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Infant Based Plaintiff Sues for Exposure to Lead Paint



The motion of defendant the City of New York (hereinafter the “City”) for summary judgment and dismissal of the complaint and cross claims against it is denied.

This is an action to recover damages for personal injuries allegedly sustained by the infant plaintiff, JP, due to exposure to lead-based paint between March 1992 and May 1994, while in foster care with defendants at their residence located at 22 Winter Avenue, Staten Island, New York.

Broadly stated, the complaint in Action No. 2 alleges that the City and its agents breached their duty to properly supervise, exercise and manage the placement and care of JP into foster care with the defendants, defendants in Action No. 1. More particularly, it is alleged, inter alia, that the City failed to inspect and ascertain that said premises was safe and in good repair (i.e., that it complied with New York City Health Department rules and regulations) prior to the infant’s placement in the home at 22 Winter Avenue, and that the City’s Department of Health (hereinafter, “DOH”) failed to take prompt action either to abate the lead-paint hazard subsequently identified as existing therein and/or remove JP from the premises.

In moving for summary judgment and dismissal of the complaint, the City disputes the adequacy of plaintiff’s notice of claim, i.e., that it is devoid of any specific allegations against its Child Welfare Administration (hereinafter “CWA”). The City also maintains that it is entitled to judicial immunity from liability arising out of its decision to delegate JP’s placement in foster care to the Society for Seamen’s Children (hereinafter, “the Society”), since its child welfare agency was “merely complying with the Family Court’s Order” regarding the removal of said infant from the care of his biological mother. Moreover, citing Pelaez v Seide, the City alleges that the governmental functions undertaken by its DOH in its investigation, inspection, monitoring and abatement of the lead-paint hazard at 22 Winter Avenue, constituted discretionary actions for which the municipality may not be subjected to liability even if negligently performed. Neither did it create a special relationship between the infant plaintiff and either the City’s CWA or DOH.

In addition to governmental immunity, it is argued that the City should be afforded a “qualified immunity” under Social Services Law §419, to wit: that this statutory immunity provision, which expressly applies to the duties of child-protective services in responding to reports of abuse or maltreatment, should be extended to apply to the foster-care services which are provided to a child while he or she remains in protective custody.

The City also contends that pursuant to a contract entitled “Agreement for Purchase of Child Welfare Services” between the City’s CWA and the Society, the City delegated its responsibilities to supervise and monitor JP’s foster care to an independent contractor and, as a matter of law, cannot be held vicariously liable for the “contract agency’s” negligent acts. According to the City, while the Social Services Law imposes certain duties on the CWA, there is no statutorily-imposed “non-delegable duty” upon which this lawsuit may be based.

Finally, the City claims that it had no actual knowledge of the lead-paint condition in the foster home until JP was returned to his biological mother, as evidenced by the deposition testimony of its CWA supervisor at the time, Kimberly Smith, who testified that the Society never informed the CWA of JP’s elevated blood-lead levels. In further support, the City points to its contract with the Society, wherein the latter’s responsibility was specified as including the selection, approval and monitoring of foster homes. According to the City, the Society determined that JP’s health condition did not warrant removal from the defendant’s home.

Turning first to the City’s contention that the notice of claim lacks the required specificity in that it fails to identify the agency (i.e., CWA) that placed [JP] in custodial care and neglected to “remove [him] from the residence”, it does not appear to this Court based on the papers before it that the City has been prejudiced by the alleged vagueness in the notice or deprived of an opportunity to conduct a meaningful investigation (see General Municipal Law §50-e[6]; cf. Ryan v County of Nassau, 271 AD2d 428, 429).

The City’s argument that it is entitled to statutory immunity under Social Services Law §419 must also be rejected since it is well settled that a claim of qualified immunity cannot be raised to bar inquiry into [e.g.,] an agency’s or county’s alleged negligent supervision of children in foster care (Merice v County of Westchester, 305 AD2d 383, 384; see Liang v Rosedale Group Home, 19 AD3d 654,655).

Also unavailing is the City’s claim of judicial or governmental immunity. In this case, notwithstanding the Family Court’s Order (City’s Exhibit “X”) placing the infant in the care of the CWA, it cannot be said that his subsequent placement with the defendant at 22 Winter Avenue was at the direction of the Family Court, nor was such “an integral part of the judicial decision-making process” that would warrant an extension of judicial immunity (Mosher-Simons v County of Allegany, 99 NY2d 214 [county judicially immune from liability for alleged negligence of caseworker in performing court-ordered home study on which Family Court would base its placement decision]).

The City has also failed to establish its prima facie entitlement to judgment as a matter of law based on its claims of governmental immunity relating to the actions or inactions of either DOH in ordering the abatement of the condition or CWA’s alleged negligent supervision of JP’s placement in foster care (see Sean M. v City of New York, 20 AD3d 146, 159, 160; Merice v County of Westchester, 305 AD2d at 384; Barnes v County of Nassau, 108 AD2d 50, 54). In this regard, it is worthy to note that appellate courts in this State do not recognize governmental immunity as a defense where recovery is predicated upon negligence in the supervision of the care provided by foster parents to a child placed in their custody (see Sean M. v City of New York, 20 AD3d at 160; Barnes v County of Nassau, 108 AD2d at 55). As stated by the Second Department in Barnes v County of Nassau (108 AD2d at 54), the duty to care for the welfare of the children is imposed on the [municipality] by the State (Social Services Law §§395, 398), including the responsibility to place the children in foster homes or other institutions under proper safeguards (Social Services Law §398[6][g]), to supervise the children while in foster homes (Social Services Law §398[6][h]), and to remove them from the foster home when necessary (Social Services Law §400). It would be anomalous, to say the least, for the Legislature to impose on the [municipality] such a duty, which could be performed by other entities, and then for the courts to preclude inquiry into the discharge of those duties, even if resulting from negligence or malice (Barnes v County of Nassau, 108 AD2d at 54). Stated otherwise, the duty imposed upon a municipality when it undertakes to act in loco parentis is nondelegable (see Bartels v County of Westchester, 76 AD2d 517, 523).

Consonant with the foregoing, it is the opinion of this Court that the City has failed to establish a right to governmental immunity in the instant matter (see Sean M. v City of New York, 20 AD3d at 160; Barnes v County of Nassau, 108 AD2d at 55). Moreover, since the duty to supervise the care and safeguard the welfare of the infant plaintiff has been determined to be nondelegable, the City’s defense based on the theory that the Society was acting as an independent contractor must be rejected (see Bartels v County of Westchester, 76 AD2d at 523), especially in view of the uncontroverted deposition testimony of Kimberly Smith to the effect that it was CWA’s responsibility to oversee the services that are provided by the contract agencies such as the Society.

Finally, the City’s contention that the CWA was not negligent in monitoring JP’s foster care since it was never notified of his elevated blood-lead level by the Society must also be rejected. In the opinion of this Court, this argument is undermined by the failure of the City’s DOH to notify CWA of the lead paint violation in the foster home. Moreover, in view of the testimony of CWA’s supervisor that she was unfamiliar with the agency’s procedures in the event that a lead paint violation was reported to exist in a foster home, questions of fact would appear to exist on the issue of the agency’s actual or constructive notice of the lead-paint violations. Summary judgment may not be granted in the presence of triable issues of fact, or where there is even arguably any doubt as to the existence of a triable issue (Fleming v Graham, 34 AD3d 525, 526 [citation and internal quotation marks omitted], rev. on other grounds 10 NY3d 296; cf. Mazerbo v Murphy, 52 AD3d 1064, 1066).

Accordingly, it is ordered, that the motion for summary judgment by defendant the City of New York in Action No. 2 is denied in all respects.

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