NYC Administration for Children's Services Denied Dismissal of Suit for Wrongful Death of Infant Killed by Mothers Companion By SEO Admin on December 12, 2009

Gotlin v. City of New York, --- N.Y.S.2d ----, 2009 WL 3681839 (Supreme Court, Kings County (October 27, 2009),arises out of the wrongful death of Hailey Gonzalez, an infant, in August 2007 while under the supervision of the New York City Administration for Children's Services (ACS). The plaintiff, Gary D. Gotlin, Richmond County Public Administrator, alleged that Hailey Gonzalez was killed by Edwin Garcia, the companion of her mother, and that ACS, which was charged under a Brooklyn Family Court order with supervising the child's home, had a mountain of evidence confirming that Hailey's mother repeatedly placed herself and her children in extremely dangerous domestic violence situations. It was also alleged that the individual defendants,case-workers or supervisors employed by ACS, and played a substantial role in the events that led to Hailey's death and were grossly negligent. The plaintiff sued alleging that ACS was negligent and violated the deceased infants constitu-tional right to substantive due process under the 14th Amendment. The City of New York moved to dismiss the plaintiffs complaint, alleging that the plaintiff had no cognizable claim under the 14th Amendment, and no viable claim for negligence because there was no special relationship between the City and the infant. Hon. Robert J. Miller had little difficulty dismissing the constitutional claim because a States fail-ure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause. Deciding whether the negligence claim could proceed required a more nuanced and comprehensive analysis of the special relationship doctrine, a task Judge Miller most ably performed. In the final analysis, Judge Miller found that a special relationship did exist by virtue of the fact that the Family Court had directed ACS to protect the infant from harm and ACS became bound by specific regulatory obligations to supervise the home. Judge Miller wrote that ACS was, pursuant to the Family Court order of supervision, required to perform specific duties to ensure the safety of Hailey Gonzalez. Its actions were not discretionary and immunity does not attach to them. Explaining the "special relationship" requirement to clients can be very difficult. Clients have a hard time accepting the fairness of a governmental authority that they count on to render a service not being liable for failing to render such service. It was not so easy to accept its fairness as a law student when being taught the 1928 case of Moch Co.v. Rensselaer Water Co. So it is good to see the doctrine applied in logical and convincing fashion so harmed persons do not go without a remedy. One would expect the City of New York to appeal this decision, especially in light of themore recentCourt of Appeals decision inDinardo v. City of New York, --- N.E.2d ----, 2009 WL 4250125 N.Y.,2009, wherein the majority took an extremely restrictive view of the "special relationship" doctrine that Chief Judge Robert Lippman in dissentstatedwould effectively meanthata plaintiff will never be able to recover for the failure to provide adequate police protection, even when the police voluntarily and affirmatively promised to act on that specific plaintiff's behalf and he or she justifiably relied on that promise to his or her detriment. The personal injury lawyers at Levine & Slavit have decades of experience handling personal injury claims. For 50 years spanning 3 generations, we have obtained results for satisfied clients. Contact the personal injury lawyers at Levine & Slavit for their help. We have offices in Manhattan and Long Island, handling cases in New York City, the Bronx, Brooklyn, Queens and surrounding areas. To learn more, watch our videos.

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