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PLAINTIFFS SUED A FOSTER-CHILD PLACEMENT SERVICE FOR FRAUD AND NEGLIGENCE AFTER THE FOSTER CHILD SEXUALLY ASSAULTED PLAINTIFFS’ BIOLOGICAL CHILD; THE FRAUD ACTION WAS NOT TIME-BARRED BECAUSE THE PLACEMENT SERVICE’S MERE KNOWLEDGE OF THE FOSTER CHILD’S SEXUAL BEHAVIOR IN 2008 DID NOT START THE SIX-YEAR STATUTE OF LIMITATIONS, AND THE NEGLIGENCE ACTION WAS SUPPORTED BY A DUTY OWED TO PLAINTIFFS’ BIOLOGICAL CHILD (FOURTH DEPT).

The Fourth Department determined the fraud cause of action was not time-barred and the defendant’s owed a duty which supported the negligence cause of action. The plaintiffs, who had a biological child, took in a foster child through Good Shepherd, a placement service. The plaintiffs were not aware that the foster child had a history of animal abuse and sexually inappropriate behavior. One day after plaintiffs’ adoption of the foster child, the child sexually assaulted the biological child. Plaintiffs sued in fraud and negligence and Supreme Court denied Good Shepard’s motion to dismiss:

A defendant’s mere knowledge of something is not an element of a fraud cause of action; instead, a fraud cause of action requires a showing of, inter alia, the false representation of a material fact with the intent to deceive … . Thus, even assuming, arguendo, that Good Shepherd knew of the foster child’s history of animal abuse and engaging in sexually inappropriate behavior as early as May 2008, we conclude that its knowledge thereof did not demonstrate that the alleged fraud occurred at that time. Good Shepherd submitted no evidence that, in May 2008, it falsely represented the foster child’s relevant history with the intent to deceive plaintiffs. Thus, it did not establish as a matter of law that the fraud cause of action accrued in 2008 … . Moreover, Good Shepherd submitted the amended complaint, wherein plaintiffs alleged that, on numerous occasions in early 2012, they contacted Good Shepherd about the foster child’s sexually inappropriate behavior and that, on each occasion, Good Shepherd assured them that the foster child had no history of that type of behavior. We therefore conclude that Good Shepherd failed to meet its initial burden of establishing that the fraud cause of action asserted in 2016 was barred by the applicable six-year statute of limitations (see CPLR 213 [8]). * * *

Although defendants contend that they did not owe the biological child a duty because they lacked control over the foster child during the four years that he lived with plaintiffs, control over a third-person tortfeasor is just one way to establish a duty. … [A]duty may also exist where “there is a relationship . . . between [the] defendant and [the] plaintiff that requires [the] defendant to protect [the] plaintiff from the conduct of others,” and “the key . . . is that the defendant’s relationship with either the tortfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm” … . Stephanie L. v House of The Good Shepherd, 2020 NY Slip Op 04643, Fourth Dept 8-20-20

 

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