Claimant Charmaine Watson brings this claim individually and on behalf of her
infant son Omar. On August 22, 2000, Omar was attending New Little Branches Day
Care Center when another attendee, known as Shamari, allegedly threw a rock at
Omar, causing him permanent injury to his left index finger.
Claimants contend that defendant is liable for Omar's injuries, resulting
medical and other costs, and for the mother's loss of her son's services.
Specifically, claimants allege at paragraph 16 of their claim:
[u]pon information and belief, THE STATE OF NEW YORK, by its agents, servants,
independent contractors, licensees and/or employees was negligent in the
management, maintenance, control and operation of its governmental agencies;
negligent in the management, maintenance, control and operation of the New
Little Branches Day Care Center; negligent in the recruitment and proper
training of its agents, servants, independent contractors, licensees and/or
employees; failed to properly train, supervise and monitor the agents, servants
and/or employees of the New Little Branches Day Care Center in the proper care
and supervision of infants and children; failed to properly monitor and
supervise the New Little Branches Day Care Center; failed to screen potential
attendees in an effort to eliminate chronic behavioral problems; failed to place
SHAMARI and other students and/or day care attendees with behavioral problems in
a special program separate and apart from the regular program; failed to
consider prior incidents of behavioral problems as exhibited by SHAMARI in its
management, maintenance, control and operation of the New Little Branches Day
Care Center; failed to protect infant claimant OMAR WATSON, from injury; failed
to properly warn claimant CHARMAINE WATSON, about the potential dangerous
environment into which her child was placed; failed to prevent injury to infant
claimant OMAR WATSON, and in other ways acted in a negligent, careless and
(Defendant's Motion Papers, Ex. A).
It is undisputed that the Center was licensed by defendant and, pursuant to
Social Services Law § 390, the Center is subject to licensing and
inspection requirements. Defendant submitted the affidavit of Craig R. Sunkes,
a senior attorney with the Office of Counsel of the New York State Office of
Children and Family Services, which further explained that the licensure and
registration of day care programs entail the following:
a) Overseeing that the training requirements set forth in Social Services Law
§ 390-a are completed.
b) Overseeing that the provider is in compliance with Social Services Law §
390-b, the criminal history provisions.
c) Overseeing that the provider is in compliance with Social Services Law §
d) Overseeing that the childcare program has no complaints leveled against it.
If the program has any such complaints, then an inspection must be conducted and
the program must be in compliance with the appropriate statute or regulations
before licensure or registration is permitted.
(Defendant's Motion Papers, Ex. A, ¶ 6 of Sunkes' Affidavit).
Claimants' allegations, however, do not allege non-compliance with the above.
Rather, the allegations address the Center's day to day operations. These
allegations are not properly raised against defendant because defendant neither
owned, operated nor maintained the Center and defendant was not involved in the
Center's day to day operations. Rather, defendant's role in licensing the
Center was a discretionary governmental act, which by its nature is clothed with
sovereign immunity and, therefore, is not a basis for liability (see,
Southworth v State of New York, 47 NY2d 874 [absent an assumed special
duty, the State is not liable for its acts in licensing, and even if negligent
the State's action is generally held not to be the proximate cause of the injury
inflicted by the licensee]; Van Buskirk v State of New York, 38 AD2d 349
[no claim lies against State where, in a quasi-judicial act, the State issued a
permit to private association for the construction of a dam and permitee failed
to comply with conditions of the permit and dam did not properly function,
causing damage to claimants' property]).
The Court does not find claimants' opposition papers persuasive; nor have
claimants adequately demonstrated a basis for further discovery.
Motion GRANTED dismissing Claim No. 104649 (CPLR 3212).