D.S.P. v. Westchester Cty.

• Decision Date: 12 April 2024
• Citation: D.S.P. v. Westchester Cty., 210 N.Y.S.3d 694 (N.Y. Sup. Ct. 2024)
• Parties: D.S.P., Plaintiff, v. WESTCHESTER COUNTY, Jewish Board for Family & Children’s Services f/k/a Jewish Board of Guardians, Hawthorne Cedar Knolls Residential Treatment Center and Does 1-10, Defendants.
• Court: New York Supreme Court

210 N.Y.S.3d 694

D.S.P., Plaintiff,

v.WESTCHESTER COUNTY, Jewish Board for Family & Children’s Services f/k/a Jewish Board of Guardians, Hawthorne Cedar Knolls Residential Treatment Center and Does 1-10, Defendants.

Supreme Court, Westchester County.

Decided on April 12, 2024

Deirdre E. Tracey, Esq., Aaronson Rappaport Feinstein & Deutsch, LLP, Attorneys for: JEWISH BOARD FOR FAMILY AND CHILDREN’S SERVICES, INC. s/h/a "JEWISH BOARD FOR FAMILY & CHILDREN’S SERVICES f/k/a JEWISH BOARD OF GUARDIANS, HAWTHORNE CEDAR KNOLLS RESIDENTIAL TREATMENT CENTER", Third Avenue New York, NY 10016, (212) 593-6700

Nicole T.C. Marques, Esq., Herman Law, Attorneys for: Plaintiff D.S.P., 434 W. 33rd Street, 13th Floor, New York, NY 10001

Kelly A. Hodges, Esq., Hodges Walsh & Burke, LLP, Attorneys For: WESTCHESTER COUNTY, 55 Church Street, Suite 211, White Plains, NY 10601, 914-385-6000

Doris M. Gonzalez, J.

In Motion Sequence No. 5, defendant Jewish Board For Family And Children’s Services, Inc. S/H/A "Jewish Board For Family & Children’s Services F/K/A Jew- ish Board Of Guardians, Hawthorne Cedar Knolls Residential Treatment Center (hereinafter, "the JBFCS Defendants" or JBFCS), moves for summary judgment pursuant to CPLR 3212 dismissing the complaint against it.

In Motion Sequence No. 6, defendant Westchester County cross-moves for summary judgment pursuant to CPLR 3212 dismissing the complaint against it.

Facts

Plaintiff commenced the instant action under the Child Victims Act ("CVA") arising from allegations he was sexually abused as a resident at the Hawthorne Cedar Knolls Residential Treatment Center ("Hawthorne") in the late 1970’s. According to the amended complaint, plaintiff was placed at Hawthorne in or about 1977 when he 14 years-old, where he subjected to physical and sexual abuse by other residents. Further, in 1978, an unnamed maintenance worker groped his genitals under the guise of measuring his penis. Thereafter, plaintiff alleges,' he was taken by an unnamed counselor to the counselor’s apartment, where he was sexually abused. Upon their return to the facility, the counselor was terminated from employment at Hawthorne.

The plaintiff testified at his deposition that he was raised in an abusive household. His parents were separated, and he lived with his alcoholic mother in the basement of his grandmother’s home. He sustained a brain injury at the age of 2 or 3 and found learning difficult. He was sent to Siwanoy Pelham Manor grade school, and repeated kindergarten, but was "kicked out." He later attended a special program at Cornell Medical Center, until he was sent to Pelham Memorial Junior High School. He finished 7th Grade, but due to his learning disabilities, in 8th Grade he stopped attending school, started smoking cigarettes, marijuana, and began staying out all night.

In 1977, he was placed in Cornell for observation for 90 days. When released, his grandmother arranged with Westchester County for his placement at Hawthorne. At Hawthorne, plaintiff was placed in Cottage 7. The cottage had a dorm room which housed six residents, and three private rooms. Counselors did not live in the Cottage but were staffed during the day and night.

According to the plaintiff, Cottage 7 was a "free-for all," no one cared about anything, and supervision was minimal. The plaintiff was initially housed in the dorm area. From the beginning of his stay at Cattage 7, plaintiff was subjected to non-sexual physical abuse by other residents. He did not describe in detail any particular incident of abuse during his initial stay at Cottage 7, other than to briefly describe two occasions when he was punched in the face. After a few months he was moved into a private room in Cottage 7. The door to the room did not have a lock, and he testified that "the kids would throw pee on me and everything." He continued to be the subject of physical abuse.

During his time in Cottage 7, plaintiff engaged in one consensual sexual relation with another resident in his dorm room. Plaintiff disclosed he was bi-sexual and did not want to discuss the specifics of his relationship with the other resident.

Two months after his placement at Hawthorne, a janitor persuaded the plaintiff and three other residents to "measure" their private parts in an outside area of the facility. Each of the four boys exposed themselves to the janitor. This incident was not reported to anyone. Four months after arriving at Cottage 7, another resident sexually assaulted him in one of the dorm rooms. Plaintiff did not report this sexual assault to anyone.

Plaintiff did report the physical abuse to a staff member named Mitch, as well as to his grandmother, and Mr. Brooks who was in charge of Hawthorne. No immediate action was taken, but after another incident where plaintiff was punched and lost a tooth, he was transferred from Cottage 7 to Cottage 15. Plaintiff testified that Cottage 15 was more organized and better staffed than Cottage 7. He was not physically or sexually abused by any residents while living in Cottage 15.

However, while in Cottage 15, plaintiff was "befriended" by a counselor who was assigned to watch the residents of the cottage during the night shift. He described the counselor as an African American male. The plaintiff left the door to his single room open at night so that he could converse with the counselor, who would stand outside of his door. He believed that the other residents were probably sleeping and did not hear these conversations or interactions with the counselor. After the counselor’s third or fourth visit, approximately a month or two in Cottage 15, it was suggested that plaintiff join him for a weekend off premises. At that time, plaintiff wanted to join the counselor off premises because no one at Hawthorne liked him. Approximately one week later, plaintiff left the premises with the counselor on a Friday or Saturday, to go to Greenwich Village in New York City. Plaintiff did not tell anyone he was leaving with the counselor. Upon arriving at the counselor’s apartment, plaintiff recalled he consumed alcohol and ingested cocaine. The counselor "moved in on him," and engaged in sexual relations with him during the weekend. On Sunday, he returned to Hawthorne in time for the 6:00 p.m. check. He told the other residents that they had "gone fishing," as he was instructed by the counselor to say. Less than an hour later, the counselor was fired.

Plaintiff testified that he never told anyone at Hawthorne about the sexual abuse, nor did he discuss the incident with anyone, or report it to the police or any other authorities. There was no investigation, and he was never questioned about the weekend by any representatives of Hawthorne or the County.¹

Alexandra Davitt, the Deputy Executive Director of Clinic Business Operations, was deposed on behalf of JBFCS. She was responsible for overseeing business operations for mental health clinics operated by JBFCS. She personally organized the extant resident records at Hawthorne by the residents’ date of birth between 2019 and 2022. The records were maintained on papers in boxes throughout the various building on campus and consisted generally of folders with some papers inside. The sole document pertaining to plaintiff was an index card indicating plaintiff’s name, date of birth, and dates of admission to Hawthorne. Ms. Davitt had no other information pertaining to plaintiff or his time at Hawthorne, or any knowledge of the policies, practices, and procedures in effect at Hawthorne for the relevant time period, regarding reported claims of physical or sexual abuse.

Patricia Quattrocchi, the Director of Child Welfare for the Westchester County Department of Social Services (DSS), testified as the representative of Westchester County. She testified that currently, case managers work in collaboration with voluntary agencies, and the agencies provide day-to-day services and have a case planner for children that the County places at their facilities. "Those children [in residential care facilities] are in the care and custody of Westchester County so we bear a responsibility to collaborate with the voluntary agencies to ensure any child’s safety that’s in our care and custody."

Under the present-day procedures, a DSS case manager would oversee a child’s case while the child resided in a congregate care setting. She stated:

"They [DSS case managers] work directly with the [agency’s] assigned case planner to ensure that the children that are placed through Westchester County, their needs are being met during that — in that facility. So they — they read their case notes, they’re invited to any planning meetings, they collaborate on filling out the family assessment service plan, any permanency hearing reports for — for court involvement …

"So essentially, they are ensuring that the agency in tandem with the Department are working to achieve permanency for any individuals and that their needs are being met: their school needs, their medical needs, mental health, and that they’re maintaining contact with their parent or caretaker, so whoever we’re working with in the community."

Under present procedures, a sexual assault by a resident or agency staff would be reported immediately to the County and the police. Ms. Quattrocchi was unaware whether case managers were in place to oversee congregate settings in the period 1977 to 1980 but testified that she had no reason to believe that the County would not have expected the abuse to be immediately reported during the period concerned in this case. She further testified that under no circumstance would a resident be permitted to leave the residential facility for a weekend in the company of agency staff.

The witness had no knowledge of any documents from the time period in question governing the policies, practices and procedures followed by the County with respect to sexual assaults at Hawthorne or other residential settings. She had no knowledge of any witness who...