DIAZ v. Lutheran Social Services of Metropolitan New York, et al., Defendants.

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Supreme Court, Appellate Division, First Department, New York.

Nyssa Marie DIAZ, etc., et al., Plaintiffs–Appellants, v. MONTEFIORE MEDICAL CENTER HENRY & LUCY MOSES DIV., et al., Defendants–Respondents, Lutheran Social Services of Metropolitan New York, et al., Defendants.

Decided: November 21, 2002

NARDELLI, J.P., MAZZARELLI, SULLIVAN, ELLERIN, and MARLOW, JJ. Michael J. Devereaux, for Plaintiffs–Appellants. Elliott J. Zucker, for Defendants–Respondents.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered March 19, 2001, which granted the motion of defendants-respondents, inter alia, to dismiss the complaint as against them pursuant to CPLR 3211, unanimously affirmed, without costs.

 We affirm the dismissal of the complaint as against defendants-respondents on the ground that plaintiffs were without standing to sue on behalf of the infant plaintiff and that plaintiffs' allegations on their own behalf state no cognizable claim for relief.   Although the standing issue was not raised in the motion court, it may nonetheless be reached and determined in support of an affirmance on appeal since it is incontrovertible that none of the adult plaintiffs has standing pursuant to CPLR 1201 to institute an action on behalf of the infant plaintiff (see Sega v. State of New York, 60 N.Y.2d 183, 190, 469 N.Y.S.2d 51, 456 N.E.2d 1174).   Defendants-respondents are shielded from plaintiffs' remaining claims by reason of the qualified statutory immunity conferred on them, as health care providers with a duty to report suspected child abuse (see Social Services Law § 413), pursuant to Social Services Law § 419.   The allegations of the complaint, even when given the benefit of every reasonable inference in plaintiffs' favor, fail to allege conduct on the part of defendants-respondents so grossly negligent as to render the statutory shield ineffectual.

We have reviewed plaintiffs' remaining arguments and find them unavailing.