Wayne S. v. Nassau County, Dept. of Social Services

• Decision Date: 27 July 1981
• Citation: Wayne S. v. Nassau County, Dept. of Social Services, 441 N.Y.S.2d 536, 83 A.D.2d 628 (N.Y. App. Div. 1981)
• Parties: WAYNE S. (Anonymous), etc., et al., Respondents, v. The COUNTY OF NASSAU, DEPARTMENT OF SOCIAL SERVICES, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 536

441 N.Y.S.2d 536

83 A.D.2d 628

WAYNE S. (Anonymous), etc., et al., Respondents, v. The COUNTY OF NASSAU, DEPARTMENT OF SOCIAL SERVICES, Appellant.

Supreme Court, Appellate Division Second Department.

July 27, 1981.

Edward G. McCabe, County Atty., Mineola (Robert O. Boyhan, Deputy County Atty., Mineola, of counsel), for appellant.

Dickman & Rachlin, P. C., Mineola (Mitchell Rachlin, Mineola, of counsel), for respondents.

Before DAMIANI, J. P., and TITONE, MANGANO and GIBBONS, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from an order of the Supreme Court, Nassau County, dated December 24, 1980, which denied its motion for an order dismissing the complaint pursuant to CPLR 3211 (subd. par. 7).

Order affirmed, without costs or disbursements. Defendant's time to answer is extended until 20 days after service upon it of a copy of the order to be made hereon, with notice of entry.

The complaint alleges that defendant removed the infant plaintiff from the custody of his mother, also a plaintiff, in violation of section 1024 of the Family Court Act, which establishes procedures for the emergency removal of children without court order pending the filing of an abuse or neglect petition under article 10 of the Family Court Act. The complaint further alleges that, as a result of this improper removal, both the infant plaintiff and the plaintiff mother suffered mental and emotional injury and the infringement of their civil rights.

Initially, we emphasize "that on a motion under CPLR 3211 (subd. par. 7) we are concerned with whether the pleading states a cause of action rather than the ultimate determination of the facts." (Stukuls v. State of New York, 42 N.Y.2d 272, 275, 397 N.Y.S.2d 740, 366 N.E.2d 829.) If "the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail (see Foley v. D'Agostino, 21 A.D.2d 60, 64-65, 248 N.Y.S.2d 121; Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 3211:24, p. 31; 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3211:36)." (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17.)

In the case at bar, the complaint alleges that defendant owed a duty to plaintiffs to act in accordance with the Family Court Act in effecting the emergency removal of the infant plaintiff from his parent's custody; that this duty was breached by defendant in failing or neglecting to act according to statute; and that this breach of duty caused plaintiffs' injuries. Thus, the complaint alleges defendant's violation of statute as being the proximate cause of the injury sustained by plaintiffs as members of the class intended to be protected by the statute, and, therefore, sufficiently states a cause of action. (See Basso v. Miller, 40 N.Y.2d 233, 242, 386 N.Y.S.2d 564, 352 N.E.2d 868; Gonzalez v. Medina, 69 A.D.2d 14, 17, 417 N.Y.S.2d 953; Chester Litho., Inc. v. Palisades Interstate Park Comm., 33 A.D.2d 202, 205, 305 N.Y.S.2d 682.)

It should be noted, however, that the dispute may be finally resolved on the more embracive and exploratory motion for summary judgment, after service of a responsive pleading which may include the affirmative defense of immunity from civil liability, as provided for by section 1024 (subd. of the Family Court Act. Disposition by summary dismissal under CPLR 3211 (subd. par. 7) would have been premature. (See Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634, 389 N.Y.S.2d 314, 357 N.E.2d 970.)

DAMIANI, J.P., and MANGANO and GIBBONS, JJ., concur.

TITONE, Justice, dissents and votes to reverse the order, grant the motion and dismiss the complaint, with leave to replead, with the following memorandum:

After the infant plaintiff (then three years old) was hospitalized for the fourth time in less than two years, his attending physicians...