Denaro v ACS (Admin. for Children's Servs.)

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Denaro v ACS (Admin. for Children's Servs.) 2016 NY Slip Op 30458(U) February 19, 2016 Supreme Court, New York County Docket Number: 100324/2015 Judge: Lucy Billings Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY LUCY BlLUN,GS PART J:.S.C. /flOMf-iAf Justice MOTION DATE _ _ __ •V• '1lS ( ,AbMrJ(.ffil,,.trfQJ fO".CHl~MQJ:S $Q..VIC1$)I t.Jv'PDJ L.OWt~ Cf.~ INDEX NO. PRESENT: MOTION SEQ. NO. (){)J. E:AST Slot: FM'll-'f UIJ~ tMMf. P£TH IS/Vft1,. The following papers, numbered 1 to _3_, were read on this motion tolfp_..,.d,t;&..t'IW.~'""'ps"""""'"'().U=="'""'"S'"-------- I No(s)•._______ I No(s). _ _2. __ _ I No(s). _ _ 3'----- Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - Exhibits Replying Affidavits Upon the foregoing papers, It is ordered~ 4fl,fJ ""d"~ '/lttd ~ «Jll#f ~t/14ffs ~ l)l)h lJ~ { ~ fl1 tfa~ ~ ~N­ ~IAI~ 1W" .Ui'W- ~ W ~ ~~ tftt,/tso. c,.p.L,.fJ.~ j"J;).l~l7). w 0 t; :::> ..., Fl LED e Q w 0:: 0:: MAR 2 2 2016 -\\6) 1~ (C,\§. ~~7~~ Llub'-=-' - w u.. w 0:: ~~ z ·i '>, ..J :::> 0 COUNTY CLERK'S OFFICE NEW YORK ' u.. <( 1- "' 0 w g, C> w a:: w z a:: - "' 3: - 0 w ..J "' ..J 0 0 LL. < - w z l: 0 I- i= a:: 0 0 ::iE ti.. Dated: L-~ _ _ _ _ _ _ _ _ __,J.S.C. mlflvf.:s l / ' ' J•It 1. CHECK ONE: ................... .,................................................ LUCY BILL.fr,iw-~ 0 2. CHECK AS APPROPRIATE: ........................... MOTION IS: [B'GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0 0 '. - . CASE DISPOSED 0 DENIED 0 0 GRANTED IN PART 0 SETTLE ORDER DO NOT POST 0 ~~c. ~NON-FINAL DISPOSITION OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46 --------------------------------------x Index No. 100324/2015 STEPHANIE DENARO, Plaintiff DECISION AND ORDER - against ACS (ADMINISTRATION FOR CHILDREN'S SERVICES), NYPD, LOWER EAST SIDE FAMILY UNION, and BETH ISRAEL, Defendants --------------------------------------x MAR 2 .2 2016 COUNTY CLERK'S OFFICE NEW YORK LUCY BILLINGS, J.S.C.: I . FILED BACKGROUND Plaintiff commenced this action February 26, 2015, for personal injuries sustained November 27, 2013, when defendant New York City Administration for Children's Services (ACS) employees and defendant New York City Police Department officers removed her children from her home at 72 Baruch Avenue, Apartment lE, in New York County. Her sole allegation implicating the other two defendants is that on November 27, 2013, a social worker from defendant Beth Israel Medical Center threatened to notify ACS if plaintiff did not allow an employee from defendant Lower East Side Family Union to enter her home to conduct a home assessment. ACS and the Police Department move to dismiss the complaint against them based on its failure to plead a claim against them and the expiration of the applicable statute of limitations. C.P.L.R. § 3211(a) (5) and (7). Defendant Beth Israel separately moves to dismiss the complaint against this defendant based on denaro.171 1 [* 3] I' . • the failure to plead a claim against Beth Israel. C.P.L.R. § 3211 (a) (7). II. CLAIMS AGAINST THE CITY DEFENDANTS New York General Municipal Law§ 50-i(1) (c) requires that a claim against the City of New York or its employees be commenced within one year and 90 days after the claim accrued. Campbell v. City of New York, 4 N.Y.3d 200, 203 (2005); Baez v. New York City Health & Hosps. Corp., 80 N.Y.2d 571, 576 (1992); Kiernan v. Thompson, 73 N.Y.2d 840, 842 (1988); Wollins v. New York City Bd. of Educ., 8 A.D.3d 30, 31 (1st Dep't 2004). Applied to plaintiff's claim that accrued November 27, 2013, this limitations period expired February 25, 2015, one day before plaintiff commenced this action. Plaintiff's opposition to the City defendants' motion alleges the malicious prosecution of a Family Court proceeding in which ACS obtained a temporary order of protection against the father of her children December 2, 2013, which ACS used as the basis for removing the children rather than their father from their home. That proceeding finally terminated in plaintiff's favor March 18, 2015. If plaintiff's claim accrued on either of those dates, her action would be timely, Bumbury v. City of New York, 62 A.D.3d 621 (1st Dep't 2009); Palmer v. State of New York, 57 A.D.3d 364 (1st Dep't 2008); Stampf v. Metropolitan Transp. Auth., 57 A.D.3d 222, 223 (1st Dep't 2008); Nunez v. City of New York, 307 N.Y.2d 218, 219 (1st Dep't 2003), but her complaint and notice of claim, a condition precedent to her denaro.171 2 [* 4] action, N.Y. Gen. Mun. Law § 50-e(l); Yan Ping Xu v. New York City Dept. of Health, 77 A.D.3d 40, 48 (1st Dep't 2010); Barnaman v. New York City Health & Hosps. Corp., 90 A.D.3d 588, 588 (2d Dep't 2011); Cropsey v. County of Orleans Indus. Dev. Agency, 66 A.D.3d 1361, 1362 (4th Dep't 2009); Mcshane v. Town of Hempstead, 66 A.D.2d 652 (2d Dep't 2009), focus only on the removal November 27, 2013. Therefore the statute of limitations bars this action against the two City defendants, ACS and the Police Department. C.P.L.R. § 32ll(a) (5); N.Y. Gen. Mun. Law§ 50-i(l) (c). III. CLAIM AGAINST BETH ISRAEL The complaint's single allegation implicating defendant Beth Israel indicates only that its social worker threatened to notify ACS regarding plaintiff's behavior and not that any Beth Israel employee actually did notify ACS or otherwise prompted it to enter plaintiff's home and remove her children. As alleged in the complaint, the threatened action was conditioned on plaintiff's refusal to allow another service provider, from defendant Lower East Side Family Union, to assess plaintiff's home. Plaintiff's opposition to Beth Israel's motion in fact admits that plaintiff "agreed to work with the Lower East Side Family Union." Aff. in Opp'n ~ 14 (May 4, 2015). Her opposition also alleges that the removal of her children was due to a report of child abuse by Beth Israel or Lower East Side Family Union, but again her complaint includes no such allegation. denaro.171 3 [* 5] • IV. CONCLUSION Consequently, the court grants the motion by defendants ACS and Police Department to dismiss the complaint against them based on the expiration of the limitations period from the removal of plaintiff's children November 27, 2013, of which plaintiff complains. i(l) (c). C.P.L.R. § 32ll(a) (5); N.Y. Gen. Mun. Law § 50- The court also grants defendant Beth Israel's motion to dismiss the complaint against Beth Israel based on the complaint's failure to plead a causal connection between any action or omission by a Beth Israel employee and the removal of plaintiff's children November 27, 2013. C.P.L.R. § 32ll(a) (7). The dismissal of plaintiff's claim against Beth Israel is without prejudice to a future action against Beth Israel or another nonmunicipal defendant, pleading a false report to ACS or other viable legal claim within the applicable statute of limitations. DATED: February 19, 2016 denaro.171 4