MOORE v. MELESKY (2005)

Appeal from an order of the Supreme Court (Canfield, J.), entered September 10, 2003 in Rensselaer County, which granted defendants' motion to dismiss the complaint.

On May 23, 2002, plaintiff's 12-year-old daughter (hereinafter the child) telephoned the local police and reported that her mother had grabbed her by the neck, slammed her into a counter, threatened to beat her, trashed her room and punctured her inflatable chair with a large kitchen knife.   At that time, pursuant to a 1997 Family Court order, plaintiff shared joint physical custody of the child with her ex-husband (hereinafter the father).   The police reported the incident to defendant Rensselaer County Department of Social Services (hereinafter DSS).  Two DSS child protective workers, defendants Mark Melesky and John Speranza, contacted the father, with whom the child was residing for the weekend, and arranged a “safety plan” for the child with the father keeping her in his custody pending an investigation.   The father thereafter refused to return the child to plaintiff.   Some days later, a third DSS worker, defendant Tina Simmons, dissuaded plaintiff from retrieving the child from her school, allegedly by threatening to file a neglect proceeding in Family Court against plaintiff.   Plaintiff then petitioned Family Court to recover physical custody from the father.   DSS did not oppose the child's return and, ultimately, the report of suspected child abuse was held to be unfounded.

On August 2, 2002, plaintiff filed and served a terse notice of claim asserting that DSS and defendant County of Rensselaer had negligently interfered with her custody of the child.   Plaintiff, individually and as the child's parent, then commenced this action against those parties and the DSS workers individually, alleging eight causes of action on behalf of both herself and the child for common-law negligence, deprivation of a constitutional right in violation of 42 USC § 1983, and intentional and negligent infliction of emotional distress.   Defendants moved to dismiss the complaint on the grounds that plaintiff failed to comply with the notice of claim requirements of the General Municipal Law and the complaint failed to state a cause of action.   Supreme Court granted defendants' motion and dismissed the complaint.   Plaintiff appeals and we affirm.

 Initially, plaintiff contends that Supreme Court abused its discretion in refusing to excuse certain defects in the notice of claim and basing dismissal of some of her claims on those defects.   In both its caption and its text, however, the notice identified only plaintiff individually as the claimant (see General Municipal Law § 50-e[2] ) and only DSS and the County as the parties against whom the claim was being made.   Plaintiff's citation to Przestrzelski v. Board of Education of Fort Plain School Dist., 71 A.D.2d 743, 419 N.Y.S.2d 256 [1979] is unavailing because, in that case, the notice of claim was filed on behalf of both the parent and the child, and the only issue was whether the child could later assert the claims previously attributed to the parent.   In light of the notice's specification of parties here, and since corrections of a substantive nature are beyond the scope of the discretion conferred by General Municipal Law § 50-e (6) (see e.g. Harrington v. City of New York, 6 A.D.3d 662, 663, 776 N.Y.S.2d 592 [2004];  White v. Averill Park Cent. School Dist., 195 Misc.2d 409, 411-412, 759 N.Y.S.2d 641 [2003] ), we find that Supreme Court did not err in dismissing the child's claims against DSS and the County as well as all claims against the individual defendants to the extent that they were acting within the scope of their employment.

 Turning to the complaint, the first two causes of action assert that defendants intentionally and negligently interfered with the custodial rights of plaintiff and the child.   We note, however, that Social Services Law § 419 affords immunity to those who investigate suspected child abuse where “they act within the scope of their employment and do not engage in willful misconduct or gross negligence” (Van Emrik v. Chemung County Dept. of Social Servs., 220 A.D.2d 952, 953, 632 N.Y.S.2d 712 [1995], lv. dismissed 88 N.Y.2d 874, 645 N.Y.S.2d 448, 668 N.E.2d 419 [1996] ).   Plaintiff argues that her allegations, including the claim that the individual defendants acted intentionally and unlawfully, are equivalent to an express allegation that defendants acted outside the scope of their employment.   We disagree.   The test is whether the act is done while the employee is doing the employer's work, “no matter how irregularly, or with what disregard of instructions” (Riviello v. Waldron, 47 N.Y.2d 297, 302, 418 N.Y.S.2d 300, 391 N.E.2d 1278 [1979] [internal quotation marks and citations omitted];  see Gore v. Kuhlman, 217 A.D.2d 890, 890, 630 N.Y.S.2d 141 [1995] ).   Under this standard, tortious conduct has been found to fall within the scope of employment if it is a “natural incident of the employment” (Riviello v. Waldron, supra at 304, 418 N.Y.S.2d 300, 391 N.E.2d 1278).   Public officials are also afforded immunity under the common law where their alleged acts and omissions are discretionary, even if the acts arose out of malice (see Tango v. Tulevech, 61 N.Y.2d 34, 40, 41-42, 471 N.Y.S.2d 73, 459 N.E.2d 182 [1983] ).

Here, the complaint alleges in a conclusory manner that defendants unlawfully deprived plaintiff of custody by failing to comply with the requirements of Family Ct. Act article 10.   Because it does not allege facts showing that the postremoval obligations imposed on DSS by Family Ct. Act §§ 1024 and 1026 were applicable, defendants acted outside the scope of their employment or their conduct was ministerial so as to overcome their qualified immunity, Supreme Court properly dismissed the first two causes of action (see Della Villa v. Constantino, 246 A.D.2d 867, 868-869, 668 N.Y.S.2d 724 [1998];  see also Van Emrik v. Chemung County Dept. of Social Servs., supra at 953-954, 632 N.Y.S.2d 712;  Kempster v. Child Protective Servs. of Dept. of Social Servs. of County of Suffolk, 130 A.D.2d 623, 625-626, 515 N.Y.S.2d 807 [1987] ).

 As to the third and fourth causes of action alleging that plaintiff and the child were deprived of their constitutionally protected right to care and custody, we find that no claim is stated under 42 USC § 1983 because there is no allegation that the actions of the DSS workers were pursuant to a policy or custom of either the County or DSS (see Landsman v. Village of Hancock, 296 A.D.2d 728, 730-731, 745 N.Y.S.2d 258 [2002], appeal dismissed 99 N.Y.2d 529, 752 N.Y.S.2d 586, 782 N.E.2d 563 [2002];  Rossi v. City of Amsterdam, 274 A.D.2d 874, 877, 712 N.Y.S.2d 79 [2000] ).   Moreover, under 42 USC § 1983, immunity exists if the worker had the authority to perform the acts complained of (see Godinez v. Siena Coll., 288 A.D.2d 659, 661-662, 733 N.Y.S.2d 262 [2001], appeal dismissed, lv. denied 97 N.Y.2d 722, 740 N.Y.S.2d 691, 767 N.E.2d 148 [2002] ) and it was objectively reasonable for the worker to believe that those acts did not violate protected rights (see Robison v. Via, 821 F.2d 913, 920-921 [1987];  Van Emrik v. Chemung County Dept. of Social Servs., 191 A.D.2d 143, 147, 600 N.Y.S.2d 157 [1993] ).

Here, DSS and its workers were authorized and obligated by statute to investigate the allegations of child abuse and safeguard the child's welfare (see Social Services Law § 397[2][a] ).   Given this authority, the father's shared physical custody and the absence of factual allegations evidencing a violation of Family Ct. Act article 10, no rational finder of fact could conclude that it was not objectively reasonable for defendants to believe that arranging for the child to remain with her father during their investigation was the least intrusive way to satisfy their obligation to safeguard the child (see Robison v. Via, supra at 919).

 Finally, we find that the complaint fails to state a cause of action for either intentional or negligent infliction of emotion distress because it attributes to defendants neither conduct that is so extreme and outrageous as to be considered “ ‘atrocious and utterly intolerable’ ” (Hart v. Child's Nursing Home Co., 298 A.D.2d 721, 722, 749 N.Y.S.2d 297 [2002], quoting Doe v. Community Health Plan-Kaiser Corp., 268 A.D.2d 183, 188, 709 N.Y.S.2d 215 [2000];  see Demas v. Levitsky, 291 A.D.2d 653, 660, 738 N.Y.S.2d 402 [2002], lv. denied 98 N.Y.2d 728, 749 N.Y.S.2d 477, 779 N.E.2d 188 [2002] ) nor a breach of duty that unreasonably endangered plaintiff's physical safety (see Hart v. Child's Nursing Home Co., supra at 723, 749 N.Y.S.2d 297;  Dobisky v. Rand, 248 A.D.2d 903, 905, 670 N.Y.S.2d 606 [1998] ).   Also, it is well settled that a claim of intentional infliction of emotional distress cannot be maintained against governmental entities (see Matter of Lynch v. State of New York, 2 A.D.3d 1002, 1003, 768 N.Y.S.2d 403 [2003] ).

Accordingly, we find that Supreme Court properly granted defendants' motion to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

ROSE, J.

PETERS, J.P., MUGGLIN, LAHTINEN and KANE, JJ., concur.