After carefully considering the papers submitted and the applicable law the
motion is disposed of as follows:
Daquan Brown, the infant Claimant herein, alleges in Claim Number 109348 that
he was sexually assaulted on or about February 15, 2004 by another minor while
both were in the custody - pursuant to a Family Court Order - of Abbott House,
a not-for-profit corporation apparently subject to licensing and inspection by
the New York State Office of Children and Family Services (hereafter OCFS), a
State agency. The Claim was served on the Attorney General on May 11, 2004, and
filed with the Court of Claims on May 13, 2004.
Defendant argues in this timely, pre-Answer motion, that the Claim should be
dismissed because the State of New York does not own, operate, maintain or
control the daily operations of Abbot House, thus the Court does not have
subject matter jurisdiction over the Claim, and the Claim does not state a cause
of action. Civil Practice Law and Rules §§3211(a)(2) and (7). As
noted in the Affirmation submitted by Diane M. Deacon, Assistant Deputy Counsel
with the OCFS, Abbott House is a "private authorized agency within the meaning
of Social Services Law §371(10)(a) . . . subject to licensure and
inspection by OCFS (see Social Services Law §§375, 377)."
[Affirmation by Diane M. Deacon, ¶¶3 and 4]. She affirms that Abbott
House is not owned by the State of New York, its employees are not State
employees and the infant Claimant herein was never in the custody of the State
of New York. [Ibid, ¶¶ 5-7].
Claimant argues that the State of New York - through its agent OCFS - is ". .
. responsible for the visitation, inspection and supervision of Abbott House . .
. [and] [h]ad the OCFS properly supervised and inspected Abbott House as
required by the Social Services Law this assault upon the infant plaintiff would
not have occurred." [Affirmation in Opposition by Steven Bournazos, Attorney for
Claimant, ¶¶6 and 12]. Counsel avers that the State is a proper party,
in that "it is their negligence, supervising, visiting, and inspecting Abbott
House which led to the assault on the infant plaintiff." [Ibid,
In her Reply Affirmation, the Assistant Attorney General correctly indicates
that it is undisputed that the Defendant does not own, operate, maintain or
control Abbott House. She argues that any State involvement is in a regulatory
and discretionary capacity for which there is no State liability. See
Anton v State of New York, 304 AD2d 510 (2d Dept 2003);
Brown v Speed, 302 AD2d 915 (4th Dept 2003); VanBuskirk v State
of New York, 38 AD2d 349 (3d Dept 1972); Classen v State of New
York, 131 Misc 2d 346 (Ct Cl 1985); Watson v State of New York, Claim
No. 104649, UID#2001-010-076, M-64038 (Ruderman, J., October 23, 2001).
Certainly, as an authorized agency, Abbott House would be subject to licensing
and inspection requirements provided for by statute and by regulation.
Social Services Law
, 375 and 377; 18 NYCRR
§443.1 et seq
. When the State's liability is at issue, ". . .
‘[i]t is the specific act or omission out of which the injury is claimed
to have arisen and the capacity in which that act or failure to act occurred
which governs liability, not whether the agency involved is engaged generally in
proprietary activity or is in control of the location in which the injury
occurred' . . . (citation omitted).
" Miller v State of New York
62 NY2d 506, 513 (1984)
. Thus, for example,
where the State is a landowner, it must maintain the property in reasonably safe
condition - including maintaining "minimal security measures . . . in the face
of foreseeable criminal intrusion upon tenants . . . (citations
., Fulford v State of New York
No. 99881, Motion No. M-63356, UID#2001-018-103 (Fitzpatrick, J., September 18,
The discretionary, quasi-judicial act of licensing facilities is the kind of
governmental action for which the State has not waived sovereign immunity,
absent some "special relationship," between a claimant and the State
"A governmental entity may be held liable for the negligent performance of a
governmental function, such as the failure to provide police protection, where a
‘special relationship' was created between it and the injured party . . .
(citations omitted). Among the elements of a ‘special
relationship' are the assumption by the governmental entity, by promise or
action, of an affirmative duty to act on behalf of the injured party and the
injured party's justifiable reliance on that undertaking." Melanson v
State of New York, 215 AD2d 43, 45 (3d Dept 1995), lv denied, 87
NY2d 810 (1996); see also Collins v State of New York, 224
AD2d 273 (1st Dept 1996). Thus, children injured by exposure to lead paint in
homes subject to inspection by a local municipality were not owed a special duty
by the municipality for negligent inspection or health counseling services.
Pelaez v Seide, 2 NY3d 186 (2004). Similarly, parents of deceased
children who died as a result of a fire in their foster care home were not owed
a special duty by the State - pursuant to its general authority to oversee,
inspect and review the actions of local social services departments - where the
primary responsibility for the care and placement of children in the foster care
program lies in the local agencies. Walker v State of New York, 104 Misc
2d 221, 223-224 (Ct Cl 1980).
In this case, the Claim itself alleges actions only referable to the day-to-day
operations of Abbott House. Indeed, the Claim alleges the infant Claimant's
placement in Abbott House by Family Court Order, his sexual assault by a fellow
resident on the day of his placement, notice only to Abbott House employees of
the assailant's propensities to sexual violence, as well as direct and/or
attributed Abbott House staff awareness of ongoing assaultive behavior between
residents. The OCFS is not mentioned in the Claim, except by the oblique
reference to Social Services Law. Examining the Claim, the only "actions" by
the State mentioned are licensing and regulation of Abbott House. See
Miller v State of New York, supra; Brown v Speed,
supra Watson v State of New York, supra; Fulford v State
of New York, supra. These are governmental functions protected by
sovereign immunity. The existence of a special relationship is not raised or
established. Accordingly, no cause of action is stated against the State of New
Defendant's motion number M-68835 is hereby granted, and Claim Number 109348 is
in all respects dismissed.