DiCarlo v. City of New York

• Decision Date: 13 August 2001
• Citation: 286 A.D.2d 363,729 N.Y.S.2d 176
• Parties: FRANK S. DICARLO, Respondent-Appellant,<BR>v.<BR>CITY OF NEW YORK et al., Respondents, and ROMAN CATHOLIC ARCHDIOCESE OF BROOKLYN et al., Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

286 A.D.2d 363

729 N.Y.S.2d 176

FRANK S. DICARLO, Respondent-Appellant,

v.CITY OF NEW YORK et al., Respondents, and ROMAN CATHOLIC ARCHDIOCESE OF BROOKLYN et al., Appellants-Respondents.

Decided August 13, 2001.

O'Brien, J. P., Altman, Feuerstein and Cozier, JJ., concur.

Ordered that the cross appeal is dismissed as abandoned; and it is further,

Ordered that the order is reversed insofar as appealed from, on the law, the cross motion is granted, the complaint and cross claims are dismissed insofar as asserted against the defendants Roman Catholic Archdiocese of Brooklyn, St. Joseph Services for Children and Families, and Conzina Scales, and the action against the remaining defendants is severed; and it is further,

Ordered that the appellants are awarded one bill of costs.

The plaintiff's decedent was killed on July 28, 1997, by Robert Henderson, a 15-year-old youth who had been in New York City's foster care system since 1990. Henderson had been assigned by the City's Administration for Children's Services (hereinafter ACS) to St. Joseph Services for Children and Families (hereinafter St. Joseph), a nonprofit entity, which supervised and monitored his care in a foster home. In June 1997 Henderson was removed from the care of a foster parent in Brooklyn to a City facility, Atlantic Transitional Services (hereinafter Atlantic), a residential facility in Brooklyn, where he was to be evaluated prior to any future foster care placement. In early July 1997, Henderson ran away from Atlantic and remained missing until he committed the killing.

The plaintiff commenced this wrongful death action against, among others, St. Joseph, the Roman Catholic Archdiocese of Brooklyn, and Conzina Scales, Henderson's caseworker at St. Joseph (hereinafter the Diocese defendants) to recover damages based on a theory of negligent supervision. We conclude that the Supreme Court erred in denying the motion by the Diocese defendants to dismiss the complaint and all cross claims insofar as asserted against them.

We agree with the plaintiff that the Diocese defendants failed to establish as a matter of law that they relinquished supervision and control over Henderson to the City upon his transfer to Atlantic. Thus, there was a question of fact as to whether the Diocese defendants were acting in loco parentis with respect to Henderson, a relationship which would give rise to a duty to control his conduct so as to prevent him from harming others (see, Hamilton v Beretta U.S.A. Corp., 96 NY2d 222; Purdy v Public Adm'r of County of Westchester, 127 AD2d 285, affd 72 NY2d 1).

Nevertheless, assuming that the Diocese defend...