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S.W. v. City of New York

United States District Court, E.D. New York

January 28, 2014

S.W., by and through his guardian, RENEE MARQUIS-ABRAMS; T.G. and J.L., by and through their next friend, MILDRED DEL GROSSO; S.B. and R.E. by and through their guardian, PATRICIA BALDWIN; L.J. and J.G., by and through their guardian, KEVIN HENDRICKSON; J.B., C.B., and T.L., Plaintiffs,
v.
CITY OF NEW YORK, a municipal corporation; ADMINSTRATION FOR CHILDREN'S SERVICES, f/k/a CHILD WELFARE ADMINISTRATION; ST. JOSEPH SERVICES FOR CHILDREN, INC., f/k/a CATHOLIC CHILD CARE SOCIETY OF THE DIOCESE OF BROOKLYN, INC., a New York corporation; HEARTSHARE HUMAN SERVICES, f/k/a CATHOLIC GUARDIAN SOCIETY OF THE DIOCESE OF BROOKLYN, INC., a New York corporation; SCO FAMILY OF SERVICES, f/k/a ST. CHRISTOPHER-OTTILIE, a New York corporation, Defendants

Decide: January 17, 2014.

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For S.W., by and through his guardian, Renee Marquis-Abrams, Plaintiff: Ami Romanelli, Theodore Babbitt, LEAD ATTORNEYS, PRO HAC VICE, Stephan A. Le Clainche, Babbitt, Johnson, Osborne & Le Clainche, PA, West Palm Beach, FL; Howard M. Talenfeld, LEAD ATTORNEY, PRO HAC VICE, Colodny, Fass, Talenfeld, Karlinsky & Abate, P.A., Fort Lauderdale, FL; John Walsh, LEAD ATTORNEY, PRO HAC VICE, Fort Lauderdale, FL; Marcia Lowry, New York, NY; William A. Kapell, Children's Rights, New York, NY.

For J.L., by and through their next friend Mildred Del Grosso, S.B., by and through their guardian, Patricia Baldwin, also known as S.B. and R.E., L.J., by and through their guardian, Kevin Hendrickson, also known as L.J. and J.G., J.B., C.B., T.L., J.G., by and through their guardian, Kevin Hendrickson, R.E., by and through their guardian, Patricia Baldwin, Plaintiffs: Ami Romanelli, LEAD ATTORNEY, PRO HAC VICE, Babbitt, Johnson, Osborne & Le Clainche, PA, West Palm Beach, FL; Howard M. Talenfeld, Colodny, Fass, Talenfeld, Karlinsky & Abate, P.A., Fort Lauderdale, FL; John Walsh, Fort Lauderdale, FL; Marcia Lowry, New York, NY; Theodore Babbitt, PRO HAC VICE, Babbitt, Johnson, Osborne & Le Clainche, PA, West Palm Beach, FL; William A. Kapell, Children's Rights, New York, NY.

For T.G., by and through their next friend Mildred Del Grosso, Plaintiff: Ami Romanelli, LEAD ATTORNEY, PRO HAC VICE, Babbitt, Johnson, Osborne & Le Clainche, PA, West Palm Beach, FL; Theodore Babbitt, LEAD ATTORNEY, Babbitt, Johnson, Osborne & Le Clainche, P.A., West Palm Beach, FL; Howard M. Talenfeld, Colodny, Fass, Talenfeld, Karlinsky & Abate, P.A., Fort Lauderdale, FL; William A. Kapell, Children's Rights, New York, NY.

For City of New York, a municipal corporation, Defendant: Bruce Michael Strikowsky, Carl Judah Schaerf, Matthew James Kelly, LEAD ATTORNEYS, Allison Naomi Fihma, Schnader Harrison Segal & Lewis LLP, New York, NY; Thaddeus Jeremiah Hackworth, LEAD ATTORNEY, New York City Law Department, New York, NY.

For Administration for Children's Services, formerly known as Child Welfare Administration, Defendant: Bruce Michael Strikowsky, Carl Judah Schaerf, Matthew James Kelly, LEAD ATTORNEYS, Allison Naomi Fihma, Schnader Harrison Segal & Lewis LLP, New York, NY.

For St. Joseph Services for Children, Inc., a New York Corporation, formerly known as Catholic Child Care Society of the Diocese of Brooklyn, Inc., Heartshare Human Services, a New York Corporation, formerly known as Catholic Guardian Society of the Diocese of Brooklyn, Inc., SCO Family of Services, a New York Corporation, formerly known as St. Christopher-Ottilie, Defendants: Jeremy S Rosof, William G. Spratt, LEAD ATTORNEYS, Adam S. Covitt, Ralph Vincent Morales, Robert Ortiz, Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, NY; Judd Cohen, LEAD ATTORNEY, Robert Boccio, Shaub, Ahmuty, Citrin & Spratt, LLP, New Hyde Park, NY; Marc J. Citrin, Steven J. Ahmuty, Jr., LEAD ATTORNEYS, John D. Paterniti, Juan C. Gonzalez, Steven I. Rubin, Shaub, Ahmuty, Citrin & Spratt, L.L.P., New York, NY; Timothy Robert Capowski, LEAD ATTORNEY, Shaub, Ahmuty, Citrin & Spratt, Lake Success, NY; Craig Garrett Bienstock, Shaub Ahmuty Citrin & Spratt, New York, NY.

For Thelma Bowes, ThirdParty Defendant, Cross Defendant: Sonya A Smith-Valentine, LEAD ATTORNEY, Valentine Legal Group, LLC, Oxon Hill, MD.

For Social Security Administration of the United States, Interested Party: Kathleen Anne Nandan, United States Attorneys Office, Eastern District of New York, Brooklyn, NY.

For St. Joseph Services for Children, Inc., a New York Corporation, Heartshare Human Services, a New York Corporation, SCO Family of Services, a New York Corporation, Cross Claimants, Cross Defendants, ThirdParty Plaintiffs: Jeremy S Rosof, William G. Spratt, LEAD ATTORNEYS, Adam S. Covitt, Ralph Vincent Morales, Robert Ortiz, Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, NY; Judd Cohen, LEAD ATTORNEY, Robert Boccio, Shaub, Ahmuty, Citrin & Spratt, LLP, New Hyde Park, NY; Marc J. Citrin, Steven J. Ahmuty, Jr., LEAD ATTORNEYS, John D. Paterniti, Juan C. Gonzalez, Steven I. Rubin, Shaub, Ahmuty, Citrin & Spratt, L.L.P., New York, NY; Timothy Robert Capowski, LEAD ATTORNEY, Shaub, Ahmuty, Citrin & Spratt, Lake Success, NY; Craig Garrett Bienstock, Shaub Ahmuty Citrin & Spratt, New York, NY.

For City of New York, a municipal corporation, Cross Defendant: Thaddeus Jeremiah Hackworth, LEAD ATTORNEY, New York City Law Department, New York, NY.

For Administration for Children's Services, Cross Claimant, Cross Defendant, ThirdParty Plaintiff: Bruce Michael Strikowsky, Carl Judah Schaerf, LEAD ATTORNEYS, Schnader Harrison Segal & Lewis LLP, New York, NY.

For City of New York, a municipal corporation, Cross Claimant, ThirdParty Plaintiff: Bruce Michael Strikowsky, Carl Judah Schaerf, LEAD ATTORNEYS, Schnader Harrison Segal & Lewis LLP, New York, NY; Thaddeus Jeremiah Hackworth, LEAD ATTORNEY, New York City Law Department, New York, NY.

For Carol Leekin, ThirdParty Defendant, Cross Defendant: Kevin J. Brennan, Dwyer & Brennan, New York, NY.

Ishmattie Nagassar/Asman, ThirdParty Defendant, Pro se, Ozone Park, NY.

For Edwin Gould Services for Children, ThirdParty Defendant, Cross Defendant, Cross Claimant: Richard Eniclerico, Thomas A. Catalano, Lester Schwab Katz & Dwyer, LLP, New York, NY.

Cheryl Jack, ThirdParty Defendant, Pro se, Oak Harbor, WA.

Ishmattie Nagassar/Asman, Cross Claimant, Pro se, Ozone Park, NY.

Ishmattie Nagassar/Asman, Cross Defendant, Pro se, Ozone Park, NY.

For C.B., Cross Defendant: Ami Romanelli, LEAD ATTORNEY, Babbitt, Johnson, Osborne & Le Clainche, PA, West Palm Beach, FL; Howard M. Talenfeld, Colodny, Fass, Talenfeld, Karlinsky & Abate, P.A., Fort Lauderdale, FL; John Walsh, Fort Lauderdale, FL; Marcia Lowry, New York, NY; Melissa Cohen, Children's Rights, New York, NY; Theodore Babbitt, Babbitt, Johnson, Osborne & Le Clainche, PA, West Palm Beach, FL; William A. Kapell, Children's Rights, New York, NY.

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MEMORANDUM & ORDER

ERIC N. VITALIANO, United States District Judge.

Between 1986 and 1996, plaintiffs, ten individuals who were at the time special needs children, were placed in foster care with, and were subsequently adopted by, Judith Leekin, who abused, neglected, imprisoned, and denied them any education or medical care. Plaintiffs bring this action against the City of New York (the " City" ) and the private foster care agencies that placed them with Leekin, namely, St. Joseph Services for Children, Inc. (" SJSC" ), Heartshare Human Services (" HHS" ), and SCO Family of Services (" SCO" ) (together,

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the " agency defendants" ).[1] They seek damages for alleged violations of their Fourteenth Amendment rights and for negligence, based on alleged failures that allowed Leekin to fraudulently obtain foster care custody of them and then, later, to adopt them. The agency defendants now move for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons that follow, that motion is denied in part and granted in part.

Background

The following facts are drawn from the complaint and the submissions of the parties on the motion, including their statements of undisputed material fact filed pursuant to Local Civil Rule 56.1. The facts are construed, as they must be in the summary judgment context, in the light most favorable to plaintiffs, as the nonmoving parties. See Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d 450, 456 (2d Cir. 2007) (citation omitted). Any factual disputes are noted.

The story is undisputedly sad and tragic. From 1986 to 1994, plaintiffs were all classified as special needs children, and were removed from their homes and placed in the custody of the City. (Compl. ¶ 2.) The agency defendants were private child care agencies that provide foster care placement and other services for children in the custody of the City, pursuant to contracts with the City. (Compl. ¶ ¶ 47, 49, 51.) During this time, Leekin, using at least four false identities, obtained foster care custody of plaintiffs and numerous other special needs children from the City and the agency defendants. She subsequently adopted each plaintiff.[2] (Compl. ¶ 56.) As was later revealed, Leekin launched this scheme in order to collect subsidies provided by the City for the fostering and adoption of special needs children, which she used for her own purposes while neglecting to care for plaintiffs.[3] In 1998, Leekin

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transported plaintiffs from New York to Florida, where she relocated them in various houses over the following years. ( See Def.'s 56.1 Stmt ¶ ¶ 118-142). With the exception of J.B., who left the house in which they lived sometime between May 2004 and May 2005,[4] plaintiffs remained with Leekin until July 2007, when Florida authorities searched the house in which they were then residing, discovered and removed plaintiffs, and arrested Leekin. ( See Def.'s 56.1 Stmt ¶ ¶ 149, 243.)

From the point when Leekin obtained custody of plaintiffs until they were released in July 2007, Leekin abused, tortured, neglected, and held plaintiffs in captivity, first in New York and then in Florida. It would be impossible here to describe in detail the brutality plaintiffs were subjected to over the course of their captivity, some for more than 15 years, but the following examples provide a glimpse of life in Leekin's house of horrors: Leekin routinely and for lengthy periods denied the children access to food and a toilet; handcuffed and restrained them for hours, including all night restraint with zip ties; trapped them in cribs held shut with boards and heavy objects; beat them with a belt, nightstick, and other objects; forced them to stand for hours on end, sometimes with their hands above their heads, as punishment; failed to protect them from sexual abuse; and repeatedly threatened them with a gun or with being beaten to death. ( See Aff. of Dr. Peg McCart Hess, May 2, 2013, Ex. A (" Hess Report" ) at 3, 38-39, 62-64.) In New York, plaintiffs were often confined to the basement, where they were forced to sleep uncovered on the floor; in Florida, they generally slept on the floor of the garage. Id. If anyone came to the house where they were kept, plaintiffs were placed in a room and told to be quiet, and were threatened that if they did not remain quiet, they would be beaten.[5] Pl.'s Statement of Additional Disputed Material Facts (" Pl.'s Stmt of Add'l Facts" ) ¶ 321; Hess Report at 63.) When removed from Leekin's Florida home in 2007, the ages of the named plaintiffs ranged from 15 to 27. None had completed elementary school; only three could read, and even then only at a third grade level. None had had any contact with a member of their biological families. Six were declared either " totally incapacitated" or " vulnerable adults." (Hess Report at 4.)

Plaintiffs commenced this action on April 29, 2009. Plaintiffs allege that the

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agency defendants failed to properly screen Leekin as a potential foster parent, monitor plaintiffs while they were in Leekin's care, or undertake their duties in connection with investigating Leekin prior to plaintiffs' adoptions, and that the defendants' reckless indifference to their duties and to plaintiffs led to plaintiffs' fraudulent adoption and abuse by Leekin. Plaintiffs bring claims against the agency defendants for violation of 42 U.S.C. § 1983 as well as for common law negligence.[6] The agency defendants seek summary judgment on a host of grounds.

Preliminarily, there are factual disputes surrounding how Leekin came to obtain custody of plaintiffs so long ago. Bluntly, the aged and incomplete nature of the agency defendants' records makes it difficult at times to piece together the relevant events. It is undisputed, though, that in applying to be a foster parent under her various false identities, Leekin provided the agency defendants with false names, and at least in the case of SJSC and HHS, with one or more falsified documents such as birth certificates, W-2s, written references, and Social Security cards.[7] ( See, e.g., Def.'s 56.1 Stmt ¶ ¶ 67, 69 (SJSC); 106 (HHS).) Plaintiffs, correspondingly, acknowledge that Leekin provided false information to the agency defendants, but, relying on the agency defendants' records and their employees' testimony, assert that the agency defendants failed to take certain reasonable--and at times statutorily required--steps which would have uncovered the phony nature of Leekin's background information. For example, it is uncontradicted that none of the agency defendants requested or obtained photo identification from Leekin. ( See Pl.'s Stmt of Add'l Facts ¶ 7.) Further, none sought to verify the Social Security numbers Leekin gave them, which did not match the aliases she provided (and SCO's records do not reflect Leekin being asked for a Social Security number at all).[8] ( See id. ¶ 22.) Plaintiffs also assert that the agency defendants failed to obtain from Leekin the number of references required by state regulation, or to conduct mandatory in-person interviews with the references she did provide. ( See ...


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