Supreme Court, Orange County, February 23, 2023

Catania Mahon & Rider, Newburgh (Melissa Cowan of counsel), for defendant.

O'Connor & Partners PLLC, Newburgh (Michael Kolb of counsel), for plaintiff.

{**79 Misc 3d at 343}The court reviewed the papers on the motion of defendant Newburgh Enlarged City School District to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action and for such and other further relief this court deems just and proper.

Plaintiff commenced this action by filing a summons and complaint on September 1, 2022. Defendant was served on September 12, 2022. The complaint pleads two counts related to a deceased child (P.C.). One count is for wrongful death and one count is a survival action that seeks damages for conscious pain and suffering. For the reasons that follow, the defendant [*2]has not satisfied its burden of showing no cause of action will lie under the facts pleaded and the motion is therefore denied.

I. Facts Pleaded in the Complaint

The complaint alleges that P.C. was a student enrolled in the defendant school district at the Temple Hill Academy in New Windsor starting in September 2019. It alleges he was six when he was originally enrolled in September 2019. The complaint alleges that at some time during or after September 2020, the father of P.C., Arturo Cuacuas, asked nonparty Leiticia Bravo to become the primary caregiver of P.C. and that she did thereafter become the primary caregiver of P.C.

The complaint alleges that P.C.'s attendance of virtual classes by logging on to defendant's remote system became "minimal" as of September 2020 and his absences became "excessive." It goes on to allege that P.C. did not log in to the defendant's portal for school from some time in December 2020 until his death on February 10, 2021. The complaint alleges that P.C. was required to attend school per NY Education Law § 3205 (1) (c) because he was between 6 and 16 years of age. The complaint also alleges that defendant had an obligation to keep attendance records per 8 NYCRR 104.1 and its own procedures, which are annexed to the complaint.

The complaint alleges that during the time P.C. had "minimal" attendance at defendant's remote school program, nonparty Bravo subjected him to physical abuse, starvation, unlawful restraint, and other acts of child abuse, all resulting in P.C.'s death. It alleges that Bravo pleaded guilty to first degree manslaughter on March 16, 2022. It alleges that a newspaper article reporting on Bravo's plea quoted the prosecutor of Bravo stating that Bravo had engaged in communications with P.C.'s "teachers and other school representatives" during the time that P.C. was absent in the 2020-2021 school year.{**79 Misc 3d at 344}

The complaint alleges that defendant had reasonable cause to suspect "maltreatment" of P.C. based on the number of absences, that P.C. was a child "coming before" defendant as Social Services Law § 413 intended, and that defendant breached the duty imposed by Social Services Law § 413 et seq. to report such suspected maltreatment. The complaint alleges damages were proximately caused by the breach of duty in the form of P.C.'s pain and suffering as well as his death. The complaint pleads that the basis for a private right of action for violation of a statute is Social Services Law § 420, discussed infra.

II. Defendant's Motion to Dismiss

Defendant filed this pre-answer motion to dismiss on October 3, 2022. Plaintiff opposed the motion on October 9, 2022. Defendant filed a reply on November 16, 2022.

The motion asserts that the complaint fails to state a claim for multiple reasons: (i) there is no allegation of a mandatory reporter's name pleaded; (ii) P.C. was not a child "coming before" defendant; (iii) no reasonable cause for suspicion of maltreatment existed; (iv) plaintiff has not pleaded a willful and knowing failure to report; and (v) the actions of those who pleaded guilty to crimes related to the death of P.C. are intervening or superseding causes of his injuries and death.

On a motion for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314 [2002]; Leon v Martinez, 84 NY2d 83 [1994].) "[T]he criterion is whether the proponent of the pleading has a [*3]cause of action, not whether he has stated one." (Leon at 88.) A complaint is legally sufficient if the court determines that a plaintiff would be entitled to relief on any reasonable view of the facts stated. (Campaign for Fiscal Equity v State of New York, 86 NY2d 307 [1995].)

If a plaintiff chooses to stand on his or her pleading alone,

"confident that its allegations are sufficient to state all the necessary elements of a cognizable cause of action, he [or she] is at liberty to do so and, unless the motion to dismiss is converted by the court to a motion for summary judgment, he [or she] will not be penalized because he [or she] has not made an evidentiary showing in support of his [or her]{**79 Misc 3d at 345} complaint" (Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]).

III. Private Right of Action

The court first reviews the private right of action allowed by Social Services Law § 420, which provides:

"1. Any person, official or institution required by this title to report a case of suspected child abuse or maltreatment who willfully fails to do so shall be guilty of a class A misdemeanor.

"2. Any person, official or institution required by this title to report a case of suspected child abuse or maltreatment who knowingly and willfully fails to do so shall be civilly liable for the damages proximately caused by such failure."

This law requires the court to decide whether the complaint pleaded that (i) defendant was required to report a case of suspected maltreatment of P.C., (ii) the lack of such a report was knowing and willful and (iii) the violation was a proximate cause of the injuries and death of P.C. The court first reviews the alleged breach of statutory duty to report.

IV. Alleged Violation of Duty to Report

The alleged basis for defendant's reporting requirement is Social Services Law § 413 entitled "Persons and officials required to report cases of suspected child abuse or maltreatment." It provides in relevant part:

"1. (a) The following persons and officials are required to report or cause a report to be made in accordance with this title when they have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child, or when they have reasonable cause to suspect that a child is an abused or maltreated child where the parent, guardian, custodian or other person legally responsible for such child comes before them in their professional or official capacity and states from personal knowledge facts, conditions or circumstances which, if correct, would render the child an abused or maltreated child: any . . . school official, which includes but is not limited to school teacher, school guidance counselor, school psychologist, school social worker, school nurse, school administrator or other school personnel required to hold a teaching or administrative license or certificate" (emphasis{**79 Misc 3d at 346}added).

Here, the complaint alleges that P.C. was a "child coming before" defendant and that one or more persons, without identifying anyone specific, within the defendant organization had "reasonable cause" to suspect that P.C. was a "maltreated child."

A. Mandated Reporters

The complaint alleges that the teachers and other school personnel at the school of P.C. were mandated reporters pursuant to Social Services Law § 413. Defendant asserts that the failure of plaintiff to plead the specific name(s) of the mandated reporter(s) is fatal to the pleading of a cause of action.

[1] The sole case relied upon by defendant held that a failure to allege that anyone within the defendant organization fell into the category of a mandated reporter was a basis to dismiss. (See Monaghan v Roman Catholic Diocese of Rockville Ctr., 165 AD3d 650 [2d Dept 2018].) Here, to the contrary, Social Services Law § 413 specifies that teachers and other school officials are mandatory reporters. The complaint asserts that persons with those job titles were employed by defendant and failed to report. Therefore, the complaint states a cause of action as to defendant having such personnel in its employ.

Moreover, Social Services Law § 413 was revised in 2007 to insert examples of persons included in the term "school official": "which includes but is not limited to school teacher, school guidance counselor, school psychologist, school social worker, school nurse, school administrator or other school personnel required to hold a teaching or administrative license or certificate." (L 2007, ch 193, § 1; see 2007 McKinney's Sess Laws of NY at 728-729.) The legislative history shows that the change was made to further encourage reporting by teachers and other school personnel who might have held doubts as to whether they were protected by the immunity provisions of Social Services Law § 419. (See Bill Jacket, L 2007, ch 193.)

Based on the foregoing, the court finds nothing in the legislative history or case law that supports defendant's assertion that a person must be called out by name in the complaint as a mandatory reporter who failed to report in order to state a claim pursuant to Social Services Law §§ 413 and 420 and the CPLR.

B. Defining "Child Coming before" the Defendant

The complaint must allege that P.C. was "a child coming before" a mandatory reporter under Social Services Law § 413. {**79 Misc 3d at 347}This issue has been explored in reported court decisions in the context of information derived from someone having firsthand observations of the alleged abuse or maltreatment, either information imparted by the child or by a third person. The complaint alleges that defendant's ability to draw an inference from the record of absences of P.C. constituted P.C. "coming before" the defendant. (See Diana G-D v Bedford Cent. School Dist., 33 Misc 3d 970, 984-985 [Sup Ct, Westchester County 2011] [defining "child coming before" to mean "reveal(s) facts which provide a designated reporter with reasonable cause to suspect abuse to trigger the reporting requirement"], affd 104 AD3d 805 [2d Dept 2013].)

Social Services Law § 413 provides two avenues for the mandatory reporter to receive information that would trigger a report: (i) a child "coming before" the reporter or (ii) a person legally responsible for the child who comes before the reporter. In light of that distinction, the first avenue of "a child coming before" the reporter relates to the child himself or herself, not information derived from a third person. However, the statute does not include any requirement for the physical presence of the child or even communication directly from the child. Had the Legislature intended those criteria to be a requirement of the statute, it would have so stated.

[2] Based upon the precedent of the Appellate Division, Second Department affirmance of the definition set forth in Diana, and the lack of any explicit statutory requirement for direct observation of or communication from the child, the court holds that plaintiff's allegations [*5]in the complaint, taken as true, could satisfy the requirement of P.C. "coming before" defendant. Were that not so, any absence and/or tardiness from attending school, no matter the duration or circumstances, could never amount to the child "coming before" the defendant with information so as to create reasonable cause for suspicion of maltreatment. Taken to its extreme, defendant's argument would mean that if defendant were aware that a child had been absent for an entire school year, those facts would not satisfy the requirement of "coming before" the defendant. The court finds no support for defendant's assertion that the Legislature intended such a narrow definition of this wording. (Compare Matter of Hayley QQ., 176 AD3d 1343 [3d Dept 2019] [parent withholding child from attending school, without any further adverse treatment of child, in combination with parent's lack of counseling, justified removal of child from parent's custody pursuant to the Family Court Act].){**79 Misc 3d at 348}

To the contrary, the wording of Social Services Law § 411 states that title 6 of the Social Services Law, which includes section 413, is intended to broaden reporting of suspected child maltreatment: "It is the purpose of this title to encourage more complete reporting of suspected child abuse and maltreatment." The legislative history shows the statute was enacted to promote reporting of suspected abuse and maltreatment. (Diana, 33 Misc 3d at 982-983, affd 104 AD3d 805 [2d Dept 2013]; see also Matter of Kimberly S.M. v Bradford Cent. School, 226 AD2d 85, 90 [4th Dept 1996] ["The purpose and intent of the statutory scheme is to encourage the prompt reporting of all suspected cases of child abuse"].) As a further means of promoting reporting of suspected abuse and maltreatment, the Legislature also enacted an immunity provision that shields a mandatory reporter acting in good faith in the scope of their duties from civil and criminal liability unless a person can show willful misconduct or gross negligence. (Social Services Law § 419.)

Moreover, defendant has not suggested that any of the Social Services Law was suspended due to the COVID-19 pandemic. Therefore, no requirement of physical presence could be imposed to satisfy the statutory wording of Social Services Law § 413 due to the very nature of remote schooling, where students were not physically appearing before the defendant's personnel. The remote schooling lasted for several months or longer in school districts, including the defendant school attended by P.C.

Absent a requirement of physical presence, the words "child coming before" require facts that give rise to suspicion of maltreatment and that bear some direct relation to the child himself, not information from a third party. (Diana, 33 Misc 3d at 984-985 [defining "child coming before" to mean "reveal(s) facts which provide a designated reporter with reasonable cause to suspect abuse to trigger the reporting requirement"], affd 104 AD3d 805 [2d Dept 2013].) Whether cases involving absences of a lesser duration or with facts that explain the absences as caused by other than maltreatment would satisfy the "child coming before" wording of Social Services Law § 413 is a question not before this court. Here, the court is required to determine only if the facts pleaded in this specific complaint satisfy the standard to defeat a motion to dismiss pursuant to CPLR 3211.

Taking the allegations pleaded as true, P.C. was not in remote class from at least the last day of December 2020 to{**79 Misc 3d at 349} February 10, 2021. That period included 26 weekdays, i.e. school days, other than days reserved as holidays. Moreover, the complaint alleges frequent absences in the months of September 2020 through December 2020 as well. The complaint alleges that defendant communicated with nonparty Bravo prior to P.C.'s death about his absences. The complaint alleges facts that could satisfy the statutory requirement of a child "coming before" defendant because it alleges the absences allegedly tracked by defendant that relate directly to P.C. could have provided reasonable cause of suspicion of maltreatment.

C. Defining "Maltreated Child"

The court reviews the definition of a "maltreated child" within Social Services Law § 413. The definition "includes a child under eighteen years of age: (a) defined as a neglected child by the family court act." (Social Services Law § 412 [2].) The Family Court Act is a series of statutes found at NY Family Court Act §§ 111-1211. Section 1012 (f) of the Family Court Act defines a "neglected child" as follows:

"(f) 'Neglected child' means a child less than eighteen years of age

"(i) whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care

"(A) in supplying the child with adequate food, clothing, shelter or education in accordance with the provisions of part one of article sixty-five of the education law, or medical, dental, optometrical or surgical care, though financially able to do so or offered financial or other reasonable means to do so, or, in the case of an alleged failure of the respondent to provide education to the child, notwithstanding the efforts of the school district or local educational agency and child protective agency to ameliorate such alleged failure prior to the filing of the petition" (emphasis added).

[3] The complaint alleges facts that, if true, could show P.C. met the definition of Social Services Law § 413 "maltreated child." The definition includes a child under age 18 whose physical condition is in imminent danger of being impaired due to those responsible for the child failing to supply the child with education as required by the New York Education Law. The complaint alleges that P.C. was absent for at least 26 consecutive{**79 Misc 3d at 350} school days and that the absences posed an imminent danger to him.

D. The Alleged Basis for "Reasonable Suspicion" of Maltreatment

The complaint alleges that the basis for the reasonable suspicion of maltreatment was the absence of P.C. from logging in to the defendant's virtual classroom between December 2020 (or perhaps earlier in 2020) and February 10, 2021, and defendant's alleged attendance records that would reflect those absences. The aforementioned part I of article 65 of the NY Education Law requires that children between the ages of 6 and 16 attend school on a full-time basis. (Education Law § 3205.)

Article 65 also requires attendance records to be maintained. (Education Law § 3211.) Additionally, 8 NYCRR 104.1 requires that defendant establish its own procedures for taking attendance of students and maintaining the records. The complaint annexes defendant's attendance regulations as exhibit C.

[4] The complaint alleges that defendant should have suspected from its own records that P.C. was in imminent danger due to his repeated and lengthy absences. The complaint alleges those absences were the "reasonable cause" for suspicion of maltreatment. In light of P.C.'s minimum of 26 absences on consecutive days plus additional absences earlier in the academic year, the complaint sets forth a claim of failure to report pursuant to the Social Services Law § 413 criteria.

V. "Knowing" and "Willful" Failure to Report

[5] The parties do not dispute that the defendant did not file a report about P.C. pursuant to [*6]the Social Services Law. Therefore the court does not address the details of how such a report must be made, as set forth in Social Services Law § 415. Defendant asks the court to conclude that, even if it was required to file such a report, its omission was not knowing and willful. Defendant asks the court to make that determination at this initial stage of the case, where no record exists as to what data was in defendant's possession regarding P.C.'s absences, what communications occurred between defendant and the convicted caregiver Bravo or P.C.'s father, and whether defendant did consider reporting maltreatment at any time. Defendant's motion contains no affidavits in this regard or other information upon which the court could possibly make such a determination.{**79 Misc 3d at 351}

The facts pleaded in the complaint are the only facts before the court and the court must take those allegations as true on a CPLR 3211 (a) (7) motion. Whether those facts will be supported by discovery, and established at any trial of this matter, are separate issues that the court need not reach on this pre-answer motion that is addressed only to the pleadings.

The complaint alleges that defendant failed to report suspicion of maltreatment despite it allegedly possessing attendance records for P.C. The complaint also alleges by attachment of exhibit C, inter alia, that defendant had a process in place for taking attendance "at least once per day," reviews "attendance trends and patterns on a monthly basis," coordinates the provision of "targeted interventions," and makes the building principal or designee "responsible for reviewing student attendance records and initiating appropriate action."

Since this is the pleading stage only, and no discovery has occurred, the allegations are sufficient to survive a motion to dismiss. The facts pleaded, if taken as true, state a claim that defendant "knowingly" and "willfully" failed to report suspected maltreatment of P.C. because the complaint alleges that defendant had information in hand to report, had a process in place for review of that information, employed persons required to take such action, and did not report the absences as suspicion of maltreatment.

VI. Other Causes of P.C.'s Injuries and Death

Defendant asserts that other causes of P.C.'s injuries and death, as a matter of law, preempt any claim against defendant. This argument presents an affirmative defense to the allegations in the complaint. If the allegations pleaded are taken as true, the complaint pleads a cause of action because the potential for a legally intervening or superseding cause can coexist at the pleadings stage with other potential causes.

No record has been developed of facts as they concern defendant that led to the injuries and death of P.C. because discovery has not begun. For that reason, the court has no basis, apart from the complaint, to determine if other alleged causes render defendant not liable as a matter of law for the injuries and death of P.C. The complaint pleads that, had defendant taken action to report the "maltreatment" of P.C., the actions of nonparty Bravo would have been discovered before the death of P.C.{**79 Misc 3d at 352}

Upon the foregoing, it is hereby ordered that defendant's motion to dismiss plaintiff's complaint is denied.