| M.S. v County of Orange |
| 2009 NY Slip Op 05761 [64 AD3d 560] |
| July 7, 2009 |
| Appellate Division, Second Department |
| M.S. et al., Respondents, v County of Orange et al.,Appellants, et al., Defendants. |
—[*1] Rivkin Radler LLP, Uniondale, N.Y. (Cheryl F. Korman and Evan H. Krinick of counsel),for appellants Barbara H. and Ralph J. H. Patrick S. Owen, Goshen, N.Y. (Susan R. Nudelman of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant County of Orangeappeals, as limited by its brief, from so much of a judgment of the Supreme Court, OrangeCounty (Peter C. Patsalos, J.H.O.), entered August 31, 2007, as, upon an order of the same court(Alessandro, J.), dated July 13, 2006, denying that branch of its motion which was for summaryjudgment dismissing so much of the complaint as alleged negligent supervision insofar asasserted against it, after a nonjury trial on the issue of liability, upon a decision of the same courtdated August 14, 2007, finding that it was 70% at fault, the defendants Barbara H. and RalphJ.H. were jointly 30% at fault, and the defendant A.H. was 0% at fault, and after a nonjury trialon the issue of damages, is in favor of the infant plaintiff, M.S., and against it in the principalsum of $800,000, representing the sums of $200,000 for past pain and suffering and $600,000 forfuture pain and suffering, and is in favor of the defendant A.H. and against it dismissing its crossclaim against that defendant, and the defendants Barbara H. and Ralph J.H. separately appeal, aslimited by their brief, from so much of the same judgment as is in favor of the infant plaintiff andagainst them in the principal sum of $800,000.
Ordered that the judgment is reversed insofar as appealed from, on the law, the cross claimasserted by the defendant County of Orange against the defendant A.H. is reinstated, and thematter remitted to the Supreme Court, Orange County, for a new trial on the issue of liability,and thereafter a new trial on the issue of damages, if warranted, with costs to abide the event.
The infant plaintiff M.S. (hereinafter the infant plaintiff), by and through his father J.M.commenced this action alleging that, while placed in the foster home of the defendants BarbaraH. and Ralph J.H. (hereinafter the foster parents), he was sexually abused on five occasionsbetween March 14 2001, and June 7, 2001, by his roommate, the then-infant defendant A.H. Theinfant plaintiff was only six years old at the time of the subject incidents. J.M. asserted aderivative cause [*2]of action in his individual capacity as well.The plaintiffs alleged, inter alia, that the defendants County of Orange and the foster parentswere liable under a theory of negligent supervision.
The County contends that the Supreme Court improperly denied that branch of its motionwhich was for summary judgment dismissing so much of the complaint as alleged negligentsupervision insofar as asserted against it. The County, however, failed to satisfy its burden ofestablishing its prima facie entitlement to judgment as a matter of law by eliminating all issues offact as to whether it had sufficiently specific knowledge or notice of the dangerous conductwhich caused the infant plaintiff's injuries (see Mirand v City of New York, 84 NY2d 44,49 [1994]; cf. Liang v Rosedale GroupHome, 19 AD3d 654, 655 [2005]; Whitfield v Board of Educ. of City of Mount Vernon, 14 AD3d552, 553 [2005]). Accordingly, the Supreme Court properly denied that branch of its motionwhich was for summary judgment dismissing so much of the complaint as alleged negligentsupervision insofar as asserted against it.
Likewise, the County failed to establish its prima facie entitlement to judgment as a matter oflaw based on an immunity defense relating to its supervision of the foster care placement (see Sean M. v City of New York, 20AD3d 146, 160 [2005]; Merice v County of Westchester, 305 AD2d 383, 384[2003]; Barnes v County of Nassau, 108 AD2d 50, 54 [1985]).
Nonetheless, at trial, the Supreme Court erred in allowing into evidence testimony given bythe infant plaintiff with respect to the County at the hearing held pursuant to General MunicipalLaw § 50-h, as well as the infant plaintiff's deposition testimony with respect to all of thedefendants, in lieu of live testimony that would have been subject to cross-examination.Although CPLR 3117 (a) (3) permits a party to introduce his or her own deposition transcriptinto evidence at trial if the party is "unable to attend or testify because of age, sickness, infirmity,or imprisonment" (see generally Cutler v Konover, 81 AD2d 571, 572 [1981],affd 55 NY2d 891 [1982]; Wojtas v Fifth Ave. Coach Corp., 23 AD2d 685[1965]), and General Municipal Law § 50-h (4) also permits the use, under similarcircumstances, of transcripts of hearings held pursuant to General Municipal Law § 50-h,as against municipal defendants only (see Weinberg v City of New York, 3 AD3d 489, 490 [2004];Claypool v City of New York, 267 AD2d 33, 35 [1999]), here, the trial courtimprovidently exercised its discretion (see Cutler v Konover, 81 AD2d at 572) inallowing the deposition and municipal hearing transcripts to be used in lieu of live testimony.The ground for admissibility in this case, as proffered by the plaintiffs' expert, was inadequateand lacked factual support (see People v Slaughter, 163 AD2d 342, 343-344 [1990];Naso v 1994 BA Leasing Corp., 13 Misc 3d 1230[A], 2006 NY Slip Op 52064[U][2006]; People v Del Mastro, 72 Misc 2d 809, 812-813 [1973]). Moreover, in light of thefact that the infant plaintiff testified in the course of the municipal hearing that he complainedfive times that his roommate engaged in the offensive conduct, but testified during the depositionthat he complained only once, the defendants' fundamental common-law right tocross-examination (see Alford v United States, 282 US 687, 691 [1931]; Matter ofFriedel v Board of Regents of Univ. of State of N.Y., 296 NY 347, 352 [1947]) assumedparticular importance with respect to the ultimate assessment of the infant plaintiff's credibilityon the issue of notice.
The defendants' inability to challenge the infant plaintiff's credibility through livecross-examination at trial requires that a new trial be held, not only on the issue of liability, buton the issue of damages as well, if warranted (see McNeill v LaSalle Partners, 52 AD3d 407, 410 [2008];Holt v Welding Servs., 264 AD2d 562, 563 [1999]).
The County asserted a cross claim against, among others, the infant plaintiff's roommate,whom the trial evidence established as the sole intentional tortfeasor. Where, as here, a case istried without a jury, this Court's power to review the evidence is as broad as that of the trialcourt, "taking into account in a close case 'the fact that the trial judge had the advantage ofseeing the witnesses' " (Northern Westchester Professional Park Assoc. v Town ofBedford, 60 NY2d 492, 499 [1983], quoting York Mtge. Corp. v Clotar Constr.Corp., 254 NY 128, 133-134 [1930]). On this record, the trial court erred in finding that theroommate was 0% at fault, notwithstanding the fact that he was only 11 years old at the time ofthe alleged incidents underlying the complaint (see Williams v Hays, 143 NY 442, 451[1894]; Rausch v McVeigh, 105 Misc 2d 163 [1980]; Blackwood v Farley, 40Misc 2d 289, 289-290 [1963]; cf. Scinta v Connelly, 54 AD2d 616 [1976]).[*3]
We need not reach the parties' remaining contentions inlight of our determination. Spolzino, J.P., Dillon, Miller and Dickerson, JJ., concur.