[*1]
Gotlin v City of New York
2010 NY Slip Op 52446(U) [35 Misc 3d 1236(A)]
Decided on August 18, 2010
Supreme Court, Kings County
Sherman, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 18, 2010
Supreme Court, Kings County


Gary D. Gotlin, Richmond County Public Administrator, Administrator of the Estate of Hailey Gonzalez, Deceased, Plaintiff,

against

City of New York, New York City Administration of Children's Services, Maria Cruz, Camille Capers, Margot Butler, Gillian Salnave, David Stephens, Steve Marcus, James Palmer, Belkys Marquez, Esther Rodriguez, Shantoya Higgins, Chioma Kagha, Jontarr Johnson, Genell McCord, Andrew Blake, Josee Garcon, Judey Enwright, and Estelle McIntosh, Defendants.




30151/08



Attorneys for Plaintiff

Emery Celli Brinckerhoff & Abady LLP by Eric Hecker, Esq.

75 Rockefeller Plaza, 20th Floor

New York, NY 10019

Attorneys for Defendants

New York City Law Department - by Kimberly Lennard, Esq.

100 Church Street

New York, NY 10007

Kenneth P. Sherman, J.



Upon the foregoing cited papers, the decision/order on this motion is as follows:

Plaintiff Gary D. Gotlin, Richmond County Public Administrator of the estate of Hailey Gonzalez, deceased, moves for an order pursuant to CPLR 3025(b) for leave to amend the complaint.

Defendants the City of New York (City), the New York City Administration of Children's Services (ACS), and individually named ACS caseworkers, including Maria Cruz, Camille Capers, Margot Butler, Gillian Salnave, David Stephens, Steve Marcus, James Palmer, Belkys Marquez, Esther Rodriguez, Shantoya Higgins, Chioma Kagha, Jontarr Johnson, Genell McCord, Andrew Blake, Josee Garcon, Judey Enwright, and Estelle McIntosh (collectively defendants), cross-move in the event that the plaintiff's motion to amend is granted, for an order pursuant to CPLR 3211 to dismiss the plaintiff's action for failure to state a cognizable claim.

For the reasons stated below, the plaintiff's motion to amend the complaint is granted, and the defendants' cross-motion to dismiss the plaintiff's action for failure to state a cognizable claim, is denied.

Background


The instant matter arises out of the tragic circumstances of the death of two year old Hailey Gonzalez (decedent) who was murdered by her mother's boyfriend Edwin Garcia (Garcia), on August 10, 2007.

The plaintiff alleges that ACS records reveal that ACS's involvement with the decedent's mother, Marlene Medina (Medina), pre-dates the decedent's birth. Medina had been removed from her own mother's custody as a young child after being repeatedly raped by several of her mother's boyfriends.

On September 27, 2000, Medina gave birth to her first child, Elizabeth, with her then boyfriend Jason Santiago (Santiago). Santiago attacked Medina in the hospital while she was in labor and Elizabeth was removed from Medina's care. Medina's parental rights to Elizabeth were eventually terminated after Medina refused to undergo court ordered domestic violence counseling. However, ACS's involvement with Medina continued as Elizabeth's Family Court case remained open.

The decedent was born on November 21, 2005, to Medina and her boyfriend at the time, Manuel Gonzalez (Gonzalez). On January 16, 2006, after an argument with Gonzalez, Medina left the decedent with Gonzalez at the Brooklyn homeless shelter where they lived, and spent the night at a friend in the Bronx. The friend with whom Medina was staying received a voice mail message from Gonzalez in which he stated that he "smacked the shit out of" the decedent because she would not stop crying. The decedent was subsequently hospitalized with significant injuries and Gonzalez was arrested and convicted.

On February 24, 2006, ACS commenced an abuse proceeding against Gonzalez in Brooklyn Family Court. The decedent was paroled to Medina on the condition that ACS would continue to supervise the decedent's home. At the time, Medina was living in a homeless shelter in Manhattan with her new boyfriend, Edwin Garcia (Garcia).

ACS subsequently visited Medina and the decedent at the homeless shelter in Manhattan several times. On June 6, 2006, an anonymous phone call was received indicating that Medina [*2]was neglecting the decedent. In response, ACS dispatched defendant Margot Butler (Butler), an ACS employee, to visit Medina at her Manhattan homeless shelter to investigate the matter. Butler learned that Garcia was in fact Medina's fiancé, that Medina had an older daughter named Elizabeth who had been removed from Medina's care and her parental rights to Elizabeth were terminated in 2005.

In the initial complaint, the plaintiff alleges that on May 29, 2007, the Brooklyn Family Court entered a final disposition in the abuse case against Gonzalez, ordering the release of the decedent to Medina's care without supervision, pursuant to ACS's recommendation.

On August 7, 2007, Garcia severely beat Hailey Gonzalez. In response, Medina gave Hailey Tylenol, rubbed her with alcohol and gave her a bath. However, several hours later Hailey began seizing, her eyes rolled back into her head and she began foaming at the mouth. Medina called 911 and Hailey was taken to the hospital with a fractured skull, severe bleeding in her brain and a punctured lung. She died on August 10, 2007.

On November 3, 2008, the Richmond County Surrogate's Court issued temporary limited letters of administration appointing Gary D. Gotlin to serve as the temporary limited administrator of the decedent's estate for purposes of the instant matter and issued permanent limited letters of administration on May 12, 2009.

In the initial complaint the plaintiff alleges causes of action sounding in negligent supervision, wrongful death and violations of the decedent's constitutional rights under 42 USC �1983 against the City, ACS and individually named ACS case workers.

The defendants moved to dismiss the plaintiff's initial complaint on the grounds that the decedent was killed by a private actor, that the decedent was not in the defendants' custody, that the initial complaint failed to state a claim based on a violation of the decedent's constitutional rights, and that although the defendants monitored the decedent under their obligations pursuant to Social Services Law, they did not create a special relationship with the plaintiff (see Gotlin v City of New York, et al., Sup Ct, Kings County, Oct. 30, 2009, Miller, J., index 30151/08, Plaintiff's exhibit I at 4).

In an order dated October 30, 2009, Judge Miller dismissed the plaintiff's constitutional claims but denied the defendants' motion to dismiss the state law claims. The defendants filed a notice of appeal on December 4, 2009, on the issues of whether the existence of a Family Court Order of supervision can be the basis for a claim of special duty, whether the existence of the Family Court Order of supervision satisfies the direct contact and reliance elements of a special relationship, and whether the Court properly decided that the actions at issue in the instant matter were not discretionary.

Plaintiff served a proposed amended complaint on April 6, 2010. On April 16, 2010, defendants informed plaintiff that they would not consent to the filing of the plaintiff's proposed amended complaint.

The plaintiff now brings the instant motion seeking to amend the complaint and the defendants bring a cross-motion seeking to dismiss the action in the event the Court grants plaintiff's motion to amend the complaint.

Discussion


(1) Plaintiff's Motion to Amend the Complaint

CPLR 3025(b) provides that "a party may amend his pleading, or supplement it by setting [*3]forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances." On a motion seeking leave to amend a complaint pursuant to CPLR 3025(b), leave to amend will be granted in the absence of prejudice or surprise to the opposing party unless the proposed amendment is palpably insufficient or patently devoid of merit (see Malanga v Chamberlain, 71 AD3d 644, 646 [2010]; Lucido v Mancuso, 49 AD3d 220 [2d Dept 2008]; see also Santori v Met Life, 11 AD3d 597 [2d Dept 2004]). In Lucido v Mancuso (49 AD3d 220 [2d Dept 2008]), the Appellate Division Second Department established the standard that "a plaintiff seeking leave to amend the complaint is not required to establish the merit of the proposed amendment in the first instance" (Id. at 227). Under this standard, the party seeking to amend a pleading has the burden of showing that " the facts as alleged' in the proposed amended complaint or answer fit within [a] cognizable legal theory' as a cause of action or defense, as the case may be, but does not require the proponents to make any evidentiary showing that the amendment has merit" (James v Government of St Lucia, 23 Misc 3d 1110[A], 2009 WL 1018628, [NY Sup Ct, Kings County 2009] citing Noonan v City of New York, 9 NY3d 825, 827 [2007]). Additionally, the opposing party has the burden of showing prejudice or surprise (see Hickey v Hutton, 182 AD2d 801, 802 [2d Dept 1992]; see also James v Government of St Lucia, 23 Misc 3d 1110[A], 2009 WL 1018628, [NY Sup Ct, Kings County 2009], supra).

The plaintiff proposes to amend the complaint to reflect that pursuant to further discovery, the plaintiff erroneously pled that the Family Court Order of May 29, 2007, released the decedent to Medina's custody without supervision, when in fact the Court ordered that the decedent be released to Medina's custody with supervision. The plaintiff further proposes to amend the complaint to add further factual details regarding the allegations against individually named defendants who were ACS case workers involved in the instant matter.

In support of its motion to amend the complaint, the plaintiff argues that the decedent was released to Medina with supervision pursuant to the notes of Family Court Judge Elkin who signed the May 29, 2007, Family Court Order, and based on case notes written on July 9, 2007, by defendant Camille Capers, a case worker involved in supervising the decedent's home. The plaintiff further argues that the amendment clarifying the supervision order is necessary since it was the basis of the defendants' motion to dismiss the initial complaint and because of the pending appeal which relies on the proposition that the decedent was released without supervision. The plaintiff further argues that the proposed amendments specify in greater detail what each individual defendant did or did not do, giving rise to each defendant's alleged liability. Furthermore, the plaintiff argues that there is no prejudice since the defendants will have an opportunity at a future time to argue the truth or falsity of the allegations.

In response, the defendants argue that the proposed amended complaint is devoid of merit since on its face the order provides that the decedent was released to Medina without supervision and the proposed amendment is "demonstrably untrue" given the lack of evidentiary proof. The defendants argue that Judge Elkin's notes, submitted by the plaintiff, are illegible and that there is no evidence in the transcripts of the Family Court hearing that the supervision was lifted. Additionally, the defendants argue that the amendments seeking to provide more detailed information regarding factual allegations, are improperly asserted and should have been included [*4]in the Bill of Particulars. Finally, the defendants argue that the plaintiff's motion should be denied because the proposed amendments contain prejudicial material where they refer to the Nixzmary Brown case.

After examining the papers submitted, the Court finds that the plaintiff's proposed amendments, with the exception of any references to the Nixzmary Brown case, should be granted. Contrary to the defendants' arguments that the motion should be denied because the plaintiff's proposed amendments are "demonstrably untrue," the plaintiff need not establish the merits of the amended complaint at this point in the proceedings (see Lucido v Mancuso, 49 AD3d 220 [2d Dept 2008], supra; see also James v Government of St Lucia, 23 Misc 3d 1110[A], 2009 WL 1018628, [NY Sup Ct, Kings County 2009], supra). Rather, the proposed amendments must fit within a cognizable legal theory (id.). The Court finds that the proposed amendments, with the exclusion of any references to the Nixzmary Brown case, states the same cognizable claim as the initial complaint, mainly that the defendants were allegedly negligent in their supervision of the decedent, that they had a special relationship and an affirmative duty which they breached, and this breach was the proximate cause of the decedent's death. Furthermore, the defendants fail to establish any prejudice or surprise that would result from the proposed amendments.

Accordingly, because there is no evidence that the proposed amendments are palpably insufficient or devoid of merit, and there is no demonstration of prejudice or surprise, the Court grants the plaintiff's motion to amend the initial complaint, to the extent that the amended complaint does not make any references to the Nixzmary Brown case which the Court finds is unnecessary, irrelevant and prejudicial, and to the extent that the complaint is amended pursuant to the plaintiff's letter to the defendants and this Court dated June 4, 2010, in which the plaintiff agrees to change paragraphs 122-123 of the proposed amended complaint to read:
"122. On May 29, 2007, the Family Court entered a final disposition in the abuse case against Gonzalez. The written order that the Family Court issued on May 29, 2007 indicated that Hailey was released to her mother's care with no further ACS supervision. However, there is reason to believe that this written order may have been in error, and that the Family Court may have verbally ordered ACS to continue to supervise Hailey's home for an additional 12 months. Indeed, ACS's case records confirm that ACS and its case workers believed - perhaps correctly, and perhaps erroneously - that on May 29, 2007, the Family Court ordered ACS to continue to supervise Hailey's home for an additional 12 months.

123. Regardless of whether the Family Court actually ordered ACS to continue to supervise Hailey's home or whether ACS merely erroneously believed that the Family Court had done so, ACS and its case workers' conduct prior to May 29, 2007 was grossly negligent, and that grossly negligent conduct proximately caused Hailey's death two months later."

(2) Defendants' Cross Motion to Dismiss


In light of this Court's decision to grant the plaintiff's motion to amend the complaint, the Court will address the defendants' cross-motion to dismiss the amended complaint pursuant to CPLR 3211 (a)(7) for failure to state a cause of action.

It is well settled that on a motion to dismiss pursuant to CPLR 3211(a)(7), the Court "will accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible [*5]favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

In support of its motion to dismiss, the defendants argue that they are entitled to judicial immunity, that the plaintiff's complaint fails to state a claim for wrongful death or negligent supervision based on the lack of a special relationship, that the plaintiff fails to establish that the City voluntarily assumed a special duty to the decedent in performing its governmental function of supervising the decedent's home, that there is no viable cause of action premised on a violation of the Family Court Order, and that the complaint fails to satisfy the reliance element necessary to establish the existence of a special relationship.

In Judge Miller's decision dated October 30, 2009, which denied the defendants' motion to dismiss the initial complaint, Judge Miller analyzed the elements necessary to establish the existence of a special relationship. To establish a special relationship it must be shown that there was "(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking" (Cuffy v City of New York, 69 NY2d 255, 260 [1987]).

Judge Miller determined that the elements of a special relationship were in fact pled by the plaintiff in the initial complaint. Judge Miller's decision stated that, "[t]he Family Court's supervision order triggered specific, mandatory duties on the part of ACS, which it is alleged, its employees neglected to perform. It is further alleged that ACS' employees were aware of the dysfunctional and potentially dangerous environment in which the infant lived....Given ACS' contact with the infant's household, plaintiff has sufficiently alleged the remaining elements necessary for the existence of a special relationship'" (see Gotlin v City of New York, et al., Sup Ct, Kings County, Oct. 30, 2009, Miller, J., index 30151/08, Plaintiff's exhibit I).

Before deciding the defendants' cross-motion to dismiss the amended complaint for failure to state a cause of action, the Court must first determine whether Judge Miller's prior ruling of October 30, 2009, denying the defendants' motion to dismiss the initial complaint, constitutes "law of the case."

"The doctrine of the law of the case' is a rule of practice, an articulation of sound policy, that when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned" (Martin v City of Cohoes, 37 NY2d 162, 165 [1975]). This principle is applicable to "legal determinations that were necessarily resolved on the merits in a prior decision" (Joseph v City of New York, 15 Misc 3d 1136[A], 2007 WL 1452503, [NY Sup Ct, Kings County 2007] quoting Brownrigg v New York City Hous. Auth., 29 AD3d 721, 722 [2d Dept 2006]) and deal with "the same questions in the same case" (see id.). The doctrine however does not apply when the prior decision "did not consider or determine [an] issue" (Joseph v City of New York, 15 Misc 3d 1136[A], 2007 WL 1452503, [NY Sup Ct, Kings County 2007], supra, citing D'Amato v Access Mfg., 305 AD2d 447, 448 [2d Dept 2003], and "did not address the precise question" (Joseph v City of New York, 15 Misc 3d 1136[A], 2007 WL 1452503, [NY Sup Ct, Kings County 2007], supra citing Itamari v Giordan Development Corp., 298 AD2d 559, 559-560 [2d Dept 2002]). Thus the purpose of the doctrine of the law of the case is to prevent the re-litigation of issues of law that were already determined [*6]at an earlier stage of a proceeding (see Hampton Valley Farms, Inc. v Flower & Medalie, 40 AD3d 699, 701 [2d Dept 2007]).

Upon this Court's review of Judge Miller's decision denying the defendants' motion to dismiss the initial complaint, it is evident that Judge Miller based the denial on a finding that the plaintiff properly pled the elements of a special relationship. Upon reviewing the amended complaint now before the Court in the instant motion to dismiss, the Court finds that the amended complaint at the very least alleges the same cause of action for negligence as in the initial complaint and pleads the same elements of a special relationship as pled in the initial complaint. Thus it is evident from the Court's review of the amended complaint that the proposed amendments do not change the allegations, causes of action or theories of liability alleged in the initial complaint. Rather, the amended complaint merely provides further details to support the plaintiff's position that the defendants allegedly had a special relationship with the plaintiff and were allegedly negligent in their supervision of the decedent. Since Judge Miller already determined that the allegations in the initial complaint fit within a cognizable legal theory because the plaintiff pled the elements of a special relationship, and the Court now finds that the allegations in the amended complaint fit within the same cognizable legal theory and are not substantially different from the pleadings that gave rise to Judge Miller's earlier determination, the principle of "the law of the case" applies and this Court is therefore bound by Judge Miller's decision dated October 30, 2009.

Accordingly, the Court finds that pursuant to "the law of the case" doctrine, Judge Miller's denial of the defendants' motion to dismiss the initial complaint requires the Court to deny the defendants' cross-motion to dismiss the amended complaint.

Conclusion


Accordingly, the plaintiff's motion to amend the complaint is granted to the extent that the plaintiff does not include any references to the Nixzmary Brown Case and amends paragraph 122-123 of the proposed amended complaint as directed, because the amendments are neither palpably insufficient nor devoid of merit and there is no evidence of surprise or prejudice to the defendants, and the defendants' cross-motion to dismiss the amended complaint pursuant to CPLR 3211(a)(7) is denied pursuant to the law of the case doctrine which binds this Court to follow Judge Miller's decision of October 30, 2009.

The foregoing constitutes the decision, order, and judgment of the court.

August 18, 2010Kenneth P. Sherman

Justice Supreme Court