| McLean v City of New York |
| 2008 NY Slip Op 02470 [49 AD3d 393] |
| March 18, 2008 |
| Appellate Division, First Department |
| Charlene McLean, as Mother and Natural Guardian of Briana Hall,an Infant, et al., Respondents, v City of New York, Appellant, et al.,Defendants. |
—[*1] John J. Appell, New York City, for respondents.
Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered January 4, 2007,which, to the extent appealed from as limited by the brief, denied defendant City's motion todismiss the complaint against it, unanimously affirmed, without costs.
The infant plaintiff suffered severe brain injuries while in the care of defendant Therouldeand her day care center. There were triable issues of fact as to whether the City had an obligationto plaintiffs pursuant to a contract between the State and the City's Department of Healthregarding the enforcement of state regulations governing the certification and operation of privatehome day care centers (18 NYCRR part 417). Liability could exist, even if the City's conduct inapproving the renewal of Theroulde's certification was merely ministerial (cf. Lauer v City ofNew York, 95 NY2d 95 [2000]), since there is a question whether the City disregardedgoverning rules and the state contract requiring the Health Department to investigate promptlyany complaints against a provider where children may have been in imminent danger, and toinsure that all violations were corrected or referred to state authorities for enforcementproceedings.
Liability may also exist for negligent acts or omissions involving a protected class ofindividuals (e.g., children in registered family day care facilities), regardless of whether thealleged acts or omissions were ministerial or discretionary, in light of the special duty owed tosuch children (see R.B. v County of Orange, 220 AD2d 401 [1995]). There werequestions of fact as to whether a special relationship existed between—on the onehand—the Health Department and the Administration for Children's Services (themunicipal agencies responsible for registering family day care providers, and for investigatingcomplaints of child abuse and maltreatment and furnishing lists of registered day care providersto parents), and the "protected class" of children (including the infant Briana) whose workingparents would rely on the registration requirements [*2]to locatesafe day care providers (see Prasad v County of Orange, 159 Misc 2d 330 [1993]).
We have considered the City's remaining arguments and find them without merit.Concur—Lippman, P.J., Gonzalez, Sweeny and Catterson, JJ. [See 14 Misc 3d922.]