THE FOURTH DEPARTMENT, NOTING A SPLIT OF AUTHORITY, DETERMINED THE PLAINTIFF DID NOT SET FORTH ALLEGATIONS WHICH DEMONSTRATED A SPECIAL RELATIONSHIP BETWEEN HER AND THE COUNTY; THEREFORE THE COUNTY COULD NOT BE HELD LIABLE FOR SEXUAL ABUSE ALLEGEDLY SUFFERED BY THE PLAINTIFF WHILE IN FOSTER CARE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and noting a split of authority, determined plaintiff in this Child Victims Act action alleging sexual abuse while in foster care did not demonstrate a “special relationship” with the county. The decision includes a concise explanation of the complex intertwined issues controlling governmental tort liability:

In Mark G. v Sabol (93 NY2d 710 [1999]), the Court of Appeals analyzed provisions in the Social Services Law designed to protect foster children and to prevent child abuse generally and concluded that a private right of action was not consistent with the legislative scheme (see id. at 720-722; see also McLean, 12 NY3d at 201). Notably, in McLean, the Court of Appeals cited Mark G. approvingly … . We therefore conclude that plaintiff cannot establish a special duty based upon the County’s alleged violation of its duties under the Social Services Law. We note that, to the extent that there is case law in the First and Second Departments that would support a contrary conclusion, we decline to follow those cases … .

… [P]laintiff cannot establish the requisite special relationship between the parties based upon the County’s alleged voluntary assumption of a duty that generated justifiable reliance on her part … . To establish such a special relationship, a plaintiff must show “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” (Cuffy v City of New York, 69 NY2d 255, 260 [1987] …). ” ‘[A]ll four elements must be present for a special duty to attach’ ” … .

… “[T]he failure to perform a statutory duty, or the negligent performance of that duty, cannot be equated with the breach of a duty voluntarily assumed” … . Even assuming, arguendo, that plaintiff sufficiently alleged the existence of a duty on the part of the County apart from its statutory obligations, we … conclude that plaintiff failed to set forth allegations that, if proven, would establish each of the four elements articulated in Cuffy … . Weisbrod-Moore v Cayuga County, 2023 NY Slip Op 02445, Fourth Dept 5-5-23

Practice Point: Here the plaintiff sued the county alleging sexual abuse while in foster care. Noting a split of authority, the Fourth Department held the plaintiff did not set forth allegations demonstrating a special relationship between her and the county, a prerequisite for governmental tort liability. The decision includes a concise explanation of the confusing, intetwined issues surrounding governmental tort liability.