Opinion
2014-08-6
Patricia KEIZER, etc., respondent, v. SCO FAMILY OF SERVICES, etc., appellant, et al., defendant.
Conway, Farrell, Curtin & Kelly, P.C., New York, N.Y. (Jonathan T. Uejio of counsel), for appellant. Thomas D. Wilson, P.C., Brooklyn, N.Y., for respondent.
Conway, Farrell, Curtin & Kelly, P.C., New York, N.Y. (Jonathan T. Uejio of counsel), for appellant. Thomas D. Wilson, P.C., Brooklyn, N.Y., for respondent.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.
In an action to recover damages for personal injuries, the defendant SCO Family of Services appeals from an order of the Supreme Court, Kings County (Martin, J.), dated December 19, 2012, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant SCO Family of Services for summary judgment dismissing the complaint insofar as asserted against it is granted.
The plaintiff, the subject infant's biological mother, commenced this action on behalf of the infant, alleging that, while placed in the foster home of the defendant Freda Humphrey, a foster parent selected and certified by the defendant SCO Family of Services (hereinafter the appellant), Humphrey failed to seek medical attention for the infant's abdominal complaints which resulted in his hospitalization for a ruptured appendix. The Supreme Court denied the appellant's motion for summary judgment dismissing the complaint insofar as asserted against it.
Counties and foster care agencies cannot be vicariously liable for the negligent acts of foster parents, who are essentially contract service providers ( see Blanca C. v. County of Nassau, 103 A.D.2d 524, 530–532, 480 N.Y.S.2d 747, affd. 65 N.Y.2d 712, 492 N.Y.S.2d 5, 481 N.E.2d 545). Accordingly, the appellant was entitled to judgment as a matter of law dismissing so much of the complaint as alleged that it is vicariously liable for Humphrey's actions or inactions ( see Blanca C. v. County of Nassau, 65 N.Y.2d 712, 492 N.Y.S.2d 5, 481 N.E.2d 545; Sinkler v. County of Monroe, 127 A.D.2d 1006, 513 N.Y.S.2d 67).
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 ( see Liang v. Rosedale Group Home, 19 A.D.3d 654, 655, 799 N.Y.S.2d 69; Merice v. County of Westchester, 305 A.D.2d 383, 384, 757 N.Y.S.2d 903; Bartels v. County of Westchester, 76 A.D.2d 517, 521–522, 429 N.Y.S.2d 906). In order to establish its prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleged that it engaged in negligent placement and supervision, the appellant had to establish, prima facie, that it did not have sufficiently specific knowledge or notice of the alleged dangerous conduct which caused the infant's injuries ( see Andrew S. v. Gristina, 97 A.D.3d 651, 652, 950 N.Y.S.2d 137; McCabe v. Dutchess County, 72 A.D.3d 145, 151, 895 N.Y.S.2d 446; M.S. v. County of Orange, 64 A.D.3d 560, 561, 884 N.Y.S.2d 74). In other words, the appellant had to show that the third-party acts could not have been reasonably anticipated ( see Andrew S. v. Gristina, 97 A.D.3d at 652, 950 N.Y.S.2d 137; M.S. v. County of Orange, 64 A.D.3d at 561, 884 N.Y.S.2d 74; Liang v. Rosedale Group Home, 19 A.D.3d at 655, 799 N.Y.S.2d 69).
Here, the appellant sustained its initial burden of demonstrating that it did not have specific knowledge or notice of the infant's illness and it was not foreseeable that Humphrey would fail to seek medical attention for the infant's abdominal complaints ( see McCabe v. Dutchess County, 72 A.D.3d at 151, 895 N.Y.S.2d 446; M.S. v. County of Orange, 64 A.D.3d at 561, 884 N.Y.S.2d 74; Simpson v. County of Dutchess, 35 A.D.3d 712, 826 N.Y.S.2d 678; Liang v. Rosedale Group Home, 19 A.D.3d at 655, 799 N.Y.S.2d 69; Lillian C. v. Administration for Children's Servs., 48 A.D.3d 316, 852 N.Y.S.2d 86; Ung v. City of New York, 279 A.D.2d 425, 720 N.Y.S.2d 113). In opposition, the plaintiff failed to raise a triable issue of fact. The affidavits of the plaintiff and the infant, which contained statements claiming that the infant told his caseworker about his abdominal pain and the caseworker did nothing, contradicted the infant's earlier deposition testimony that he did not know if he told his caseworker about his abdominal pain. Thus, the statements contained in the affidavits appear to have been an attempt to create a feigned issue of fact specifically designed to avoid the consequences of the infant's earlier deposition testimony ( see Nai Ren Jiang v. Shane Yeh, 95 A.D.3d 970, 972, 944 N.Y.S.2d 200; Kokin v. Key Food Supermarket, Inc., 90 A.D.3d 850, 851, 935 N.Y.S.2d 66; Freiser v. Stop & Shop Supermarket Co., LLC, 84 A.D.3d 1307, 1308–1309, 923 N.Y.S.2d 732).
Accordingly, the Supreme Court should have granted the appellant's motion for summary judgment dismissing the complaint insofar as asserted against it.