M. W., appellant, v. NASSAU COUNTY (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Leonard D. Steinman, J.), dated July 10, 2024.  The order granted the motion of the defendant Nassau County for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Nassau County for summary judgment dismissing the complaint insofar as asserted against it is denied.

In this action commenced pursuant to the Child Victims Act (see CPLR 214–g), the plaintiff alleged that the defendant Nassau County negligently failed to prevent sexual abuse allegedly perpetrated upon her by her foster father in the late 1970s.  The cause of action against the County alleged negligent placement and supervision of the plaintiff in the foster home.

The County moved for summary judgment dismissing the complaint insofar as asserted against it, contending, inter alia, that it was entitled to governmental function immunity and qualified immunity pursuant to Social Services Law § 419.  In an order dated July 10, 2024, the Supreme Court granted the County's motion on the ground that it was entitled to governmental function immunity.  The plaintiff appeals.

“The governmental function immunity defense provides immunity for the exercise of discretionary authority during the performance of a governmental function” (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 Adams v. Suffolk County, 234 A.D.3d 1, 16, 222 N.Y.S.3d 501).  “[T]he 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” (Valdez v. City of New York, 18 N.Y.3d 69, 76, 936 N.Y.S.2d 587, 960 N.E.2d 356;  see Adams v. Suffolk County, 234 A.D.3d at 16–17, 222 N.Y.S.3d 501).

Here, the County failed to establish, prima facie, that the relevant acts of the County's employees relating to the alleged negligent supervision of the plaintiff's foster care placement were discretionary and thus entitled to immunity (see Adams v. Suffolk County, 234 A.D.3d at 17, 222 N.Y.S.3d 501;  M.S. v. County of Orange, 64 A.D.3d 560, 562, 884 N.Y.S.2d 74;  Barnes v. County of Nassau, 108 A.D.2d 50, 54, 487 N.Y.S.2d 827).  Moreover, even if the acts at issue could potentially be considered discretionary, the County failed to demonstrate that the alleged discretion was in fact exercised in relation to the conduct on which liability is predicated (see A.S. v. Nassau County, 240 A.D.3d 920, 922, 238 N.Y.S.3d 579;  Adams v. Suffolk County, 234 A.D.3d 1, 17, 222 N.Y.S.3d 501).

The County contends, as an alternative ground for affirmance (see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545–546, 470 N.Y.S.2d 564, 458 N.E.2d 1241), that it was entitled to summary judgment dismissing the complaint insofar as asserted against it because it was immune from liability pursuant to Social Services Law § 419.  Contrary to the County's contention, it “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” (Grabowski v. Orange County, 219 A.D.3d 1314, 1315, 196 N.Y.S.3d 113;  see Sean M. v. City of New York, 20 A.D.3d 146, 158, 795 N.Y.S.2d 539;  Liang v. Rosedale Group Home, 19 A.D.3d 654, 655, 799 N.Y.S.2d 69).

On appeal, the County does not advance lack of notice of the foster father's alleged conduct as an alternative ground for affirmance (see Clarke v. Town of Newburgh, 237 A.D.3d 14, 40, 226 N.Y.S.3d 310;  Stewart v. Berger, 137 A.D.3d 1103, 1105, 29 N.Y.S.3d 42).

Since the County failed to meet its prima facie burden of establishing its entitlement to judgment as a matter of law, the Supreme Court should have denied the County's motion for summary judgment dismissing the 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).

DILLON, J.P., CHAMBERS, WAN and MCCORMACK, JJ., concur.