Opinion
Index No. 55145/2020 Mot. Seq. No. 005
01-11-2024
G.F. Plaintiff, v. WESTCHESTER COUNTY, and DOES 1-10, Defendants.
Unpublished Opinion
DECISION AND ORDER
LEONARD D. STEINMAN, JUDGE
The following papers, in addition to any memoranda of law and/or statement of material facts, were reviewed in preparing this Decision and Order:
Defendant Westchester's Notice of Motion, Affirmation & Exhibits ……....…..........1
Plaintiff's Affirmation in Opposition & Exhibits..........................................................2
Defendant Westchester's Reply.....................................................................................3
In this action plaintiff seeks damages resulting from alleged sexual abuse that he endured from 1969-1970 when he was 5-6 years old while in the custody and control of Westchester County (the "County"). Plaintiff claims he was sexually abused by two foster parents in two separate foster homes and that the abuse resulted from the County's negligence in the supervision of his care. The County moves for summary judgment dismissing the complaint pursuant to CPLR 3212. For the reasons set forth below, the County's motion is denied.
BACKGROUND
Plaintiff was initially taken into the County's foster care when he was 2 years old. In 1968, when plaintiff was 4 years old, the County placed him with the Austin family. Plaintiff alleges that when he was five years old, Mrs. Austin began sexually abusing him by forcing him to perform oral sex upon her. The abuse occurred on more than 50 occasions. Plaintiff asserts that while he was placed in the Austin home he was visited by his caseworker, Ms. Tunis, once every two months, during which time she would speak with him in the presence of his foster parents (i.e., in the presence of his abuser). Plaintiff asserts that once he had an opportunity to be alone with Ms. Tunis-when she drove him to a pediatrician appointment- he reported to her that he was being sexually abused by Mrs. Austin. However, despite his disclosure, plaintiff remained at the Austin house for "quite a bit" thereafter and the sexual abuse continued.
The facts as set forth by the court are consistent with the evidence submitted by plaintiff, including his deposition testimony. In the context of a summary judgment motion, a court is to view the evidence in a light most favorable to the opposing party and give such party the benefit of every favorable inference. Sheryll v. L&J Hairstylists of Plainview, Ltd., 272 A.D.2d 603 (2d Dept. 2000). This court makes no findings of fact.
In 1970, plaintiff was removed from the Austin's home and placed with the Duke family. Shortly after his arrival, Mr. Duke began sexually abusing plaintiff by fondling his genitals and buttocks on a repeated basis. When plaintiff resisted the sexual abuse, Mr. Duke would physically beat plaintiff Beatings perpetrated by both Mr. and Mrs. Duke would leave visible bruises on plaintiff's face and body. Plaintiff reported to Ms. Tunis that both he and his foster sister were being sexually abused, but he remained at the Duke home for some time and the sexual abuse continued.
LEGAL ANALYSIS
It is the movant who has the burden to establish an entitlement to summary judgment as a matter of law. Ferrante v. American Lung Assn., 90 N.Y.2d 623 (1997). "CPLR §3212(b) requires the proponent of a motion for summary judgment to demonstrate the absence of genuine issues of material facts on every relevant issue raised by the pleadings, including any affirmative defenses." Stone v. Continental Ins. Co., 234 A.D.2d 282, 284 (2d Dept. 1996). Where the movant fails to meet its initial burden, the motion for summary judgment should be denied. US Bank N.A. v. Weinman, 123 A.D.3d 1108 (2d Dept. 2014).
A defendant's burden cannot be satisfied merely by pointing to gaps in the plaintiff's proof. In re New York City Asbestos Litigation (Carriero), 174 A.D.3d 461 (1st Dept. 2019); Vittorio v. U-Haul Co., 52 A.D.3d 823 (2d Dept. 2008).
Once a movant has shown a prima facie right to summary judgment, the burden shifts to the opposing party to show that a factual dispute exists requiring a trial, and such facts presented by the opposing party must be presented by evidentiary proof in admissible form. Zuckerman v. New York, 49 N.Y.2d 557 (1980); Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46N.Y.2d 1065 (1979).
In a single cause of action, plaintiff asserts negligence-based claims against the County. But since plaintiff seeks to hold the County vicariously liable for its employees' or agents' negligence in supervising the plaintiff's care, he may not also assert a claim for negligent hiring, training or retention of those employees. As explained in Karoon v. New York City Transit Authority, 241 A.D.2d 323, 324 (1st Dept. 1997), "(t]his is because if the employee was not negligent, there is no basis for imposing liability on the employer, and if the employee was negligent, the employer must pay the judgment regardless of the reasonableness of the hiring or retention or the adequacy of training." See also, Eckardt v. City of White Plains, 87 A.D.3d 1049 (2d Dept. 2011). To the extent that plaintiff's cause of action for negligence relates to the County's hiring, supervision or retention of Mrs. Austin and/or Mr. Duke, they were not County employees or agents, and plaintiff's argument that the County failed to properly vet them or oversee their foster parenting of plaintiff would fall under plaintiffs negligence claim.
The County's principal argument is that, as a municipality acting in its governmental capacity, it cannot be held liable for negligence because it did not have a special relationship with plaintiff sufficient to give rise to a special duty owed to him.
The County also correctly contends that the Chi Id. Victims Act (CPLR § 214-g) does not revive claims asserting physical abuse (standing alone). But since sexual abuse is alleged here, that argument is irrelevant.
Second Department precedent dictates that, as a general matter, a municipality may be held liable for its negligence in the supervision of foster care. See e.g., George v. Windham, 169 A.D.3d 876, 877 (2d Dept. 2019); Keizer v. SCO Family of Services, 120 A.D.3d 475 (2d Dept. 2014); Barnes v. County of Nassau, 108 A.D.2d 50 (2d Dept. 1985); Bartels v. County of Westchester, 76 A.D.2d 517 (2d Dept. 1980). See also Easterbrooks v. Schenectady County, 218 A.D.3d 969 (3d Dept. 2023) (upholding Child Victims Act negligence claim against county by former foster child).
Recent First and Fourth Department decisions have held that municipalities are not liable for the alleged negligent supervision of a foster child because no duty of the municipality runs to the child placed in its custody. See Q.G. v City of New York, A.D.3d, 199 N.Y.S.3d 62 (1st Dept 2023); Weisbrod-Moore v. Cayuga County, 216 A.D.3d 1459 (4th Dept. 2023). The courts held that a plaintiff is required to establish a "special duty" running to him/her and no such duty could be shown under any of three situations recognized by the Court of Appeals as establishing such a duty. See Maldovan v. County of Erie, 39 N.Y.3d 166, 171 (2022). The Weisbrod-Moore court recognized that Second Department caselaw "would support a contrary conclusion." Id. at 1461.
This court is bound by the legal precedent set by the Second Department unless there has been a subsequent change in the law by the Court of Appeals. Given the First and Fourth Department's decision in Q.G. and Weisbrod-Moore, an examination of the continued viability of the Second Department precedent is warranted.
The Court of Appeals has held that where a municipality has acted in its governmental capacity, a "special duty" running to the plaintiff must be found before the municipality can be held liable for the plaintiff's injuries. See Maldovan v. County of Erie, 39 N.Y.3d at 171. The term "special duty" is used to distinguish the relationship between a plaintiff and a municipality to that of the general duty a municipality owes to the public. "The core principle is that 'to sustain liability against a municipality, the duty breached must be more than that owed to the public generally.'" Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 426 (2013). The reason for the special duty requirement is the fear that exposing municipalities to tort liability "may render them less, not more, effective in protecting their citizens." Maldovan v. County of Erie, 39 N.Y.3d at 174, quoting McLean v. City of New York, 12 N.Y.3d 194, 204 (2009).
The Court of Appeals has recognized that a special duty can arise where (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." Ferreira v. City of Binghamton, 38 N.Y.3d 298 (2022). The judicial construction of this tripartite test was designed to ensure that a plaintiff's claimed injuries resulted not simply from a municipality's breach of its general duty to provide governmental services to the public.
But where a municipality obtains custody and control over an infant plaintiff the Court of Appeals' test becomes moot: the government's custody of the child necessarily distinguishes this relationship from that of the government to the public at large. Slavishly applying the test in these circumstances does not advance the principle to be served. As stated by Justice Cardozo, the rule must fit the case; not the case the rule. Certainly, if the County exercised its parens patriae function to safeguard the best interests of plaintiff and had control over him during the time of the abuse-which it did-the County owed him a special duty. In contrast to its general population, the County seized responsibility for plaintiff's care and upbringing. Therefore, the Second Department precedent remains good law and the County may be held liable for any negligence in its supervision of plaintiff s foster care absent another defense. This conclusion is further buttressed by the recent Second Department decision adverse to the county defendant in Grabowski v. Orange County, 219 A.D.3d 1314 (2d Dept. 2023) (counties may be held liable for negligent selection of foster care parents and in supervision of foster home).
Here, the County fails to establish its prima facie entitlement to summary judgment as a matter of law. The County does not dispute that it received actual notice of the abuses perpetrated by both Mrs. Austin and Mr. Duke. Rather, the County argues that it cannot be liable for negligent supervision of plaintiff or his foster parents because sometime after plaintiff's reports of these abuses he was relocated to different foster homes. But this misses the point. Plaintiff asserts that despite the County's knowledge of the sexual abuse of plaintiff, it failed to take immediate action and so, the abuse in both homes continued. The fact that the County may not have had notice of Mrs. Austin's and Mr. Duke's propensities to commit such abuse prior to plaintiff s reports is irrelevant in light of plaintiff s allegations that following each report, he remained in the subject homes for some time and the same abuse continued. The record is unclear how long plaintiff remained in the homes after reporting the abuse and there is no evidence that plaintiff was relocated as a result of his reports.
Therefore, the County's motion for an order granting summary judgment dismissing plaintiff's complaint is denied.
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). Therefore, plaintiff s request for punitive damages against it is hereby stricken.
Any relief requested not specifically addressed herein is denied.
This constitutes the Decision and Order of the court.