The following papers numbered 1 to 24 read on this motion by the plaintiff to compel disclosure; cross-motion by the defendant New York City Housing Authority for leave to amend its answer and to compel disclosure; cross-motion by the defendant City of New York for summary judgment.

Notice of Motion - Affidavits - Exhibits - Service..............1 - 4
Notice of Cross-Motion - Affidavits - Exhibits - Service....5 - 12
Answering Affidavits - Exhibits - Service.........................13 - 18
Replying Affidavits - Exhibits - Service............................19 - 24

Upon the foregoing papers it is ORDERED that this motion and cross-motions are disposed of as follows:

This action seeks damages for the infant plaintiff as a result of a scalding incident, wherein it is claimed on her behalf that the hot water system in her apartment was negligently maintained, leading to the water in her bathtub being excessively hot. The defendant City of New York seeks summary judgment, on the grounds that it neither owned nor maintained the apartment building. The co-defendant Housing Authority seeks disclosure of certain records of investigations of allegations of child abuse against the plaintiff mother. It is the Housing Authority's claim that the injuries sustained by the infant plaintiff are inconsistent with the account of the scalding incident given by the plaintiff mother, that the injuries were actually inflicted by the plaintiff mother and not due to an accident, and that there were prior instances of child abuse, such that the City may be held liable for contribution in that it failed to remove the infant plaintiff from the allegedly abusive home. In support of this claim, the Housing Authority seeks disclosure of records of investigations of child abuse of the infant plaintiff by the plaintiff mother. These records are normally confidential and immune from disclosure, but may be ordered disclosed by Aa court, upon a finding that the information in the record is necessary for the determination of an issue before the court@ (Social Services Law ' 422[4][A][e]).

The City is entitled to summary judgment, and the cross-motion for disclosure is denied. The complaint and cross-claim against the City are severed and dismissed. Clearly, the City neither owned, operated nor maintained the apartment building, and may not be held liable for the allegedly dangerous hot water. The Housing Authority relies on the case of Boland v State of New York, 218 AD2d 235, for the proposition that the City was under a duty to protect the infant plaintiff, that this duty extended to a duty to remove the child from the home, and that a special relationship existed that would render the City liable to it for contribution for the injuries allegedly inflicted by the plaintiff mother. The Boland case, however, does not go so far, and indeed the negligent act in that case was significantly different from that claimed here. There was no claim in Boland that the State had negligently failed to remove the abused child from the hands of the abuser. Rather, Boland dealt with a situation where a representative of the State-wide Central Register of Child Abuse and Maltreatment received a report of an abused child, but then negligently failed to report the incident to the proper county Child Protective Unit, as required by the Social Service Law. Before the error was corrected, the abuser had beaten the child to death. The Appellate Division, Third Department, found that the State-wide Central Register was under a ministerial duty to make the report properly, and that the fact that the State had undertaken this duty as set forth by the Social Services Law was sufficient to create a special relationship that would sustain a claim of negligence. The court was clear that any challenge to discretionary or quasi-judicial act or conduct would be completely met by the doctrine of sovereign immunity.

In this case, any failure of the City to remove the infant plaintiff from the home of the plaintiff mother would clearly be a discretionary or quasi-judicial act or determination, and not a ministerial act as in Boland, No liability may attach to it, even should it turn out to have been erroneous. Therefore, there is no basis to impose liability on the City for such a failure, and any disclosure of otherwise confidential records would not be relevant to an issue properly before the court.

In any event, there is an affidavit from a Deputy Director of Administration for Children's Services for the City of New York, in which she states that she supervised a search for such records, and that none were found for times prior to the date of the infant plaintiff's injury.

On the issue of summary judgment, it should be noted that the City would not be liable for contribution in this case even if there were a duty to have removed the infant plaintiff from the custody of the plaintiff mother. If the scalding of the infant was an accident caused by excessively hot water, as the plaintiff claims, and not due to child abuse, then any failure by the City was not a proximate cause of the injury, and there would be no claim for contribution. If, on the other hand, the scalding was a result of child abuse, there would be no valid claim against the Housing Authority, and no need for contribution.

The plaintiff's motion for disclosure is granted, and the defendant Housing Authority is directed to allow the plaintiff's representatives access to the heating plant to inspect the heat and hot water systems and facilities at the apartment building at issue, within twenty days of the service of this order with notice of entry.

Dated: September 2, 1999                                                                                       ____________________
                                                                                                                                                             J.S.C.