McLean v. City of New York

• Decision Date: 03 January 2007
• Docket Number: 119189/00.
• Citation: 14 Misc.3d 922,2007 NY Slip Op 27000,831 N.Y.S.2d 665
• Parties: CHARLENE McLEAN, as Mother and Natural Guardian of BRIANA HALL, an Infant, et al., Plaintiffs, v. CITY OF NEW YORK et al., Defendants.
• Court: New York Supreme Court

14 Misc.3d 922

831 N.Y.S.2d 665

2007 NY Slip Op 27000

CHARLENE McLEAN, as Mother and Natural Guardian of BRIANA HALL, an Infant, et al., Plaintiffs, v. CITY OF NEW YORK et al., Defendants.

119189/00.

Supreme Court, New York County.

January 3, 2007.

Michael A. Cardozo, Corporation Counsel (Gabriele Shakeri of counsel), for City of New York, defendant.

John J. Appell, New York City, for plaintiffs.

OPINION OF THE COURT

DORIS LING-COHAN, J.

The Facts

Before this court is a case involving what could only be termed as a working mother's worst nightmare. This negligence claim against the City arises from an egregious incident which allegedly occurred on February 3, 2000, when plaintiff Briana Hall, a three-month old infant, was injured while she was in the custody and care of codefendant, Patricia Theroulde. Defendant Theroulde owned and operated the codefendant facility, First Steps Family Day Care Center.

On December 2, 1997, the New York City Department of Health and Mental Hygiene, Office of Family Day Care Registration (DOH) issued to defendant Theroulde her first certificate of registration as a New York State registered family day-care provider (affirmation of John J. Appell, Esq. in opposition to motion [Appell aff in opp], exhibit 2). The DOH is the New York City agency responsible for issuing registration certificates for family day-care facilities within the City, pursuant to a contract with the New York State Office of Children and Family Services (NYSOCFS). The latter is the state agency responsible for administering the licensing and registration of child day-care facilities pursuant to Social Services Law § 390 and the applicable regulations.

It is undisputed that there were two complaints of child abuse and maltreatment brought against defendant Theroulde in 1997 and 1998. Indeed, when she was interviewed after the incident involving Briana which is the subject of this action, defendant Theroulde admitted that she had been investigated for two prior incidents of maltreatment of children entrusted to her care. The 1997 incident occurred when defendant Theroulde's ex-husband dipped a child's hand into a bowl of hot oatmeal, and this had been "indicated for Inadequate Guardianship" (Appell aff in opp, exhibit 6). In an incident which occurred on September 29, 1998, defendant Theroulde or one of her assistants had left a child under their care alone and unattended in or near a neighborhood store for more than one hour before the store proprietor took the child home (Appell aff in opp, exhibit 6).

Further, it is undisputed that the Administration for Children's Services (ACS) Office of Confidential Investigations (OCI) investigated this incident and notified the DOH Bureau of Day Care that a complaint of "lack of supervision" was "indicated" against defendant Theroulde in a written memorandum dated January 26, 1999¹ (Appell aff in opp, exhibit 6). Nevertheless, incredibly, despite the written report of a recent incident of child maltreatment by defendant Theroulde, DOH routinely renewed her registration as a New York State registered family day-care provider on February 11, 1999 (Appell aff in opp, exhibit 2).

Briana's mother, plaintiff Charlene McLean, a single working mother, was seeking a safe day-care facility for her infant daughter while she worked full time as a receptionist (affirmation of Gabriele A. Shakeri, Esq. in support of motion [Shakeri aff in support], exhibit I, McLean deposition [McLean dep] at 9-11, 19, 28-29). Ms. McLean initially learned of defendant Theroulde's day-care home through a conversation she had with defendant Theroulde's husband, who said that his wife provided babysitting services (McLean dep at 40-41). He gave Ms. McLean his wife's telephone number (id. at 41).

Instead of immediately placing Briana with defendant Theroulde, however, Ms. McLean decided to research child day-care providers in her neighborhood to make sure that her infant daughter would be cared for in a safe environment. Accordingly, Ms. McLean contacted the Administration for Child Development (ACD) at the suggestion of a friend (id. at 43-44). Ms. McLean stated that she telephoned ACS "[s]o that they could refer me to a licensed, investigated, no complaints baby-sitter" (id.). When Ms. McLean called ACS, she told the agency employee that she was seeking a "licensed baby-sitter that gets investigated routinely by your office" (id. at 45). Ms. McLean testified that the ACS employee assured her that "[w]e don't send out information on baby-sitters that have complaints and they are fully investigated and licensed through us" (id. at 46).

Subsequently, Ms. McLean received a list of registered day-care providers in her area from ACS, which included defendant Theroulde (id. at 47-48; Shakeri aff in support, exhibit G; Appell aff in opp, exhibit 1). Ms. McLean thereafter telephoned two of the providers on the list from ACS, one of whom was defendant Theroulde (McLean dep at 51-51). After defendant Theroulde told Ms. McLean that she would be willing to care for an infant as young as Briana, Ms. McLean went to interview defendant Theroulde and to inspect her apartment where she cared for children (McLean dep at 52-62). Ms. McLean brought Briana and her mother along with her when she interviewed defendant Theroulde for approximately 45 minutes (id. at 53, 62). Defendant Theroulde was in the apartment along with her three children, the youngest of which was her one-year-old son (id. at 56). Defendant Theroulde showed Ms. McLean her "license" as a day-care provider and assured her that she was investigated either annually or every six months and had no complaints against her (id. at 57-59). Defendant Theroulde told Ms. McLean that she would be caring for four other children besides Briana, who would be the youngest child under her care (id. at 60-61). Defendant Theroulde told Ms. McLean that Briana would sleep either in a playpen or in her son's crib (id. at 63). Defendant Theroulde gave Ms. McLean two references, whom she believes that she contacted before entrusting Briana to defendant Theroulde's care in mid-December 1999 (id. at 61-66).

Briana's initial injury occurred when defendant Theroulde's one-year-old son pulled Briana off a bed, on which she had been placed by defendant Theroulde, causing Briana to fall from the bed to the floor (McLean dep at 84; Appell aff in opp, exhibit 6). At the time of the incident, defendant Theroulde was in the bathroom bathing one of her other children (Appell aff in opp, exhibit 6). Further injury resulted when defendant Theroulde shook Briana in an alleged effort to revive her. Briana suffered traumatic brain injuries and loss of cognitive function, symptoms indicative of "Shaken Baby Syndrome"² (Appell aff in opp, exhibit 6).

Ms. McLean learned that Briana had been injured when she came to pick her up in the afternoon of February 3, 2000 and found an ambulance at defendant Theroulde's apartment building, with Briana inside on a stretcher (McLean dep at 80-83). The incident resulting in Briana's injuries was investigated by ACS, specifically by the OCI, which concluded, in pertinent part:

"During the investigation it was discovered that since Ms. Theroulde had two prior indicated cases in 1997 and 1998, she shouldn't have been licensed as a Day Care Provider in 1999. Also, in this current case, Ms. Theroulde used a lack of judgment by placing Briana on a bed instead of a crib, where she would have been more secured. Also, her shaking the baby cause [sic] further damages in addition to the fall off the bed. Ms. Theroulde's lack of supervision and inadequate guardianship caused Briana to sustain serious internal head injuries. OCI recommends that Ms. Theroulde's Day Care Center be closed down to prevent any more children from being abused or maltreated." (Appell aff in opp, exhibit 6.)

Plaintiffs commenced the instant action in or about September 2000, asserting, among other things, that the City was negligent by issuing a registration certificate to defendant Theroulde's day-care facility despite prior incidents of child abuse and maltreatment, and by including the day-care facility on a list provided by ACS to Ms. McLean (Shakeri aff in support, exhibit B).³

Discussion

In this negligence action, codefendant City of New York moves for an order: (1) granting leave to amend its answer adding the affirmative defense of qualified immunity, pursuant to Social Services Law § 419; (2) pursuant to CPLR 3212, granting summary judgment; or, in the alternative, (3) pursuant to CPLR 3211 (a) (7), dismissing the complaint and all cross claims for failure to state a cause of action.

Applicable Statutory, Regulatory and Contractual Provisions

A review of the relevant statutes and regulations reveal a multitude of governmental agencies involved in the well-being of children attending day-care facilities. The licensing and registration of child day-care facilities within New York State is governed by Social Services Law § 390, which requires the Department of Social Services to license or register and inspect all such facilities, including a "family day care home," the type of program operated by defendant Theroulde (see Social Services Law § 390 [1] [e]). The version of Social Services Law § 390 in effect at the time of the injury to Briana in February 2000 provided, however, "[n]otwithstanding any other provision of law, this section shall not apply to child day care centers in the city of New York" (Social Services Law § 390 [13]).⁴ This reflected the prior practice of designating DOH as the agency responsible for registering all child day-care providers within the city. Therefore, during all relevant periods, DOH was the city agency responsible for registering child care providers, including defendant Theroulde.

Social Services Law § 390 (1) defines various categories of "child day care" facilities, including a "child day care center," a "group family day care...