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McLean v. City of New York

March 31, 2009


The opinion of the court was delivered by: Smith, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Once again we confront a case in which a failure by government to do its job has caused harm, and once again we hold that this is not one of the few cases in which such a failure subjects the government to tort liability.


Patricia Theroulde had a business caring for young children at her home in Manhattan. Her facility was of the kind classified by the Social Services Law as a "family day care home" "a program caring for children for more than three hours per day per child in which child day care is provided in a family home for three to six children" (Social Service Law § 390 [1] [e]). Family day care homes are not licensed by the State, but are required to register with the State Department of Social Services (DSS) (id. § 390 [2] [b]). A registration is valid for two years (id. § 390 [2] [d] [ii] [A]), and an application for the renewal of registration may not be accepted unless "the office of children and family services [OCFS] has received no complaints ... alleging statutory or regulatory violations" or, having received such complaints, OCFS has inspected the home and determined that it is operated in compliance with law (id. § 390 [2] [d] [ii] [B] [4]). DSS entered into a contract with the New York City Department of Health (DOH), in which DOH in substance agreed to perform DSS's registration duties in New York City.

Ms. Theroulde registered in 1997. During the two year period of her initial registration, the New York City Administration for Children's Services (ACS) received two complaints about her home, asserting that her husband had dipped a child's hand into a bowl of hot oatmeal, and that a child had been left alone for an hour and a half in a nearby store. ACS investigated the complaints and found both of them to be "indicated" i.e., substantiated. There is no evidence that the home was later inspected and found to be in compliance, so it seems clear that Ms. Theroulde should not have been permitted to renew her registration when it expired in 1999.

But DOH did permit her to renew. The reasons for this are not entirely clear. The record does not show whether ACS reported the two complaints about Ms. Theroulde's home to OCFS but that question is academic, because, amazingly, DOH did not make a practice of checking with OCFS before renewing registrations. It is debatable whether the City or the State is to blame for this failure; DOH, a City agency, says it complied with regulations of DSS, a State agency, which do not expressly require a search for complaints prior to renewal of a registration. Since we consider the case on a motion for summary judgment, we assume that DOH was at fault.

Ms. Theroulde's renewed registration certificate was issued on February 11, 1999. In October of the same year, plaintiff, Charlene McLean, was searching for a day care provider for her soon-to-be-born child. She called ACS, which sent her a list of providers near her home. The list was taken from DOH's database of registered providers, and Ms. Theroulde's name was on the list.

In the course of obtaining the list from ACS, Ms. McLean had a telephone conversation with an ACS representative. According to Ms. McLean's version of the conversation, she specifically asked for "a licensed baby-sitter that gets investigated routinely by your office." She testified that the conversation continued:

"'Yes. All of our day cares are licensed and they get investigated routinely between six months to a year.' And then I said, 'They don't have any complaints,' and she assured me that all of the ones on the list have no complaints."

After Ms. McLean's daughter Briana was born, Ms. McLean placed her in Ms. Theroulde's care. It is a fair interpretation of the evidence (though the City disputes the point) that she did so in reliance on information the City provided that she would not have chosen Ms. Theroulde as a day care provider but for the inclusion of Ms. Theroulde's home on a City-generated list, and the information about that list provided by an ACS representative on the phone. When Briana was three months old she fell from a bed to the floor while in Ms. Theroulde's care, and suffered a brain injury.

Ms. McLean brought this action against the City on Briana's and her own behalf, claiming that the City's negligence was the cause of the injury. Supreme Court denied the City's motion for summary judgment, and the Appellate Division affirmed. The Appellate Division granted leave to appeal to us on a certified question, and we now reverse.


We have long followed the rule that an agency of government is not liable for the negligent performance of a governmental function unless there existed "a special duty to the injured person, in contrast to a general duty owed to the public" (Garrett v Holiday Inns, 58 NY2d 253, 261 [1983]); see also, e.g., Kircher v City of Jamestown, 74 NY2d 251 [1989]; Lauer v City of New York, 95 NY2d 95 [2000]; Pelaez v Seide, 2 NY3d 186 [2004]; Laratro v City of New York, 8 NY3d 79 [2006]). Such a duty, we have explained "a duty to exercise reasonable care toward the plaintiff" is "born of a special relationship between the plaintiff and the ...

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