A. S., respondent, v. NASSAU COUNTY (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Nassau County appeals from an order of the Supreme Court, Nassau County (Leonard D. Steinman, J.), dated January 5, 2024.  The order denied that defendant's motion for summary judgment dismissing the 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 alleges, inter alia, that the defendant Nassau County (hereinafter the defendant) negligently failed to prevent sexual abuse perpetrated upon the plaintiff between 1993 and 2000 by a relative living in the plaintiff's foster home.  The defendant moved for summary judgment dismissing the complaint insofar as asserted against it on the ground, among others, that it did not owe a special duty to the plaintiff.  In an order dated January 5, 2024, the Supreme Court denied the motion.  The defendant appeals.

“Counties and foster care agencies cannot be vicariously liable for the negligent acts of foster parents, but may be sued to recover damages for negligence in the selection of foster parents and in supervision of the foster home” (D.D. v. Westchester County, 232 A.D.3d 761, 762, 223 N.Y.S.3d 141 [internal quotation marks omitted];  see Keizer v. SCO Family of Servs., 120 A.D.3d 475, 476, 991 N.Y.S.2d 103).  “ ‘When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose’ ” (Fitzgerald v. Westchester County, 232 A.D.3d 771, 772, 223 N.Y.S.3d 135 [internal quotation marks omitted], quoting Marino v. City of New York, 223 A.D.3d 888, 889, 204 N.Y.S.3d 534).  Here, the defendant was acting in a governmental capacity when it took legal custody of the plaintiff and placed him with a foster family (see P.D. v. County of Suffolk, 231 A.D.3d 1, 7, 214 N.Y.S.3d 408;  Kochanski v. City of New York, 76 A.D.3d 1050, 1052, 908 N.Y.S.2d 260).

Ordinarily, “[w]here a municipality was acting in a governmental capacity, the plaintiff must prove the existence of a special duty as an element of his or her negligence cause of action” by demonstrating that “(1) the plaintiff belonged to a class for whose benefit a statute was enacted;  (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally;  or (3) the municipality took positive control of a known and dangerous safety condition” (Fitzgerald v. Westchester County, 232 A.D.3d at 772, 223 N.Y.S.3d 135 [internal quotation marks omitted];  see Adams v. Suffolk County, 234 A.D.3d 1, 6, 222 N.Y.S.3d 501).  However, it is settled that “a municipality owes a duty to a foster child over whom it has assumed legal custody to guard the child from foreseeable risks of harm arising from the child's placement with the municipality's choice of foster parent” (Weisbrod–Moore v. Cayuga County, ––– N.Y.3d ––––, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 00903, *2 [internal quotation marks omitted]).  “It is unnecessary for the child to plead or prove that one of the three special duty categories applies” (id.).

In the present case, the defendant failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it on the ground that it did not owe a special duty to the plaintiff.  By taking legal custody of the plaintiff, the defendant assumed a special duty to the plaintiff that differed from what was owed to the public generally (see id. at *3;  Adams v. Suffolk County, 234 A.D.3d at 10, 222 N.Y.S.3d 501), and the plaintiff was not required to plead or prove that one of the three special duty categories applies (see Weisbrod–Moore v. Cayuga County, ––– N.Y.3d at ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 00903, *3;  Fitzgerald v. Westchester County, 232 A.D.3d at 772, 223 N.Y.S.3d 135).

The defendant's contention regarding its entitlement to discretionary immunity is improperly raised for the first time in its reply brief.  In any event, even if this contention were properly before this Court, it is without merit.  “[A] municipality acting in a discretionary governmental capacity may rely on the governmental function immunity defense, an affirmative defense that must be pleaded and proved by the municipality” (Ferreira v. City of Binghamton, 38 N.Y.3d 298, 311, 173 N.Y.S.3d 484, 194 N.E.3d 239 [internal quotation marks omitted];  see McLean v. City of New York, 12 N.Y.3d 194, 199–203, 878 N.Y.S.2d 238, 905 N.E.2d 1167).  “However, ‘the governmental function immunity defense cannot attach unless the municipal defendant establishes that the discretion possessed by its employees was in fact exercised in relation to the conduct on which liability is predicated’ ” (Adams v. Suffolk County, 234 A.D.3d at 16–17, 222 N.Y.S.3d 501, quoting Valdez v. City of New York, 18 N.Y.3d 69, 76, 936 N.Y.S.2d 587, 960 N.E.2d 356).  Here, even if the acts at issue could potentially be considered discretionary, the defendant “ ‘failed to demonstrate that the alleged discretion was in fact exercised in relation to the conduct on which liability is predicated’ ” (id. at 17, 222 N.Y.S.3d 501 [alteration omitted], quoting P.D. v. County of Suffolk, 231 A.D.3d at 10, 214 N.Y.S.3d 408).

IANNACCI, J.P., FORD, DOWLING and HOM, JJ., concur.