FITZPATRICK v. Carmen Clemente, et al., Defendants.

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

Jennifer FITZPATRICK, et al., Plaintiffs-Respondents, v. Maureen FITZPATRICK, Defendant-Respondent, Erika Bain, et al., Defendants-Appellants, Carmen Clemente, et al., Defendants.

Decided: February 28, 2006

TOM, J.P., MAZZARELLI, SULLIVAN, SWEENY, MALONE, JJ. Mendes & Mount, LLP, New York (Kevin J. Philbin of counsel), for appellants. David Rabin, Hunter, for Jennifer Fitzpatrick, Julie Fitzpatrick and Michele Conli, respondents. Philip Newman, Bronx, for Maureen Fitzpatrick, respondent.

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered on or about September 26, 2005, which, inter alia, denied the motion by defendants Bain and Saint Dominic's Home for summary judgment dismissing the complaint and all cross claims against them, unanimously modified, on the law, the motion granted with respect to plaintiff Conli's claims and defendant Maureen Fitzpatrick's cross claim, and otherwise affirmed, without costs.

The court improvidently exercised its discretion in denying summary judgment on the ground that the motion was untimely and good cause had not been shown for the delay (see CPLR 3212[a];  cf. Brill v. City of New York, 2 N.Y.3d 648, 652, 781 N.Y.S.2d 261, 814 N.E.2d 431 [2004] ).   The motion was accompanied by an adequate explanation for the delay.

The conflicting evidence that the plaintiff children were abused and neglected in the foster home, and that defendant Saint Dominic's conducted periodic visits and inspections of the home and the children, raises an issue of fact as to whether the monitoring of the home should have afforded this defendant notice of the treatment of the children, and thus precludes summary judgment as to plaintiffs' negligence-based claims (see Mirand v. City of New York, 84 N.Y.2d 44, 49-50, 614 N.Y.S.2d 372, 637 N.E.2d 263 [1994] ).   However, since there is no evidence in the record from which to infer a duty on the part of Saint Dominic's (and its director of child placement, defendant Bain) toward plaintiff Conli, summary judgment is granted as to her cause of action against them (Darby v. Compagnie Natl. Air France, 96 N.Y.2d 343, 347, 728 N.Y.S.2d 731, 753 N.E.2d 160 [2001] ).

Summary judgment is also granted to dismiss defendant Maureen Fitzpatrick's cross claim for wrongful adoption, since there is no evidence in the record from which the elements of a cause of action sounding in fraud could be sustained (cf. Juman v. Louise Wise Servs., 254 A.D.2d 72, 678 N.Y.S.2d 611 [1998] ).