New York State Court of Claims

New York State Court of Claims

WATSON v. THE STATE OF NEW YORK, #2001-010-076, Claim No. 104649, Motion No. M-64038


Synopsis


Defendant's motion to dismiss is granted.

Case Information

UID:
2001-010-076
Claimant(s):
OMAR WATSON by his Mother and Natural Guardian, CHARMAINE WATSON, CHARMAINE WATSON, Individually
Claimant short name:
WATSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104649
Motion number(s):
M-64038
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
LAW OFFICES OF GEORGE DAVID ROSENBAUMBy: Richard Kane, Esq.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Michael Rosas, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 23, 2001
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-3 were read and considered by the Court on defendant's motion to dismiss:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits.......................1

Affirmation in Opposition.........................................................................................2

Reply Affirmation....................................................................................................3

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 reckless manner.


(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 § 424-a.

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).


October 23, 2001
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims