, the contact and planning occurred on-premises. A trier of fact could clearly find, if plaintiff's testimony is credited, that a sufficient nexus exists between defendants' lack of supervision or oversight of the counselor, and the ensuing sexual abuse. It has been held in another CVA, where a student was abused by a teacher, that the school district could be liable for both the on-premises and off-premises abuse if it is determined that the defendant's negligence was a proximate cause of the abuse. (Doe v. Herricks Union Free Sch. Dist., 2023 NY Misc. LEXIS 29261 [Sup. Ct., Nassau Co., Steinman, J.])
The County, as a public entity, may not be held liable for punitive damages. (Dixon v. William Floyd Union Free School Dist., 136 A.D.3d 972 [2d Dept. 2016]; Doe v. Herricks Union Free Sch. Dist., supra.) The demand for punitive damages is stricken.
With respect to the failure of the JBFCS defendants to submit a statement of materials facts as required by 22 NYCRR § 202.8-g, the court notes that 22 NYCRR § 202.8-g (e) provides that the court "may" adjourn, deny with leave to renew, or take other action in view of such failure. The rule is discretionary, and as there is no prejudice or confusion, the court declines to impose any sanction. (Fernandez v. N.Y.C. Transit Auth., 2023 NY Misc. LEXIS 19001 [Sup. Ct., Bronx County, Danziger, J.])
That section provides, "(e) In the event that the proponent of a motion for summary judgment fails to provide a statement of undisputed facts though required to do so, the court may order compliance and adjourn the motion, may deny the motion without prejudice to renewal upon compliance, or may take such other action as may be just and appropriate. In the event that the opponent of a motion for summary judgment fails to provide any counter statement of undisputed facts though required to do so, the court may order compliance and adjourn the motion, may, after notice to the opponent and opportunity to cure, deem the assertions contained in the proponent's statement to be admitted for purposes of the motion, or may take such other action as may be just and appropriate. 22 NYCRR § 202.8-g(e)."
Any contentions of the parties not specifically addressed herein have been considered and are found to be without merit.
Accordingly, it is hereby
ORDERED that Motion Sequence No. 5, by defendant Jewish Board For Family And Children's Services, Inc. S/H/A "Jewish Board For Family & Children's Services F/K/A Jewish Board Of Guardians, Hawthorne Cedar Knolls Residential Treatment Center is denied, and it is further
ORDERED that Motion Sequence No. 6 by defendant Westchester County is granted only to the extent of striking the plaintiff's demand for punitive damages, and it is further
The foregoing constitutes the Decision and Order of the Court.