Brown v. City of New York

• Decision Date: 02 December 2008
• Docket Number: No. 111577/1998,111577/1998
• Citation: 22 Misc.3d 893,870 N.Y.S.2d 217,2008 NY Slip Op 28497
• Parties: MYRTLE BROWN, as Mother and Legal Guardian of ANASTASIA JOLIET BROWN, an Infant, Plaintiff, v. CITY OF NEW YORK et al., Defendants.
• Court: New York Supreme Court

22 Misc.3d 893

870 N.Y.S.2d 217

2008 NY Slip Op 28497

MYRTLE BROWN, as Mother and Legal Guardian of ANASTASIA JOLIET BROWN, an Infant, Plaintiff, v. CITY OF NEW YORK et al., Defendants.

No. 111577/1998

Supreme Court of the State of New York, New York County.

December 2, 2008.

The Sullivan Law Firm, New York City (Timothy M. Sullivan of counsel), for City of New York, defendant.

Schiavetti Corgan Soscia DiEdwards & Nicholson, LLP, New York City (D. Christopher Mason of counsel), for Harlem Dowling-Westside Center for Children and Family Services, defendant.

McMahon Martine & Gallagher LLP, New York City, for plaintiff.

OPINION OF THE COURT

SHIRLEY WERNER KORNREICH, J.

Plaintiff in this negligence action, Anastasia Joliet Renee Brown, is a minor represented by her adoptive mother Myrtle Brown. Defendant Harlem Dowling-Westside Center for Children and Family Services (HDWC) is an agency that contracts with the City of New York to provide foster care services. Defendant Administration for Children's Services is a nonjusticiable agency of defendant City of New York, the real party in interest (together the City). HDWC and the City each move for summary judgment and dismissal of the complaint. HDWC relies on attorneys' affirmations and exhibits, including the transcript of plaintiff's examination before trial (EBT), progress notes of agency caseworkers, and various documents regarding the drug rehabilitation and training of plaintiff's birth mother. The City relies on an attorney's affirmation and exhibits, including transcripts of plaintiff's EBT and EBTs of two witnesses for the City, and an operations manual for city caseworkers in the Division of Adoption and Foster Care Services. Plaintiff relies on an attorney's affirmation, an affidavit of psychiatrist Richard J. Francis, M.D., additional affidavits and numerous exhibits, including: transcripts of EBTs of plaintiff and two witnesses for the City, plaintiff's bills of particulars, HDWC progress notes, HDWC and City notes and documents, toxicology and lab reports, Family Court documents, and school records. The motions are consolidated for disposition.

I. Background and Undisputed Facts

Plaintiff filed her complaint on or about June 26, 1998, seeking damages for severe injuries caused by her natural mother (mother or Rhonda) after being permanently discharged by HDWC into her mother's custody at the age of six. Plaintiff makes the following allegations: (1) HDWC and the City were grossly negligent in their acts, omissions and decisions in returning custody of plaintiff and her older sister to their mother; (2) HDWC and the City were grossly negligent in their acts, omissions and decisions in failing to maintain and execute the permanency goal of adoption for plaintiff and her sister; and (3) the City was grossly negligent in its acts, omissions and decisions with respect to the investigation of reports the City received of Rhonda's abuse of plaintiff and negligent supervision of all three children then in her custody.

Both HDWC and the City claim their employees have immunity from suit, both under Social Services Law § 419 and the common law, for discretionary acts of public officials. Defendant agencies also claim that the undisputed evidence shows they and their employees are not liable for gross negligence or willful misconduct as a matter of law. Plaintiff argues in response that neither agency can claim statutory immunity under Social Services Law § 419 because their activities were not within the class of activities the statute was meant to immunize, that is the investigation of child abuse and removal of abused children to protective custody. Plaintiff also argues that defendants are not immunized because defendant agencies undertook a special duty to plaintiff and breached that duty, their caseworkers were grossly negligent and failed to do nondiscretionary investigative work, and the defendant agencies are riddled with systemic and known failures placing vulnerable children at serious risk of harm. With respect to HDWC, plaintiff further argues that its motion should be denied because it was filed late and is only supported by an attorney's affirmation.

The parties seriously dispute the actions undertaken by the defendant agencies in relation to the return of plaintiff and her sister to Rhonda, but there is agreement at least to the following facts:

HDWC is authorized to operate, supervise, assist and provide foster care services in the City of New York. Defendant Administration for Children's Services (ACS) is responsible for the child welfare divisions of the Human Resources Administration/Department of Social Services in the City of New York. The agency was previously known as the Child Welfare Administration. It is responsible for the investigation of child abuse complaints and for the removal of children and placement in protective custody. A foster care placement and temporary discharge of custody to a parent was monitored by HDWC (or another foster care agency under contract with the City), and a child permanently placed back into the custody of a parent, post-foster care, was monitored by ACS.

Rhonda gave birth to plaintiff in 1989. Plaintiff was two months premature, weighed approximately two pounds, and tested positive for crack cocaine. Two months later, plaintiff and her four-year-old sister were placed in foster care with Helen Hickman, with whom they remained until being returned to Rhonda in 1995. HDWC supervised the foster care placement. While her girls lived in the home of Helen Hickman, Rhonda continued to struggle with her addiction to crack cocaine. It appears that she was not cooperative with drug testing or programs, and she disappeared in April 1991.

Mrs. Hickman wanted to adopt the girls, but Rhonda resurfaced in February 1992 before her parental rights were terminated. Plaintiff's opposing papers include a form filled out by a city attorney after a Family Court appearance by plaintiff's law guardian and two caseworkers on October 15, 1991. The following is written in the section captioned "RESULT OF COURT PROCEEDING": "CWA & Harlem Dowling ordered to file TPK forthwith." A "TPK," according to the affirmation of psychiatrist Richard J. Francis, is a termination of parental rights. This order was issued approximately 3½ months before Rhonda resurfaced. Once Rhonda reappeared, HDWC shifted from working toward adoption, to working toward a permanent placement with Rhonda, the birth mother. What ensued is subject to dispute, but HDWC's papers reflect an ongoing effort to reunite the girls with their mother, who resisted random drug testing and other counseling, but eventually managed a few negative urine tests and to attend an outpatient drug rehabilitation program and a parenting skills class. In June 1995, the girls were temporarily discharged into the custody of their mother and went to live with her, her boyfriend Thomas White Sr. (not the girls' father), and their toddler Thomas White Jr. Three months later, the temporary discharge was made permanent, and HDWC ended its supervision of plaintiff's welfare.

Approximately 18 months later, Rhonda stripped plaintiff, then seven, and forcibly held her on a hot radiator. Plaintiff sustained severe burns to her hand, the back of her legs, her buttocks and other parts of her body. When she went to school with visible burns, they called the police and all the children were removed from the home and placed into protective custody. Plaintiff was returned to Helen Hickman, her former foster mother, and eventually was adopted by Myrtle Brown and changed her name.

At her EBT, plaintiff testified that while in Rhonda's custody, the latter repeatedly beat her with fists, brooms and other hard objects, tortured her in various ways, such as forcing her to sit naked on a chair in a room with all the windows open during winter, to stand up all night on one leg for prolonged periods, holding her head under water or suffocating her with a pillow, and spraying air freshener in her eyes. She threatened to kill plaintiff if she told anyone what was going on. She kept plaintiff out of school for prolonged periods, and forced her to clean house, cook and do other chores. Plaintiff became increasingly hungry and dirty, and she and her sister had to care for themselves. City caseworkers came to the apartment to check a few times after people complained, but they never spoke with plaintiff alone. When asked within earshot of Rhonda, plaintiff denied that anything bad was going on. She went to school once badly injured on the back and legs and the school nurse and principal called Thomas Sr. When he came to the school, he threatened to kill them and carried plaintiff out.

II. Discussion and Rulings

A. HDWC's Motion

HDWC filed its summary judgment motion on or about November 2, 2007, approximately 147 days after the June 8, 2007 note of issue. CPLR 3212 (a) provides that a motion for summary judgment must be filed within 120 days of the note of issue unless "good cause" can be shown for the late filing. HDWC's motion is untimely, and it has failed to establish the requisite good cause for its delay. (See e.g. Brill v City of New York, 2 NY3d 648, 652-653 [2004].) As the Court of Appeals held in Brill and underscored in Miceli v State Farm Mut. Auto. Ins. Co. (3 NY3d 725, 726-727 [2004]), the court must deny an untimely summary judgment motion without considering it on the merits if the movant fails to comply with the statutory requirement that "good cause" be shown for the late filing. In both those cases, the Court reversed the lower court's grant of summary judgment on the merits and denied the motions for procedural default.

HDWC argues that good cause exists for the late filing because additional discovery has been done since the note of issue was filed and that plaintiff "admits" more discovery needs to be done. The reference to taking of nonparty depositions post-note of issue,...