Opinion
Index No. EF004944-2022
02-23-2023
Jose Cuacuas As Administrator of the Estate of P.C., Plaintiff, v. Newburgh Enlarged City School District, Defendant.
Counsel for Plaintiff: Michael Kolb, Esq. O'Connor & Partners PLLC Counsel for Defendant: Melissa Cowan, Esq. Catania Mahon & Rider
Counsel for Plaintiff: Michael Kolb, Esq. O'Connor & Partners PLLC
Counsel for Defendant: Melissa Cowan, Esq. Catania Mahon & Rider
HON. MARIA S. VAZQUEZ-DOLES, J.S.C.
The Court reviewed the following papers on the motion of Defendant Newburgh Enlarged City School District to dismiss pursuant to CPLR §3211(a)(7) for failure to state a cause of action and for such and other further relief this Court deems just and proper:
Notice of Motion/ Affirmation/Memorandum of Law/Ex. A-B 1-5
Affirmation/Memorandum of Law/ 6-7
Reply Memorandum 8
Plaintiff commenced this action by filing a Summons and Complaint on September 1, 2022. Defendant was served on September 12, 2022. The Complaint pleads two counts related to a deceased child, ("P.C."). One count is for wrongful death and one count is a survival action that seeks damages for conscious pain and suffering. For the reasons that follow, the Defendant has not satisfied its burden of showing no cause of action will lie under the facts pled and the motion is therefore DENIED.
I. FACTS PLED IN THE COMPLAINT
The Complaint alleges that P.C. was a student enrolled in the Defendant school district at the Temple Hill Academy in New Windsor starting in September 2019. It alleges he was six when he was originally enrolled in September 2019. The Complaint alleges that at some time during or after September 2020, the father of P.C., Arturo Cuacuas, asked nonparty Leiticia Bravo to become the primary caregiver of P.C. and that she did thereafter become the primary caregiver of P.C.
The Complaint alleges that P.C.'s attendance of virtual classes by logging on to Defendant's remote system became "minimal" as of September 2020 and his absences became "excessive". It goes on to allege that P.C. did not log in to the Defendant's portal for school at some time in December 2020 until his death on February 10, 2021. The Complaint alleges that P.C. was required to attend school per NY Education Law 3205(1)(c) because he was between 6 and 16 years of age. The Complaint also alleges that Defendant had an obligation to keep attendance records per 8 NYCRR 104.1 and its own procedures, which are annexed to the Complaint.
The Complaint alleges that during the time P.C. had "minimal" attendance at Defendant's remote school program, nonparty Bravo subjected him to physical abuse, starvation, unlawful restraint, and other acts of child abuse, all resulting in P.C.'s death. It alleges that Bravo pled guilty to first degree manslaughter on March 16, 2022. It alleges that a newspaper article reporting on Bravo's plea quoted the prosecutor of Bravo stating that Bravo had engaged in communications with P.C.'s "teachers and other school representatives" during the time that P.C. was absent in the 2020-2021 school year.
The Complaint alleges that Defendant had reasonable cause to suspect "maltreatment" of P.C. based on the number of absences, that P.C. was a child "coming before" Defendant as Social Service Law 413 intended, and that Defendant breached the duty imposed by Social Services Law 413 et seq. to report such suspected maltreatment. The Complaint alleges damages were proximately caused by the breach of duty in the form of P.C.'s pain and suffering as well as his death. The Complaint pleads that the basis for a private right of action for violation of a statute is Social Services Law 420, discussed infra.
II. DEFENDANT'S MOTION TO DISMISS
Defendant filed this pre-Answer motion to dismiss on October 3, 2022. Plaintiff opposed the motion on October 9, 2022. Defendant filed a reply on November 16, 2022.
The motion asserts that the Complaint fails to state a claim for multiple reasons: i) there is no allegation of a mandatory reporter's name pled; ii) P.C. was not a child "coming before" Defendant; iii) no reasonable cause for suspicion of maltreatment existed; iv) Plaintiff has not pled a willful and knowing failure to report; and v) the actions of those who pled guilty to crimes related to the death of P.C. are intervening or superseding causes of his injuries and death.
On a motion for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Goshen v. Mutual Life Ins. Co. of NY, 98 N.Y.2d 314 (2002); Leon v. Martinez, 84 N.Y.2d 83 (1994). "The criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one". Id. A complaint is legally sufficient if the court determines that a plaintiff would be entitled to relief on any reasonable view of the facts stated. Campaign for Fiscal Equity v. State of New York, 86 N.Y.2d 307 (1995).
If a plaintiff chooses to stand on his or her pleading alone, "confident that its allegations are sufficient to state all the necessary elements of a cognizable cause of action, he [or she] is at liberty to do so and, unless the motion to dismiss is converted by the court to a motion for summary judgment, he [or she] will not be penalized because he [or she] has not made an evidentiary showing in support of his [or her] complaint" Rovello v Orofino Realty Co., 40 N.Y.2d 633, 635 (1976).
III. PRIVATE RIGHT OF ACTION
The Court first reviews the private right of action allowed by Social Services Law 420, which provides:
1. Any person, official or institution required by this title to report a case of suspected child abuse or maltreatment who willfully fails to do so shall be guilty of a class A misdemeanor.
2. Any person, official or institution required by this title to report a case of suspected child abuse or maltreatment who knowingly and willfully fails to do so shall be civilly liable for the damages proximately caused by such failure.
This law requires the Court to decide whether the Complaint pled that i) Defendant was required to report a case of suspected maltreatment of P.C., ii) the lack of such a report was knowing and willful and iii) the violation was a proximate cause of the injuries and death of P.C. The Court first reviews the alleged breach of statutory duty to report.
IV. ALLEGED VIOLATION OF DUTY TO REPORT
The alleged basis for Defendant's reporting requirement is Social Services Law 413 entitled "Persons and officials required to report cases of suspected child abuse or maltreatment". It provides in relevant part:
"1. (a) The following persons and officials are required to report or cause a report to be made in accordance with this title when they have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child, or when they have reasonable cause to suspect that a child is an abused or maltreated child where the parent, guardian, custodian or other person legally responsible for such child comes before them in their professional or official capacity and states from personal knowledge facts, conditions or circumstances which, if correct, would render the child an abused or maltreated child: any... school official, which includes but is not limited to school teacher, school guidance counselor, school psychologist, school social worker, school nurse, school administrator or other school personnel required to hold a teaching or administrative license or certificate.... (emphasis added).
Here, the Complaint alleges that P.C. was a "child coming before" Defendant and that one or more persons, without identifying anyone specific, within the Defendant organization had "reasonable cause" to suspect that P.C. was a "maltreated child".
A. Mandated Reporters
The Complaint alleges that the teachers and other school personnel at the school of P.C. were mandated reporters pursuant to Social Service Law 413. Defendant asserts that the failure of Plaintiff to plead the specific name(s) of the mandated reporter(s) is fatal to the pleading of a cause of action.
The sole case relied upon by Defendant held that a failure to allege that anyone within the defendant organization fell into the category of a mandated reporter was a basis to dismiss. See Monaghan v. Roman Catholic Archdiocese, 165 A.D.3d 650 (2d Dept. 2018). Here, to the contrary, Social Service Law 413 specifies that teachers and other school officials are mandatory reporters. The Complaint asserts that persons with those job titles were employed by Defendant and failed to report. Therefore, the Complaint states a cause of action as to Defendant having such personnel in its employ.
Moreover, Social Services Law 413 was revised in 2007 to insert examples of persons included in the term "school official":
... which includes but is not limited to school teacher, school guidance counselor, school psychologist, school social worker, school nurse, school administrator or other school personnel required to hold a teaching or administrative license or certificate....See 2007 McKinney's Session Laws of New York Ch.193. The legislative history shows that the change was made to further encourage reporting by teachers and other school personnel who might have held doubts as to whether they were protected by the immunity provisions of Social Services Law 419. See 2007 Session Law Chap. 193, Bill Jacket S.3913-A.
Based on the foregoing, the Court finds nothing in the legislative history or case law that supports Defendant's assertion that a person must be called out by name in the Complaint as a mandatory reporter who failed to report in order to state a claim pursuant to Social Services Law 413 and 420 and the CPLR.
B. Defining "Child Coming Before" the Defendant
The Complaint must allege that P.C. was "a child coming before" a mandatory reporter under Social Services Law 413. This issue has been explored in reported court decisions in the context of information derived from someone having first-hand observations of the alleged abuse or maltreatment, either information imparted by the child or by a third person. The Complaint alleges that Defendant's ability to draw an inference from the record of absences of P.C. constituted P.C. "coming before" the Defendant. See Diana G-D v. Bedford Central School District, 33 Misc.3d 970, 985 (Westchester Co. 2011), aff'd, 104 A.D.3d 805 (2d Dept. 2013) (defining "child comes before" to mean "reveals facts which provide a mandatory reporter with reasonable cause to suspect abuse to trigger reporting requirement").
Social Services Law 413 provides two avenues for the mandatory reporter to receive information that would trigger a report: i) a child "coming before" the reporter or ii) a person legally responsible for the child who comes before the reporter. In light of that distinction, the first avenue of "a child coming before" the reporter relates to the child himself or herself, not information derived from a third person. However, the statute does not include any requirement for the physical presence of the child or even communication directly from the child. Had the Legislature intended those criteria to be a requirement of the statute, it would have so stated.
Based upon the precedent of the Appellate Division, Second Department affirmance of the definition set forth in Diana, supra, and the lack of any explicit statutory requirement for direct observation of or communication from the child, the Court holds that Plaintiff's allegations in the Complaint, taken as true, could satisfy the requirement of P.C. "coming before" Defendant. Were that not so, any absence and/or tardiness from attending school, no matter the duration or circumstances, could never amount to the child "coming before" the Defendant with information so as to create reasonable cause for suspicion of maltreatment. Taken to its extreme, Defendant's argument would mean that if Defendant were aware that a child had been absent for an entire school year, those facts would not satisfy the requirement of "coming before" the Defendant. The Court finds no support for Defendant's assertion that the Legislature intended such a narrow definition of this wording. Compare In matter of Hayley QQ, 176 A.D.3d 1343 (3d Dept. 2019) (parent withholding child from attending school, without any further adverse treatment of child, in combination with parent's lack of counseling, justified removal of child from parent's custody pursuant to the Family Court Act).
To the contrary, the wording of Social Services Law 411 states that Title 6 of the Social Service Law, which includes Section 413, is intended to broaden reporting of suspected child maltreatment: "It is the purpose of this title to encourage more complete reporting of suspected child abuse and maltreatment...." The Legislative history shows the statute was enacted to promote reporting of suspected abuse and maltreatment. Diana, 33 Misc.3d at 982-983, aff'd, 104 A.D.3d 805 (2d Dept. 2013); see also Kimberly S.M. v. Bradford Central School, 226 A.D.2d 85 (4th Dept. 1996) ("The purpose and intent of the statutory scheme is to encourage the prompt reporting of all suspected cases of child abuse"). As a further means of promoting reporting of suspected abuse and maltreatment, the Legislature also enacted an immunity provision that shields a mandatory reporter acting in good faith in the scope of their duties from civil and criminal liability unless a person can show willful misconduct or gross negligence. Social Services Law 419.
Moreover, Defendant has not suggested that any of the Social Services Law was suspended due to the COVID pandemic. Therefore, no requirement of physical presence could be imposed to satisfy the statutory wording of Social Services Law 413 due to the very nature of remote schooling, where students were not physically appearing before the Defendant's personnel. The remote schooling lasted for several months or longer in school districts, including the Defendant school attended by P.C.
Absent a requirement of physical presence, the words "child coming before" requires facts that give rise to suspicion of maltreatment and that bear some direct relation to the child himself, not information from a third party. Diana 33 Misc.3d 970 at 985, aff'd, 104 A.D.3d 805 (2d Dept. 2013) (defining "child comes before" to mean "reveals facts which provide a mandatory reporter with reasonable cause to suspect abuse to trigger reporting requirement). Whether cases involving absences of a lesser duration or with facts that explain the absences as caused by other than maltreatment would satisfy the "child coming before" wording of Social Services Law 413 is a question not before this Court. Here, the Court is required to determine only if the facts pled in this specific Complaint satisfy the standard to defeat a motion to dismiss pursuant to CPLR 3211.
Taking the allegations pled as true, P.C. was not in remote class from at least the last day of December 2020 to February 10, 2021. That period included 26 weekdays, i.e. school days, other than days reserved as holidays. Moreover, the Complaint alleges frequent absences in the months of September 2020 through December 2020 as well. The Complaint alleges that Defendant communicated with non-party Bravo prior to P.C.'s death about his absences. The Complaint alleges facts that could satisfy the statutory requirement of a child "coming before" Defendant because it alleges the absences allegedly tracked by Defendant that relate directly to P.C. could have provided reasonable cause of suspicion of maltreatment.
C. Defining "Maltreated Child"
The Court reviews the definition of a "maltreated child" within Social Services Law 413. The definition "includes a child under eighteen years of age (a) defined as a neglected child by the family court act,...." Social Service Law 412. The Family Court Act is a series of statutes found at NY Family Court Act Sections 1-1211. Section 1012(f) of the Family Court Act defines a "neglected child" as follows:
(f) "Neglected child" means a child less than eighteen years of age
(i) whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care
(A) in supplying the child with adequate food, clothing, shelter or education in accordance with the provisions of part one of article sixty-five of the education law, or medical, dental, optometrical or surgical care, though financially able to do so or offered financial or other reasonable means to do so, or, in the case of an alleged failure of the respondent to provide education to the child, notwithstanding the efforts of the school district or local educational agency and child protective agency to ameliorate such alleged failure prior to the filing of the petition;....
The Complaint alleges facts that, if true, could show P.C. met the definition of Social Service 413 "maltreated child". The definition includes a child under age 18 whose physical condition is in imminent danger of being impaired due to those responsible for the child failing to supply the child with education as required by New York Education Law. The Complaint alleges that P.C. was absent for at least 26 consecutive school days and that the absences posed an imminent danger to him.
D. The Alleged Basis for "Reasonable Suspicion" of Maltreatment
The Complaint alleges that the basis for the reasonable suspicion of maltreatment was the absence of P.C. from logging in to the Defendant's virtual classroom between December 2020 (or perhaps earlier in 2020) and February 10, 2021 and Defendant's alleged attendance records that would reflect those absences. The aforementioned Part One of Article 65 of the NY Education Law requires that children between the ages of six and sixteen attend school on a full time basis. NY Education law 3205.
Article 65 also requires attendance records to be maintained. NY Education Law 3211. Additionally, 8 NYCRR 104.1 requires that Defendant establish its own procedures for taking attendance of students and maintaining the records. The Complaint annexes Defendant's attendance regulations as Exhibit C.
The Complaint alleges that Defendant should have suspected from its own records that P.C. was in imminent danger due to his repeated and lengthy absences. The Complaint alleges those absences were the "reasonable cause" for suspicion of maltreatment. In light of P.C.'s minimum of 26 absences on consecutive days plus additional absences earlier in the academic year, the Complaint set forth a claim of failure to report pursuant to the Social Services Law 413 criteria.
V. "KNOWING" AND WILLFUL" FAILURE TO REPORT
The parties do not dispute that the Defendant did not file a report about P.C. pursuant to the Social Services Law. Therefore the Court does not address the details of how such a report must be made, as set forth in Social Services Law 415. Defendant asks the Court to conclude that, even if it was required to file such a report, its omission was not knowing and willful. Defendant asks the Court to make that determination at this initial stage of the case, where no record exists as to what data was in Defendant's possession regarding P.C.'s absences, what communications occurred between Defendant and the convicted caregiver Bravo or P.C.'s father, and whether Defendant did consider reporting maltreatment at any time. Defendant's motion contains no affidavits in this regard or other information upon which the Court could possibly make such a determination.
The facts pled in the Complaint are the only facts before the Court and the Court must take those allegations as true on a CPLR 3211(a)(7) motion. Whether those facts will be supported by discovery, and established at any trial of this matter, are separate issues that the Court need not reach on this pre-Answer motion that is addressed only to the pleadings.
The Complaint alleges that Defendant failed to report suspicion of maltreatment despite it allegedly possessing attendance records for P.C. The Complaint also alleges by attachment of Exhibit C, inter alia, that Defendant had a process in place for taking attendance "at least once per day", reviews "attendance trends and patterns on a monthly basis", coordinates the provision of "targeted interventions", and makes the Building Principal or designee "responsible for reviewing student attendance records and initiating appropriate action".
Since this is the pleading stage only, and no discovery has occurred, the allegations are sufficient to survive a motion to dismiss. The facts pled, if taken as true, state a claim that Defendant "knowingly" and "willfully" failed to report suspected maltreatment of P.C. because the Complaint alleges that Defendant had information in hand to report, had a process in place for review of that information, employed persons required to take such action, and did not report the absences as suspicion of maltreatment.
VI. OTHER CAUSES OF P.C.'S INJURIES AND DEATH
Defendant asserts that other causes of P.C.'s injuries and death, as a matter of law, preempt any claim against Defendant. This argument presents an affirmative defense to the allegations in the Complaint. If the allegations pled are taken as true, the Complaint pleads a cause of action because the potential for a legally intervening or superseding cause can co-exist at the pleadings stage with other potential causes.
No record has been developed of facts as they concern Defendant that led to the injuries and death of P.C. because discovery has not begun. For that reason, the Court has no basis, apart from the Complaint, to determine if other alleged causes render Defendant not liable as a matter of law for the injuries and death of P.C. The Complaint pleads that, had Defendant taken action to report the "maltreatment" of P.C., the actions of non-party Bravo would have been discovered before the death of P.C.
Upon the foregoing, it is hereby
ORDERED that defendant's motion to dismiss plaintiff's complaint is DENIED.
The foregoing constitutes the Decision and Order of this Court.