Barnes v. Nassau County

• Decision Date: 15 April 1985
• Citation: 108 A.D.2d 50,487 N.Y.S.2d 827
• Parties: William J. BARNES, etc., Respondent, v. COUNTY OF NASSAU, et al., Appellants; Margaret Toomer, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 827

487 N.Y.S.2d 827

108 A.D.2d 50

William J. BARNES, etc., Respondent, v. COUNTY OF NASSAU, et al., Appellants Margaret Toomer, Defendant.

Supreme Court, Appellate Division Second Department.

April 15, 1985.

Edward G. McCabe, County Atty., Mineola (Kathryn Driscoll Hopkins and William S. Norden, Deputy Co. Attys., Mineola, of counsel), for appellants.

Solerwitz, Solerwitz & Leeds, Mineola (Sari M. Friedman, James O'Shea and Judith A. Kravitz, Mineola, of counsel), for respondent.

Before O'CONNOR, J.P., and RUBIN, LAWRENCE and EIBER, JJ.

O'CONNOR, Justice Presiding.

Should a county be permitted to amend its answer to interpose a defense of immunity against a claim of negligent placement and supervision of an infant in foster care? For the reasons stated below, we answer this question in the negative and thus affirm Special Term which denied the county defendants' motion for leave to amend and for summary judgment.

I

In July, 1977, defendant Department of Social Services of the County of Nassau (hereinafter DSS) placed a four-year-old child and his sister in the foster home of defendant Margaret Toomer after the infant's natural mother was sentenced to prison. Subsequent to placement, the DSS received several reports that the infant was being "beaten" and otherwise "abused" by the foster mother. DSS employees allegedly investigated the complaints and determined that the child should remain in Mrs. Toomer's care pending completion of their investigation. On May 28, 1978, five days after a final home visit by employees, the infant was beaten to death. Mrs. Toomer was subsequently charged and convicted of criminally negligent homicide in connection with the death.

On or about November 17, 1978, William Barnes, the decedent's grandfather and administrator of his estate, commenced the present action against the County of Nassau, the DSS and Mrs. Toomer. The cause of action against the county defendants asserted, in effect, that they were negligent in placing the infant in Mrs. Toomer's care, investigating the complaints of abuse against her, and failing to remove the infant from her care. Initially, the county defendants denied these allegations, and then, on April 30, 1984, some five years after the service of the answer, moved for leave to amend their answer to interpose the affirmative defense of immunity and for summary judgment dismissing the complaint insofar as it was asserted against them.

In a short form order, Special Term denied the county defendants' motion on the ground that "no purpose would be served by allowing defendant[s] to amend [their] answer" since the acts here complained of "require[d] no discretion" and the "County is not immune from liability". While we agree with Special Term's determination, we believe additional explanation is necessary.

II

The law is clear that leave to amend a pleading should be freely granted unless the amendment sought is palpably improper or insufficient as a matter of law or unless prejudice or surprise directly results from delay in seeking such amendment (CPLR 3025[b]; Norman v. Ferrara, 107 A.D.2d 739, 484 N.Y.S.2d 600; Kitchner v. Kitchner, 100 A.D.2d 954, 475 N.Y.S.2d 94; Goldstein v. Brogan Cadillac Oldsmobile Corp., 90 A.D.2d 512, 455 N.Y.S.2d 19). At the outset, plaintiff argued at nisi prius and renews the argument before this court, that leave to amend should be denied because of the county defendants' five-year delay in seeking amendment. Special Term correctly rejected this argument sub silentio as failing to demonstrate sufficient legal prejudice for CPLR 3025 purposes. Clearly, neither the fact that a motion is made on the eve of trial nor the fact that the matter to be asserted by amendment may defeat the opposing party's cause of action is, in and of itself, a sufficient ground for denying leave to amend (see Kule Resources v. Reliance Group, 49 N.Y.2d 587, 427 N.Y.S.2d 612, 404 N.E.2d 734; Horwitz v. Nagamatsu, 103 A.D.2d 736, 477 N.Y.S.2d 200; Kitchner v. Kitchner, supra ). The issue before us thus narrows to whether the county defendants' proposed amendment was palpably improper or legally insufficient.

III

In Bartels v. County of Westchester, 76 A.D.2d 517, 429 N.Y.S.2d 906, the infant plaintiff was severely injured as a result of the unfitness and/or carelessness of her foster parents in attempting to bathe her in scalding water. In the ensuing action, she alleged, through her guardian ad litem, that the county defendants were liable for the injuries sustained at the hands of her foster parents after being placed on notice of their incompetence or indifference. Shortly before the case was reached for trial, the county defendants moved to dismiss the action as to them on the ground, inter alia, that they were immune from liability because the care of children placed with foster parents was a governmental activity calling for day-to-day decisions of a highly sensitive discretionary character which could not be subject to judicial scrutiny (Bartels v. County of Westchester, supra, p. 520, 429 N.Y.S.2d 906). This court, in an opinion by Justice Hopkins, sustained the complaint, noting that a county was no longer immune from liability for acts not involving the exercise of discretion and plaintiff's claims did not involve quasi-judicial acts (Bartels v. County of Westchester, supra, p. 523, 429 N.Y.S.2d 906).

Although Bartels (supra ) was before us on a motion to dismiss the complaint, not on a motion to amend the answer, we believe the case is factually and procedurally indistinguishable from the one at bar, and the principle enunciated therein, namely, that a claim of immunity will not bar inquiry into a county's allegedly negligent placement and supervision of an infant in foster care, should be applicable here. Implicitly conceding the similarity of the two cases, however, the county defendants argue that Bartels (supra ) "is not controlling" since more recent cases, notably Tango v. Tulevech, 61 N.Y.2d 34, 471 N.Y.S.2d 73, 459 N.E.2d 182, "have adopted the view that county social service workers are indeed called upon to exercise discretion on crucial points in cases of suspected child abuse or neglect" and are thus immune from liability. Indeed, defendants contended at nisi prius that to the extent Bartels (supra ), is inconsistent with the Court of Appeals' decision in Tango (supra ), it "must be considered to be overruled". We do not read these two cases as inconsistent with each other.

IV

In Tango v. Tulevech (supra, p. 41, 471 N.Y.S.2d 73, 459 N.E.2d 182), the Court of Appeals, noting that virtually every act admits some discretion in the manner of performance, nevertheless drew a fine line between discretionary or quasi-judicial acts which are cloaked with immunity, involving as they do "the exercise of reasoned judgment which could typically produce different acceptable results," and ministerial acts which are not, since they "envision * * * direct adherence to a governing rule or standard with a compulsory result" (see also Sinhogar v. Parry, 74 A.D.2d 204, 427 N.Y.S.2d 216, mod on other grounds 53 N.Y.2d 424, 442 N.Y.S.2d 438, 425 N.E.2d 826). Applying that standard, the court ruled that a supervisor of the in-take unit of a county probation department which served the Family Court, acted within the scope of her discretionary authority and thus with immunity when she permitted a mother, over the father's objection, to take their children with her to South Carolina without first taking them before a Family Court Judge. In reaching this decision, the Court of Appeals specifically pointed out that the duties of the department personnel entailed, inter alia, interviewing clients and determining whether or not there was any possibility of adjusting the grievances they presented, whether the clients possessed a legal cause of action, and whether the Family Court would have jurisdiction of the matter. We see nothing in this decision which impinges upon the validity of Bartels (supra ).

Unlike the situation in Tango (supra ), where the supervisor's determination to entrust the children to one of the parents rather than bring them before the Judge for a decision was within the "reasoned judgment" of her assigned duties and could produce "different acceptable results" (Tango v. Tulevech, 61 N.Y.2d 34, 41, 471 N.Y.S.2d 73, 459 N.E.2d 182, supra ), the...