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De'l. A. v. City of New York

Supreme Court of New York, First Department

December 21, 2017

Joseph L. De'L. A., etc., et al., Plaintiffs-Respondents-Appellants,
The City of New York, et al., Defendants-Respondents, Jewish Child Care Association of New York, Defendant-Appellant, Joseph S., Defendant.

          Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Judy C. Selmeci of counsel), for appellant.

          Sullivan Papain Block McGarth & Cannavo, P.C., New York (Brian J. Shoot, Gregory J. Cannata, and Gregory J. Cannata & Associates of counsel), for Joseph, L. De'L. A. and Deborah A., respondents-appellants.

          Roberta L. DiGangi, Brooklyn, for Yolanda Jenkins, respondent-appellant.

          Schnader Harrison Segal & Lewis LLP, New York (Bruce M. Strikowsky of counsel), for the City of New York, respondent.

          Koster Brady & Nagler LLP, New York (Allyson P. Stavis of counsel), for Milcia Pineda, respondent.

          John W. Sweeny, Jr., J.P. Richard T. Andrias Karla Moskowitz Marcy L. Kahn Ellen Gesmer JJ.

          GESMER, J.

         Cross appeals from the order of the Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about October 20, 2015, which, to the extent appealed from as limited by the briefs, granted defendant the City of New York's and defendant Milcia Pineda's respective motions for summary judgment dismissing the complaint as against them, and denied defendant JCCA's motion for summary judgment with respect to the negligence claims against it.

         In this case, defendant Jewish Child Care Association (the agency or JCCA), placed the infant plaintiff, Joseph. L. De'L. A., in a foster home with defendant Milcia Pineda. The child suffered brain injury when he was left in the care of the teenage boyfriend of the foster mother's daughter. The child's biological and adoptive mothers brought this action on his behalf. The City of New York, the foster parent, and JCCA each moved for summary judgment. Supreme Court granted the motions by the City and Ms. Pineda, but denied JCCA's motion. We now affirm.

         Our dissenting colleagues join us in finding that the motion court properly granted the summary judgment motions of the foster parent and the City, for the reasons discussed below. However, where an institutional defendant fails to comply with rules intended to protect the safety of those for whom the institution is responsible, and such an individual is assaulted, it is a question of fact as to whether the institutional defendant is liable (Mirand v City of New York, 84 N.Y.2d 44, 51 [1994]; Garcia v City of New York, 222 A.D.2d 192');">222 A.D.2d 192, 197 [1st Dept 1996], lv denied 89 N.Y.2d 808');">89 N.Y.2d 808');">89 N.Y.2d 808');">89 N.Y.2d 808 [1997]; Dawn VV. v State of New York, 47 A.D.3d 1048');">47 A.D.3d 1048, 1051 [3d Dept 2008]). That question cannot be resolved on the agency's summary judgment motion because "[p]roximate cause is a question of fact for the jury where varying inferences are possible" (Mirand, 84 N.Y.2d at 51). Because we do not view plaintiffs' claims against JCCA as one of "the rare cases in which it can be determined, as a matter of law, that a defendant's negligence merely created the opportunity for, but did not cause, the event that resulted in harm" (Hain v Jamison, 28 N.Y.3d 524, 530 [2016]), we also affirm the motion court's denial of summary judgment to JCCA.


         At least as of July 22, 2002, JCCA had determined that it was not appropriate to place a foster child under five in defendant Milcia Pineda's home. On August 20, 2002, JCCA reauthorized the use of Ms. Pineda's home for foster care, with the recommendation that she "should have school-aged children placed in her home." It reached this conclusion because Ms. Pineda was already caring for her newborn special needs grandson and her teenage daughter; her home was in "crisis" and needed to be "stabilized"; and she was working full time in a hair salon [1]. In fact, it was the opinion of the assigned worker that no foster child should have been assigned to Ms. Pineda's home until it was "stabilized."

         An agency report on the infant plaintiff in August 2002 stated that he "cries excessively" and is "very hard to cons[ole], " so that "caregivers have difficulty providing comfort to [him]." The agency was required to provide information such as this about the child's behavior problems to the foster parent (18 NYCRR 443.2[e][3][iii])

         On September 5, 2002, the agency placed the then 29-week-old infant plaintiff in Ms. Pineda's home. There is no evidence in the record that Ms. Pineda's home had been "stabilized" by that date, or that JCCA advised Ms. Pineda of the baby's behavioral issue.

         The regulations of the New York State Department of Social Services require that foster parents who seek to be employed must obtain prior agency approval of their "plans for the care and supervision of the child at all times" (18 NYCRR 443.2[c][1][iii]). It is the agency's responsibility to train foster parents as to their responsibilities (18 NYCRR 443.2[d][1][vii] and [e]), and to sign an agreement providing that they may not "leave children under the age of 10 years alone without competent adult supervision" (18 NYCRR 443.3[b][3]). In support of this motion, JCCA submitted the testimony of their employees that these requirements were repeated in a manual for foster parents. However, since that manual is not in the record, JCCA has failed to establish that.

         In any event, there is no evidence in the record establishing that a JCCA employee ever advised Ms. Pineda of these provisions, or gave her a copy of the manual or that she ever saw one. In addition, she testified that no one had ever advised her that she could not leave the child with a caretaker under 18 years of age. Moreover, the contract that JCCA asked Ms. Pineda to sign did not comply with State law, but rather provided that she would not leave a child under 10 years old alone "without competent supervision."

         There is also no evidence that the agency, knowing at the very least that Ms. Pineda was likely to be working during the day, inquired as to her child care plans or made any effort to ensure that an appropriate child care plan was in place, as required by State regulation and its own policies when a foster parent works outside the home.

         In November 2002, the infant plaintiff's birth mother observed a bruise on the baby and reported it to an agency worker and supervisor. Hospital records from February 26, 2003 revealed that the child had "multiple bruises differing in size and stage of healing" on his chest, back, buttock, and legs.

         The agency's practice guide requires a minimum of two face-to-face contacts a month, one of which was to be in the home. Nevertheless, JCCA did not visit Ms. Pineda's home even once from November 27, 2002 to February 21, 2003, a three-month period.

         The JCCA worker's notes from the February 21 visit indicate that "Joseph's babysitter, Abila" was present, but this person had not been approved by JCCA. JCCA's Program Director testified that the proper procedure in this circumstance would have been for the caseworker to tell the foster parent "she cannot work and cannot use the baby-sitter without being present." There is no evidence in the record that JCCA took any steps at or immediately after the visit to ensure that only agency-approved persons cared for the child. [2]

         On February 25, 2003, Ms. Pineda's daughter left for school, and Ms. Pineda went to work, leaving her grandchild and the infant plaintiff, who had been running a fever, in the care of then-17-year-old defendant Joseph S., the father of Ms. Pineda's grandchild [3]. When the infant plaintiff would not stop crying, S. apparently shook him, causing him to suffer brain damage [4]. The hospital records reveal that the infant plaintiff arrived at the emergency room with "multiple bruises, differing in size and stage of healing, " suggesting that JCCA had failed to observe signs of mistreatment of the child predating the events of February 25, 2003. The City's investigation following the incident found that Ms. Pineda displayed "poor judgment" in leaving the infant plaintiff with S., who pleaded guilty to reckless endangerment of the child.


         The motion court correctly dismissed the complaint as against the City, since there is no evidence in the record that the City had notice that the child would be entrusted to an unqualified babysitter (see Lillian C. v Administration for Children's Servs., 48 A.D.3d 316, 317 [1st Dept 2008]). Accordingly, the City is not liable for the injuries sustained by the child. The motion court also properly dismissed the complaint against the foster mother because a child does not have a legally cognizable claim for damages in this case (McCabe v Dutchess County, 72 A.D.3d 145, 148 [2d Dept 2010]; see also Holodook v Spencer, 36 N.Y.2d 35 [1974]). For the reasons discussed below, we also find that the motion court properly denied the agency's summary judgment motion.

         The record suggests that JCCA may have been negligent in at least five respects. First, the agency placed the child in Ms. Pineda's home when he was a newborn, even though it had previously determined that children under five should not be placed with her because she was working or looking for work, and that her home required "stabilizing, " because her 16 year-old-daughter had recently given birth to a baby with special needs. Second, JCCA failed to ensure that an appropriate child care plan was in place after it had determined that Ms. Pineda was employed outside the home, as the applicable regulation requires (18 NYCRR 443.2[c][1][iii] [requiring that a "suitable plan[]" for child care by agency approved caretakers be made part of the foster family record where the foster parent works outside the home]). Moreover, there is no evidence that JCCA had ever advised Ms. Pineda that she needed to seek approval of her child care plan. Third, JCCA had notice, prior to the date on which the child was injured, that at least one unauthorized person was caring for him, but failed to take any action to rectify this, violating its own rules and the relevant regulation (id.). Fourth, JCCA's contract with Ms. Pineda stated merely that she was not to leave the infant plaintiff without competent supervision. This violates the applicable regulation, entitled "Certification or approval of foster family homes, " which requires agencies to have foster parents acknowledge in writing that they will not "leave children under the age of 10 years alone without competent adult supervision" (18 NYCRR 443.3[b][3][emphasis added]). Moreover, Ms. Pineda testified that she was never advised that she was not permitted to leave a foster child in the care of someone under 18. Finally, at the time of the February 21, 2003 home visit, JCCA had failed to visit the home for a three-month period, in violation of its own requirement of at least two contacts per month, with at least one to take place in the home. Under these circumstances, a jury could find that, had the agency followed the applicable regulations and its own rules, the special needs infant plaintiff might never have been left alone with a teenager already caring for his own special needs infant, [5] and who was prohibited from caring for the infant foster child.

         Where the acts of a third person intervene between a defendant's negligent conduct and a plaintiff's injury, the causal connection between the two is not severed as a matter of law. Rather, liability turns on whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence. An intervening act may break the causal nexus when it is "extraordinary under the circumstances, not foreseeable in the normal course of events, or independent or far removed from the defendant's conduct" (see Maheshwari v City of New York, 2 N.Y.3d 288, 295 [2004] [internal quotation marks omitted]). However,

"[a]n intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent.... That defendant could not anticipate the precise manner of the accident or the exact extent of injuries... does not preclude liability as a matter of law where the general risk and character of injuries are foreseeable" (Derdiarian v Felix Contr. Corp., 51 N.Y.2d 308, 316-317 [1980]). Accordingly, in cases where an assault occurs under circumstances where an institutional defendant violated its own procedures designed to protect those it is responsible for, the harm may be foreseeable and the defendant is not automatically relieved of liability (Mirand v City of New York (84 N.Y.2d at 50-51] [school liable for assault on student where, inter alia, it failed to have security personnel present in violation of its own security plan]; Garcia v City of New York (222 A.D.2d at 194 [school liable where student sexually assaulted by older child after being permitted to go to the bathroom alone, in violation of school memoranda requiring children to go to the bathroom in pairs]; Dawn VV. v State of New York, 47 A.D.3d at 1051 ["it was foreseeable that a resident could engage in some type of physical assault against another resident if the enacted safety plans were not adhered to"]).

         Here, the agency violated its own policies and applicable regulations requiring a child care plan for foster children whose foster parents work outside the home, permitting only agency approved caretakers, and prohibiting anyone under 18 from providing child care. Those policies are designed to protect a foster child from being injured as a result of being left alone with a person who is not qualified to care for him. A jury could find that it is foreseeable that the ...

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