Fernandez v Riverstone Assoc.
Annotate this CaseDecided on February 4, 2005
Civil Court of the City of New York, Kings County
YORDIS FERNANDEZ, an infant by his Mother and Natural GuaRdian, YADIRIS FERNANDEZ and YADIRIS FERNANDEZ, Individually, Plaintiffs
against
RIVERSTONE ASSOCIATES, RIVERSTONE HOUSING, INC. and P&L MANAGEMENT & CONSULTING, Defendants
869/02
Eileen N. Nadelson, J.
Plaintiff mother seeks this Order to Show Cause for a protective order to prohibit the release and inspection of any records maintained by the Administration for Child Services relating to Plaintiffs. In opposition, Defendants seek an in camera inspection of the records by the court so that the court may determine their relevance to the instant lawsuit.
The underlying action results from injuries sustained by infant Plaintiff in the family apartment. During her Examination Before Trial, Plaintiff mother stated that after the accident she was assigned a case worker from the Administration for Child Services who visited her for approximately one year, and that she was required to take a parenting training program for two to three months. It is noted that no criminal charges were ever filed against Plaintiff mother arising out of this incident.
Defendants assert that the records requested may have a direct bearing on Plaintiff [*2]mother's individual claim for loss of services. Plaintiff maintains that New York only provides for very limited actions based on negligent supervision, and therefore Defendants may not base a defense on this legal theory.
Disclosure of records maintained by the Administration for Child Services are subject to the provisions of section 424-a of the Social Services Law. Pursuant to this statute, disclosure of these highly sensitive records are severely limited, primarily only to authorized governmental agencies, or by release by the parties involved or by court order. This statute limits access generally afforded governmental records under the mandates of the Freedom of Information Law.
As with other personal and privileged governmental records, these records are protected from indiscriminate public inspection; however, the court has the power to permit inspection in appropriate cases. The ultimate authority to determine whether the information sought is material and relevant and whether a case for inspection or otherwise of confidential material has been made lies solely with the court. Gray v. State of New York, 130 Misc 2d 65, 494 N.Y.S.2d 971 (Monroe County 1985) [case involved the inspection of Family Court records].
Courts have held that, in situations in which it is difficult to determine if the assertion of a privilege is warranted, it is proper for the court to conduct an in camera inspection of the material requested, although such in camera inspections are more the exception than the rule. Mahoney v. Staffa, 168 AD2d 809, 564 N.Y.S.2d 231 (3d Dept. 1990) [documents prepared by the Temporary State Commission of Investigation of the State of New York].
In some cases involving the records of the Administration of Child Services, the Court of Appeals has sanctioned in camera inspection before ordering information release. Matter of Fink v. Lefkowitz, 47 NY2d 567, 419 N.Y.S.2d 467 (1979). Section 422 (4) (A) of the Social Services Law provides that the Department of Social Services confidential information shall be made available to a court, upon a finding that the information in the record is necessary for the determination of an issue before the court. Matter of Gannett Co., Inc. v County of Ontario, 173 Misc 2d 304, 661 N.Y.S.2d 920 (Ontario County 1997). Therefore, it is clear from judicial precedent and statutory authority that the court may make an in camera inspection of the records of the Administration for Child Services to determine the relevance and materiality of those records to a case before it, and to permit disclosure if such relevance and materiality are found.
However, prior to ordering an in camera inspection of confidential and sensitive records, the court must be convinced that the records sought may have some relevant connection to the issues before it. In the instant case, Plaintiff argues that, because Defendants may not base a defense on negligent parental supervision, the records would not be material to the case at bar.
To support Plaintiff's argument, Plaintiff relies on LaTorre v. Genesee Management, Inc., 90 NY2d 576, 665 N.Y.S.2d 1 (1997). In that case, a third-party defendant asserted a claim against the mother of the injured plaintiff, seeking indemnification and contribution. In reaching its conclusion to bar the third-party claim, the court said that a parent's negligent failure to [*3]supervise a child is generally held not to constitute a tort actionable by the child. Therefore, where a secondary right to contribution is dependent upon the parent's alleged failure to perform a duty owing to the plaintiff child, the absence of a primary cause of action defeats the counterclaim and third-party complaint.
The rationale behind the above-cited decision stems from the court in Holbrook v. Spencer, 36 NY2d 35, 364 N.Y.S.2d 859 (1974), where the court cautioned that parental negligent supervision claims would unwisely expose parents to virtually unlimited liability and undue stress. The court indicated that to permit children to sue their parents for negligent supervision would place an inevitable strain on the family relationship. However, the Holbrook court did recognize a limited exception to this concept for cases in which third persons were injured by a child's improvident use of a dangerous instrument. In these situations the parent's duty is to the innocent third person, not the child.
In the instant action, Plaintiff mother is asserting a claim on her own behalf for the loss of the services of the child. Consequently, the defense argued by Defendants is not based on the child's right of action against the parent, but on the mother's own cause of action for her own alleged damages. Under these circumstances, the dictates of the Holbrook and LaTorre cases are inapplicable. The court could not permit a party to benefit from her own wrongdoing, if such is proven to be the case.
Based on the foregoing, the court denies Plaintiff's request for a protective order and orders the Administration for Child Services to provide this court with Plaintiff mother's records relating to the incident under scrutiny for an in camera inspection to determine their relevance to the case at bar.
The court notes that because this matter is in the Civil Court, which does not maintain an IAS part, the court would not be unduly prejudiced by viewing the contents of the records if they are found irrelevant, because it is highly unlikely that the judge making the in camera inspection will be the trial judge in the matter.
This constitutes the decision and order of the court.
Dated: February 4, 2005
__________________________
EILEEN N. NADELSON, J.C.C.
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