SHABAZZ v. Mary Spellman, Defendant-Appellant. (2003)

Order, Supreme Court, Bronx County (Stanley Green, J.), entered April 26, 2002, which, in an action by an infant for personal injuries caused by scalding hot bath water, insofar as appealed from, denied defendant-appellant foster mother's motion for summary judgment dismissing the complaint and the cross claims of her landlord and plaintiff's child protective agency as against her, unanimously affirmed, without costs.

 We reject appellant's contention that her status as a foster mother entitles her to the qualified immunity afforded by Social Services Law § 419.   That statute is limited to persons and agencies participating in good faith in the investigation of child abuse allegations (see Van Emrik v. Chemung County Dept. of Soc. Serv., 220 A.D.2d 952, 953, 632 N.Y.S.2d 712, lv. dismissed 88 N.Y.2d 874, 645 N.Y.S.2d 448, 668 N.E.2d 419), with good faith presumed if such persons or agencies are “acting in discharge of their duties and within the scope of their employment.”   The clause covering persons or agencies participating in good faith in “the removal or keeping of a child,” read in context, does not persuade us that the statute was intended to cover foster parents.   In any event, the statute does not immunize gross negligence, and issues of fact exist as to whether appellant was grossly negligent in leaving the infant plaintiff alone in the bathroom for five minutes to speak on the phone with knowledge that the water in the bathroom often fluctuated from warm to very hot in a matter of moments.