RIVERA v. CITY OF NEW YORK

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

Angel RIVERA, Jr., etc., et al., Plaintiffs–Respondents, v. The CITY OF NEW YORK, et al., Defendants–Appellants.

Decided: March 29, 2011

MAZZARELLI, J.P., SAXE, RENWICK, DeGRASSE, RICHTER, JJ. Michael A. Cardozo, Corporation Counsel, New York (Deborah A. Brenner of counsel), for appellants. Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac of counsel), for respondents.

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered on or about December 9, 2009, which, to the extent appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted.   The Clerk is directed to enter judgment in defendants' favor dismissing the complaint.

Plaintiffs are the surviving children of the late Naomi Vasquez, whose live-in boyfriend, Harry Bonilla, killed her and her daughter, Wanda Rivera, in 1993 (see People v. Bonilla, 251 A.D.2d 82, 674 N.Y.S.2d 23 [1998], lv. denied 92 N.Y.2d 893, 680 N.Y.S.2d 57, 702 N.E.2d 842 [1998] ).   At the time of the murders, defendant Child Welfare Administration (CWA) was investigating plaintiffs' home.   Family Court had ordered the investigation after the children's paternal grandmother alleged in a petition for visitation rights that Bonilla was “on drugs” and that Naomi “[was] not caring for oldest child properly.”   Plaintiffs allege, inter alia, that the proximate cause of their mother's and sister's deaths, and the attendant injury to themselves, was defendants' negligence in conducting the investigation.

 Since the CWA caseworker who investigated the family was engaged in discretionary action, defendants may not be held liable for any negligence on her part (see Carossia v. City of New York, 39 A.D.3d 429, 835 N.Y.S.2d 102 [2007];  Sean M. v. City of New York, 20 A.D.3d 146, 156, 795 N.Y.S.2d 539 [2005] ).   The record presents no issues of fact whether the caseworker was actually conducting her investigation or exercising her discretion when the murders occurred.

 In any event, the record demonstrates no special relationship between the parties or special duty owed by defendants to plaintiffs (see McLean v. City of New York, 12 N.Y.3d 194, 203, 878 N.Y.S.2d 238, 905 N.E.2d 1167 [2009] ).   There is no evidence that defendants voluntarily undertook any obligation beyond those already required of them by law (see Pelaez v. Seide, 2 N.Y.3d 186, 202, 778 N.Y.S.2d 111, 810 N.E.2d 393 [2004] ) or that the caseworker was “clearly on notice of palpable danger” (Kovit v. Estate of Hallums, 4 N.Y.3d 499, 508, 797 N.Y.S.2d 20, 829 N.E.2d 1188 [2005] ).   Nor is there any evidence that plaintiffs relied on defendants to protect them and that their reliance induced them to forgo other possibilities of relief (see Cuffy v. City of New York, 69 N.Y.2d 255, 260–261, 513 N.Y.S.2d 372, 505 N.E.2d 937 [1987];  Badillo v. City of New York, 35 A.D.3d 307, 308, 827 N.Y.S.2d 133 [2006] ).

 In the absence of evidence suggesting that the caseworker engaged in “willful misconduct or gross negligence,” defendants are also entitled to the immunity afforded by Social Services Law § 419 to those investigating allegations of child abuse (see Sean M., 20 A.D.3d at 158, 795 N.Y.S.2d 539 [internal quotation marks and citation omitted] ).   The evidence permits no inference that the case worker acted in bad faith, “failed to exercise even slight care, or exhibited a complete disregard for the rights and safety of others” (see Carossia, 39 A.D.3d at 430, 835 N.Y.S.2d 102 [internal quotation marks and citation omitted] ).

 In addition to the absence of evidence as to a special duty, there also is no evidence to support the inference that any act or omission on the part of defendant Board of Education proximately caused the injury to plaintiffs.

In view of the foregoing, we do not reach defendants' remaining arguments.