Opinion
3220/2014
07-02-2019
K.M., an infant by his mother and natural guardian, Dana Mobley and Dana Mobley, Individually, Plaintiffs, v. Burlinda MOBLEY, Mercyfirst, C.B. the City of New York, New York City Department of Health and Mental Hygiene, New York City Administrative for Children's Services, and New York City Human Resources Administration Department of Social Services, Defendant(s).
Attorney for Plaintiff Steve Z. Gokberk, Esq. Salenger, Sack, Kimmel & Bavaro, LLP 180 Froehlich Farm Boulevard Woodbury, New York 11797 (516)677-0100 Attorney for Defendant Burlinda Mobley BeSena & Sweeney 1500 Lakeland Avenue Bohemia, New York 11716 (631) 360-7333 Attorneys for Defendants MercyFirst, The City of New York, New York City Department of Health And Mental Hygiene, New York City Administration for Children's Services AND New York City Human Resources Administration Department of Social Services Meredith A. Renquin, Esq. Rutherford & Christie 800 Third Avenue New York, New York 10022 (212) 599-5799 C.B. Defendant No Appearance
Attorney for Plaintiff
Steve Z. Gokberk, Esq.
Salenger, Sack, Kimmel & Bavaro, LLP
180 Froehlich Farm Boulevard
Woodbury, New York 11797
(516)677-0100
Attorney for Defendant Burlinda Mobley
BeSena & Sweeney
1500 Lakeland Avenue
Bohemia, New York 11716
(631) 360-7333
Attorneys for Defendants
MercyFirst, The City of New York,
New York City Department of Health
And Mental Hygiene, New York City
Administration for Children's Services
AND New York City Human Resources
Administration Department of
Social Services
Meredith A. Renquin, Esq.
Rutherford & Christie
800 Third Avenue
New York, New York 10022
(212) 599-5799
C.B. Defendant
No Appearance
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on defendants, Mercy First, The City of New York (hereinafter NYC), New York City Department of Health and Mental Hygiene (hereinafter DHMH), New York City Administration for Children's Services (hereinafter ACS) and New York City Human Resources Administration Department of Social Services (hereinafter HRA), (hereinafter collectively as the movants) notice of motion filed on September 11, 2018, under motion sequence twenty-two, for an order seeking summary judgment dismissing the complaint of plaintiffs, K.M. an infant by his mother and natural guardian, Dana Mobley, and Dana Mobley, individually. The motion is opposed by the plaintiffs.
Notice of Motion
Affirmation in Support
Exhibits A-P
Memorandum of Law
Affirmation in Opposition
Exhibits A-I
Reply Affirmation
BACKGROUND
On March 4, 2014, plaintiffs, K.M. an infant by his mother and natural guardian, Dana Mobley, and Dana Mobley, individually, (hereinafter plaintiffs) commenced an action against defendants Mercy First, Burlinda Mobley (hereinafter B. Mobley), and C.B., an infant by his guardian "John Doe" by filing a summons and verified complaint under Index No. 3220/2014 with the Kings County Clerk's Office (KCCO) (hereinafter Action No. 1).
By verified answer, dated March 12, 2014, Mercy First joined issue in Action No. 1. By verified answer with cross claims dated April 21, 2014, B. Mobley joined issue on Action No. 1.
On March 4, 2014, plaintiffs also commenced an action against defendants NYC, DHMH, ACS and HRA (hereinafter collectively as the City defendants) by filing a verified summons and verified complaint under Index No. 3404/2014 with the Queens County Clerk's Office (hereinafter Action No. 2).
By verified answer, dated March 26, 2014, the City defendants joined issue on Action No. 2. By decision and order dated August 1, 2014, this Court consolidated Action No. 1 and Action No. 2 in Kings County because it involved the same occurrence and common issues of law and fact.
Plaintiffs' verified complaint in Action No. 1 contains one hundred and thirty-two allegations of facts in support of seven causes of action. The first cause of action is for negligence. The second cause of action is for negligent hiring and supervision. The third cause of action is for sexual assault. The fourth cause of action is for battery. The fifth cause of action is for intentional infliction of emotional distress. The sixth cause of action is for negligent infliction of emotional distress. The seventh cause of action is Dana Mobley's derivative claim for loss of K.M.'s services. Only the first, second and seventh cause of action were asserted as against Mercy First.
Plaintiffs' verified complaint in Action No. 2 contains two hundred and thirty-six allegations of facts in support of three causes of action. The first cause of action is for negligence. The second cause of action is for negligent hiring and supervision. The third cause of action is for Dana Mobley's derivative claim for loss of K.M.'s services.Plaintiffs' consolidated verified complaints and bills of particulars allege the following salient facts. On March 15, 2013, infant plaintiff K.M., who was then four years old, was allegedly sexually assaulted by defendant, C.B., who was then a fifteen year old foster child, while at the residence of defendant B. Mobley. Plaintiffs further allege that Mercy First, a foster care agency, negligently placed C.B. in the foster home of B. Mobley knowing that he had deviant propensities. Plaintiffs allege that Mercy First and the City defendants were negligent in the hiring and supervision of their agents, which led to plaintiffs' injuries.
By order dated August 10, 2018, the Court granted the plaintiff's motion for a default judgment against defendant C.B.
By order dated February 28, 2019, the Court granted defendant B. Mobley's motion for an order dismissing the complaint and any cross claims asserted against her.
MOTION PAPERS
The movants' motion papers consist of a notice of motion, an affirmation of counsel, a memorandum of law and sixteen annexed exhibits labeled A to P. Exhibit A is a copy of plaintiffs' summons and verified complaint in action No. 1. Exhibit B is a copy of the verified summons and verified complaint in Action No. 2. Exhibit C includes the verified answer of Mercy First and the verified answer of the City defendants. Exhibit D is the verified answer with cross claim of defendant B. Mobley. Exhibit E is the consolidation order dated August 1, 2014. Exhibit F is a copy of plaintiffs' verified bill of particulars. Exhibit G is the deposition testimony of plaintiff Dana Mobley. Exhibit H is the deposition testimony of defendant B. Mobley. Exhibit I is the deposition testimony of Shamir Desir, Mercy First Preventative Services Supervisor. Exhibit J is a copy of a Final Pre-Note Order dated January 9, 2018. Exhibit K is a copy of a Note of Issue dated January 10, 2018. Exhibit L is a copy of an Order of this Court dated March 9, 2018. Exhibit M is a copy of an Order of this Court dated June 1, 2018. Exhibit N is a copy of a Final Pre-Note Order dated July 6, 2018. Exhibit O is a copy of the Note of Issue filed with the Kings County Clerk's Office on July 13, 2018. Exhibit P includes an Order of this Court dated July 18, 2016; a Judicial Subpoena to the New York Police Department dated April 18, 2016; and copies of the police report and investigation materials relating to the incident that occurred on March 15, 2013 involving plaintiff K.M. and defendant C.B.
Plaintiff's opposition papers consist of an affirmation of counsel and nine annexed exhibits labeled A to I. Exhibit A is an Order signed by this Court on July 18, 2016. Exhibit B is described as an Initial Child Safety Conference Report dated October 12, 2012. Exhibit C includes a letter from Pamela Lee, Assistant Commission Office of Special Investigations, NYC ACS to Gerard McCaffery, Executive Director of Mercy First dated March 19, 2013; and a letter from Kai Hayes, CPSSII, Office of Special Investigations, NYC ACS to Gerard McCaffery, CEO of Mercy First dated April 9, 2013. Exhibit D is a copy of plaintiffs' verified bill of particulars. Exhibit D is a duplicate of defendants' Exhibit F. Exhibit E is a copy of is the deposition testimony of Shamira Desir, Mercy First Preventative Services Supervisor. Exhibit E is a duplicate of defendants' Exhibit I. Exhibit F is described as a collection of Family Progress Notes from October 17, 2012 to February 27, 2013. Exhibit G is a collection of Family Progress Notes from March 4, 2013 to April 8, 2013. Exhibit H is the deposition testimony of defendant B. Mobley. Exhibit H is duplicate of defendants' Exhibit H. Exhibit I is the deposition testimony of plaintiff Dana Mobley. Exhibit I is a duplicate of defendants' Exhibit G.
LAW AND APPLICATION
Dana Mobley, individually and as natural guardian to K.M. filed suit against B. Mobley, Mercy First, C.B., DHMH, ACS and HRA, alleging that the infant plaintiff sustained personal injuries after K.M. was sexually molested by C.B., a foster child residing in the house of B. Mobley. B. Mobley is the grandparent of K.M. and she was providing care for C.B. at the time of the alleged incident. The plaintiffs claim, inter alia, that the movants were negligent in the placement and supervision of C.B.
The movants seek dismissal of the complaint as asserted against them on the grounds that the plaintiffs cannot establish that the moving defendants owed them a duty of care. In the alternative, they seek dismissal on the basis that they had insufficient specific knowledge that criminal third party acts could have been reasonably anticipated.
A defendant may be liable in negligence only where it owes a duty of care to the plaintiff ( Wynn v. Little Flower Children's Services , 106 AD3d 64 [1st Dept 2013] citing Pulka v. Edelman , 40 NY2d 781, 782 [1976] ). In general, a defendant will not be liable for the conduct of third persons who cause harm to others ( Wynn , 106 AD3d 64 citing Hamilton v. Beretta U.S.A. Corp. , 96 NY2d 222, 233 [2001] ). However, the duty to control a third person's conduct may arise when the defendant has authority to do so, and because of either the relationship between the defendant and the third person or the relation between the defendant and the plaintiff (Id. ). An example is the parent-child relationship (Id. ).
Thus, a child care agency, acting in loco parentis, has a duty to exercise reasonable care to prevent foster children under its supervision and control from harming others (see DiCarlo v. City of New York , 286 AD2d 363 [2nd Dept 2001] ), except during times when the children are in the physical custody of another entity, such as a school (see Howard v. Parsons' Child & Family Ctr., 306 AD2d 725, 726 [3rd Dept 2003] ; Cappello v. St. Christopher's, Jennie Clarkson Child Care Servs. , 282 AD2d 566 [2nd Dept 2001] ).
Movants Claim of No Duty Of Care
It is well settled that in order to be entitled to summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case ( Winegrad v. New York Univ. Med. Center , 64 NY2d 851, 853 [1985] ). It is a defendant's burden, when it is the party moving for summary judgment, to demonstrate affirmatively the merits of a defense, which cannot be sustained by pointing out gaps in the plaintiff's proof ( Quantum Corporate Funding, Ltd. v. Ellis , 126 AD3d 866, 871 [2nd Dept 2015] see also Bivona v. Danna & Assoc., P.C. , 123 AD3d 959, 960 [2nd Dept 2014] ). Once a defendant makes a prima facie showing, the burden shifts to the plaintiff to raise an issue of fact requiring a trial (see Valley Ventures, LLC v. Joseph J. Haspel, PLLC , 102 AD3d 955, 956 [2nd Dept 2013] ).
Although a jury determines whether and to what extent a particular duty was breached, it is for the court, first, to determine whether any duty exists, taking into consideration the reasonable expectations of the parties and society generally ( Tagle v. Jakob , 97 NY2d 165, 168 [2001] ). The scope of any such duty of care varies with the foreseeability of the possible harm (Id. ). The issue of foreseeability is normally a question of fact for a jury, but it is a question of law when but a single inference can be drawn from undisputed facts (see Elwood v. Alpha Sigma Phi , 62 AD3d 1074, 1076 [3rd Dept 2009] ; citing Hendricks v. Lee's Family Inc., 301 AD2d 1013 [3rd 2003] ; Hessner v. Laporte , 171 AD2d 999 [3rd Dept 1991] ). The movants claim that as a matter of law, the plaintiffs cannot establish that the movants owed them a duty of care. Such an argument, in sum and substance, is nothing more than an improper attempt to meet a moving defendants burden by pointing to gaps in plaintiff's proofs ( Quantum Corporate Funding, Ltd. v. Ellis , 126 AD3d 866, 871 [2nd Dept 2015] ).
Notwithstanding the movants failure to demonstrate a lack of a duty of care to the plaintiffs, the Court agrees with the movants' contention that they cannot be held vicariously liable for the negligent acts of a foster parent, who are essentially contract service providers ( Keizer v. SCO Family of Services , 120 AD3d 475 [2nd Dept 2014] citing Blanca C. v. County of Nassau , 103 AD2d 524, 530—532 [2nd Dept 1984] ), affd. 65 NY2d 712 [1985] ). Moreover, in the case at bar, the Court had already determined that B. Mobley, the foster parent did not breach any duty of care to the plaintiffs.
Movants Claim of No Breach of Duty Of Care
Counties and foster care agencies may be sued to recover damages for negligence in the selection of foster parents and in supervision of the foster home ( Keizer , 120 AD3d 475 [2nd Dept 2014] citing Liang v. Rosedale Group Home, 19 AD3d 654, 655 [2nd Dept 2005] ).
In order to establish its prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleged that it engaged in negligent placement and supervision, the appellant had to establish, prima facie, that it did not have sufficiently specific knowledge or notice of the alleged dangerous conduct which caused the infant's injuries ( Keizer , 120 AD3d 475 citing Andrew S. v. Gristina , 97 AD3d 651, 652 [2nd Dept 2012] ). In other words, the appellant had to show that the third-party acts could not have been reasonably anticipated (Id. ).In the matter of Liang v. Rosedale Group Home , 19 AD3d 654 (2nd Dept 20005), the Appellate Division reversed the Supreme Court's order denying summary judgment in favor of the Center for Children & Families, the City of New York, Administration for Children's Services, and the Department of Social Services. The Appellate Division Second Department found that the City defendants and the child care agency had sustained their initial burden of demonstrating that the two incidents of sexual assault were not foreseeable by presenting evidence that no prior assaults of this nature had taken place at the facility, and that the resident who committed the assaults had no prior history of violent or threatening behavior of any kind.
In the instant matter, the movants contend, inter alia, that the sexual assault of K.M. by C.B. was unforeseeable because C.B. had no prior history of assault of this nature. Where, there is notice of reckless and aggressive behaviour, similarity of the injury producing act is not always required (see Doe v. Fulton School District , 35 AD3d 1194 [4th Dept 2006] ). It is noted that plaintiffs' bill of particulars alleges, among other things, that the defendants were negligent in several respects. They were negligent in placing C.B. in B. Mobley's home. They were negligent in supervising C.B. after the placement. They were negligent in failing to properly train B. Mobley.
The moving defendants did not address plaintiffs' contention that they failed to properly evaluate C.B.'s need for a therapeutic setting. Plaintiff has referred to annexed foster care records documenting that C.B. was removed from the home of Deborah Bullock, his adoptive mother, to be placed in foster care with Ms. Kathleen Simmons, a MercyFirst foster mother. The removal was because C.B. was in imminent danger of harm. Ms. Bullock used a belt to discipline C.B. while Ms. Bullock's boyfriend had held him down.
Another foster care record reported C.B. was unable to control his anger at school and has attempted to take a pocket knife to school. It also documented that C.B. became enraged in school and flipped over a desk when he was threatened with detention for missing three of his Biology tutoring classes. Ms. Bullock informed MeryFirst that: "C.B. urinated on his blanket and she found feces on a plastic under [C.B's] bed." Under the assessment section of the foster care records it states: "Ms. Bullock wants [C.B.] to undergo a mental health evaluation and participate in anger management."
These records demonstrate that C.B. was in need of a psychiatric assessment and psychological testing to evaluate his needs. The movants did not address the claim that B. Mobley had no training to work with children with mental health issues.
It is undisputed that MercyFirst is a foster care agency that contracted with ACS, to find homes for foster care children. Furthermore, Shamira Desir, the MercyFirst Preventative Supervisor, was responsible for the supervision of its caseworkers, including Denay Lewis, C.B.'s case worker. Ms. Lewis was responsible for conducting home visits, monitoring families and preparing progress notes.
On January 10, 2013, more then two (2) months before this incident, that "It was also reported that [C.B.] refuses to take any notes during class and also discussed that [C.B.] has been also displaying behaviors such as poking another student with a pen in the back, playing with toys during class time, aggression towards school staff and students." The note also indicates that [C.B.] would benefit from a special education program and that he was in a special education program while in Junior High School.
In sum, the movants did not eliminate all material issues of fact regarding their alleged negligence in the handling of C.B.'s placement and care. There are triable issues of fact as to whether B. Mobley had adequate training to deal with C.B.'s emotional needs. There are triable issues of fact as to whether the movants were negligent in failing to assess C.B.'s psychiatric and psychological needs before placing him in B. Mobley's home. There are triable issues of fact as to whether the movants properly supervised C.B. after his placement.
Furtermore, C.B.'s documented reckless and aggressive behavior, among other things, also raises triable issues of fact as to whether his assault of K.M. was reasonably foreseeable ( Doe , 35 AD3d 1194 ). A movant may be held liable for an injury that is the reasonable foreseeable consequence of circumstances it created by its inaction ( Id. at 1195 ).
CONCLUSION
The motion of MercyFirst, The City of New York, New York City Department of Health and Mental Hygiene, New York City Administration for Children's Services and New York City Human Resources Administration Department of Social Services for an order granting summary judgment in their favor and dismissing the complaint of plaintiffs, K.M. an infant by his mother and natural guardian, Dana Mobley, and Dana Mobley, individually is denied.
The foregoing constitutes the decision and order of this Court.