Dunn v. Catholic Home Bureau for Dependent Children
| Decision Date | 11 January 1989 |
| Parties | Maureen DUNN, Plaintiff, v. The CATHOLIC HOME BUREAU FOR DEPENDENT CHILDREN, Sister Rosalie Gilson, Mark Finnican and Diane Finnican, Defendants. .A.S. Part 3 |
| Court | New York Supreme Court |
Terry Milburn, of Milburn & Ackerman, Rye, for plaintiff.
William D. Gallagher, of McMahon, Martine & Merritt, New York City, for defendants.
Plaintiff moves for an order granting leave to serve an amended complaint pursuant to CPLR 3025(b) and an order compelling a response to a demand for insurance agreements previously served pursuant to CPLR 3101(f). Defendants Catholic Home Bureau for Dependent Children ("Catholic Home Bureau") and Sister Rosalie Gilson ("Gilson") cross-move for an order pursuant to CPLR 3211(a)(7) dismissing the complaint. No motion is presented requesting dismissal of the action as against the Finnicans.
In this action, plaintiff seeks money damages for wrongful deprivation of the custody of her infant child and for social work malpractice. Plaintiff had placed her child with Catholic Home Bureau after consulting with Gilson, a Catholic Home Bureau employee. The child was temporarily placed with the Finnicans.
After plaintiff revoked her consent to surrender for adoption, the Finnicans refused to return the child. After a habeas corpus proceeding, plaintiff secured custody of the child (State ex rel. Dunn v. The Catholic Home Bureau for Dependent Children, 133 Misc.2d 399, 506 N.Y.S.2d 805 [Sup.Ct.N.Y.Co., 1986], rev'd. 125 A.D.2d 106, 512 N.Y.S.2d 82 [1st Dept., 1987] ).
This Court is satisfied that plaintiff has good ground to support her first cause of action for wrongful deprivation of the custody of the child against the Catholic Home Bureau and Gilson. As the Appellate Division observed on the appeal, the issue of custody was a matter between plaintiff and Catholic Home Bureau and the Catholic Home Bureau failed to follow the requirements of the Social Services Law with regard to the execution and filing of plaintiff's surrender agreement (State ex rel. Dunn, supra ). Although defendant has prepared a well-written brief on the limitations of a parent suing on a "Zone of Danger" theory, that theory is not the basis for this suit, which instead rests upon the cause of action for interference with custody recognized in Pickle v. Page, 252 N.Y. 474, 169 N.E. 650, and McEntee v. New York Foundling Hospital, 21 Misc.2d 903, 194 N.Y.S.2d 269.
Further, plaintiff's second cause of action against Catholic Home Bureau and Gilson for social work malpractice shall survive this cross-motion to dismiss. Gilson appears to have admitted paragraph "5" of the original complaint, which alleges that she was employed by Catholic Home Bureau at all relevant times as a social worker. Although plaintiff has cited no authority for this cause of action, the Legislature has provided standards for licensing qualified individuals as "certified social workers" (Education Law § 7704), and the provision for all professions contained in Article 130 apply to Article 154--Social Work (Education Law § 7700). Under Article 130, practicing one's profession fraudulently, incompetently or negligently constitutes profession misconduct (Education Law § 6509[2] ). Further, there is an issue of the failure of the Catholic Home Bureau and Gilson to abide by plaintiff's revocation of consent to the surrender of the child (see Penal Law § 135.45[1] ).
Therefore, there appears to be a statutory framework within which to address the issue whether Gilson and her employer departed from the standard of conduct of the profession (see Prosser, The Law of Torts § 32, at 165 [4th ed. 1971] ). Accordingly, the cross-motion of Catholic Home Bureau and Gilson to dismiss the complaint is denied as to the second cause of action in the original complaint.
In the first branch of her motion, plaintiff seeks leave to add four defendants. Such request is opposed by the Bureau and by Sister Gilson and supported by the Finnicans. The amendments rest upon the principles of respondeat superior and the failure to properly supervise the Catholic Home Bureau and Gilson.
As a general rule, consistent with CLPR 3025(b), leave to amend pleadings is freely granted, but such a motion should generally be supported and opposed by an affidavit of a person with knowledge of the events, not by an attorney's affirmation. See Beekman v. Sylvan Lawrence, Inc., 111 A.D.2d 658, 490 N.Y.S.2d 216, and Leonard Hospital v. Messier, 32 A.D.2d 596, 299 N.Y.S.2d 360. Because the motion has some slight factual support by way of the pleadings and records, and Gilson has some knowledge of the relationship of the parties, the Court will examine the amendments req...
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Tylena M. v. Heartshare Children's Services
...the Court concluded, based in part on the holding of the New York County Supreme Court in Dunn v. Catholic Home Bureau for Dependent Children, 142 Misc.2d 316, 537 N.Y.S.2d 742, 744 (N.Y.Sup.Ct.1989), that only licensed social workers may be held liable for social work malpractice New York ......
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Richards v. City of New York 405
...plaintiffs' social work malpractice claim would, under the tort thus far developed, fail. In Dunn v. Catholic Home Bureau for Dependent Children, 142 Misc.2d 316, 537 N.Y.S.2d 742 (N.Y.Sup.1989), the Court held that a licensed social worker is liable for social work malpractice if she pract......
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Engstrom v. State
...cause of action against a child welfare agency and its employees for social services malpractice in Dunn v. Catholic Home Bureau, 142 Misc.2d 316, 318-19, 537 N.Y.S.2d 742, 743 (Sup.Ct.1989). In Dunn, the plaintiff mother claimed that she was wrongfully deprived of custody of her infant chi......
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...a social worker practices her profession "fraudulently, incompetently, or negligently" (quoting Dunn v. Catholic Home Bureau for Dependent Children, 537 N.Y.S.2d 742, 743 (N.Y. Sup. Ct. 1989)). Here, the complaint alleges neither. Again, Vail has failed to plead that LaGrange was involved i......