135 A.D.3d 731
N.Y. App. Div.2016Background
- In Feb 2001 Westchester DSS emergency-removed plaintiffs' three children and commenced abuse/neglect petitions; Family Court held a §1028 hearing and remanded children to DSS custody.
- DSS withdrew the petitions on Feb 28, 2001; children were returned and the DSS case was closed as unfounded.
- Plaintiffs sued under 42 U.S.C. § 1983 alleging constitutional violations from removals and a 4–5 day delay before postdeprivation proceedings, claiming DSS policy/custom of inadequate training and deliberate indifference.
- Defendants sought leave to amend their answer to assert qualified immunity; plaintiffs moved for summary judgment on liability.
- Supreme Court granted defendants leave to amend to assert qualified immunity and denied plaintiffs’ summary judgment motion, finding triable issues of fact; plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants could amend answer to assert qualified immunity | Leave should be denied (implied: prejudicial/surprise) | Amendment permitted; qualified immunity available and raised after discovery | Court allowed amendment — no prejudice; CPLR 3025(b) permits leave |
| Whether emergency removals violated constitutional rights (Fourth/Fourteenth) | Removals without court order or consent and delay in postdeprivation hearing violated rights | Removals were justified by emergency circumstances; prompt postdeprivation process occurred | Plaintiffs did not meet prima facie burden; triable issues exist on emergency and prompt-hearing issues; summary judgment denied |
| Whether brief removals constituted substantive due process violations | Short removals still violated substantive due process | Brief removals for child safety during investigation generally do not rise to substantive due process violation | Court: brief removals do not automatically amount to substantive due process violation; plaintiffs failed to show otherwise as matter of law |
| Whether alleged failure-to-train/policy amounted to municipal liability | DSS policy/custom of not training caused violations and showed deliberate indifference | Plaintiffs failed to show a policy or deliberate indifference linking training to violations | Plaintiffs failed to demonstrate a triable deliberate-indifference policy claim |
Key Cases Cited
- Doe v. Whelan, 732 F.3d 151 (2d Cir.) (qualified immunity standard for discretionary functions)
- Southerland v. City of New York, 680 F.3d 127 (2d Cir.) (constitutional limits on emergency child removals and postremoval process)
- Tenenbaum v. Williams, 193 F.3d 581 (2d Cir.) (right against warrantless child removal and related remedies)
- Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) (parents’ liberty interest in custody of their children)
- Nicholson v. Scoppetta, 344 F.3d 154 (2d Cir.) (brief protective removals and substantive due process)
- Kia P. v. McIntyre, 235 F.3d 749 (2d Cir.) (postdeprivation hearing promptness and due process)
- Gomes v. Wood, 451 F.3d 1122 (10th Cir.) (postdeprivation hearing requirement affecting due process claim viability)
- Cecere v. City of New York, 967 F.2d 826 (2d Cir.) (postdeprivation process timing)
- Walker v. City of New York, 974 F.2d 293 (2d Cir.) (failure-to-train deliberate indifference standard)
- Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (N.Y.) (summary judgment burden on movant)