Opinion
No. 2024-01473 Index No. 54145/21
11-20-2024
D. D., respondent, v. Westchester County, appellant, et al., defendants.
Darger Errante Yavitz & Blau LLP, New York, NY (Kelly A. Hodges of counsel), for appellant. Herman Law, New York, NY (Mark C. Zauderer, Ira B. Matetsky, Jason T. Cohen, Jeffrey Herman, Stuart Mermelstein, and Jesse Seiden of counsel), for respondent.
Darger Errante Yavitz & Blau LLP, New York, NY (Kelly A. Hodges of counsel), for appellant.
Herman Law, New York, NY (Mark C. Zauderer, Ira B. Matetsky, Jason T. Cohen, Jeffrey Herman, Stuart Mermelstein, and Jesse Seiden of counsel), for respondent.
BETSY BARROS, J.P. JOSEPH J. MALTESE PAUL WOOTEN DEBORAH A. DOWLING, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendant County of Westchester appeals from an order of the Supreme Court, Westchester County (Leonard D. Steinman, J.), dated January 12, 2024. The order, insofar as appealed from, denied that branch of that defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In this action commenced pursuant to the Child Victims Act (see CPLR 214-g), the plaintiff alleges that the defendant Westchester County negligently failed to prevent sexual abuse perpetrated upon her in 1970 by her foster father. The County moved, among other things, for summary judgment dismissing the complaint insofar as asserted against it on the grounds, inter alia, that it did not owe a special duty to the plaintiff and that it did not have actual or constructive notice of the foster father's alleged propensity to engage in sexual abuse or of the abuse he allegedly perpetrated. In an order dated January 12, 2024, the Supreme Court, among other things, denied that branch of the motion. The County appeals.
"'Counties and foster care agencies cannot be vicariously liable for the negligent acts of foster parents," but "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, 877, quoting Keizer v SCO Family of Servs., 120 A.D.3d 475, 476). "'When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose'" (Marino v City of New York, 223 A.D.3d 888, 889, quoting Applewhite v Accuhealth, Inc., 21 N.Y.3d 420, 425). Here, the County was acting in a governmental capacity when it took legal custody of the plaintiff and placed her with her foster family (see P.D. v County of Suffolk, ___ A.D.3d ___, ___, 2024 NY Slip Op 03405, *3 [2d Dept]; Kochanski v City of New York, 76 A.D.3d 1050, 1052).
Where a municipality was acting in a governmental capacity, "the plaintiff must prove the existence of a special duty as an element of his or her negligence cause of action" (Canberg v County of Nassau, 214 A.D.3d 943, 945). 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, 310, quoting Applewhite v Accuhealth, Inc., 21 N.Y.3d at 426; see Boland v City of New York, 209 A.D.3d 960, 960-961).
Here, the County failed to demonstrate its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it on the ground that it did not owe a special duty to the plaintiff. By taking legal custody of the plaintiff, the County assumed a special duty to the plaintiff that differed from what was owed to the public generally (see Barnes v County of Nassau, 108 A.D.2d 50, 55; Bartels v County of Westchester, 76 A.D.2d 517, 523). Accordingly, the plaintiff was not required to plead or prove additional facts supporting a special relationship in order to satisfy the special duty rule (see Adams v Suffolk County, ___ A.D.3d ___, 2024 NY Slip Op 05428 [2d Dept]).
"'In order to find that a child care agency breached its duty to adequately supervise the children entrusted to its care, a plaintiff must establish that the agency 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, 219 A.D.3d 1314, 1315, quoting Lopez v City of New York, 172 A.D.3d 703, 705). Here, the County failed to establish, prima facie, that it lacked sufficiently specific knowledge or notice of the foster father's alleged abusive propensities and conduct (see Kwitko v Camp Shane, Inc., 224 A.D.3d 895, 896). Accordingly, the Supreme Court properly denied that branch of the County's motion which was for summary judgment dismissing the complaint insofar as asserted against it, regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).
BARROS, J.P., MALTESE, WOOTEN and DOWLING, JJ., concur.