LEWIS v. COUNTY OF WESTCHESTER (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant County of Westchester appeals from an order of the Supreme Court, Westchester County (Leonard D. Steinman, J.), dated January 12, 2024.  The order denied that defendant's motion for summary judgment dismissing the second amended complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

In this action commenced pursuant to the Child Victims Act (see CPLR 214–g), the plaintiff alleged that the defendant County of Westchester negligently failed to prevent sexual abuse allegedly perpetrated upon him by his foster mother and her brother between 1977 and 1981.  The County moved for summary judgment dismissing the second amended complaint insofar as asserted against it on the grounds, among others, that it did not owe a special duty to the plaintiff and did not have notice of the alleged propensity of the foster mother and her brother to engage in sexual abuse.  In an order dated January 12, 2024, the Supreme Court denied the County's motion.  The County appeals.

“[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 Grabowski v. Orange County, 219 A.D.3d 1314, 1315, 196 N.Y.S.3d 113;  George v. Windham, 169 A.D.3d 876, 877, 94 N.Y.S.3d 363).  “[A] municipality that has assumed legal custody of a foster child, and which selects and supervises the foster parents of that child, necessarily owes a duty to the child ‘more than that owed [to] the public generally’ ” (Adams v. Suffolk County, 234 A.D.3d 1, 10, 222 N.Y.S.3d 501, quoting Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 426, 972 N.Y.S.2d 169, 995 N.E.2d 131;  see Weisbrod–Moore v. Cayuga County, ––– N.Y.3d ––––, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 00903, *4).  “Therefore, a plaintiff alleging that a municipal foster care agency negligently selected or supervised the foster parents charged with caring for that plaintiff as a child need not plead or prove additional facts supporting a special relationship in order to satisfy the special duty rule” (Adams v. Suffolk County, 234 A.D.3d at 11, 222 N.Y.S.3d 501;  see Weisbrod–Moore v. Cayuga County, ––– N.Y.3d at ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 00903, *4;  Fitzgerald v. Westchester County, 232 A.D.3d 771, 773, 223 N.Y.S.3d 135).

Here, the County failed to demonstrate its prima facie entitlement to judgment as a matter of law dismissing the second amended complaint insofar as asserted against it on the ground that it did not owe a special duty to the plaintiff.  It is undisputed that the County had legal custody of the plaintiff during his time in foster care.  “By assuming custody of [the] plaintiff, and thus assuming the authority to control where and with whom [the] plaintiff lived, the County necessarily assumed a duty to [the plaintiff] beyond what is owed to the public generally” (Weisbrod–Moore v. Cayuga County, ––– N.Y.3d at ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 00903, *4;  see Adams v. Suffolk County, 234 A.D.3d 1).  “Accordingly, the plaintiff was not required to plead or prove additional facts supporting a special relationship in order to satisfy the special duty rule” (Fitzgerald v. Westchester County, 232 A.D.3d at 772;  see Weisbrod–Moore v. Cayuga County, ––– N.Y.3d at ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 00903, *4;  Adams v. Suffolk County, 234 A.D.3d 1, 222 N.Y.S.3d 501).

“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” (Grabowski v. Orange County, 219 A.D.3d at 1315, 196 N.Y.S.3d 113 [internal quotation marks omitted];  see Lopez v. City of New York, 172 A.D.3d 703, 705, 99 N.Y.S.3d 381).  “Where the complaint alleges negligent supervision due to injuries related to an individual's intentional acts, the plaintiff generally must allege that the entity knew or should have known of the individual's propensity to engage in such conduct, such that the individual's acts could be anticipated or were foreseeable” (Kwitko v. Camp Shane, Inc., 224 A.D.3d 895, 896, 206 N.Y.S.3d 356 [alteration and internal quotation marks omitted];  see Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263).

Here, the County failed to establish, prima facie, that it lacked notice of the alleged abusive propensities and conduct of the foster mother and her brother (see Adams v. Suffolk County, 234 A.D.3d 1, 222 N.Y.S.3d 501; Fitzgerald v. Westchester County, 232 A.D.3d at 773, 223 N.Y.S.3d 135;  Kwitko v. Camp Shane, Inc., 224 A.D.3d at 896, 206 N.Y.S.3d 356).  Since the County failed to meet its prima facie burden, the Supreme Court properly denied its motion for summary judgment dismissing the second amended complaint insofar as asserted against it, without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

CONNOLLY, J.P., CHRISTOPHER, DOWLING and VENTURA, JJ., concur.