Upon the foregoing papers, defendants City of New York Administration for Children's Services ("ACS"), named ACS employees David Copeland and Vikki Leverette, and unnamed ACS employees John Does 1-5 (collectively "the ACS defendants") move for an order, pursuant to CPLR 3211 (a) (1), (5) and (7), dismissing plaintiffs' complaint.

The instant motion arises from plaintiffs' action for damages allegedly sustained as a result of ACS's November 20, 1997 removal of plaintiffs' two minor children from their home. In its petition to Family Court, ACS asserted that removal of the children was necessary due to the Dinermans' mental health problems and unsanitary and dangerous conditions in the home. On November 24, 1997, after a hearing in Family Court, the Family Court issued an order, based in part upon the ACS petition, finding that the removal of the children was proper and directing that the children should be temporarily removed from their home pending further proceedings. [*2]Subsequent family court proceedings have been held, including a January 6, 2000 Order of Disposition finding neglect and placing the children with the Commissioner of Social Services.

In their complaint, plaintiffs allege that ACS "made no effort, as required by State law, to place the subject children with a family member of the plaintiffs' during their removal" and made "no reasonable effort to verify the truth of the allegations of defendant Jewish Board [of Family and Children's Services, Inc.] regarding the plaintiffs' mental health, if they needed to be on medication, or if their home created a danger to the health and well-being of plaintiffs' children." Plaintiffs contend that ACS, among others, deprived them of their constitutional right "to the society, comfort and affection of their children" through "false and misleading allegations, sloppy and incomplete investigative work, and interminable delays in adjudicating this matter."

Accordingly, plaintiffs commenced the instant action against numerous defendants, including the ACS defendants, under 42 USC § 1983 on May 20, 2004. On May 17, 2006, this court issued an order dismissing plaintiffs' claims as against defendants Jewish Board of Family and Children's Services, Inc. and Ohel Children's Home and Family Services on various grounds, including statute of limitations.

On a motion to dismiss pursuant to CPLR 3211, the court must accept the facts alleged in the complaint and submission in opposition to the motion to dismiss as true, and determine whether those facts, as set forth, state a cause of action (see e.g. Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Leon v Martinez, 84 NY2d 83, 87 [1994]). The complaint and submission in opposition to the motion to dismiss are to be liberally construed, according the plaintiff the benefit of every possible inference (see e.g. Sokoloff, 96 NY2d at 414; Leon, 84 NY2d at 87).

The underlying complaint in this case is based upon 42 USC § 1983 (Section 1983), which provides, in pertinent part:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . ."

The ACS defendants argue that plaintiffs' claims must be dismissed "because their claims constitute a collateral attack on the validity of the Family Court orders" and because plaintiffs' claims arising from the 1997 removal and finding of neglect are time-barred under the three-year statute of limitations for 42 USC § 1983 claims. In their opposition, plaintiffs, who are no longer represented by an attorney, do not explicitly address ACS's arguments, but instead state that defendants made "false, malicious allegation[s] which were disproved many times over and which they continued to advance to present." In addition, plaintiffs submit various documents, [*3]apparently stemming from the Family Court proceedings and prior proceedings in this court, with numerous handwritten notations.

The doctrine of collateral estoppel precludes a party from litigating an issue if that issue was clearly raised in a prior action or proceeding and was necessarily decided in that prior proceeding (see e.g. Tartaglione v Pugliese, 34 AD3d 446, 447 [2006]; Altegra Credit Co. v Tin Chu, 29 AD3d 718, 719 [2006]). In order for the doctrine to apply, the issue must have been material to the prior proceeding and essential to the decision rendered, and the party against whom the issue was decided must have been given a full and fair opportunity to litigate the issue in the earlier action (see e.g. Altegra Credit Co., 29 AD3d at 719). The doctrine does apply to prior proceedings in Family Court (see e.g. Bartkowski v Friedman, 213 AD2d 873, 874-875 [1995]; Berry v Berry, 94 AD2d 837, 838 [1983]).

Construing plaintiffs' complaint liberally, the basis for their Section 1983 claim against the ACS defendants appears to be alleged misrepresentations and/or inadequate investigation made by ACS and its employees in connection with the 1997 removal of plaintiffs' children from their home.^[FN1] The ACS defendants argue that plaintiffs' claims "constitute a collateral attack on the validity of the Family Court orders in the neglect proceeding." Specifically, the ACS defendants contend that the issue of whether an inadequate investigation was conducted was necessarily determined by the Family Court's finding that removal of the children was proper. The ACS defendants argue that if plaintiffs disagreed with the Family Court determination, plaintiffs' remedy was to appeal that decision pursuant to Family Court Act § 1112 (a).^[FN2]

Plaintiffs do not contend that the Family Court, or any other court, determined that the removal of plaintiffs' children was improper or unnecessary. Family Court Act § 1046 (b) requires that "any determination that the child is an abused or neglected child must be based on a preponderance of evidence." The Family Court decisions explicitly relied on the evidence given by ACS and its caseworkers and that evidence was clearly material to its decisions. Thus, the determination by the Family Court that removal of the children by ACS was proper included the requisite finding that ACS's investigation was adequate, and that it had not made misrepresentations in connection with such removal. Plaintiffs have not sustained their burden of demonstrating that they did not have a full and fair opportunity to litigate these issues in the Family Court proceedings (Martin v Geico Direct Ins., 31 AD3d 505, 506 [2006]). Accordingly, plaintiffs are barred by the principles of collateral estoppel from re-litigating the determination made by the Family Court by bringing these claims against ACS. [*4]

Moreover, the court finds that plaintiffs' claims are time-barred. The statute of limitations for a Section 1983 claim is three years (see Lopez v Shaughnessy, 260 AD2d 551, 553 [1999]; Rice v New York City Hous. Auth., 149 AD2d 495, 497 [1989]). Plaintiffs filed the instant action on May 20, 2004; however, the gravamen of plaintiffs' complaint against ACS is the removal of their children in 1997. As that event occurred more than three years prior to plaintiffs' filing this action, any claim by plaintiffs based upon the removal of their children is time-barred.

Accordingly, the motion of the ACS defendants to dismiss plaintiffs' complaint as against them is granted.

This constitutes the decision and order of the court.

E N T E R,

J. S. C.