B.G. v S.T.

[*1] B.G. v S.T. 2022 NY Slip Op 51406(U) Decided on September 27, 2022 Supreme Court, Ulster County Bryant, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 27, 2022
Supreme Court, Ulster County

B.G., PNG or B.G., Jr., an infant, Plaintiff(s),

against

S.T. and J.T., County of Ulster and
Ulster County Department of Social Services, Defendant(s).



Index No. XXXXXX-XXXX



Plaintiff(s):
Alexander Eli Mainetti / Michael Mainetti
Attorneys for B. G., by Guard
Mainetti & Mainetti, P.C.
130 N. Front Street
Kingston, New York 12401

Defendant(s):
Alan B Brill
Attorney for S. T. and J. T.
ALAN B. BRILL, P.C.
20 Squadron Blvd. Suite 540
New City, New York 10956

Eric M. Kurtz
Attorney for Ulster County, County of Ulster, Ulster County Dept. Social Serv., Ulster County Department of Social Services
COOK, NETTER, CLOONAN, KURTZ & MURPHY, P.C.
85 Main Street, P.O. Box 3939
Kingston, New York 12402

Susan Liess Flynn
Attorney for Dutchess County Dept. of Community and Family Services and Dutchess County DCFS
DUTCHESS COUNTY ATTORNEY/ DCFS LEGAL UNIT
60 Market St.
Poughkeepsie, New York 12601 Kevin R. Bryant, J.

On or about August 15, 2019, a summons and complaint were filed by B. G., parent and natural guardian of B. G., Jr. (hereinafter referred to as "Plaintiff"), amended on June 15, 2020, alleging, inter-alia, negligence, and personal injuries; and

A verified answer having been filed; and

A Notice of Motion having been filed by Defendants seeking Summary Judgment; and

Affirmations in opposition and exhibits having been submitted by Plaintiff.

NOW, for the reasons set forth herein, the Motion is hereby denied.[FN1]

Findings of Fact

B. G., Jr. is a child who has been placed in foster care with the Ulster County Department of Social Services. On June 28, 2019, while residing in the T.'s foster home, the child was injured as the result of an accident that occurred when a lawnmower operated by Defendant T. struck a rock, and the rock was propelled and struck the child. According to Plaintiff, prior to the incident, he had repeatedly complained about the quality of care that the child was receiving in the foster home, including specific complaints regarding the child riding a motorized lawnmower or other motorized four-wheel vehicles. In this regard, during his Examination Before Trial (hereinafter referred to as "EBT"), Mr. G. testified that prior to the incident, he complained to the assigned caseworker regarding the care the child was receiving in the foster home, specifically "that I didn't want him on or near . . . any motorized equipment."[FN2]

Caseworker G. M. testified that while he made home visits to the foster home, he did not notify the foster parents of any specific issues that needed to be addressed or corrected at the home. He could not recall any specific core training that he received with regard to the child being allowed near motorized equipment.[FN3] Mr. M. was asked whether Mr. G. made any specific complaints about the child being allowed to ride a tractor and he replied "I don't recall that, he may have. There were several complaints."[FN4] Mr. M. was asked what he did when he found out the child was hurt, and he replied "nothing," and he indicated that he did not file any sort of internal accident or incident report.[FN5]

Caseworker N. C. also testified at an EBT. She stated that she was previously employed by DSS, that she was assigned to the subject family and that during the scope of her employment, she had numerous conversations with Mr. G. regarding his concerns for the safety of his son. Ms. C. specifically testified that Plaintiff was concerned about his son being allowed to ride on a lawnmower while it was being operated by his foster father.[FN6] Ms. C. testified that [*2]she brought these complaints to the attention of her supervisor and that she was told that "foster parents could take any actions that a reasonable parent would take with their own children."[FN7]

Grade B Supervisor C. L. also testified at an EBT. She confirmed that Mr. M. told her about Mr. G.'s complaints. While she recalled receiving complaints about the father's telephone calls with the child, she did not recall any specific complaints about the lawn mower. Counsel asked if there is a specific protocol for recording concerns that are raised by natural parents regarding the care his or her child is receiving in foster care. Ms. L. indicated that the agency maintains progress notes regarding families and that "[w]e make documentation so that if something regarding a complaint or a concern . . . that would be or could be contained in a progress note. I just can't . . . say that specific complaint was contained in a note, but it could be."[FN8] Ms. L. reviewed the progress notes prior to her testimony.[FN9] Counsel asked "[a]t any point in time did you come to learn that the Plaintiff in this case was alleging that [DSS] was provided prior complaints of B. G., Jr. being allowed to ride on a tractor" and Ms. L. replied "I'm aware that during this case in terms of this legal piece that that statement was made. I'm not aware that that is accurate or ever happened."[FN10]

Ms. L. was asked whether Ms. C. ever advised her about the complaints that had been made by B.'s father. Ms. L. replied "[n]ot to my knowledge."[FN11] She was then asked if Ms. C. had reported complaints regarding B. being allowed to ride on the tractor and she stated "[n]o, that was never brought to my attention". Counsel asked if Ms. L. had any "recollection of Ms. C. bringing any complaints to your attention concerning B. G. J's care with the foster parents" and Ms. L. replied "[n]othing specific that would rise to a level that it would provide me with a specific memory of anything significant."[FN12] She agreed that the child was riding a ride on mowing tractor would be something significant.

Summary Judgment

"A party moving for Summary Judgment must demonstrate that the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in the moving party's favor . . . the proponent of a Summary Judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence to demonstrate the absence of any material issues of fact"[FN13] (Jacobsen v. N.Y.C. Health and Hospitals Corp., 22 NY3d 824 (2014)). See also, P.R.B. v. State of New York, 201 AD3d 1237 (3rd Dept., 2022); Ferretti v. Village of Scotia, 200 AD3d 1243 (3rd Dept., 2021)). "To determine whether there are any factual issues, this Court must view the evidence in a light most favorable to the nonmoving party and give that party the benefit of every favorable inference" (McEleney v. Riverview Assets, 201 AD3d 1159 (3rd Dept., 2022)).

"A foster care agency cannot be held liable for injuries which result to a foster child due [*3]to the momentary inattention of a foster parent, where . . . the actions of the foster parent were not acts that should have been foreseeable by the agency in the exercise of reasonable care" (Ogletree v. Rush Realty Assoc. LLC, 29 AD3d 875 (2nd Dept., 2006)). In order to find that a child-care agency breached its duty to adequately supervise the children entrusted to its care a plaintiff must establish that the agency had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated" (Simpson v. County of Dutchess, 35 AD3d 712 (2nd Dept., 2006)). See also, McCabe v. Dutchess County, 72 AD3d 145 (2nd Dept., 2010)).

Summary Judgment is appropriate in this type of proceeding if the agency demonstrates, prima-facie, "that they did not have sufficiently specific knowledge or notice of any prior conduct" that would have made the incident at issue foreseeable and when the Plaintiff fails to raise any triable issue of fact" (see, Lopez v. City of New York, 172 AD3d 703 (2nd Dept., 2019)). See also, Keizer v. SCO Family of Servs., 120 AD3d 475 (2nd Dept., 2014)). Moreover, when the submissions raise "questions of fact concerning the level of supervision present at the time of the accident" and when the record raises questions of fact regarding the agency's compliance with applicable regulations, and questions of fact remain whether the lack of compliance was a proximate cause of the alleged injury, Summary Judgment is inappropriate (Mattison by Mattison v. Craig, 266 AD3d 797 (3rd Dept., 1999)).

Conclusions

In support of the instant motion, counsel for Ulster County initially argues that the Ulster County Department of Social Services is a Department of Ulster County and cannot be sued as a separate entity from the County. The County cites Brown v. City of New York, 192 AD3d 962 (2nd Dept., 2021); Troy v. City of New York, 160 AD3d 410 (2nd Dept., 2018) and Carpenter v. New York City Housing Authority, 146 AD3d 674 (1st Dept., 2017) in support of its request that the matter be dismissed against the Ulster County Department of Social Services. Plaintiff has not cited any controlling authority in opposition to this request and, for the reasons set forth by Ulster County, the part of the motion that seeks dismissal against the Ulster County Department of Social Services is hereby dismissed.

With regard to the claim against Ulster County, in the affirmation in support of the motion, after citing to numerous cases where Summary Judgment was granted against a social services agency, counsel makes the conclusory assertion that "there can be no question that the County of Ulster lacked notice of the specific conduct alleged to have caused the infant plaintiff's injuries. Indeed, the only complaints related to the lawnmower involved a claim that the plaintiff's children were permitted to ride on the mower, rather than any complaint that they were allowed to play outside while the mower was being used". Counsel cites to Ms. C.'s testimony in support of this assertion and further states that "the infant plaintiff even testified that he was not permitted to be on the lawnmower, meaning that any complaints regarding the same were completely unfounded."[FN14]

In response, counsel for Plaintiff correctly notes that "even if the Court were to find that Defendant UCDSS only received prior complaints about infant Plaintiff riding on the Lawnmower same would constitute sufficiently specific notice of the dangerous conduct that [*4]resulted in injury to the Infant Plaintiff"[FN15] and argues that at a minimum, the conflicting testimony raises a sufficient question of fact to preclude Summary Judgment. This Court has reviewed the affirmations and additional submissions and finds that they are not conclusive regarding the circumstances that preceded the injury and there remain numerous questions regarding precisely what transpired. This Court has also considered counsel for the County's conclusory assertion that "there can be no question that the County of Ulster lacked notice" and the Court finds this assertion to be false. In this regard, it is well settled that a social services agencies are required to maintain case-records wherein they document issues related to the care of the child and the parent's compliance with services.[FN16]

Given this responsibility, the Court is concerned with the testimony that these concerns could have been raised and not documented in the case-record. As noted in De'L. A. v. City of New York, 158 AD3d 30 (1st Dept., 2017), "[w]here an institutional defendant fails to comply with rules intended to protect the safety of those for whom the institution is responsible . . . it is a question of fact as to whether the institutional defendant is liable . . . The question cannot be resolved on the agency's Summary Judgment motion because proximate cause is a question of fact for the jury where varying inferences are possible."

Clearly, Mr. G. has testified that he complained to the caseworker regarding his child being allowed to play in close proximity to an operating lawn mower. While the additional witnesses did not specifically acknowledge that Mr. G. specifically raised the issue of his son being allowed to play in close proximity to the operating mower, they did acknowledge receiving other complaints regarding the mower being operated in a manner that caused a risk of harm to his son. As such, it is the finding of this Court that the record sets forth significant factual disputes regarding Mr. G.'s specific complaints, the manner and time that these complaints were communicated and whether the assigned caseworker and his supervisors took reasonable steps to investigate the issues raised by the parent of a child that they were charged to protect.

In this regard, the Court has considered and herein rejects the County's argument that they are absolved of the responsibility to act on the notice received because Mr. G. only reported a concern about the child riding on the mower rather than a more general concern about dangers inherent in the child being exposed to the mower in a manner that created a risk of harm. It is the finding of the Court that even if Mr. G. only communicated a concern about the child being allowed to ride, it was the responsibility of the Department to investigate this concern, to document the findings in the case-notes and to take reasonable steps to ameliorate any foreseeable risk attendant to the issue that Mr. G. raised.

While Mr. G.'s testimony was clear that he reported the more general concerns about the child being allowed to play in close proximity to the operating mower, the Department's witnesses were far from clear regarding what concerns were reported and what steps were taken to address the safety issues raised. The extent to which Mr. G.'s complaint put the Department on notice, the propriety of the Department's response and the extent, if any, that the Department's action was a proximate cause of the child's injury, are all outstanding questions of fact that cannot be resolved on this motion.

For the foregoing reasons, it is the finding of this Court that "[b]ased on the differing accounts of the accident submitted", Plaintiff failed to establish, prima facie, that they were free from negligence and that their negligence was not at least one of the proximate causes of the accident (Pilgram v. Vishwanathan, 151 AD3d 769 (2nd Dept., 2017). While evidence at trial could establish that Defendant did not have notice of the dangerous condition that led to the child's injury, the affidavits and depositions submitted in support of the motion do not sufficiently resolve this issue such that this Court can rule on notice as a matter of law. Absent further evidence, it is impossible for this Court to determine whether any failure on the part of the Department to duly investigate Mr. G.'s complaints regarding the operation of the lawnmower were one of the proximate causes of the incident that led to the injury of the child. This Court has reviewed the cases cited by counsel for Plaintiff in support of the motion and finds, as outlined by counsel for Plaintiff, that they are each distinguishable from the facts before this Court and they are not controlling. As there are significant material issues of fact, Summary Judgment is not appropriate, and Plaintiff must be allowed to present these matters to a jury.

The original Decision and Order and all other papers are being delivered to the Supreme Court Clerk for transmission to the Ulster County Clerk for filing. The signing of this Decision and Order shall not constitute entry or filing under CPLR §2220. Counsel is not relieved from the applicable provisions of that rule regarding notice of entry.

Dated: September 27, 2022
Kingston, New York
HON. KEVIN R. BRYANT, J.S.C. Footnotes

Footnote 1:In determining this motion, the Court has considered the documents specifically cited herein as well as all other documents electronically filed in this matter as appearing on NYSCEF.

Footnote 2:NYSCEF doc. 59, page 47

Footnote 3:Page 16

Footnote 4:Page 17

Footnote 5:Page 19

Footnote 6:NYSCEF doc. 66, page 15

Footnote 7:Page 18

Footnote 8:NYSCEF doc. 62, page 12

Footnote 9:While the progress notes would seem directly relevant and probative regarding the issue of notice, they have not been put before the Court by either party.

Footnote 10:Page 17

Footnote 11:Page 18

Footnote 12:Page 20

Footnote 13:Internal citations, quotations and punctuation omitted in all quotations contained herein.

Footnote 14:NYSCEF doc. 52, para. 19

Footnote 15:NYSCEF doc. 68, para 17

Footnote 16:See, 18 NYCRR 428.5