The following papers numbered 1 to 43 were read on the motion by defendant Yonkers Board of Education ^[FN1] (the City) (Seq. No. 3) for an order dismissing the complaint pursuant to CPLR 3211(a)(7) and granting summary judgment dismissing the complaint against it; and the motion by defendants Westchester County Child Protective Services, Westchester County Department of Social Services and Naydeen Wilkins (collectively, the County) (Seq. No. 4) for an order dismissing the complaint and cross-claim against them pursuant to CPLR 3211(a)(7) and granting summary judgment dismissing the complaint and cross-claim:

Upon the foregoing papers, the City's motion (Seq. No. 3) is denied, and the County's motion (Seq. No. 4) is granted.

This action arises out of the alleged failure to protect the infant plaintiffs from abuse and neglect at the hands of their mother and her former husband, now deceased. Plaintiffs allege that the City, despite numerous warning signs and despite its raising concerns regarding the children to their father, W.C., knowingly and wilfully failed to report suspected abuse and neglect as required by Social Services Law § 413. Plaintiffs further allege that the County, having received multiple reports of suspected abuse and neglect of the infant plaintiffs from their father and their maternal grandmother, failed to properly investigate those reports, allowing the infant plaintiffs to suffer continuing harm.

By Notice of Motion filed on June 24, 2024, the City seeks an order granting summary judgment dismissing the complaint against it. By Notice of Motion also filed on June 24, 2024, the County seeks an order granting summary judgment dismissing the complaint and the City's cross-claim for contribution. Plaintiffs oppose both motions. The City does not oppose the branch of the County's motion seeking summary judgment dismissing the cross-claim.

The Court has fully considered the submissions of the parties.

The court's function on these motions for summary judgment is issue finding rather than issue determination (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395 [1957]). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. . . . Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. . . . 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 [*2]issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] [citations omitted]).

Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders v Ceppos, 46 NY2d 223 [1978]). The burden on the movant is a heavy one, and the facts must be viewed in the light most favorable to the non-moving party (Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824 [2014]). As stated in Scott v Long Island Power Auth. (294 AD2d 348, 348 [2d Dept. 2002]):

"It is well established that on a motion for summary judgment the court is not to engage in the weighing of evidence. Rather, the court's function is to determine whether 'by no rational process could the trier of facts find for the nonmoving party' (Jastrzebski v North Shore School Dist., 223 AD2d 677, 678 [internal quotation marks omitted]). It is equally well established that the motion should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility (see Dolitsky v Bay Isle Oil Co., 111 AD2d 366)."

The City failed to make a prima facie showing of its entitlement to judgment as a matter of law dismissing the complaint against it. The City's motion relies on the testimony of two teachers who were familiar with the infant plaintiffs, who both testified, in sum and substance, that the infant plaintiffs did not have attendance issues, that they came to school appropriately dressed and displaying appropriate hygiene, that there were no changes observed during the relevant times, and that they do not recall W.C. ever raising any concerns with them.

However, annexed to the moving papers as Exhibit A is the transcript of W.C.'s 50-h hearing in connection with the claims against the County.^[FN2] W.C. testified that he received phone calls from the infant plaintiffs' school indicating that the children were always tired and hungry (Exh. A at 30), and that he had at least three meetings with school personnel which the school initiated, at which school personnel expressed concerns relating to the children's academics and their appearing to be tired and hungry (id. at 35, 51-55). In addition, W.C. testified at his deposition that he was informed by school personnel that cafeteria staff were preparing food for one of the children "on the side" (NYSCEF Doc. No. 105 at 131), and that at another meeting, school personnel gave him a bag of clothes and told him that for the past couple of weeks the children had been coming to school not dressed property (id. at 93) and indicated to him that the bag contained clothing from the children's teachers (id. at 140).

Viewing the evidence in the light most favorable to the non-moving party, the differing testimony of W.C. and the two teachers who testified on behalf of the City present a credibility issue which precludes summary judgment. The conflicting testimony presents triable issues of fact as to whether school personnel had "reasonable cause to suspect" that the infant plaintiffs were "abused or maltreated" children (Rine v Chase, 309 AD2d 796, 797 [2d Dept 2003]) and [*3]whether their failure to report suspected abuse or maltreatment was knowing and willful as required to give rise to liability pursuant to Social Services Law § 420(2). Furthermore, the City's assertion that any report from the City would not have changed the outcome for the infant plaintiffs, and thus that the failure to report was not the proximate cause of their injuries, is purely speculative.

The branch of the City's motion to dismiss the complaint pursuant to CPLR 3211(a)(7) is likewise denied, as the complaint sufficiently pleads that the City was on notice of the infant plaintiffs' living situation, which the City was mandated to report, and that it failed to do so.

The County in its moving papers demonstrated its entitlement to dismissal of the complaint and cross-claim for failure to state a cause of action pursuant to CPLR 3211(a)(7) and to judgment as a matter of law dismissing the complaint and the cross-claim. As plaintiffs' opposition sets forth no basis upon which the Court can deny the motion, and the City does not oppose the branch of the motion seeking dismissal of the cross-claim, the motion is granted.

New York does not recognize a private right of action for money damages for an alleged negligent investigation of a complaint made to Child Protective Services (Mark G. v Sabol, 93 NY2d 710 [1999]). The plaintiffs in Mark G. asserted that a private right of action for money damages for the defendants' alleged violations of Social Services Law § 424 was implied in section 419, which granted immunity from civil or criminal liability to "any person, official, or institution participating in good faith in the providing of a service pursuant to section [424 of the Social Services Law], the making of a report, the taking of photographs, or the removal or keeping of a child pursuant to this title" (id. at 721-722).

The Court of Appeals, in evaluating the plaintiffs' claim of an implied private right of action, noted that section 419 "was intended to provide immunity only with respect to civil or criminal liability that would otherwise result from acts taken by persons, officials or institutions in a good faith effort to comply with specific provisions of the Social Services Law. There is no indication that section 419 was intended to apply to failures to provide the services required by the Social Services Law" (id. at 722 [emphasis in original]). As the Court further noted, "Indeed, the Legislature specifically created a private right of action in the very next section" (id., citing Social Services Law § 420 [imposing criminal and civil liability for willful failure of persons, officials or institutions to report suspected abuse or maltreatment as required]). The Court thus held that "a private right of action for money damages cannot be fairly implied from title 6 of the Social Services Law" (id., citing Sheehy v Big Flats Community Day, 73 NY2d 629, 633 [1989]).

Plaintiffs' opposition asserts that errors in logic led to the Court's holding in Mark G. Plaintiffs, citing Sheehy, contend that application of the Court of Appeals' three-part test for determining whether a private right of action exists weighs in their favor in this matter, as (1) the plaintiffs are members of the class for whose benefit the statute was enacted, (2) recognition of a private right of action would promote the legislative purpose, and (3) creation of such a right would be consistent with the legislative scheme. The Court of Appeals, presented with this same argument in Mark G., determined that the first two factors were satisfied, but held that recognition of a private right of action would not be consistent with the legislative scheme. Plaintiffs' opposition thus, in essence, asks this Court to determine that recognition of a private right of action for money damages for an alleged negligent investigation of reported abuse and maltreatment would be consistent with the legislative scheme of title 6.

Plaintiffs assert that "the legislative scheme of § 419 and its references to a civil cause of action for services in § 424 would be superfluous if no private cause of action whatsoever was permitted for these" (Opp. Mem. at 13). However, a brief review of cases evaluating the application of the immunity provision in section 419 reveals the sorts of acts which, in the absence of such immunity, may result in civil liability [see e.g. Biondo v Ossining Union Free School Dist., 66 AD3d 725 [negligence and defamation claims against school district for reporting of suspected abuse]; Goldberg v Edson, 41 AD3d 429 [medical malpractice claim against physician participating in investigation of abuse]; Goldberg v Edson, 41 AD3d 428 [reporting of abuse and removal of subject child by social services worker]; Zornberg v North Shore Univ. Hosp., 29 AD3d 986 [defamation claim against hospital for filing false report of abuse]; Hachmann v County of Nassau, 29 AD3d 952 [defamation claim against school district for filing false report of abuse]; Rine, 309 AD2d 796 [defamation and malicious prosecution claims against social worker reporting abuse]; Straton v Orange County Dept. of Social Servs., 217 AD2d 576 [medical malpractice and false imprisonment claims against hospital treating patient in custody of Department of Social Services]).

Plaintiffs' assertion that the failure to recognize a cause of action for negligent investigation under section 424 renders the immunity provision in section 419 superfluous thus is not persuasive. Similarly unpersuasive is plaintiffs' contention that recognizing such a cause of action would be consistent with the legislative scheme. As noted in Mark G., the Legislature saw fit to specifically create a private right of action for a mandated reporter's willful failure to report suspected abuse or maltreatment in section 420, and if it "had intended for liability to attach for failures to comply with other provisions of title 6, it would likely have arranged for it as well" (93 NY2d at 722). Indeed, the contention that a private right of action is implied by section 419 was recently raised and rejected in Estate of M.D. v State of New York, when the Second Department noted that "subsequent statutory modifications to the provisions of article 6, title 6 of the Social Services Law have not abrogated the holding that 'a private right of action cannot be fairly implied from title 6 of the Social Services Law'" (199 AD3d 754, 757 [2d Dept 2021]; quoting Mark G., 93 NY2d at 722).

In short, this Court is bound by the holding of the Court of Appeals in Mark G., which plainly requires dismissal of all claims asserted against the County in this matter.

Accordingly, it is hereby

ORDERED that the motion of defendant Yonkers Board of Education (Seq. No. 3) is denied; and it is further

ORDERED that the motion of defendants Westchester County Child Protective Services, Westchester County Department of Social Services and Naydeen Wilkins is granted, and the said defendants shall have judgment dismissing the complaint against them; and it is further

ORDERED that, within ten (10) days of the date hereof, plaintiff shall serve a copy of this Decision and Order, with notice of entry, upon defendants, and shall file proof of said service via NYSCEF; and it is further

ORDERED that the remaining parties shall appear for settlement conference on January 8, 2025 at 10:30 a.m. in Courtroom 800.

The foregoing constitutes the Decision and Order of the Court.