Pre-answer motion to dismiss by defendant granted. Claim alleges actions by Lincoln Hall employee at some unspecified time and location. Only State action alleged is that of licensing, a governmental function protected by sovereign immunity. No special relationship alleged. No cause of action stated against the State of New York.
|Claimant(s):||In the Matter of the Claim of M.J.A., an infant by his mother, M.B.A. and M.B.A.|
|Claimant short name:||A.|
|Footnote (claimant name) :||The claimants' names have been redacted due to confidentiality concerns.|
|Defendant(s):||THE DIVISION OF YOUTH OF THE STATE OF NEW YORK, THE COMMISSIONER OF SOCIAL SERVICES OF THE STATE OF NEW YORK and THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||JEFFREY D. KARAN, ESQ.|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: JOHN M. HEALEY, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||October 29, 2008|
|See also (multicaptioned case)|
The following papers were read and considered on defendants' pre-answer motion to
dismiss, and on claimants' cross-motion to amend the caption:
1,2 Notice of Motion; Affirmation in Support by John M. Healey, Assistant Attorney General and attached exhibits
3 Notice of Cross-Motion; Attorney Affirmation for the Cross-Motion and Against the Motion by Jeffrey D. Karan, attorney for claimants, and attached exhibits
4 Reply Affirmation by John M. Healey, Assistant Attorney General
5 Filed papers: Claim
Claimant alleges on behalf of her son, M.J.A., an infant, that after placement at Lincoln Hall, a residential facility under the supervision and accreditation of the State of New York and "on or about June and July 2007 and for other unknown periods while . . . [he] was placed at Lincoln home and while on home leave an adult female employee of Lincoln Hall, . . . [C.] did entice and continue a sexual relationship with . . . [M.J.A.]." [Claim No. 115617, ¶12]. The claim further alleges that the State, through its agents the "Division of Youth", and the Commissioner of Social Services, failed in their duty to supervise M.J.A. and insure his safety and rehabilitation, and knew or should have known of the improper activities at Lincoln Hall but failed to intercede and correct them. Such failures, it is alleged, caused the infant to suffer psychological damage, and adversely effected his rehabilitation as he became progressively belligerent, and increasingly unwilling to comply with the demands of the program. M.J.A. was additionally penalized when claimant and the infant registered complaints about the staff misconduct, and retaliatory measures - such as making entries in his record blaming him for his change in attitude, and making changes in his living situation within the facility - were imposed. Ultimately, M.J.A. was removed from Lincoln Hall and transferred to Louis Gossett Jr. Residential Center as a result of the retaliatory actions by Lincoln Hall personnel. This transfer created more hardship for claimant and her son. The location was further from New York City making it more costly and difficult for her to visit, no visits home were allowed, and other restrictions were imposed.
Defendants argue in this timely, pre-answer motion, that the claim should be dismissed because the State of New York does not own, operate, maintain or administer Lincoln Hall, and that none of the employees of Lincoln Hall are State employees. Its only State connection is that it is subject to licensure and inspection by the New York State Office of Children and Family Services [OCFS]. Defendants argue that when it comes to licensing, the State of New York has absolute immunity. Blatt v New York City Housing Authority, 123 AD2d 591 (2d Dept 1986); Van Buskirk v State of New York, 38 AD2d 349 (3d Dept 1972). Accordingly, defendants state, the claim fails to state a cause of action against the State of New York, this Court lacks subject matter jurisdiction, and the claim should be dismissed. Civil Practice Law and Rules §3211(a)(7).
In support of such argument, defendants have appended an affirmation by Diane M. Deacon, Assistant Deputy Counsel for the OCFS, attesting to Lincoln Hall's status as a private authorized agency within the meaning of Social Services Law §371(10)(a), confirming that it is not owned, operated, maintained or administered by the State of New York, and that no employees of Lincoln Hall are State employees, thus confirming the limitations upon any State role in its day-to-day functions. [Affirmation in Support by John M. Healey, Assistant Attorney General, Exhibit B]. Ms. Deacon writes:
"Lincoln Hall is, and at all times relative to this proceeding was, subject to licensure and inspection by OCFS (see SSL section 375, 377). OCFS received licensure and inspection responsibility from the former Department of Social Services by virtue of Chapter 436 of the Laws of 1997. Pursuant to Chapter 436, the New York State Department of Social Services and the Division for Youth [DFY] were dissolved and certain of that department's functions and all of the functions of the . . . [DFY] were transferred to OCFS. In February 2007, the infant claimant was placed with OCFS for placement at Lincoln Hall by order of the New York State Family Court pursuant to Family Court Act section 353.3(4). Pursuant to Family Court Act section 353.3(4), OCFS removed the infant claimant from Lincoln Hall in August 2007." [Id. ¶4].
Claimants' cross-motion seeks an order amending the caption to replace the defendants named in the filed claim, namely, "The Division of Youth of the State of New York, The Commissioner of Social Services of the State of New York, [and] The State of New York," with "The Commissioner of the New York State Office of Children and Family Services, the Commissioner of Social Services of the State of New York and The State of New York." [Notice of Cross-Motion]. In support of the cross-motion and in opposition to the defendants' motion to dismiss, counsel for claimants has submitted his attorney's affirmation, conceding therein that Lincoln Hall is not owned by the State of New York, and that he "has no knowledge" as to whether any workers at Lincoln Hall are State employees. [Attorney Affirmation for the Cross-Motion and against the Motion by Jeffrey D. Karan, Attorney for Claimants dated October 3, 2008, page 2]. Counsel has attached to the affirmation a photocopy of a notice of intention to file claims with an affidavit of service of same, a photocopy of a news release from the United States Attorney's Office dated July 13, 2007 announcing that a different employee of Lincoln Hall had been charged in federal court on felony charges of distributing child pornography over the internet, and a photocopy of an article concerning the same arrest taken from a website entitled "Coalition Against Institutionalized Children." [Ibid. Exhibits A and B].
Claimants' attorney argue that the fact that
"the agency being private does not relieve the State of the duty to investigate and to determine the appropriateness of the institution or its recommendations. Social Services Law §460 (A-D) makes the State responsible for approving Certificates of Incorporation, operating certificate, inspection and supervision and gives enforcement powers to the Commissioner of Social Services . . . [Social Services Law] §462, A & B gives the Department of Social Services responsibility for standards, inspection and supervision and enforcement of residential programs for children." [Ibid. pages 2 - 3].
A review of these provisions of the Social Services Law, however, shows that the applicable title [Title 3, Social Services Law, Residential Programs for Children] contains the broad enabling legislation directing the promulgation of regulations for the periodic review of certification of facilities housing children, and the division of responsibilities between OCFS and the department of Social Services, among other things. See §462 Social Services Law. There is no basis for a private cause of action framed from these broad mandates, and none is made out based on the facts alleged herein.
Counsel for claimants further states
"On July 13, 2007, before the transfer of . . . [M.J.A.], the U.S. Attorney brought about an indictment of an employee of Lincoln Hall for having participated or wanting to participate in acts of sexual abuse against children (Exhibit B). This was after the incident between . . . [M.J.A.] and the employee, which was/is being investigated by the police. That incident and its report, was a major factor in the ultimate transfer of . . . [M.J.A.] to a more restrictive placement, a loss of home visits, a loss of visitors from home and improper filing of child abuse/neglect complaints against the claimant mother." [Ibid. page 3].
Counsel for claimants assert that the "State took on a special responsibility [to M.J.A.]. They were responsible by law for his well being . . . " [Id.]. "They had notice of the problem before the transfer, it was published on the internet on July 14, 2007." [Id.].
Certainly, as an "authorized agency", Lincoln Hall is subject to licensing and inspection requirements provided for by statute and by regulation. See Social Services Law §§371(2) , 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, nor 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)(3) . 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 omitted)." Id. Cf. Fulford v State of New York, Claim No. 99881, Motion No. M-63356, UID # 2001-018-103 (Fitzpatrick, J., September 18, 2001).(4)
The discretionary, quasi-judicial act of licensing facilities, with the subsidiary consideration of inspection imbued within such certification - essentially the only State act alleged herein - is the kind of governmental action for which the State has not waived sovereign immunity. See Spencer v State of New York, UID # 2008-010-013, Claim No. 115020, Motion No. M-74819 (Ruderman, J., May 28, 2008), citing Southworth v State of New York, 47 NY2d 874 (1979); see also A.L. v The State of New York, UID # 2005-016-017, Claim No. 104368, Motion Nos. M-69191, CM-69313, (Marin, J., February 28, 2005). Absent some "special relationship" between a claimant and the State entity even negligent State action is immunized.
"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, 274 (1st Dept 1996)(5) . 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).(6)In this case, the claim itself alleges actions involving an employee of Lincoln Hall, occurring at some unspecified time, such actions occurring not exclusively at Lincoln Hall but rather at claimants' own home as well, all clearly referable to the day-to-day operations of Lincoln Hall, and then alleges only very broadly that somehow the State of New York - in its capacity as a licensor with some associated investigatory capabilities - should have interceded. Elsewhere it is learned that M.J.A. was placed at Lincoln Hall by a Family Court Order, that another employee (not the individual who allegedly engaged in the sexual relationship with M.J.A.) was indicted on federal pornography charges (which somehow makes the State of New York responsible because such indictment was reported on the internet) and that the claimant mother might have been subject to (unfounded) charges of abuse as well. Notice to the licensing agency of wrongdoings at a facility is not inferred because information concerning an indictment was posted on the internet as suggested by claimants. Nothing stated or submitted by claimants, raises fact issues relative to the State's ownership or control of the premises, or relative to some other link with this claimant and her son. The only "actions" by the State that are alleged are that it licenses Lincoln Hall. See Miller v State of New York, supra; Brown v Speed, 302 AD2d 915, 916 (4th Dept 2003)(7)
lv denied 100 NY2d 501 (2003); Walker 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, although raised obliquely in claimants' counsel's affirmation, is not otherwise alleged so as to state a cause of action, or otherwise clarified in the rebuttal to the defendants' motion.
Accordingly, no cause of action is stated against the State of New York.
Defendants' motion [M-75529] is hereby granted, claimants' cross-motion [CM-75625] is denied as moot, and Claim Number 115617 is in all respects dismissed.
October 29, 2008
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
2. ". . . 'Authorized agency' means (a) Any agency, association, corporation, institution, society or other organization which is incorporated or organized under the laws of this state with corporate power or empowered by law to care for, to place out or to board out children, which actually has its place of business or plant in this state and which is approved, visited, inspected and supervised by the department or which shall submit and consent to the approval, visitation, inspection and supervision of the department as to any and all acts in relation to the welfare of children performed or to be performed under this title . . . " Social Services Law §371(10).
3. State's failure to lock the doors of student dormitory proximate cause of rape of student Claimant. Prior complaints of strangers in dormitory and elsewhere, as well as complaints concerning failure by the State as landlord to assure that doors locked.
4. State not liable for injuries suffered by student Claimant during a physical altercation in dormitory with drunken fellow student. No prior notice of enmity or crimes; no showing that the possession or consumption of alcohol allowed by resident advisor - not present on the day of the assault - causally related to assault on Claimant.
5. Wrongful death claim by widow of boxer struck down in a fight with a boxer whose gloves had been altered by removal of the padding covering the knuckles. Although State Athletic Commission inspectors are state employees, "no duty upon an inspector of the State Athletic Commission to inspect physically a boxing glove upon a boxer suiting up to ensure that it was free from concealed tampering. Our review of the facts also shows no basis for finding a special relationship . . . (citation omitted) between inspectors or any other State agents and a boxer which would have created such a duty."
6. In Walker v State of New York, supra, the wrongful death claim by the mother of two infants who died in a fire at their foster care home due to the alleged negligence by the New York State Department of Social Services and the Onondaga County Department of Social Services in placing the children in a foster care home was dismissed. The Court found that although the State had a general authority to oversee and review the local agency's actions, any ". . . failure to discover a violation of regulations, absent a showing of notice, is not actionable . . . (citations omitted) . . . [T]he primary responsibility for the care and placement of children in the foster care programs was vested in the local agencies . . . " Walker v State of New York, supra, at 223.
7. OCFS acting in governmental capacity when providing aftercare services for a period of one (1) year to child adjudicated a juvenile delinquent as directed by Family Court. The aftercare services were to be provided upon his conditional release from an OCFS facility and were to include mental health treatment and sexual offender treatment. During that period, the juvenile raped and killed plaintiff's decedent. Lawsuit alleging that OCFS' failure to provide services a proximate cause of death dismissed on appeal, because failed to state a cause of action. Court said: "we must examine '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'. . . (citations omitted). Although the provision of psychiatric care has been treated by the courts as a proprietary rather than a governmental function . . . (citations omitted), here defendants were not themselves providing the psychiatric care. Rather, their function was to arrange and coordinate various mental health services as part of the aftercare services that they had been ordered to provide for . . . [the juvenile] not to treat him themselves for the underlying mental health conditions . . . We therefore conclude that the various mental health services were part of the aftercare services that defendants were ordered to provide and that the provision of such services, as opposed to the treatment itself, is a governmental rather than a proprietary function."