of the notice of claim was enacted after the decision in Gibbs. There the court pointed out that "where . . . the prospective defendant (the city) and its own agency were the only parties reasonably situated to ascertain the existence of the claim and to prosecute the claim, it would be an idle gesture to require that they file a notice of claim against themselves." Gibbs, 257 N.Y.S.2d at 242.
Section 50-e(8) applies in this case; in fact, the circumstances of this case are an archetypal example of the applicability of this section. At all the relevant times, the infant plaintiffs were under the care of the City and its agencies, and Thomas had restricted access to them. In these circumstances, the infant plaintiffs' were "wards" of the defendants in the sense that no independent guardian was able to look after their interests beside the defendants themselves. Cf. Grover ex rel. Grover v. Martone, 127 Misc. 2d 40, 485 N.Y.S.2d 191 (Sup. Ct. Chemung County, 1985).
7. Remaining Claims. Some of the defendants suggest that Thomas cannot bring claims on behalf of the infant plaintiffs because her parental rights have been terminated. However, Thomas may sue as a "next friend" of the infant plaintiffs. Fed. R. Civ. P. 17(c); Ad Hoc Comm. of Concerned Teachers v. Greenburgh #11 Union Free School Dist., 873 F.2d 25, 30-31 (2d Cir. 1989). Rule 17(c) of the Federal Rules of Civil Procedure provides in part:
An infant or incompetent person who does not have a duly appointed representative may sue by next friend or by a guardian ad litem.
Fed. R. Civ. P. 17(c). Here, the defendants do not allege that the infant plaintiffs have a "duly appointed representative." All of the infants are currently in the custody of Thomas and nothing indicates that Thomas is motivated in representing the infant plaintiffs by anything other than "a sincere desire to seek justice on the infants' behalf." Ad Hoc Comm. of Concerned Teachers, 873 F.2d at 31.
The Angel Guardian and Harlem Dowling defendants argue that Thomas lacks standing to bring derivative claims based on the abuse of the infant plaintiffs because Thomas does not support them. See Clough v. Bd. of Education of Spencerport Central School Dist., 56 A.D.2d 233, 392 N.Y.S.2d 170, 173 (4th Dep't 1977) (noting that a "parent's derivative action to recover . . . expenses is grounded upon the parental obligation of support"). However, the amended complaint reveals that Thomas does have custody of all the infant plaintiffs and thus has the obligation to support them. Therefore, Thomas can properly maintain a derivative claim under a state tort theory.
However, under the law of New York, Thomas cannot recover for the "loss of the child's companionship or society." Martell v. Boardwalk Enter., Inc., 748 F.2d 740, 754 (2d Cir. 1984); White v. City of New York, 37 A.D.2d 603, 322 N.Y.S.2d 920 (2d Dep't 1971); Foti v. Quittel, 19 A.D.2d 635, 241 N.Y.S.2d 15 (2d Dep't 1963). Therefore, Thomas' common law claims to recover these damages are dismissed.
The City defendants argue that in order to proceed in this Court on any of plaintiffs' claims, this Court must appoint a guardian ad litem for the infant plaintiffs and disqualify the plaintiffs' counsel from representing all of the plaintiffs in this action. This argument rests on the premise that this case involves a claim by Thomas to custody of and parental rights with respect to the infant plaintiffs and that consequently the infant plaintiffs may have interests in conflict with Thomas. However, the premise does not hold true, so the argument fails. As discussed above, this Court is not called upon in this case to decide either who should have custody of the infant plaintiffs or whether Thomas' parental rights must be restored; moreover, to the extent the complaint raises claims regarding Thomas' parental rights, this Court has at present abstained under the Younger doctrine from addressing such claims. The defendants' request for an appointment of a guardian ad litem and to disqualify the plaintiffs' counsel is, accordingly, denied at this time.
Finally, it should be noted that the Harlem Dowling defendants have raised an issue of whether some of the individual Harlem Dowling defendants are protected by a qualified immunity. This Court declines to address this issue, however, because the Harlem Dowling defendants raised this issue for the first time in a reply memorandum of law and thus did not provide adequate notice of this claim to the plaintiffs. Fed. R. Civ. P. 7(b)(1).
In sum, plaintiffs' motion to amend the complaint and the defendants' motion to amend their answer are granted. Defendants' motions to dismiss this action are denied; however, plaintiffs' common law claims to recover for the loss of a child's companionship or society and their claim under the Federal Adoption Assistance and Child Welfare Act are dismissed. Plaintiffs' claims of violation of their constitutional liberty interest in the parent-child relations are stayed. The City defendants' motion to appoint a guardian ad litem and to disqualify plaintiff's counsel is denied.
Plaintiff is directed to serve and file an amended complaint in accordance with this opinion within thirty days of the date hereof.
The Clerk is directed to mail a copy of the within to all parties.
Dated: Brooklyn, New York
February 3, 1993
Charles P. Sifton
United States District Judge