THOMAS v. et al., defendant. (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for negligence, the defendant Little Flower Children and Family Services of New York appeals from an order of the Supreme Court, Suffolk County (Christopher Modelewski, J.), dated April 7, 2025.  The order denied that defendant's motion for summary judgment dismissing the amended complaint insofar as asserted against it.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendant Little Flower Children and Family Services of New York which was for summary judgment dismissing the cause of action alleging negligence insofar as asserted by the plaintiff Shamel Thomas against it, and substituting therefor a provision granting that branch of the motion;  as so modified, the order is affirmed, without costs or disbursements.

The plaintiffs, Shamel Thomas and Gordon Davis, commenced this action pursuant to the Child Victims Act (see CPLR 214–g), inter alia, to recover damages for negligence.  In their amended complaint, the plaintiffs alleged that they were foster children in the legal custody of the defendant Little Flower Children and Family Services of New York, formerly known as Little Flower Children's Services (hereinafter Little Flower), which placed them at a foster home where they were sexually abused by the biological son of the foster mother.  The plaintiffs further alleged, among other things, that Little Flower knew or should have known that the foster home was not a safe environment for children, failed to properly supervise the plaintiffs, and failed to report the abuse pursuant to Social Services Law § 413.

In November 2024, Little Flower moved for summary judgment dismissing the amended complaint insofar as asserted against it.  In an order dated April 7, 2025, the Supreme Court denied Little Flower's motion.  Little Flower appeals.

“In order to establish its prima facie entitlement to judgment as a matter of law dismissing [a cause of action] alleg[ing] that it engaged in negligent placement and supervision of a plaintiff foster child, a defendant must establish, prima facie, that it did not have sufficiently specific knowledge or notice of the alleged dangerous conduct which caused the [plaintiff's] injuries.  In other words, the [defendant must] show that the third-party acts could not have been reasonably anticipated” (Conklin v. Westchester County, 239 AD3d 826, 827 [internal quotation marks omitted];  see M.F. v. Putnam County, 244 AD3d 1072, 1073).

Here, the Supreme Court should have granted that branch of Little Flower's motion which was for summary judgment dismissing the cause of action sounding in negligence as it relates to the injuries alleged by Thomas.  Little Flower established, prima facie, that it lacked actual or constructive notice of the foster mother's son's propensity for the conduct that allegedly caused Thomas's injuries (see T.S. v Wappingers Cent. Sch. Dist., 231 AD3d 884, 885;  cf.  Lemorrocco v. Westchester County, 242 AD3d 1078, 1080).  In opposition, the plaintiffs failed to raise a triable issue of fact.

However, the Supreme Court properly determined that Little Flower failed to establish its prima facie entitlement to judgment as a matter of law dismissing the cause of action sounding in negligence insofar as asserted by Davis against it.  As it relates to the injuries allegedly sustained by Davis, Little Flower failed to establish, prima facie, that it lacked actual or constructive notice of the foster mother's son's alleged abusive propensities and conduct (see Conklin v. Westchester County, 247 AD3d 1135, 1137;  Lemorrocco v. Westchester County, 242 AD3d at 1080).

Moreover, Little Flower failed to demonstrate, prima facie, that it did not knowingly or willfully fail to report suspected abuse alleged by the plaintiffs (see Social Services Law §§ 413, 420[2];  Brown v. Westchester County, 234 AD3d 812, 815).  Therefore, the Supreme Court properly denied that branch of Little Flower's motion which was for summary judgment dismissing the cause of action alleging violations of certain provisions of the Social Services Law insofar as asserted against it, without regard to the sufficiency of the plaintiffs' opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).

CONNOLLY, J.P., VOUTSINAS, GOLIA and QUIRK, JJ., concur.