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WHEN THE OFFICE OF CHILDREN AND FAMILY SERVICES (OCFS) ASSUMED CUSTODY OF CLAIMANT, IT OWED CLAIMANT A DUTY TO PROTECT HIM AGAINST FORESEEABLE HARM, INCLUDING SEXUAL ASSAULT; THIS CHILD VICTIMS ACT ACTION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THE STATE DID NOT OWE CLAIMANT A SPECIAL DUTY (THIRD DEPT). ​

The Third Department, reversing the Court of Claims, determined this Child Victims Act action against the Office of Children and Family Services (OCFS) should not have been dismissed on the ground the state did not owe plaintiff a special duty:

For the reasons set forth in our recent decision in A.J. v State of New York (___ AD3d ___, 2024 NY Slip Op 04231 [3d Dept 2024]), we reverse. As in that case, claimant was in OCFS’s custody at the time he was allegedly assaulted. “When a government entity assumes custody of a person, thus diminishing that person’s ability to self-protect or access those usually charged with such protection, that entity owes to that person a duty of protection against harms that are reasonably foreseeable under the circumstances”(A.J. v State of New York,2024 NY Slip Op 04231 at *2). Because defendant owed claimant a duty of care, the claim stated a cause of action and the motion to dismiss should have been denied. McTighe v State of New York, 2024 NY Slip Op 05251, Third Dept 10-24-24

Practice Point: In the Third Department, the claimant in a Child Victims Act case against the Office of Children and Family Services (OCFS) alleging sexual abuse while in its custody does need to demonstrate the state owed claimant a special duty. The state is deemed to have assumed a duty to protect children in its custody from foreseeable harm.

 

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