Opinion
2017–12890 Index No. 523270/16
02-20-2019
Cheryl GEORGE, etc., Appellant, v. Graham WINDHAM, Respondent, et al., Defendant.
Cascione, Purcigliotti & Galluzzi, P.C., New York, N.Y. (Thomas G. Cascione of counsel), for appellant. Gordon Rees Scully Mansukhani, LLP, New York, N.Y. (Jamie Haar, Ryan Sestack, and Misty D. Marris of counsel), for respondent.
Cascione, Purcigliotti & Galluzzi, P.C., New York, N.Y. (Thomas G. Cascione of counsel), for appellant.
Gordon Rees Scully Mansukhani, LLP, New York, N.Y. (Jamie Haar, Ryan Sestack, and Misty D. Marris of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, etc., the plaintiff appeals from an order of the Supreme Court, Kings County (Bernard J. Graham, J.), dated October 17, 2017. The order, insofar as appealed from, granted the motion of the defendant Graham Windham pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it.
ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the motion of the defendant Graham Windham which were pursuant to CPLR 3211(a)(7) to dismiss so much of the first and second causes of action as sought to recover damages for that defendant's alleged negligence in the selection of a foster parent and in supervision of a foster home, and pursuant to CPLR 3211(a)(5) and (7) to dismiss so much of third cause of action as sought damages for loss of services and for expenses for the care and treatment of the subject children insofar as asserted against it, and substituting therefor provisions denying those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff, the subject children's biological grandmother and legal guardian, commenced this action on behalf of the children, and individually, alleging that, while placed in the foster home of the defendant Angela Packer, the children were sexually abused by another child living in the home. The plaintiff further alleged that the children were provided substandard foster care in that they were ill-fed, ill-clothed, and otherwise denied basic sustenance. The defendant Graham Windham is the foster care agency that placed the children in Packer's home. The first and second causes of action seek damages for the defendants' alleged negligence. The third cause of action seeks damages allegedly suffered by the plaintiff for her loss of the society and services of the children. The fourth cause of action seeks punitive damages for alleged intentional conduct toward the children. Graham Windham moved to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211(a)(5) and (7). In the order appealed from, the Supreme Court, among other things, granted that motion. The plaintiff appeals.
When assessing the adequacy of a complaint in light of a motion to dismiss pursuant to CPLR 3211(a)(7), the question is whether the pleading states a cause of action, not whether the plaintiff has a cause of action (see Romanello v. Intesa Sanpaolo, S.p.A., 22 N.Y.3d 881, 887, 976 N.Y.S.2d 426, 998 N.E.2d 1050 ; Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ; Sokol v. Leader, 74 A.D.3d 1180, 1180–1181, 904 N.Y.S.2d 153 ). The pleading is to be afforded a liberal construction (see CPLR 3026 ), and the court must accept the facts as alleged in the complaint as true, according the plaintiff the benefit of every possible favorable inference, determining only whether the facts as alleged fit within any cognizable legal theory (see Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720 ; Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ).
"Counties and foster care agencies cannot be vicariously liable for the negligent acts of foster parents, who are essentially contract service providers" ( Keizer v. SCO Family of Servs., 120 A.D.3d 475, 476, 991 N.Y.S.2d 103 ; see Blanca C. v. County of Nassau, 65 N.Y.2d 712, 713, 492 N.Y.S.2d 5, 481 N.E.2d 545 ; Blanca C. v. County of Nassau, 103 A.D.2d 524, 532, 480 N.Y.S.2d 747, affd 65 N.Y.2d 712, 492 N.Y.S.2d 5, 481 N.E.2d 545 ). "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" ( Keizer v. SCO Family of Servs., 120 A.D.3d at 476, 991 N.Y.S.2d 103 ; see McCabe v. Dutchess County, 72 A.D.3d 145, 151, 895 N.Y.S.2d 446 ; Blanca C. v. County of Nassau, 103 A.D.2d at 532–533, 480 N.Y.S.2d 747 ; Bartels v. County of Westchester, 76 A.D.2d 517, 523, 429 N.Y.S.2d 906 ). Ultimately, to sustain a cause of action for negligent supervision, the 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" ( Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 ; see Keizer v. SCO Family of Servs., 120 A.D.3d at 476–477, 991 N.Y.S.2d 103 ; McCabe v. Dutchess County, 72 A.D.3d at 151, 895 N.Y.S.2d 446 ; Simpson v. County of Dutchess, 35 A.D.3d 712, 713, 826 N.Y.S.2d 678 ; Liang v. Rosedale Group Home, 19 A.D.3d 654, 655, 799 N.Y.S.2d 69 ).
We agree with the Supreme Court that Graham Windham was entitled to dismissal of so much of the negligence causes of action as alleged that it is vicariously liable for Packer's action or inactions, since it cannot be vicariously liable for her negligence. However, the court should not have directed dismissal of so much of the first and second causes of action as alleged negligence in the selection of Packer as a foster parent and in supervision of the foster home. The complaint sufficiently alleged that Graham Windham had notice of the dangerous conduct at issue such that the abuse could reasonably have been anticipated (see Bartels v. County of Westchester, 76 A.D.2d at 523, 429 N.Y.S.2d 906 ).
We also agree with the Supreme Court that Graham Windham was entitled to dismissal of so much of the third cause of action as sought damages for the plaintiff's loss of the children's society. "[I]n New York, the law will not compensate a parent for the loss of a child's affection and companionship when a child is injured" ( DeAngelis v. Lutheran Med. Ctr. , 84 A.D.2d 17, 26, 445 N.Y.S.2d 188, affd 58 N.Y.2d 1053, 462 N.Y.S.2d 626, 449 N.E.2d 406 ; see Dunphy v. J & I Sports Enters. , 297 A.D.2d 23, 26, 748 N.Y.S.2d 595 ; Devito v. Opatich , 215 A.D.2d 714, 715, 627 N.Y.S.2d 441 ). However, a parent may recover damages measured by the pecuniary loss sustained by the injuries to the child, including the value of the child's services, if any, of which the parent was deprived and reasonable expenses necessarily incurred in an effort to restore the child to health (see Gilbert v. Stanton Brewery, Inc. , 295 N.Y. 270, 273, 67 N.E.2d 155 ; Moore v. Ewing , 9 A.D.3d 484, 489, 781 N.Y.S.2d 51 ; DeAngelis v. Lutheran Med. Ctr. , 84 A.D.2d at 26, 445 N.Y.S.2d 188 ). Thus, the court should not have directed dismissal, pursuant to CPLR 3211(a)(7), of so much of the third cause of action insofar as asserted against Graham Windham as sought to recover damages for the loss of the children's services and the expense for their care and treatment. Furthermore, contrary to the court's determination, this cause of action was not barred by the applicable statute of limitations, as the damages allegedly suffered by the plaintiff occurred within three years prior to the filing of the complaint (see CPLR 214[5] ; cf. Chambers v. Mirkinson , 68 A.D.3d 702, 706, 890 N.Y.S.2d 99 ).
Finally, as to the fourth cause of action, seeking punitive damages, on appeal, the plaintiff specifies that this cause of action is predicated on Packer's allegedly intentional acts in keeping the children ill-clothed and ill-fed. She concedes that in the absence of vicarious liability, she cannot recover against Graham Windham on this cause of action. Since, as discussed above, Graham Windham cannot be vicariously liable for Packer's acts, we agree with the Supreme Court that Graham Windham was entitled to dismissal of the fourth cause of action insofar as asserted against it.
The plaintiff's remaining contention is without merit.
SCHEINKMAN, P.J., LEVENTHAL, MALTESE and BRATHWAITE NELSON, JJ., concur.