Opinion
December 4, 1989
Appeal from the Supreme Court, Westchester County (Ruskin, J.).
Ordered that the orders are affirmed, with one bill of costs.
The underlying action in this case centers around the conviction of individuals who operated a facility where sexual abuse of children occurred. However, the County of Westchester was not represented at the criminal trial of the individuals and it had no opportunity to examine the witnesses. As a result, the Supreme Court properly determined that the District Attorney's office and the County of Westchester are separate entities which do not stand in sufficient relationship to one another to warrant invocation of the doctrine of collateral estoppel (cf., Kaufman v Lilly Co., 65 N.Y.2d 449, 455; Gilberg v Barbieri, 53 N.Y.2d 285, 291; see also, Brown v City of New York, 60 N.Y.2d 897, 898-899; People v Morgan, 111 A.D.2d 771, 772). As a result, the Supreme Court properly denied the plaintiffs' motion for partial summary judgment.
The complaint against the City of Mount Vernon was properly dismissed since the statutes and regulations relied upon to create a duty to protect the infant plaintiffs do not impose any duty upon the city to license, investigate, inspect or supervise the operations of day-care centers or family homes (see, Social Services Law § 390; 18 NYCRR 418.2, 417.6). Moreover, the plaintiffs made no allegation that the city or any one of its departments qualified as an "authorized child caring agency" within the meaning of the regulations (see, 18 NYCRR 417.6), and the record is devoid of any factual allegation which would support a finding that the city voluntarily assumed any duty upon which the plaintiffs relied (see, Cuffy v City of New York, 69 N.Y.2d 255, 260-261; Garrett v Holiday Inns, 58 N.Y.2d 253, 261-262; cf., Florence v Goldberg, 44 N.Y.2d 189; Smullen v City of New York, 28 N.Y.2d 66). Finally, the court also properly dismissed those claims which were based upon a failure to inspect the facility for fire and safety violations, or for the city's failure to provide police protection (see, Cuffy v City of New York, supra; O'Connor v City of New York, 58 N.Y.2d 184, 189; Garrett v Holiday Inns, supra, at 262; Sanchez v Village of Liberty, 42 N.Y.2d 876, 877-878). Mollen, P.J., Rubin, Sullivan and Rosenblatt, JJ., concur.