Papers Considered:

Upon the foregoing papers and for the following reasons, the Motion by Defendant State of New York (hereinafter "State"), for summary judgment dismissing the Claim filed by Claimants Anna Ellis and Benjamin Zimmerman, individually, and as Administrators of the Estate of their infant child, E.D.Z. (hereinafter collectively "claimants"), is granted in accordance [*2]with the following decision.

The underlying tragic set of facts is essentially undisputed. By Notice of Claim filed December 21, 2020, the claimants commenced the instant action to recover damages against the State, alleging that:

[T]he [infant] while at [privately-owned] Little Rising Stars Group Family Day Care, LLC [hereinafter "Daycare"], under the care, custody, supervision and control of the [State], their agents, servants and/or employees, was caused to sustain permanent personal injuries resulting in his wrongful death as a result of the carelessness, recklessness and negligence of the State, their agents, servants and/or employees, in the operation, management, maintenance, inspection, supervision, control and/or monitoring of the [Daycare] and the [infant]," on October 22, 2020, at approximately 3:00 p.m. (Claim, at 2, ¶ 3).

Without detailing what actually happened to the infant, the Claim alleges that the State negligently hired, retained and trained the Daycare personnel, as well as failed to properly inspect and enforce applicable codes and regulations against the Daycare's permits and/or licences, despite prior repeated statutory violations of "insufficient staffing and supervisory personnel" from late 2019 to early 2020 (id. at 3, ¶ 3).^[FN2] As a result of the infant's wrongful death, claimants seek damages in the amount of $20,000,000 (see id. at 3, ¶ 4).

On January 20, 2021, the State filed a Verified Answer, denying the majority of the Claim's allegations, and raising ten affirmative defenses, including that the State acts complained of are privileged as being discretionary in nature and immune from liability, and that the Claim fails to comply with Court of Claims Act § 11(b) in that it does not provide an adequate description of the manner in which the incident occurred.

Shortly thereafter, on January 29, 2021, Court of Claims Judge David Weinstein conferenced and so ordered a Preliminary Conference Order upon Stipulation, setting parameters for the ensuing discovery. Upon written application, the Court issued an Order filed May 12, 2022 (Weinstein, J.), relieving Harris Law from representing the claimants, and Judge Weinstein recused himself from the Claim, finding it inappropriate for him to continue to preside over the Claim after having been privy to privileged communications. After additional recusals,^[FN3] the matter was transferred to the undersigned, who held status conferences with counsel on December 8, 2023, February 20, 2024 and May 15, 2024, wherein counsel acknowledged the completion of paper discovery and depositions of the claimants and certain State and City [*3]employees.

Subsequently, by Notice of Motion filed July 23, 2024, the State moves for summary judgment dismissal of the Claim in its entirety, pursuant to CPLR 3212 and CPLR 3211(a)(7), on the grounds that the State did not own or operate the Daycare where the infant was allegedly injured; that the Claim fails to state a cause of action against the State; and that the State did not owe the claimants a special duty. As a matter of background, the State explains that the claimants commenced an almost identical action against the City of New York in New York County Supreme Court on December 10, 2020, with the same allegations made here against the State, namely: negligence, wrongful death and failure to supervise the Daycare and its employees (see Aff. in Support, Exh. A). Similarly, the States points to another Supreme Court action against the private Daycare and its owners, Maria F. Perez Torres, Jailene Peralta, and Genesis Polanco (see id., Exh. B), which was discontinued in February 2021, after the Daycare tendered its maximum one million-dollar insurance policy (see id., Exh. C).

In support of its Motion, the State argues that the claimants have failed to plead or establish that the State owed them a special duty, as it did not own or operate the Daycare and cannot be found liable for negligently hiring, retaining, instructing and supervising incompetent employees. The State maintains that it was acting in a governmental capacity in the licensing, regulation and oversight of the Daycare for the protection of the public at large, which is a discretionary governmental function for which there cannot be liability absent a showing of special duty. Per the State, it did not owe the claimants a special duty, citing the seminal case of McLean v City of New York (12 NY3d 194 [2009]), in that they have not alleged or established that the State violated any statute that grants them a private right of action to sue the State, or any evidence that the State voluntarily assumed an affirmative duty to the claimants that they relied upon to their detriment. The State explains that since the claimants did not speak to any State employees prior to the October 2020 accident, there is not evidence of any special relationship or promise to them upon which they relied upon to their detriment.

With respect to discovery in the instant Claim, the State explains that document disclosure, claimants' depositions, as well as the depositions of State and City witnesses have already been concluded. In relevant portions, the State provided the deposition of claimant Anna Ellis, the decedent's mother, who testified that: she enrolled her son, who was born in January 2019, at the Daycare in May 2019 upon recommendation of a friend; she did not research the Daycare; she did not call any State or City agencies or check their websites; she and her husband, Mr. Zimmerman, conducted a tour in 2018 of the Daycare while Ms. Ellis was pregnant with her son and after he was born; the infant started attending the Daycare in May 2019; she never contacted any State agencies to complain about the Daycare; she was unaware of any other parents making complaints or having any issues with the Daycare; and she was unaware of any licensing issues with the Daycare, and never saw any posting on its door or entrance about any licensing issues (see id., Exh. D).

Next, in further support of the Motion, the State attached Mr. Zimmerman, the deceased father's deposition, testifying that: he visited the Daycare with his wife in 2018; he did not conduct an independent investigation prior to enrolling his son; he never spoke to any State agencies, employees or officials about the Daycare; he never made any complaints to any State or City agencies prior to the accident; and he was unaware of any attempts by the State or City to [*4]revoke the Daycare's license (see id., Exh. E). Further, the deposition of Karen Rawlings, a State Enforcement Liaison Supervisor with the State Office of Children and Family Services (hereinafter "OCFS") was also attached, wherein she testified that: New York City Department of Health and Mental Hygiene ("DOH") is the one which inspects daycare centers located in the City of New York; OCFS provides oversight to the DOH but does not have any direct contact with daycare centers; OCFS only gets involved if DOH refers a daycare center seeking revocation of its license; OCFS is responsible for bringing the enforcement proceeding against the daycare; DOH made a referral for an enforcement action against the Daycare in December 2019; an administrative hearing to revoke the Daycare's license was scheduled for March 27, 2020, but it was adjourned due to the COVID pandemic; DOH did not conduct any inspections during COVID because an Executive Order by then Governor Andrew Cuomo prohibited inspections of daycare centers, unless a complaint was made to the State Central Registry, 311 or by a parent; and inspections resumed in August 2021 (see id., Exh. F).

Lastly, the State argues that it did not have actual knowledge of a blatant violation of safety laws by the Daycare, nor provided affirmative assurances of safety upon which the claimants relied. It explains that, although the State was in the process of revoking the license of the Daycare, the claimants were not aware of any such proceeding and were never given any assurances by any State employees or officials. The State also attaches the Supreme Court's decision in further support of its Motion because that court dismissed the almost identical complaint against the City, holding that the City was acting in a governmental capacity in supervising the safety of daycare centers, and the claimants failed to plead sufficient facts to show that they were owed a special duty as to the Daycare (see Ellis v City of New York, 2024 NY Slip Op 30929[U] [Sup Ct, NY County, Moyne, J., March 20, 2024]).

By Memorandum of Law in Opposition filed September 24, 2024, the claimants oppose the Motion explaining for the first time in writing to this Court that their twenty-month-old son tragically died after he was found unresponsive on the floor in the Daycare's nap room area pinned under a large six-children stroller, and blame the State for its carelessness, recklessness and negligence in its failure to manage, maintain, inspect, supervise, control and monitor the Daycare. Preliminarily, the claimants assert that two procedural deficiencies merit summary denial of the Motion, including the State's failure to annex the pleadings pursuant to CPLR 3212(b), and its failure to attach an affidavit by someone with first-hand knowledge of the relevant facts, relying instead exclusively on the Assistant Attorney General's Affirmation, as well deposition transcripts which are not considered admissible evidence sufficient to provide a basis for summary judgment.

On the merits, the claimants argue that the State owed them a special duty because the State voluntarily assumed a duty to them beyond what was owed to the public generally, and the State took positive control of a known and dangerous safety condition in the Daycare. To wit, they cite Smullen v City of New York (28 NY2d 66 [1971]), for the proposition that the City was well aware of the under staffing and inadequate staffing issues at the Daycare and issued several citations for safety violations, and the State OCFS notified the Daycare of its intent to revoke the facility's license in February 2020, and had the authority and responsibility to do so. Furthermore, the claimants cite portions of Rawlings's deposition noting that the State certified the Daycare as safe pending the hearing to determine its revocation, thus providing the families [*5]with a false sense of security. In addition, claimants provided the affidavit of Iris Bonilla, a Daycare employee, who states that the violations found by the inspectors were not posted or readily visible to the parents and never said anything about the Daycare's failure to post them. Per claimants, this special duty creates a question of fact sufficient to defeat summary judgment because the inspector did not properly tell parents or document known risks regarding the stroller or otherwise. Lastly, claimants contend that additional discovery in the States's exclusive possession is necessary such as: whether the violations or revocation letter was posted at the Daycare; where the stroller was stored and why it was kept in the nap room; and why the revocation hearing had to be indefinitely delayed.

By Reply Affirmation filed October 10, 2024, the State reiterates its prior arguments in favor of summary judgment dismissal and argues that there is no procedural deficiency in the State's motion for summary judgment, as pursuant to CPLR 2214(c), in a New York State Courts Electronic Filing's ("NYSCEF") electronically-filed action, a party that files papers in connection with a motion need not include copies of papers that were previously electronically filed with the Court, but may make reference to them by providing the docket number on the e-filing system, as the State did herein. The State further argues that the deposition transcripts can be used for the Motion because the claimants were provided with a copy and never objected or corrected them. Furthermore, the State reiterates that it had no direct contact with the claimants, and did not affirmatively act to place the claimants in harm's way, thereby negating the existence of a special relationship. The State further argues that there is no need for additional discovery or the non-party deposition of City witnesses because further discovery will not lead to relevant evidence. This Court agrees.

It is well-settled that in order to prevail in a summary judgment motion under CPLR 3212, the movant bears the initial burden of establishing their"entitlement to judgment as a matter of law by 'tendering sufficient evidence to demonstrate the absence of any material issues of fact'" from the case (Edwards v State of New York, 23 AD3d 710, 711 [3d Dept 2005], appeal dismissed 6 NY3d 772 [2006], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] [citations omitted]; see CPLR 3212[b]; Encarnacion v State of New York, 49 AD3d 1038 [3d Dept 2008]). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Rivera v State of New York, 59 Misc 3d 1233 [A] [Ct Cl, Hard, J., 2017], affd 34 NY3d 383 [2019], quoting Alvarez, 68 NY2d at 324). On a motion to dismiss a claim pursuant to CPLR 3211 (a)(7), the court is required to accept the facts as alleged in the claim as true, accord claimants the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Gioeli v Vlachos, 89 AD3d 984 [2d Dept 2011]; Leon v Martinez, 84 NY2d 83 [1994]). Notwithstanding the favorable treatment of such a pleading, bare legal conclusions with no factual specificity do not suffice to withstand a motion to dismiss for failure to state a cause of action (see Matter of Holterbosch, 216 AD3d 783 [2d Dept 2023]; Barnes v Hodge, 118 AD3d 633 [1st Dept 2014]).

Applying these principles to the matter at bar, the Court is satisfied that the State has tendered sufficient admissible evidence to establish its entitlement to summary judgment dismissal, but the claimants have failed to demonstrate the existence of a triable issue of fact (see [*6]Alvarez v Prospect Hosp., 68 NY2d at 324).^[FN4] The record reveals that the claimants blame the State and seek damages for their infant's personal injuries and tragic death at the privately-owned and managed Daycare. Although they allege that the State was negligent in its failure to manage, inspect, supervise, control, hire and train the Daycare personnel (see Claim, at 3), the Claim provides few details about the actual incident at the Daycare that led to the infant's death, and consists of a string of legal conclusions, lacking specificity in linking the State's actions or alleged negligence to a special duty owed to them. This Court will examine their causes of action seriatim.

The first issue to decide in this negligence cause of action is "whether the municipal entity[, here the State,] was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose" (Halberstam v Port Auth. of NY & N.J., 175 AD3d 1264, 1265 [2d Dept 2019], quoting Applewhite v Accuhealth, Inc., 21 NY3d 420, 425 [2013]; see Vongphakdy v State of New York, UID NO. 2018-040-024 [Ct Cl, McCarthy, J., Mar. 13, 2018]). If the State was engaged in proprietary functions, like a private enterprise, then it is subject to suit under ordinary negligence principles applicable to non-governmental actors (see Sebastian v State of New York, 93 NY2d 790, 793 [1999]; Drever v State of New York, 134 AD3d 19, 22 [3d Dept 2015]). On the other hand, if the State's actions were "undertaken for the protection and safety of the public pursuant to the general police powers," they are deemed governmental and the State is subject to suit only if it owed a special duty to the claimants (Tara N.P. v Western Suffolk Bd. of Coop. Educ. Servs, 28 NY3d 709, 713 [2017]; see Telfair v State of New York, UID No. 2023-058-068 [Ct Cl, Leahy-Scott, J., Oct. 2, 2023]).

Central to the Claim is OCFS, a State governmental agency tasked by statute and regulation with licensing, registering and supervising daycare providers in the State (see Matter of Riel v State of NY Off. of Children & Family Servs., 175 AD3d 1166, 1167 [1st Dept 2019]; Social Services Law § 390[2][d][i]). However, in New York City, the DOH's "childcare division administers day care registration pursuant to contract" (see Riel, supra, at 1172 [Gesmer, J., dissenting]). Upon a DOH's referral, OCFS may deny, limit Riel v State, suspend, revoke or terminate the license or registration of any home or facility providing child care which fails to operate in accordance with applicable statutes and regulations (see Social Services Law § 390[10]). That being said, there is a series of OCFS rules and regulations enacted specifically to regulate various types of child day care programs (see 18 NYCRR § 413.2 [definitions]). Here, the Daycare presents itself as a "group family day care," which is a program caring for children for more than three hours per day per child in which child day care is provided in a family home for seven to twelve children of all ages (see id.). Applicable to this Claim is 18 NYCRR Part 417, which regulates this class of daycare centers with respect to, among many, registration application procedures (§ 417.2), safety (§ 417.5), supervision of children (§ 417.8) and training (§ 417.14). Rules and regulations for enforcement and hearings are covered under 18 NYCRR § [*7]413.3.

In the instant matter, the claimants contend that the State and its agents were negligent in the enforcement of the rules and regulations promulgated by OCFS. As per the testimony of State witness Rawlings, she first became aware of the Daycare when OCFS received an enforcement referral from the City's DOH in December 2019 (see Rawlings Tr. at 33). Thereafter, DOH inspectors were assigned and charged with the responsibility of enforcing regulations and conducting inspections (see id. at 45). In order for a revocation letter to go out, it was a joint discussion amongst OCFS, DOH and OCFS' legal department, which included findings of noncompliance or regulatory violations (see id. at 45, 131). After that took place, DOH served the letter to the Daycare and it was the DOH's responsibility to ensure that the Daycare posted violations in a prominent location (see id. at 123, 125). Ultimately, it would be OCFS's decision whether the Daycare's license were to be revoked or suspended (see id. at 80, 81). No private cause of action is visualized by the statute. Throughout Ms. Rawlings's testimony, it is apparent that all actions taken by the State and City were discretionary actions which were purely governmental in nature (see Ellis v City of New York, 2024 NY Slip Op 30929[U]; Jewis v State of New York, UID No. 2021-058-060 [Ct Cl, Leahy-Scott, J., Nov.10, 2021]).

Since the State's actions were governmental in nature, the question now turns to whether a special duty was owed to the claimants. "[A]n agency of government is not liable for the negligent performance of a governmental function unless there existed 'a special duty to the injured person, in contrast to a general duty owed to the public'" (McLean, 12 NY3d at 199, quoting Garrett v Holiday Inns, 58 NY2d 253, 261 [1983] [additional citations omitted]). Courts have held that a special "relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a [special] duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation" (id., quoting Pelaez v Seide, 2 NY3d 186, 199-200 [2004] [citation omitted]; T.T. v State of New York, 151 AD3d 1345, 1347 [3d Dept 2017]; see also Metz v State of New York, 20 NY3d 175 [2012]).

Opposing the State's motion, the claimants here primarily rely on the last two of these ways, contending that the State voluntarily assumed a special duty to them beyond what was owed to the public generally, and that it ostensibly took positive control of a known and dangerous safety condition at the Daycare. However, the claimants have not shown a special relationship giving rise to a special duty by the State (see Pelaez v Seide, supra at 201-202; Cuffy v City of New York, 69 NY2d 255, 260 [1987]). The record is quite clear - as the claimants themselves testified - that there was absolutely no interaction or "direct contact" between the claimants and OCFS (see Ellis Tr. at 37; Zimmerman Tr. at 9, 10). Just like in McLean, there is no indication that the claimants received any "promises or actions" by which State officials assumed a duty to do something for the claimants or the infant with respect to the Daycare (McLean v City of New York, 12 NY3d at 202).

In fact, the claimants were oblivious to any investigations or complaints against the Daycare, as well an any licensing issues (see Ellis Tr. at 38; Zimmerman Tr. at 10), and could not have justifiably relied on the State's ostensibly "affirmative undertaking" towards them (Stanciu v [*8]Bilello, 138 AD3d 824, 825 [2d Dept 2016]; see Abraham v City of New York, 39 AD3d 21, 26 [2d Dept 2007], lv denied 10 NY3d 707 [2008]). Absent direct contact between OCFS and the claimants, this Court cannot find a special relationship pursuant to the State's voluntary assumption of a special duty to these claimants (see Sutton v City of New York, 119 AD3d 851, 852 [2d Dept 2014], lv denied 24 NY3d 918 [2015]; E.E.S. v State of New York, UID No. 2022-059-018 [Ct Cl, Liccione, J., April 6, 2022]).

Next, the question turns to whether the State took positive control of a known, blatant and dangerous safety violation under Smullen (28 NY2d 66). This prong is "recognized only in rare circumstances, as when a municipality, having actual knowledge of a blatant violation of safety laws, nevertheless provides affirmative assurances of safety on which the injured [party] relies" (Abraham, supra, at 28). Here, contrary to the claimants' contention, the State's election to allow the Daycare to remain open pending the hearing was not a positive, affirmative action telegraphing that the Daycare was safe despite safety violations and breach of the State's protocol. Again, the record reveals that the claimants were unaware of any violations or enforcement proceedings pending against the Daycare. During the relevant period, the claimants have presented no evidence of any safety assurances made by the State which they relied upon to their detriment.

This Claim is dissimilar to Smullen (supra), where the City inspector wrongfully adjudged a trench to be safe and stood by while the decedent knowing of his presence and approval entered into a perilous situation (id. at 69). Contrastingly, the State here commenced the enforcement proceedings against the Daycare for certain violations, which pertained to lack of sufficient staff at the facility involving minors under the age of two (see Rawlings, Tr. at 65), and DOH inspections commenced in 2019 right up through March 2020 (see id.). In performing its governmental function, it appears that the State, faced with the world emergency of the COVID pandemic, failed to act expeditiously enough to prevent the tragic circumstances that led to the infant's death. Notwithstanding the ineffectual execution of the rules and regulations by State and City employees, failure to act is insufficient conduct to warrant a finding of the special relationship necessary for municipality liability (see Sutton, supra).

Although sympathetic to the unimaginable tragedy of losing a child in such a grotesque accident, this Court is legally compelled to find that the State has made a prima facie showing that there are no triable issues of fact outstanding as to whether it was engaged in its governmental duty to protect the public in general, or whether it owned or operated the Daycare, and therefore could not be held liable for negligent hiring, training and retention of Daycare employees. Moreover, this Court finds that there are no triable issues of fact as to the existence of a special duty or special relationship owed to claimants sufficient to form a basis for liability against the State (see T.T. v State of New York, 151 AD3d at 1347; Abraham, supra, at 28). Viewed in the light most favorable to the claimants, and absent a special duty, the Claim should also be dismissed for failure to state a cause of action (see Ellis v City of New York, 2024 NY Slip Op 30929[U]; Brown v New York State, 73 Misc 3d 1225[A], 2021 NY Slip Op 51123[U] [Ct Cl 2021]).

Based on the foregoing, it is ORDERED that the State's Motion for summary judgment dismissal, Motion No. M-101144, is granted, and Claim No. 135761 is hereby dismissed.