GRABOWSKI v. ORANGE COUNTY (2023)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Steven M. Jaeger, J.), dated December 28, 2020.  The order granted the motion of the defendant Orange County pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Orange County pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it is denied.

The plaintiff commenced this action alleging that between the ages of four and six, while she was a foster child in the custody and care of the defendant Orange County, she was placed in a foster home where she was repeatedly sexually abused by her foster father, among others.  The County moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it.  The Supreme Court granted the motion.  The plaintiff appeals.

On a CPLR 3211(a)(7) motion to dismiss, the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511;  see Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720).  “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26;  see Cortlandt St. Recovery Corp. v. Bonderman, 31 N.Y.3d 30, 38, 73 N.Y.S.3d 95, 96 N.E.3d 191).

Here, accepting the facts as alleged in the complaint as true and according the plaintiff the benefit of every possible favorable inference, we find that the complaint sufficiently states a cause of action for negligence against the County.  “[C]ounties and foster care agencies may be sued to recover damages for negligence in the selection of foster parents and in supervision of the foster home” (Keizer v. SCO Family of Servs., 120 A.D.3d 475, 476, 991 N.Y.S.2d 103;  see George v. Windham, 169 A.D.3d 876, 877, 94 N.Y.S.3d 363;  Liang v. Rosedale Group Home, 19 A.D.3d 654, 655, 799 N.Y.S.2d 69;  Barnes v. Nassau County, 108 A.D.2d 50, 54–55, 487 N.Y.S.2d 827).  “In order to find that a child care agency breached its duty to adequately supervise the children entrusted to its care, a plaintiff must establish that the agency had sufficiently specific knowledge or notice of the dangerous conduct which caused injury;  that is, that the third-party acts could reasonably have been anticipated” (Lopez v. City of New York, 172 A.D.3d 703, 705, 99 N.Y.S.3d 381 [internal quotation marks omitted];  see George v. Windham, 169 A.D.3d at 877, 94 N.Y.S.3d 363;  Liang v. Rosedale Group Home, 19 A.D.3d at 655, 799 N.Y.S.2d 69).

Here, the complaint, which asserted that the abuse was foreseeable, inter alia, because the County knew or in the exercise of reasonable care should have known of the foster father's propensity to engage in the sexual abuse of children, sufficiently alleged that the County had notice of the dangerous conduct at issue such that the abuse could reasonably have been anticipated (see George v. Windham, 169 A.D.3d at 877, 94 N.Y.S.3d 363;  Bartels v. County of Westchester, 76 A.D.2d 517, 523, 429 N.Y.S.2d 906).  Moreover, the complaint sufficiently alleged that the County was negligent in failing to ensure that proper safeguards were in place so as to ensure the safety of the plaintiff in the foster home (see Barnes v. County of Nassau, 108 A.D.2d at 54, 487 N.Y.S.2d 827).

Contrary to the Supreme Court's determination, the County was not entitled to qualified immunity pursuant to Social Services Law § 419, as qualified immunity does not bar recovery for the negligent supervision of children in foster care (see Sean M. v. City of New York, 20 A.D.3d 146, 160, 795 N.Y.S.2d 539;  Liang v. Rosedale Group Home, 19 A.D.3d at 655, 799 N.Y.S.2d 69;  Barnes v. County of Nassau, 108 A.D.2d at 55, 487 N.Y.S.2d 827).

The County's arguments concerning vicarious liability and the period of time after the plaintiff's adoption are misplaced, as the complaint does not seek to recover damages upon a theory that the County is vicariously liable for the foster parents’ acts or for the period of time after the plaintiff's adoption.

Accordingly, the Supreme Court should have denied the County's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it.

CONNOLLY, J.P., BRATHWAITE NELSON, MALTESE and CHRISTOPHER, JJ., concur.