McLean v. City of New York

• Decision Date: 31 March 2009
• Docket Number: No. 46.,46.
• Citation: 905 N.E.2d 1167,12 N.Y.3d 194
• Parties: Charlene McLEAN, Individually and as Mother and Natural Guardian of Briana Hall, an Infant, Respondent, v. CITY OF NEW YORK, Appellant, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

905 N.E.2d 1167

12 N.Y.3d 194

Charlene McLEAN, Individually and as Mother and Natural Guardian of Briana Hall, an Infant, Respondent, v. CITY OF NEW YORK, Appellant, et al., Defendants.

No. 46.

Court of Appeals of New York.

March 31, 2009.

Michael A. Cardozo, Corporation Counsel, New York City (Edward F.X. Hart, Stephen J. McGrath and Leonard Koerner of counsel), for appellant.

Sullivan Papain Block McGrath & Cannavo P.C., New York City (Brian J. Shoot of counsel), and John J. Appell for respondent.

OPINION OF THE COURT

SMITH, J.

Once again we confront a case in which a failure by government to do its job has caused harm, and once again we hold that this is not one of the few cases in which such a failure subjects the government to tort liability.

I

Patricia Theroulde had a business caring for young children at her home in Manhattan. Her facility was of the kind classified by the Social Services Law as a "family day care home" — "a program caring for children for more than three hours per day per child in which child day care is provided in a family home for three to six children" (Social Services Law § 390[1][e]). Family day care homes are not licensed by the State, but are required to register with the State Department of Social Services (DSS) (id. § 390[2][b]). A registration is valid for two years (id. § 390[2][d][ii][A]) and an application for the renewal of registration may not be accepted unless "the office of children and family services [OCFS] has received no complaints ... alleging statutory or regulatory violations" or, having received such complaints, OCFS has inspected the home and determined that it is operated in compliance with law (id. § 390[2][d][ii][B][4]). DSS entered into a contract with the New York City Department of Health (DOH), in which DOH in substance agreed to perform DSS's registration duties in New York City.

Ms. Theroulde registered in 1997. During the two year period of her initial registration, the New York City Administration for Children's Services (ACS) received two complaints about her home, asserting that her husband had dipped a child's hand into a bowl of hot oatmeal, and that a child had been left alone for an hour and a half in a nearby store. ACS investigated the complaints and found both of them to be "indicated" — i.e., substantiated. There is no evidence that the home was later inspected and found to be in compliance, so it seems clear that Ms. Theroulde should not have been permitted to renew her registration when it expired in 1999.

But DOH did permit her to renew. The reasons for this are not entirely clear. The record does not show whether ACS reported the two complaints about Ms. Theroulde's home to OCFS — but that question is academic, because, amazingly, DOH did not make a practice of checking with OCFS before renewing registrations. It is debatable whether the City or the State is to blame for this failure; DOH, a city agency, says it complied with regulations of DSS, a state agency, which do not expressly require a search for complaints prior to renewal of a registration. Since we consider the case on a motion for summary judgment, we assume that DOH was at fault.

Ms. Theroulde's renewed registration certificate was issued on February 11, 1999. In October of the same year, plaintiff, Charlene McLean, was searching for a day care provider for her soon-to-be-born child. She called ACS, which sent her a list of providers near her home. The list was taken from DOH's database of registered providers, and Ms. Theroulde's name was on the list.

In the course of obtaining the list from ACS, Ms. McLean had a telephone conversation with an ACS representative. According to Ms. McLean's version of the conversation, she specifically asked for "a licensed baby-sitter that gets investigated routinely by your office." She testified that the conversation continued: "`Yes. All of our day cares are licensed and they get investigated routinely between six months to a year.' And then I said, `They don't have any complaints,' and she assured me that all of the ones on the list have no complaints."

After Ms. McLean's daughter Briana was born, Ms. McLean placed her in Ms. Theroulde's care. It is a fair interpretation of the evidence (though the City disputes the point) that she did so in reliance on information the City provided — that she would not have chosen Ms. Theroulde as a day care provider but for the inclusion of Ms. Theroulde's home on a city-generated list, and the information about that list provided by an ACS representative on the phone. When Briana was three months old she fell from a bed to the floor while in Ms. Theroulde's care, and suffered a brain injury.

Ms. McLean brought this action against the City on Briana's and her own behalf, claiming that the City's negligence was the cause of the injury. Supreme Court denied the City's motion for summary judgment (14 Misc.3d 922, 831 N.Y.S.2d 665 [2007]), and the Appellate Division affirmed (49 A.D.3d 393, 853 N.Y.S.2d 340 [2008]). The Appellate Division granted leave to appeal to us on a certified question, and we now reverse.

II

We have long followed the rule that an agency of government is not liable for the negligent performance of a governmental function unless there existed "a special duty to the injured person, in contrast to a general duty owed to the public" (Garrett v. Holiday Inns, 58 N.Y.2d 253, 261, 460 N.Y.S.2d 774, 447 N.E.2d 717 [1983]; see also e.g. Kircher v. City of Jamestown, 74 N.Y.2d 251, 544 N.Y.S.2d 995, 543 N.E.2d 443 [1989]; Lauer v. City of New York, 95 N.Y.2d 95, 711 N.Y.S.2d 112, 733 N.E.2d 184 [2000]; Pelaez v. Seide, 2 N.Y.3d 186, 778 N.Y.S.2d 111, 810 N.E.2d 393 [2004]; Laratro v. City of New York, 8 N.Y.3d 79, 828 N.Y.S.2d 280, 861 N.E.2d 95 [2006]). Such a duty, we have explained — "a duty to exercise reasonable care toward the plaintiff" — is "born of a special relationship between the plaintiff and the governmental entity" (Pelaez, 2 N.Y.3d at 198-199, 778 N.Y.S.2d 111, 810 N.E.2d 393). Here, Ms. McLean has not shown a special relationship giving rise to a special duty, and so cannot recover against the City.

As we said in Pelaez:

"A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation." (2 N.Y.3d at 199-200, 778 N.Y.S.2d 111, 810 N.E.2d 393 [citation omitted]; see also Garrett, 58 N.Y.2d at 261-262, 460 N.Y.S.2d 774, 447 N.E.2d 717.)

Ms. McLean relies on the first two of these ways. She says that Social Services Law § 390, which governs the licensing and registration of child day care providers, creates a statutory duty for the benefit of a class of which she and her daughter are members; and also that the City voluntarily assumed a duty that she justifiably relied on the City to perform. We reject both arguments.

Statutory Duty

In Pelaez, we elaborated further on the "statutory duty" prong of the special relationship rule. We said:

"To form a special relationship through breach of a statutory duty the governing statute must authorize a private right of action. One may be fairly implied when (1) the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme (see Sheehy v. Big Flats Community Day, 73 N.Y.2d 629, 633 [543 N.Y.S.2d 18, 541 N.E.2d 18] [1989]). If one of these prerequisites is lacking, the claim will fail." (2 N.Y.3d at 200, 778 N.Y.S.2d 111, 810 N.E.2d 393.)

Here, as in Pelaez and Sheehy, the claim fails the last of these tests. To recognize a private right of action under Social Services Law § 390 would be inconsistent with the legislative scheme.

Section 390 is a detailed statute, with 13 subdivisions and many more subparts, occupying 10 pages of McKinney's Consolidated Laws. It specifies which child care providers shall be licensed and which only registered (Social Services Law § 390[2][a]-[c]); sets out some prerequisites for registration (id. § 390[2][d][ii][B]); requires OCFS to establish, by regulation, requirements for licensed and registered providers (id. § 390[2-a]); provides for inspections and investigations (id. § 390[3][a], [d], [e][iii]; [4][a]); requires certain information to be available to the public (id. § 390[8]); authorizes OCFS to prevent noncompliant providers from caring for children (id. § 390[3][e][ii]); provides for denial, suspension and revocation of licenses and registrations for violations of law (id. § 390[10]); and requires OCFS to establish civil penalties for such violations (id. § 390[11]). Social Services Law § 389(1) imposes criminal liability for willful violations of the provisions of the Social Services Law, including section 390. But there is no statutory provision for governmental tort liability. It is fair to infer that the Legislature considered carefully the best means for enforcing the provisions of Social Services Law § 390, and would have created a private right of action against erring government agencies if it found it wise to do so. This is not a case where the Legislature has simply prohibited or required certain conduct, and left the mechanism of enforcement to the courts (see e.g. Negrin v. Norwest Mtge., 263 A.D.2d 39, 47-48, 700 N.Y.S.2d 184 [2d Dept 1999]).

We addressed a similar issue in Mark G. v. Sabol, 93 N.Y.2d 710, 695 N.Y.S.2d 730, 717 N.E.2d 1067 (1999). The plaintiffs there, children alleging that they had suffered abuse or neglect in the foster homes where they had been placed by New York City child welfare officials, sought...