2023 NY Slip Op 04580
N.Y. App. Div. 2nd
2023

Stephanie Grabowski, Appellant, v Orange County, Respondent, et al., Defendants.

Appellate Division, Second Department

September 13, 2023

2023 NY Slip Op 04580 [219 AD3d 1314]

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 8, 2023.

Slater Slater Schulman, LLP (Hasipidis Law Offices, South Salem, NY [Annette G. Hasipidis], of counsel), for appellant.

Langdon C. Chapman, Orange County Attorney, Goshen, NY (Lara V. Morrison of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Steven M. Jaeger, J.), dated December 28, 2020. The order granted the motion of the defendant Orange County pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against it.

Ordered that the order is reversed, on the law, with costs, and the motion of the defendant Orange County pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against it is denied.

The plaintiff commenced this action alleging that between the ages of four and six, while she was a foster child in the custody and care of the defendant Orange County, she was placed in a foster home where she was repeatedly sexually abused by her foster father, among others. The County moved pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against it. The Supreme Court granted the motion. The plaintiff appeals.

On a CPLR 3211 (a) (7) motion to dismiss, the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see Nonnon v City of New York, 9 NY3d 825, 827 [2007]). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; see Cortlandt St. Recovery Corp. v Bonderman, 31 NY3d 30, 38 [2018]).

Here, accepting the facts as alleged in the complaint as true and according the plaintiff the benefit of every possible favorable inference, we find that the complaint sufficiently states a cause of action for negligence against the County. “[C]ounties 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” (Keizer v SCO Family of Servs., 120 AD3d 475, 476 [2014]; see George v Windham, 169 AD3d 876, 877 [2019]; Liang v Rosedale Group Home, 19 AD3d 654, 655 [2005]; Barnes v County of Nassau, 108 AD2d 50, 54-55 [1985]). “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” (Lopez v City of New York, 172 AD3d 703, 705 [2019] [internal quotation marks omitted]; see George v Windham, 169 AD3d at 877; Liang v Rosedale Group Home, 19 AD3d at 655).

Here, the complaint, which asserted that the abuse was foreseeable, inter alia, because the County knew or in the exercise of reasonable care should have known of the foster father‘s propensity to engage in the sexual abuse of children, sufficiently alleged that the County had notice of the dangerous conduct at issue such that the abuse could reasonably have been anticipated (see George v Windham, 169 AD3d at 877; Bartels v County of Westchester, 76 AD2d 517, 523 [1980]). Moreover, the complaint sufficiently alleged that the County was negligent in failing to ensure that proper safeguards were in place so as to ensure the safety of the plaintiff in the foster home (see Barnes v County of Nassau, 108 AD2d at 54).

Contrary to the Supreme Court‘s determination, the County was not entitled to qualified immunity pursuant to Social Services Law § 419, as qualified immunity does not bar recovery for the negligent supervision of children in foster care (see Sean M. v City of New York, 20 AD3d 146, 160 [2005]; Liang v Rosedale Group Home, 19 AD3d at 655; Barnes v County of Nassau, 108 AD2d at 55).

The County‘s arguments concerning vicarious liability and the period of time after the plaintiff‘s adoption are misplaced, as the complaint does not seek to recover damages upon a theory that the County is vicariously liable for the foster parents’ acts or for the period of time after the plaintiff‘s adoption.

Accordingly, the Supreme Court should have denied the County‘s motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against it. Connolly, J.P., Brathwaite Nelson, Maltese and Christopher, JJ., concur.