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Grandfather Seeks Guardianship of Children



In July, 1977, defendant Department of Social Services of the County of Nassau (hereinafter DSS) placed a four-year-old child and his sister in the foster home of defendant Margaret Toomer after the infant’s natural mother was sentenced to prison. Subsequent to placement, the DSS received several reports that the infant was being “beaten” and otherwise “abused” by the foster mother. DSS employees allegedly investigated the complaints and determined that the child should remain in guardian’s care pending completion of their investigation.

On or about November 17, 1978, the decedent’s grandfather and administrator of his estate, commenced the present action against the County of Nassau, the DSS and the guardian. The cause of action against the county defendants asserted, in effect, that they were negligent in placing the infant in guardian’s care, investigating the complaints of abuse against her, and failing to remove the infant from her care. Initially, the county defendants denied these allegations, and then, on April 30, 1984, some five years after the service of the answer, moved for leave to amend their answer to interpose the affirmative defense of immunity and for summary judgment dismissing the complaint insofar as it was asserted against them.

In a short form order, Special Term denied the county defendants’ motion on the ground that “no purpose would be served by allowing defendant[s] to amend their answer” since the acts here complained of “require[d] no discretion” and the “County is not immune from liability”. While we agree with Special Term’s determination, we believe additional explanation is necessary.

The law is clear that leave to amend a pleading should be freely granted unless the amendment sought is palpably improper or insufficient as a matter of law or unless prejudice or surprise directly results from delay in seeking such amendment.

At the outset, plaintiff argued at nisi prius and renews the argument before this court, that leave to amend should be denied because of the county defendants’ five-year delay in seeking amendment. Special Term correctly rejected this argument sub silentio as failing to demonstrate sufficient legal prejudice for CPLR 3025 purposes. Clearly, neither the fact that a motion is made on the eve of trial nor the fact that the matter to be asserted by amendment may defeat the opposing party’s cause of action is, in and of itself, a sufficient ground for denying leave to amend. The issue before us thus narrows to whether the county defendants’ proposed amendment was palpably improper or legally insufficient.

In a case, the infant plaintiff was severely injured as a result of the unfitness and/or carelessness of her foster parents in attempting to bathe her in scalding water. In the ensuing action, she alleged, through her guardian ad litem, that the county defendants were liable for the injuries sustained at the hands of her foster parents after being placed on notice of their incompetence or indifference. Shortly before the case was reached for trial, the county defendants moved to dismiss the action as to them on the ground, inter alia, that they were immune from liability because the care of children placed with foster parents was a governmental activity calling for day-to-day decisions of a highly sensitive discretionary character which could not be subject to judicial scrutiny.

Accordingly, in reaffirming the continued vitality of the jurisprudence, the court held that a claim of immunity cannot be raised to bar inquiry into a county’s alleged negligent acts in the placement and supervision of a child in foster care and that any claim of negligence relating thereto must be resolved at trial. In light of the foregoing, Special Term correctly rejected any attempt by the county defendants to amend their answer to assert what would be an ineffectual defense and to seek summary judgment as to them, based on that defense. Therefore, its order should be affirmed.

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