726 NYS2d 217 | N.Y. Sup. Ct. | 2001
OPINION OF THE COURT
These motions for summary judgment
Plaintiffs Carolina Lara and Marino Lara, her biological father, sue the City, and its contractor Graham-Windham, alleging negligent provision of foster care because Carolina was sexually abused in the home of her foster mother.
Facts
In November 1997, Carolina Lara, eight years old,
Plaintiffs allege, inter alia, that the nonparty foster mother’s two teenage sons raped and anally sodomized Carolina several times in November and December 1997 in the bedroom that she shared with the boys.
Carolina has not given any evidence of the alleged occurrences; she did not appear for a comptroller’s hearing (General Municipal Law § 50-h) or for an examination before trial,
Contentions
The complaint alleges three causes of action. The first cause of action alleges negligence in the administration of foster care, in that Carolina’s injuries “were caused solely by reason of the carelessness, negligence and wanton disregard on the part of the defendants.”
In its answer, the City asserts, as its third affirmative defense, that Marino
I
Social Services Law § 419 provides:
“Immunity from Liability.
“Any person, official, or institution participating in good faith in the providing of a service pursuant to section four hundred twenty-four of this title, the making of a report, the taking of photographs, the removal or keeping of a child pursuant to this title, or the disclosure of child protective services information in compliance with sections twenty, four hundred twenty-two and four hundred twenty-two-a of this chapter shall have immunity from any liability, civil or criminal, that might otherwise result by reason of such actions. For the purpose of any proceeding, civil or criminal, the good faith of any such person, official, or institution required to report cases of child abuse or maltreatment or providing a service pursuant to section four hundred twenty-four or the disclosure of child protective services information in compliance with sections twenty, four hundred twenty-two and four hundred twenty-two-a of this chapter shall be presumed, provided such person, official or institution was acting in discharge of their duties and within the scope of their employment, and that such liability did not result from the willful misconduct or gross negligence of such person, official or institution.” (Emphasis supplied.)
At issue is the scope of immunity provided by Social Services Law § 419 and whether plaintiffs’ claims are thereby statutorily
Both sentences of Social Services Law § 419 must be read in pari materia with Social Services Law § 420 and in context as component parts of Social Services Law, article 6, title 6 (Child Protective Services). Title 6 is a comprehensive framework providing for the reporting and investigation of child abuse and placement, care and treatment of children. Section 419 is a general immunity provision. Section 420 is the only section specifying conduct to which immunity does not attach. Social Services Law § 420 imposes civil and criminal liability for knowing and willful failures to report child abuse or maltreatment.
II
It is clear that the City and Graham-Windham are covered by Social Services Law § 419.
The City and Graham-Windham participated in the “removal or keeping” of children under Social Services Law, article 6, title 6. ACS is a child protective service within the meaning of Social Services Law §§ 423 and 424. The City is responsible for ACS, a City department which cannot itself sue or be sued.
ra
Understanding legislative intent can help determine the meaning of ambiguous statutory language. (See Di Marco v Hudson Val. Blood Servs., 147 AD2d 156, citing McKinney’s Cons Laws of NY, Book 1, Statutes § 92 [b].) Where a statute’s meaning is apparent from a contextual reading, legislative history can be important to an understanding of the statute’s structure and purpose. The legislative intent here is clear and consonant with the expressed statutory language. (See Social Services Law § 411 [findings and purpose]; L 1973, ch 1039, §D
The two sentences of Social Services Law § 419 lack strict parallelism, resulting from piecemeal amendment over the years. (L 1983, ch 176, § 1; L 1984, ch 120, § 1; L 1996, ch 12, § 7.) As currently drafted, each sentence recites an overlapping, but not identical, set of activities. Because both sentences include most of the acts or functions recited by the other, it is clear that the two sentences were not intended to enact two different, mutually exclusive standards.
As originally enacted in 1973, Social Services Law § 419 provided immunity from civil or criminal liability to any person, official or institution involved in the specific activities of making a child abuse report, the taking of photographs or the removal or keeping of a child pursuant to law. (L 1973, ch 1039, § 1.) A 1983 amendment extended such immunity to any person, official or institution involved in any activity fulfilling its child protective services duties as set forth in Social Services Law § 424.
The underlying purpose for immunizing persons and entities providing child protective services is to permit them wide discretion in performing their jobs so as to encourage the protection of children. Only by removing the threat of civil suit or criminal prosecution can child protection workers and their employers be assured that their good faith actions will not be later second-guessed by third parties. (See Satler v Larsen, 131 AD2d 125.)
Plaintiffs argue, without citation to any authority, that Social Services Law § 419 statutory immunity is limited to the reporting and actual removal of a child from her parent’s
Nevertheless, plaintiffs insist that statutory immunity does not extend to common-law negligence arising from a child’s placement in a foster home. Significantly, no such limitation is contained in the law. Should the Legislature determine that a more restrictive view of immunity would be desirable public policy, it may amend the law appropriately. This Court may not second-guess the plain text of the statute and the clear intent of the Legislature.
IV
The City’s motion for summary judgment must be granted. The City has shown entitlement to judgment as a matter of law. Plaintiffs have not demonstrated that they have any cognizable claim against the City of New York under common law or statute. Moreover, the City is entitled to statutory and common-law immunity.
The complaint alleges acts or omissions by the City that involve the exercise of discretion. For example, the City’s selection of Graham-Windham as a contractual child care provider, its investigation of the five Lara children, its choice of GrahamWindham as the agency for arranging Carolina’s foster care, and its relationship , with and oversight of Graham-Windham during the foster care period, all required the exercise of judgment; some acts clearly implicated issues of public policy and the allocation of personnel and other public resources. Not only is the manifest legislative intent of Social Services Law § 419 to immunize such official conduct, common-law immunity traditionally attaches to discretionary acts taken in the discharge of government function. “[W]hen official action involves the exercise of discretion, the officer is not liable for the injurious consequences of that action even if resulting from negligence or malice.” (Tango v Tulevech, 61 NY2d 34, 40.) The City is therefore absolutely immune respecting such discretionary activity.
It is undisputed that the City has statutory duties relating to the investigation, placement and foster care of children taken into custody. (See Social Services Law, art 6, tit 6, passim.) There is no evidence in the Social Services Law or
It is clear that Graham-Windham was an independent contractor, not an agent of the City. Neither under the Social Services Law nor general principles of vicarious liability would the City be responsible for the acts or omissions of GrahamWindham. (See Chainani v Board of Educ., 87 NY2d 370.) Although plaintiffs’ counsel repeatedly calls the City’s duties “non-delegable,” plaintiffs have not demonstrated a basis for vicarious liability. In particular, plaintiffs have not shown that any of the alleged acts or omissions violated any specific duty enjoined on the City by law (see Chainani, supra). To hold otherwise would make the City an insurer, absolutely liable for the acts or omissions by the foster care agency or the foster family, over which the City had no control.
The City is also entitled to Social Services Law § 419 immunity. There is no evidence that the City engaged in willful misconduct or gross negligence, or of a knowing and willful failure to report child abuse. In order to overcome Social Services Law § 419 qualified immunity, plaintiff must overcome the statutory presumption of good faith and must demonstrate “persuasive [evidence] of bad faith.” (Van Emrik v Chemung County Dept. of Social Servs., supra, 220 AD2d at 953; Satler v Larsen, supra, 131 AD2d at 126.) There is no evidence here of any lack of good faith, let alone the quantum of evidence of bad faith required to overcome the statutory good faith presumption at the heart of qualified immunity. Negligence,
It is undisputed that Carolina has never testified at such an examination although the City duly requested one. At Marino Lara’s examination, plaintiffs’ counsel indicated that Carolina would not be produced due to concerns about how an examination would affect her mental health. It appears that the City’s counsel adjourned Carolina’s examination, specifically not waiving it, but that plaintiffs continued to refuse to cooperate with their statutory obligation and instead commenced this action. There is no evidence that the City waived its right to the examination either before or after commencement of the action. (See Secor v Town of Orangetown, 250 AD2d 588.)
Carolina Lara is a named plaintiff. She is clearly the only person able to explain the occurrences with specificity. Given the sparse, vague and conflicting evidence about the incidents thus far disclosed, it is utterly impossible to know what actually happened; the lack of Carolina’s examination made it difficult to conduct an investigation and frame a defense. Carolina’s age does not exempt her from the requirement to submit to a comptroller’s examination. (See Matter of Simmons v Board of Educ., 169 AD2d 727 [City’s motion to dismiss complaint properly granted when infant plaintiff failed to appear for comptroller’s examination].) Neither does the unilateral and subjective assessment of plaintiffs and their attorneys that simple, factual testimony at a comptroller’s examination would adversely affect her emotional health. A plaintiff may not affirmatively assert a claim for emotional injuries and then use that assertion as exemption from a mandatory statutory condition precedent.
Graham-Windham has not demonstrated entitlement to statutory immunity under Social Services Law § 419. Based on the evidence presented, it cannot be said as a matter of law that certain of Graham-Windham’s actions did not amount to gross negligence or lack of good faith. Particularly significant is what Graham-Windham knew or should have known about Carolina’s sleeping arrangements and living conditions in the foster family’s apartment prior to the incidents,
For the foregoing reasons, and because discovery remains outstanding from Graham-Windham, summary judgment is hereby denied.
Accordingly, it is ordered that the third cause of action of the complaint is dismissed against both defendants without opposition, and it is ordered that the City of New York’s motion for summary judgment dismissing the complaint and cross claims against it is hereby granted.
. The City of New York originally moved for dismissal of the complaint and all cross claims pursuant to CPLR 3211 (a) (7). Graham-Windham cross-moved for the same relief. The Court converted these motions to motions for summary judgment pursuant to CPLR 3211 (c) and gave all parties time to submit additional papers.
. Although Carolina Lara’s date of birth is given as February 25, 1987 in plaintiffs’ verified bill of particulars to the City (fl 12) and plaintiffs’ verified bill of particulars to Graham-Windham (jf 11), that date is apparently incorrect. Based on the Court’s review of the Family Court records and medical records submitted in connection with this motion, Carolina Lara’s date of birth appears to be February 25, 1989.
. The complaint alleges November 1997 through January 1998; the bill of particulars alleges November and December 1997.
. By order dated January 4, 2000, the previously assigned justice ordered that Carolina be produced for deposition 60 days before trial. By stipulation dated October 3, 2000, the parties agreed that the issue of the child’s deposition would be addressed at a further compliance conference after determination of the projected motions for summary judgment.
. Plaintiffs do not challenge the removal of the child from the biological mother’s home, the initiation of the Family Court proceeding for her temporary removal, or her placement in foster care.
. Marino Lara thereafter eventually appeared at both a late comptroller’s examination and an examination before trial.
. Because there is no allegation or proof of knowing and willful failure to report on the part of either the City or Graham-Windham, Social Services Law § 420 statutory liability is not at issue here.
. Statutory immunity does not prevent administrative and professional discipline.
. The last clause of the first sentence, “that might otherwise result by reason of such actions,” redundantly restates the obvious: a plaintiff must demonstrate what would constitute a valid claim irrespective of statutory immunity. (See Satler v Larsen, 131 AD2d 125.)
. Each child protective service shall “13. coordinate, provide or arrange for and monitor, as authorized by the social services law, the family court act and by this title, rehabilitative services for children and their families on a voluntary basis or under a final or intermediate order of the family court.”
. Moreover, plaintiffs have neither pleaded the City’s breach of a special duty, nor demonstrated the requisite elements. (Lauer v City of New York, 95 NY2d 95; see also Kiernan v City of New York, NYLJ, Jan. 19, 2001, at 27, col 2.)
. While General Municipal Law § 50-h refers to the “claimant,” it clearly means the allegedly injured person, not just that person’s legal representative or guardian.
. The prior justice’s preliminary conference order that stayed Carolina’s deposition until 60 days before trial did not exempt plaintiff from the requirements of General Municipal Law §§ 50-e and 50-h.
. By decision dated October 4, 2000, after an in camera investigation of voluminous documents submitted by defendants, this Court directed that the documents be turned over to plaintiffs with some minor redactions. Although counsel have not included most of those documents on this motion, a close examination of those documents would likely further illuminate these issues. The Court has not considered those unsubmitted documents on this motion.