Summary
stating that the defendant could not have intervened to assist the plaintiff "due to the suddenness of the attack"
Summary of this case from Musano v. City of N.Y.Opinion
69 ssm 2.
Decided February 17, 2004.
Appeal, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered September 4, 2003. The Appellate Division affirmed an order of the Supreme Court, New York County (Howard Silver, J.), which had denied defendants' motion for summary judgment dismissing the complaint. The following question was certified by the Appellate Division: "Was the order of this Court, which affirmed the order of the Supreme Court, properly made?"
Waldon v. Little Flower Children's Serv., 308 A.D.2d 320, reversed.
Submitted by Jonathan Uejio, for appellants.
Submitted by Frank Gulino, for respondent.
Chief Judge Kaye and Judges Smith, Ciparick, Rosenblatt, Graffeo, Read and Smith concur.
MEMORANDUM.
The order of the Appellate Division should be reversed, without costs, defendants-appellants' motion for summary judgment dismissing the complaint granted, and the certified question answered in the negative.
Plaintiff foster parent was stabbed by her foster child's biological mother as she was leaving the premises of defendant Little Flower Children's Service, a private social services agency, after the agency supervised a visit between the child and her biological mother. Supreme Court denied the motion of the agency and the Roman Catholic Diocese of Brooklyn for summary judgment dismissing the complaint and the Appellate Division affirmed, with one Justice dissenting, concluding that triable issues of fact necessitated a trial. We disagree.
Assuming the agency owed the foster parent a duty of care, no evidence was proffered raising a question of fact on the issues of breach or causation. Although the biological mother had a history of mental illness, she had no history of violence, nor had she threatened agency staff or the foster parent in the past. The agency therefore had no reason to anticipate a violent outburst or to take steps to prevent contact between the biological mother and the foster parent. In addition, due to the suddenness of the attack and its location, the agency's security staff had no opportunity to intervene to assist the foster parent. Under the circumstances of this case, defendants-appellants were entitled to summary judgment dismissing the complaint against them.
On review of submissions pursuant to section 500.4 of the Rules, order reversed, without costs, defendants-appellants' motion for summary judgment dismissing the complaint granted and certified question answered in the negative, in a memorandum.