Preview
FILED: NEW YORK COUNTY CLERK 08/06/2021 10:52 AM INDEX NO. 950970/2021
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------------------X
DENISE MARTIN,
COMPLAINT
Plaintiff,
Index No. ___________
-against-
CITY OF NEW YORK; SHELTERING ARMS
CHILDREN AND FAMILY SERVICES, INC.;
DOES 1-10,
Defendants.
---------------------------------------------------------------------X
TO THE SUPREME COURT OF THE STATE OF NEW YORK:
Plaintiff, DENISE MARTIN, by and through undersigned counsel, respectfully shows to
this Court and alleges as follows:
INTRODUCTION
1. This is a revival action arising from child sexual abuse brought pursuant to the New
York Child Victims Act, CPLR § 214-g. As a minor, the Plaintiff was sexually abused and
assaulted while in foster care, in the legal custody and care of the Defendants.
PARTIES, JURISDICTION AND VENUE
2. Plaintiff, DENISE MARTIN, is a citizen and resident of the State of New York.
3. Defendant, CITY OF NEW YORK (hereinafter, “CITY”), is a political subdivision
of the State of New York. At all times relevant and material hereto, CITY was responsible for the
care and safety of children in foster care within CITY. CITY operates and controls the NEW
YORK CITY ADMINISTRATION FOR CHILDREN’S SERVICES (hereinafter referred to as
“ACS”). ACS is a department of Defendant CITY. It is authorized by New York law to place and
care for children in foster care in New York City. Children in foster care are in the legal custody
of the Commissioner of ACS, who is an employee/agent of CITY. ACS has a principal place of
1 of 13
FILED: NEW YORK COUNTY CLERK 08/06/2021 10:52 AM INDEX NO. 950970/2021
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2021
business located at 150 William Street, New York, New York 10038. CITY is a citizen of the
State of New York.
4. Defendant, SHELTERING ARMS CHILDREN AND FAMILY SERVICES, INC.
(hereinafter, “AGENCY”), is a not-for-profit New York corporation organized under the laws of
the State of New York and is an “authorized agency” as defined in New York Social Services Law
§ 371, with a principal place of business located at 25 Broadway, 18th Floor, New York, New
York 10004. AGENCY is a citizen and resident of the State of New York.
5. Defendants DOES 1-10 are persons or entities with responsibilities for Plaintiff’s
safety, supervision and/or placement in foster care, who have not to date been identified. Plaintiff
has made a diligent effort to identify these Defendants prior to the filing of this Complaint and has
been unable to do so.
6. This Court has subject matter jurisdiction of this action pursuant to Article VI of
the New York Constitution.
7. Personal jurisdiction lies over Defendants as they are present and domiciled in the
State of New York.
8. Venue of this action lies in New York County as a substantial part of the events or
omissions giving rise to the claim occurred in New York County and/or one of the Defendants
resides in New York County.
9. The amount in controversy exceeds the jurisdictional limit of all lower courts.
DUTY
Defendant CITY
10. At all times relevant and material hereto, Defendant CITY had a non-delegable duty
to use reasonable care in the investigation, licensing, supervision and/or monitoring of foster care
2
2 of 13
FILED: NEW YORK COUNTY CLERK 08/06/2021 10:52 AM INDEX NO. 950970/2021
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2021
facilities, homes and/or families with whom it placed foster children, and to develop or implement
programs, guidelines, procedures and/or training to prevent the abuse of foster children placed
within foster care facilities, homes and/or families.
11. At all times relevant and material hereto, Defendant CITY, through ACS or its
predecessor agencies, provided child welfare, child protective and childcare services by
contracting with private not-for-profit organizations to provide foster care services.
12. By reason of the foregoing, Defendant CITY was and is vicariously liable for acts
and omissions of the private non-profit organizations with which it through ACS contracted to
provide foster care services.
13. At all times relevant and material hereto, Defendant CITY, through ACS or its
predecessor agencies, was the legal guardian of Plaintiff and owed Plaintiff a duty of reasonable
care to protect Plaintiff from foreseeable harms.
14. At all times relevant and material hereto, Defendant CITY, through ACS or its
predecessor agencies, owed a non-delegable duty to Plaintiff to use reasonable care to protect the
safety, care, well-being, and health of Plaintiff while under its care and custody. Defendant
CITY’s duties encompassed reasonable care in the supervision of children in its agents’ custody
and control, as well as reasonable care in the selection, retention, and supervision of foster parents
and employees supervising foster children in Defendant CITY’s custody or care.
15. At all times relevant and material hereto, Defendant CITY, through ACS or its
predecessor agencies, owed a non-delegable duty to exercise reasonable care in the training of
employees, case workers, and/or agents in the prevention of sexual abuse and protection of the
safety of children in its care, custody and/or control.
16. At all times relevant and material hereto, Defendant CITY, through ACS or its
predecessor agencies, owed a non-delegable duty to establish and implement policies and
3
3 of 13
FILED: NEW YORK COUNTY CLERK 08/06/2021 10:52 AM INDEX NO. 950970/2021
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2021
procedures in the exercise of reasonable care for the prevention of sexual abuse and protection of
the safety of children in its care, custody and/or control.
17. At all times relevant and material hereto, Defendant CITY, through ACS or its
predecessor agencies, owed non-delegable duties to children in foster care, including without
limitation:
a. To evaluate and investigate all reports of child abuse and/or neglect;
b. To visit children in foster home/facility placements in accordance with the
requirements for children in custody;
c. To investigate all relevant conditions of the foster home/facility that might affect
the child;
d. To report any violations of the foster home/facility’s operating license or
requirements;
e. To ensure that foster children residing in a foster home/facility are supervised at all
times by authorized adult caregivers;
f. To continually assess the adequacy and safety of a child’s particular placement;
g. To make appropriate referrals for evaluations or services, and provide each child in
foster care with quality services to protect his or her safety and health;
h. To establish all necessary plans of care;
i. To report all known incidents of sexual abuse or aggression occurring in the foster
home/facility;
j. To ensure that foster children were not left in dangerous conditions, including being
subjected to sexual, emotional or physical abuse;
k. To ensure that each child in foster care is not maintained in custody longer than is
necessary to accomplish the purpose of custody;
4
4 of 13
FILED: NEW YORK COUNTY CLERK 08/06/2021 10:52 AM INDEX NO. 950970/2021
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2021
l. To provide each child in foster care who has been freed for adoption with
meaningful and appropriate adoption services, including evaluation of the child’s
placement and pre-placement needs, recruitment of and home study for prospective
adoptive parents, placement planning, supervision, and post-adoption services; and
m. To ensure that children are provided a non-threatening environment for candid
assessments of their living situation with care managers or other supervisory
personnel, to assure that incidents of abuse, misconduct or violations of rights may
be reported without fear of repercussion or not being believed.
18. Defendant CITY is legally responsible for the acts, omissions, and negligence of
the entities in which it contracts to render foster care services.
19. Defendant CITY is legally responsible for the acts, omissions and negligence of the
entities carrying out its non-delegable duties.
Defendants AGENCY and DOES 1-10
20. At all times relevant and material hereto, Defendants were responsible for
providing protection and safety and to ensure the well-being of New York City’s children by
providing foster care services for children who needed same.
21. At all times relevant and material hereto, Defendants provided child welfare, child
protective and childcare services by contracting with defendant CITY by and through ACS or its
predecessor agencies and/or otherwise agreeing to provide foster care services for children who
needed same.
22. At all times relevant and material hereto, Defendants provided foster care services
in New York City, which included providing a safe and stable home for foster children, including
Plaintiff.
23. At all times relevant and material hereto, Defendants were in a special relationship
5
5 of 13
FILED: NEW YORK COUNTY CLERK 08/06/2021 10:52 AM INDEX NO. 950970/2021
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2021
of in loco parentis or caregiver – child with Plaintiff in which Defendants owed Plaintiff a duty of
reasonable care to protect Plaintiff from foreseeable harms.
24. At all times relevant and material hereto, Defendants were in a special relationship
with the individuals and/or agents to whom they delegated or assigned custody and/or control of
Plaintiff, such that Defendants owed a duty to control such individuals to prevent foreseeable
harms.
25. At all times relevant and material hereto, Defendants owed a duty to Plaintiff to use
reasonable care to protect the safety, care, well-being, and health of Plaintiff while Plaintiff was
under their care and custody. Defendants’ duties encompassed using reasonable care in the
supervision of children in their custody and control, as well as a duty to use reasonable care in the
retention and supervision of individuals assigned to supervise and care for foster children in their
care, custody, or control.
26. At all times relevant and material hereto, Defendants had a duty to use reasonable
care in the investigation, licensing, supervision and/or monitoring of foster care facilities, homes
and/or families with whom they place foster children.
27. At all times relevant and material hereto, Defendants had a duty to exercise
reasonable care in the training of employees, agents, case workers and/or foster parents in the
prevention of sexual abuse and protection of the safety of children in their care, custody and/or
control.
28. At all times relevant and material hereto, Defendants had a duty to establish and
implement policies and procedures in the exercise of reasonable care for the prevention of sexual
abuse and protection of the safety of children in their care, custody and/or control.
6
6 of 13
FILED: NEW YORK COUNTY CLERK 08/06/2021 10:52 AM INDEX NO. 950970/2021
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2021
SEXUAL ASSAULTS OF THE PLAINTIFF
29. At all times relevant and material hereto, Plaintiff was in foster care under the
custody, care, and control of Defendants.
30. At all times relevant and material hereto, WILLIE SUMMERS JR. (hereinafter,
“PERPETRATOR”) was an individual to whom Defendants entrusted Plaintiff’s care and custody.
31. Plaintiff was placed in foster care by Defendants at the Summers foster home in
Queens, New York. Starting in approximately 1970 when Plaintiff was approximately twelve (12)
years old, Plaintiff was regularly and repeatedly sexually abused and assaulted by
PERPETRATOR, her foster father, for approximately two (2) years. The acts of sexual abuse and
assault perpetrated against Plaintiff by PERPETRATOR took place in the foster home in Queens
County, New York. At all times relevant and material hereto, PERPETRATOR was over eighteen
(18) years of age.
32. The acts of sexual assault and abuse perpetrated by PERPETRATOR against
Plaintiff included conduct which constitutes a sexual offense on a minor as defined in Article 130
of the New York Penal Law or the use of a child in a sexual performance as defined in § 263.05
of the New York Penal Law, including without limitation, conduct constituting rape (consisting of
sexual intercourse) (N.Y. Penal Law §§ 130.25 - 130.35); criminal sexual act (consisting of oral
or anal sexual conduct) (N.Y. Penal Law §§ 130.40 - 130.53), and/or sexual abuse (consisting of
sexual contact) (N.Y. Penal Law §§ 130.55 - 130.77).
NOTICE – FORESEEABILITY
Defendants Had Notice that PERPETRATOR Posed a Risk of Child Sexual Abuse
33. At all relevant times, the Defendants knew or in the exercise of reasonable care
should have known that the home in which Plaintiff was placed, identified above, was not safe and
that it was foreseeable Plaintiff would be sexually assaulted or abused and subject to maltreatment
7
7 of 13
FILED: NEW YORK COUNTY CLERK 08/06/2021 10:52 AM INDEX NO. 950970/2021
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2021
in this home.
34. PERPETRATOR had a propensity for the conduct which caused injury to Plaintiff,
particularly a propensity to engage in the sexual abuse of children.
35. At all relevant times, it was reasonably foreseeable to the Defendants that
PERPETRATOR would commit acts of child sexual abuse or assault on a child.
36. At all relevant times, the Defendants knew or should have known that
PERPETRATOR was unfit, dangerous, and a threat to the health, safety and welfare of the minors
entrusted to their care.
37. With such actual or constructive knowledge, the Defendants provided
PERPETRATOR unsupervised access to Plaintiff and gave him the opportunity to commit
foreseeable acts of child sexual abuse or assault.
Defendants Had Notice Of Institutional Sexual Abuse Within Care Foster System
38. At all relevant times, there were substantial structural and systemic flaws and
deficiencies in the foster care system designed and/or implemented by Defendant CITY.
39. Maltreatment of children in foster care has been a chronic problem that CITY has
failed to address in any reasonable manner consistent with its duties to children in foster care.
40. Upon information and belief, at all times material and relevant hereto, children in
foster care in New York, and in particular within the City of New York, were more likely to be
harmed by abuse or maltreatment than children in virtually every other State.
41. Among the chronic problems and inadequacies of CITY’s foster care system, at all
relevant times, it was failing to adequately supervise its contract agencies by, among other things,
imposing and enforcing appropriate standards for the safety and welfare of the children in its care;
failing to ensure that caseworkers were adequately trained and supervised; failing to ensure that
caseworkers had manageable caseloads; failing to ensure regular caseworker visits and
8
8 of 13
FILED: NEW YORK COUNTY CLERK 08/06/2021 10:52 AM INDEX NO. 950970/2021
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2021
unannounced visits in environments where the foster child would feel comfortable and
unthreatened in disclosing abuse or maltreatment; failing to ensure that placement decisions were
informed and safe; and failing to review and evaluate a foster care provider’s policies and
procedures with regard to the safety of children, including without limitation, those to prevent
sexual assaults.
42. Because of the foregoing structural and systemic deficiencies in the foster care
system, Defendants at all relevant times knew or should have known that the children in their care
were subject to a substantial risk of maltreatment and abuse, including sexual abuse.
BREACH
43. At all relevant times, Defendants knew or should have known that sexual abuse in
foster homes was a serious and recurrent problem such that Defendants knew that corrective
measures were necessary to prevent such sexual abuse.
44. At all relevant times, Defendants failed to institute corrective measures or to
exercise reasonable oversight, or to advance policies, procedures and/or training to prevent
foreseeable sexual abuse in foster homes.
45. The foregoing systemic and chronic issues were present in the foster care of
Plaintiff. Among other things, Defendants failed to conduct visits to the foster home that were of
sufficient frequency and/or reasonably calculated to determine whether Plaintiff was safe and not
being subjected to maltreatment in her foster care placement. Visits by the case worker or social
worker to the home were brief, superficial, and perfunctory. Further, notice was given to the case
worker of the sexual abuse suffered by Plaintiff, and the case worker failed to act upon the
information to protect Plaintiff from further sexual abuse.
46. The Defendants breached their duties by (i) failing to protect Plaintiff from sexual
abuse, sexual assault and lewd and lascivious acts; (ii) failing to adequately, properly and
9
9 of 13
FILED: NEW YORK COUNTY CLERK 08/06/2021 10:52 AM INDEX NO. 950970/2021
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2021
completely investigate whether Plaintiff was safe and free from maltreatment; (iii) failing to
adequately, properly and completely investigate the acts and conduct of PERPETRATOR; (iv)
failing to remove Plaintiff from the care, custody and control of the foster residence when they
knew or should have known that Plaintiff was at risk of foreseeable harms from sexual abuse; (v)
failing to establish policies and procedures that were adequate to protect the health, safety and
welfare of children and protect them from sexual abuse; (vi) failing to implement and enforce
policies and procedures that were adequate to protect the health, safety and welfare of foster
children and protect them from sexual and physical abuse; (vii) failing to supervise the foster
residence when they knew or should have known that PERPETRATOR posed a substantial risk of
harm to foster children, including Plaintiff; (vii) failing to adequately monitor and supervise
Plaintiff; (viii) failing to adequately hire and train employees, agents and case workers; (ix) failing
to report the ongoing sexual abuse being committed by PERPETRATOR, despite Defendants’
constructing and/or actual notice of same; (x) concealing their knowledge that PERPETRATOR
was unsafe and posed a risk of child sexual abuse; and (xi) failing to report the sexual abuse of
Plaintiff to law enforcement.
47. As a result of the foregoing breaches of duty, Plaintiff was sexually assaulted and
abused while in foster care. If minimal foster care services had been provided to Plaintiff with
reasonable care, the sexual assault of Plaintiff would have been prevented or at least mitigated
once reported.
48. The limitation of liability set forth in CPLR Art. 16 is not applicable to the claim
of personal injury alleged herein, by reason of one or more of the exemptions provided in CPLR
§ 1602, including without limitation, that Defendants acted with reckless disregard for the safety
Plaintiff, or knowingly or intentionally, in concert with its agents and employees.
10
10 of 13
FILED: NEW YORK COUNTY CLERK 08/06/2021 10:52 AM INDEX NO. 950970/2021
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2021
COUNT I - NEGLIGENCE
(against Defendant CITY)
49. Plaintiff repeats and realleges Paragraphs 1 through 48 above.
50. Defendant CITY was negligent.
51. Defendant CITY owed a duty of care to Plaintiff.
52. Defendant CITY breached the duty of care owed to Plaintiff.
53. Defendant CITY had actual or constructive notice that Plaintiff was being sexually
abused while at the foster residence and failed to protect Plaintiff or otherwise make foster care
safe for Plaintiff. Plaintiff was sexually abused after Defendant CITY knew or should have known
that Plaintiff was being sexually abused at the foster residence.
54. Defendant CITY was negligent in the placement and supervision of Plaintiff while
at the foster residence, and in the retention of the foster residence as a foster home to which
Defendants entrusted the care of foster children.
55. It was reasonably foreseeable to Defendant CITY that allowing PERPETRATOR
unfettered access to children may result in sexual abuse of the same children.
56. As a direct and proximate result of Defendant CITY’s negligence, Plaintiff has
suffered and continues to suffer severe and permanent psychological, emotional, and physical
injuries, shame, humiliation, and the inability to lead a normal life.
57. Defendant CITY’s acts, conduct and omissions showed a reckless or willful
disregard for the safety and well-being of Plaintiff and other children.
COUNT II - NEGLIGENCE
(against Defendant AGENCY)
58. Plaintiff repeats and realleges Paragraphs 1 through 48 above.
59. Defendant AGENCY was negligent.
60. Defendant AGENCY owed a duty of care to Plaintiff.
11
11 of 13
FILED: NEW YORK COUNTY CLERK 08/06/2021 10:52 AM INDEX NO. 950970/2021
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2021
61. Defendant AGENCY breached the duty of care owed to Plaintiff.
62. Defendant AGENCY had actual or constructive notice that Plaintiff was being
sexually abused while at the foster residence and failed to protect Plaintiff or otherwise make foster
care safe for Plaintiff. Plaintiff was sexually abused after Defendant AGENCY knew or should
have known that Plaintiff was being sexually abused at the foster residence.
63. Defendant AGENCY was negligent in the placement and supervision of Plaintiff
while at the foster residence, and in the retention of the foster residence as a foster home to which
Defendants entrusted the care of foster children.
64. It was reasonably foreseeable to Defendant AGENCY that allowing
PERPETRATOR unfettered access to children may result in sexual abuse of the same children.
65. As a direct and proximate result of Defendant AGENCY’s negligence, Plaintiff has
suffered and continues to suffer severe and permanent psychological, emotional, and physical
injuries, shame, humiliation, and the inability to lead a normal life.
66. Defendant AGENCY’s acts, conduct and omissions showed a reckless or willful
disregard for the safety and well-being of Plaintiff and other children.
COUNT III - NEGLIGENCE
(against Defendants DOES 1-10)
67. Plaintiff repeats and realleges Paragraphs 1 through 48 above.
68. Defendants DOES 1-10 were negligent.
69. Defendants DOES 1-10 owed a duty of care to Plaintiff.
70. Defendants DOES 1-10 breached the duty of care owed to Plaintiff.
71. Defendants DOES 1-10 had actual or constructive notice that Plaintiff was being
sexually abused while at the foster residence and failed to protect Plaintiff or otherwise make foster
12
12 of 13
FILED: NEW YORK COUNTY CLERK 08/06/2021 10:52 AM INDEX NO. 950970/2021
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2021
care safe for Plaintiff. Plaintiff was sexually abused after Defendant CITY knew or should have
known that Plaintiff was being sexually abused at the foster residence.
72. Defendants DOES 1-10 was negligent in the placement and supervision of Plaintiff
while at the foster residence, and in the retention of the foster residence as a foster home to which
Defendants entrusted the care of foster children.
73. It was reasonably foreseeable to Defendants DOES 1-10 that allowing
PERPETRATOR unfettered access to children may result in sexual abuse of the same children.
74. As a direct and proximate result of Defendants DOES 1-10’s negligence, Plaintiff
has suffered and continues to suffer severe and permanent psychological, emotional, and physical
injuries, shame, humiliation, and the inability to lead a normal life.
75. Defendants DOES 1-10’s acts, conduct and omissions showed a reckless or willful
disregard for the safety and well-being of Plaintiff and other children.
DEMAND FOR JURY TRIAL
76. Plaintiff demands a jury trial in this action.
WHEREFORE, the amount in controversy exceeds the jurisdictional limits of all lower
courts, and Plaintiff demands judgment against Defendants jointly and severally for compensatory
damages, pain and suffering, punitive damages, attorney fees, the costs and disbursements of this
action, and such other and further relief as this Court deems necessary just and proper.
Dated: New York, New York
August 6, 2021 Respectfully submitted,
HERMAN LAW
434 W. 33rd St., Penthouse
New York, NY 10001
Tel: 212-390-0100
By: ____________________
Jeff Herman
jherman@hermanlaw.com
13
13 of 13
Preview
FILED: NEW YORK COUNTY CLERK 08/06/2021 10:52 AM INDEX NO. 950970/2021 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------X DENISE MARTIN, COMPLAINT Plaintiff, Index No. ___________ -against- CITY OF NEW YORK; SHELTERING ARMS CHILDREN AND FAMILY SERVICES, INC.; DOES 1-10, Defendants. ---------------------------------------------------------------------X TO THE SUPREME COURT OF THE STATE OF NEW YORK: Plaintiff, DENISE MARTIN, by and through undersigned counsel, respectfully shows to this Court and alleges as follows: INTRODUCTION 1. This is a revival action arising from child sexual abuse brought pursuant to the New York Child Victims Act, CPLR § 214-g. As a minor, the Plaintiff was sexually abused and assaulted while in foster care, in the legal custody and care of the Defendants. PARTIES, JURISDICTION AND VENUE 2. Plaintiff, DENISE MARTIN, is a citizen and resident of the State of New York. 3. Defendant, CITY OF NEW YORK (hereinafter, “CITY”), is a political subdivision of the State of New York. At all times relevant and material hereto, CITY was responsible for the care and safety of children in foster care within CITY. CITY operates and controls the NEW YORK CITY ADMINISTRATION FOR CHILDREN’S SERVICES (hereinafter referred to as “ACS”). ACS is a department of Defendant CITY. It is authorized by New York law to place and care for children in foster care in New York City. Children in foster care are in the legal custody of the Commissioner of ACS, who is an employee/agent of CITY. ACS has a principal place of 1 of 13 FILED: NEW YORK COUNTY CLERK 08/06/2021 10:52 AM INDEX NO. 950970/2021 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2021 business located at 150 William Street, New York, New York 10038. CITY is a citizen of the State of New York. 4. Defendant, SHELTERING ARMS CHILDREN AND FAMILY SERVICES, INC. (hereinafter, “AGENCY”), is a not-for-profit New York corporation organized under the laws of the State of New York and is an “authorized agency” as defined in New York Social Services Law § 371, with a principal place of business located at 25 Broadway, 18th Floor, New York, New York 10004. AGENCY is a citizen and resident of the State of New York. 5. Defendants DOES 1-10 are persons or entities with responsibilities for Plaintiff’s safety, supervision and/or placement in foster care, who have not to date been identified. Plaintiff has made a diligent effort to identify these Defendants prior to the filing of this Complaint and has been unable to do so. 6. This Court has subject matter jurisdiction of this action pursuant to Article VI of the New York Constitution. 7. Personal jurisdiction lies over Defendants as they are present and domiciled in the State of New York. 8. Venue of this action lies in New York County as a substantial part of the events or omissions giving rise to the claim occurred in New York County and/or one of the Defendants resides in New York County. 9. The amount in controversy exceeds the jurisdictional limit of all lower courts. DUTY Defendant CITY 10. At all times relevant and material hereto, Defendant CITY had a non-delegable duty to use reasonable care in the investigation, licensing, supervision and/or monitoring of foster care 2 2 of 13 FILED: NEW YORK COUNTY CLERK 08/06/2021 10:52 AM INDEX NO. 950970/2021 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2021 facilities, homes and/or families with whom it placed foster children, and to develop or implement programs, guidelines, procedures and/or training to prevent the abuse of foster children placed within foster care facilities, homes and/or families. 11. At all times relevant and material hereto, Defendant CITY, through ACS or its predecessor agencies, provided child welfare, child protective and childcare services by contracting with private not-for-profit organizations to provide foster care services. 12. By reason of the foregoing, Defendant CITY was and is vicariously liable for acts and omissions of the private non-profit organizations with which it through ACS contracted to provide foster care services. 13. At all times relevant and material hereto, Defendant CITY, through ACS or its predecessor agencies, was the legal guardian of Plaintiff and owed Plaintiff a duty of reasonable care to protect Plaintiff from foreseeable harms. 14. At all times relevant and material hereto, Defendant CITY, through ACS or its predecessor agencies, owed a non-delegable duty to Plaintiff to use reasonable care to protect the safety, care, well-being, and health of Plaintiff while under its care and custody. Defendant CITY’s duties encompassed reasonable care in the supervision of children in its agents’ custody and control, as well as reasonable care in the selection, retention, and supervision of foster parents and employees supervising foster children in Defendant CITY’s custody or care. 15. At all times relevant and material hereto, Defendant CITY, through ACS or its predecessor agencies, owed a non-delegable duty to exercise reasonable care in the training of employees, case workers, and/or agents in the prevention of sexual abuse and protection of the safety of children in its care, custody and/or control. 16. At all times relevant and material hereto, Defendant CITY, through ACS or its predecessor agencies, owed a non-delegable duty to establish and implement policies and 3 3 of 13 FILED: NEW YORK COUNTY CLERK 08/06/2021 10:52 AM INDEX NO. 950970/2021 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2021 procedures in the exercise of reasonable care for the prevention of sexual abuse and protection of the safety of children in its care, custody and/or control. 17. At all times relevant and material hereto, Defendant CITY, through ACS or its predecessor agencies, owed non-delegable duties to children in foster care, including without limitation: a. To evaluate and investigate all reports of child abuse and/or neglect; b. To visit children in foster home/facility placements in accordance with the requirements for children in custody; c. To investigate all relevant conditions of the foster home/facility that might affect the child; d. To report any violations of the foster home/facility’s operating license or requirements; e. To ensure that foster children residing in a foster home/facility are supervised at all times by authorized adult caregivers; f. To continually assess the adequacy and safety of a child’s particular placement; g. To make appropriate referrals for evaluations or services, and provide each child in foster care with quality services to protect his or her safety and health; h. To establish all necessary plans of care; i. To report all known incidents of sexual abuse or aggression occurring in the foster home/facility; j. To ensure that foster children were not left in dangerous conditions, including being subjected to sexual, emotional or physical abuse; k. To ensure that each child in foster care is not maintained in custody longer than is necessary to accomplish the purpose of custody; 4 4 of 13 FILED: NEW YORK COUNTY CLERK 08/06/2021 10:52 AM INDEX NO. 950970/2021 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2021 l. To provide each child in foster care who has been freed for adoption with meaningful and appropriate adoption services, including evaluation of the child’s placement and pre-placement needs, recruitment of and home study for prospective adoptive parents, placement planning, supervision, and post-adoption services; and m. To ensure that children are provided a non-threatening environment for candid assessments of their living situation with care managers or other supervisory personnel, to assure that incidents of abuse, misconduct or violations of rights may be reported without fear of repercussion or not being believed. 18. Defendant CITY is legally responsible for the acts, omissions, and negligence of the entities in which it contracts to render foster care services. 19. Defendant CITY is legally responsible for the acts, omissions and negligence of the entities carrying out its non-delegable duties. Defendants AGENCY and DOES 1-10 20. At all times relevant and material hereto, Defendants were responsible for providing protection and safety and to ensure the well-being of New York City’s children by providing foster care services for children who needed same. 21. At all times relevant and material hereto, Defendants provided child welfare, child protective and childcare services by contracting with defendant CITY by and through ACS or its predecessor agencies and/or otherwise agreeing to provide foster care services for children who needed same. 22. At all times relevant and material hereto, Defendants provided foster care services in New York City, which included providing a safe and stable home for foster children, including Plaintiff. 23. At all times relevant and material hereto, Defendants were in a special relationship 5 5 of 13 FILED: NEW YORK COUNTY CLERK 08/06/2021 10:52 AM INDEX NO. 950970/2021 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2021 of in loco parentis or caregiver – child with Plaintiff in which Defendants owed Plaintiff a duty of reasonable care to protect Plaintiff from foreseeable harms. 24. At all times relevant and material hereto, Defendants were in a special relationship with the individuals and/or agents to whom they delegated or assigned custody and/or control of Plaintiff, such that Defendants owed a duty to control such individuals to prevent foreseeable harms. 25. At all times relevant and material hereto, Defendants owed a duty to Plaintiff to use reasonable care to protect the safety, care, well-being, and health of Plaintiff while Plaintiff was under their care and custody. Defendants’ duties encompassed using reasonable care in the supervision of children in their custody and control, as well as a duty to use reasonable care in the retention and supervision of individuals assigned to supervise and care for foster children in their care, custody, or control. 26. At all times relevant and material hereto, Defendants had a duty to use reasonable care in the investigation, licensing, supervision and/or monitoring of foster care facilities, homes and/or families with whom they place foster children. 27. At all times relevant and material hereto, Defendants had a duty to exercise reasonable care in the training of employees, agents, case workers and/or foster parents in the prevention of sexual abuse and protection of the safety of children in their care, custody and/or control. 28. At all times relevant and material hereto, Defendants had a duty to establish and implement policies and procedures in the exercise of reasonable care for the prevention of sexual abuse and protection of the safety of children in their care, custody and/or control. 6 6 of 13 FILED: NEW YORK COUNTY CLERK 08/06/2021 10:52 AM INDEX NO. 950970/2021 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2021 SEXUAL ASSAULTS OF THE PLAINTIFF 29. At all times relevant and material hereto, Plaintiff was in foster care under the custody, care, and control of Defendants. 30. At all times relevant and material hereto, WILLIE SUMMERS JR. (hereinafter, “PERPETRATOR”) was an individual to whom Defendants entrusted Plaintiff’s care and custody. 31. Plaintiff was placed in foster care by Defendants at the Summers foster home in Queens, New York. Starting in approximately 1970 when Plaintiff was approximately twelve (12) years old, Plaintiff was regularly and repeatedly sexually abused and assaulted by PERPETRATOR, her foster father, for approximately two (2) years. The acts of sexual abuse and assault perpetrated against Plaintiff by PERPETRATOR took place in the foster home in Queens County, New York. At all times relevant and material hereto, PERPETRATOR was over eighteen (18) years of age. 32. The acts of sexual assault and abuse perpetrated by PERPETRATOR against Plaintiff included conduct which constitutes a sexual offense on a minor as defined in Article 130 of the New York Penal Law or the use of a child in a sexual performance as defined in § 263.05 of the New York Penal Law, including without limitation, conduct constituting rape (consisting of sexual intercourse) (N.Y. Penal Law §§ 130.25 - 130.35); criminal sexual act (consisting of oral or anal sexual conduct) (N.Y. Penal Law §§ 130.40 - 130.53), and/or sexual abuse (consisting of sexual contact) (N.Y. Penal Law §§ 130.55 - 130.77). NOTICE – FORESEEABILITY Defendants Had Notice that PERPETRATOR Posed a Risk of Child Sexual Abuse 33. At all relevant times, the Defendants knew or in the exercise of reasonable care should have known that the home in which Plaintiff was placed, identified above, was not safe and that it was foreseeable Plaintiff would be sexually assaulted or abused and subject to maltreatment 7 7 of 13 FILED: NEW YORK COUNTY CLERK 08/06/2021 10:52 AM INDEX NO. 950970/2021 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2021 in this home. 34. PERPETRATOR had a propensity for the conduct which caused injury to Plaintiff, particularly a propensity to engage in the sexual abuse of children. 35. At all relevant times, it was reasonably foreseeable to the Defendants that PERPETRATOR would commit acts of child sexual abuse or assault on a child. 36. At all relevant times, the Defendants knew or should have known that PERPETRATOR was unfit, dangerous, and a threat to the health, safety and welfare of the minors entrusted to their care. 37. With such actual or constructive knowledge, the Defendants provided PERPETRATOR unsupervised access to Plaintiff and gave him the opportunity to commit foreseeable acts of child sexual abuse or assault. Defendants Had Notice Of Institutional Sexual Abuse Within Care Foster System 38. At all relevant times, there were substantial structural and systemic flaws and deficiencies in the foster care system designed and/or implemented by Defendant CITY. 39. Maltreatment of children in foster care has been a chronic problem that CITY has failed to address in any reasonable manner consistent with its duties to children in foster care. 40. Upon information and belief, at all times material and relevant hereto, children in foster care in New York, and in particular within the City of New York, were more likely to be harmed by abuse or maltreatment than children in virtually every other State. 41. Among the chronic problems and inadequacies of CITY’s foster care system, at all relevant times, it was failing to adequately supervise its contract agencies by, among other things, imposing and enforcing appropriate standards for the safety and welfare of the children in its care; failing to ensure that caseworkers were adequately trained and supervised; failing to ensure that caseworkers had manageable caseloads; failing to ensure regular caseworker visits and 8 8 of 13 FILED: NEW YORK COUNTY CLERK 08/06/2021 10:52 AM INDEX NO. 950970/2021 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2021 unannounced visits in environments where the foster child would feel comfortable and unthreatened in disclosing abuse or maltreatment; failing to ensure that placement decisions were informed and safe; and failing to review and evaluate a foster care provider’s policies and procedures with regard to the safety of children, including without limitation, those to prevent sexual assaults. 42. Because of the foregoing structural and systemic deficiencies in the foster care system, Defendants at all relevant times knew or should have known that the children in their care were subject to a substantial risk of maltreatment and abuse, including sexual abuse. BREACH 43. At all relevant times, Defendants knew or should have known that sexual abuse in foster homes was a serious and recurrent problem such that Defendants knew that corrective measures were necessary to prevent such sexual abuse. 44. At all relevant times, Defendants failed to institute corrective measures or to exercise reasonable oversight, or to advance policies, procedures and/or training to prevent foreseeable sexual abuse in foster homes. 45. The foregoing systemic and chronic issues were present in the foster care of Plaintiff. Among other things, Defendants failed to conduct visits to the foster home that were of sufficient frequency and/or reasonably calculated to determine whether Plaintiff was safe and not being subjected to maltreatment in her foster care placement. Visits by the case worker or social worker to the home were brief, superficial, and perfunctory. Further, notice was given to the case worker of the sexual abuse suffered by Plaintiff, and the case worker failed to act upon the information to protect Plaintiff from further sexual abuse. 46. The Defendants breached their duties by (i) failing to protect Plaintiff from sexual abuse, sexual assault and lewd and lascivious acts; (ii) failing to adequately, properly and 9 9 of 13 FILED: NEW YORK COUNTY CLERK 08/06/2021 10:52 AM INDEX NO. 950970/2021 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2021 completely investigate whether Plaintiff was safe and free from maltreatment; (iii) failing to adequately, properly and completely investigate the acts and conduct of PERPETRATOR; (iv) failing to remove Plaintiff from the care, custody and control of the foster residence when they knew or should have known that Plaintiff was at risk of foreseeable harms from sexual abuse; (v) failing to establish policies and procedures that were adequate to protect the health, safety and welfare of children and protect them from sexual abuse; (vi) failing to implement and enforce policies and procedures that were adequate to protect the health, safety and welfare of foster children and protect them from sexual and physical abuse; (vii) failing to supervise the foster residence when they knew or should have known that PERPETRATOR posed a substantial risk of harm to foster children, including Plaintiff; (vii) failing to adequately monitor and supervise Plaintiff; (viii) failing to adequately hire and train employees, agents and case workers; (ix) failing to report the ongoing sexual abuse being committed by PERPETRATOR, despite Defendants’ constructing and/or actual notice of same; (x) concealing their knowledge that PERPETRATOR was unsafe and posed a risk of child sexual abuse; and (xi) failing to report the sexual abuse of Plaintiff to law enforcement. 47. As a result of the foregoing breaches of duty, Plaintiff was sexually assaulted and abused while in foster care. If minimal foster care services had been provided to Plaintiff with reasonable care, the sexual assault of Plaintiff would have been prevented or at least mitigated once reported. 48. The limitation of liability set forth in CPLR Art. 16 is not applicable to the claim of personal injury alleged herein, by reason of one or more of the exemptions provided in CPLR § 1602, including without limitation, that Defendants acted with reckless disregard for the safety Plaintiff, or knowingly or intentionally, in concert with its agents and employees. 10 10 of 13 FILED: NEW YORK COUNTY CLERK 08/06/2021 10:52 AM INDEX NO. 950970/2021 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2021 COUNT I - NEGLIGENCE (against Defendant CITY) 49. Plaintiff repeats and realleges Paragraphs 1 through 48 above. 50. Defendant CITY was negligent. 51. Defendant CITY owed a duty of care to Plaintiff. 52. Defendant CITY breached the duty of care owed to Plaintiff. 53. Defendant CITY had actual or constructive notice that Plaintiff was being sexually abused while at the foster residence and failed to protect Plaintiff or otherwise make foster care safe for Plaintiff. Plaintiff was sexually abused after Defendant CITY knew or should have known that Plaintiff was being sexually abused at the foster residence. 54. Defendant CITY was negligent in the placement and supervision of Plaintiff while at the foster residence, and in the retention of the foster residence as a foster home to which Defendants entrusted the care of foster children. 55. It was reasonably foreseeable to Defendant CITY that allowing PERPETRATOR unfettered access to children may result in sexual abuse of the same children. 56. As a direct and proximate result of Defendant CITY’s negligence, Plaintiff has suffered and continues to suffer severe and permanent psychological, emotional, and physical injuries, shame, humiliation, and the inability to lead a normal life. 57. Defendant CITY’s acts, conduct and omissions showed a reckless or willful disregard for the safety and well-being of Plaintiff and other children. COUNT II - NEGLIGENCE (against Defendant AGENCY) 58. Plaintiff repeats and realleges Paragraphs 1 through 48 above. 59. Defendant AGENCY was negligent. 60. Defendant AGENCY owed a duty of care to Plaintiff. 11 11 of 13 FILED: NEW YORK COUNTY CLERK 08/06/2021 10:52 AM INDEX NO. 950970/2021 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2021 61. Defendant AGENCY breached the duty of care owed to Plaintiff. 62. Defendant AGENCY had actual or constructive notice that Plaintiff was being sexually abused while at the foster residence and failed to protect Plaintiff or otherwise make foster care safe for Plaintiff. Plaintiff was sexually abused after Defendant AGENCY knew or should have known that Plaintiff was being sexually abused at the foster residence. 63. Defendant AGENCY was negligent in the placement and supervision of Plaintiff while at the foster residence, and in the retention of the foster residence as a foster home to which Defendants entrusted the care of foster children. 64. It was reasonably foreseeable to Defendant AGENCY that allowing PERPETRATOR unfettered access to children may result in sexual abuse of the same children. 65. As a direct and proximate result of Defendant AGENCY’s negligence, Plaintiff has suffered and continues to suffer severe and permanent psychological, emotional, and physical injuries, shame, humiliation, and the inability to lead a normal life. 66. Defendant AGENCY’s acts, conduct and omissions showed a reckless or willful disregard for the safety and well-being of Plaintiff and other children. COUNT III - NEGLIGENCE (against Defendants DOES 1-10) 67. Plaintiff repeats and realleges Paragraphs 1 through 48 above. 68. Defendants DOES 1-10 were negligent. 69. Defendants DOES 1-10 owed a duty of care to Plaintiff. 70. Defendants DOES 1-10 breached the duty of care owed to Plaintiff. 71. Defendants DOES 1-10 had actual or constructive notice that Plaintiff was being sexually abused while at the foster residence and failed to protect Plaintiff or otherwise make foster 12 12 of 13 FILED: NEW YORK COUNTY CLERK 08/06/2021 10:52 AM INDEX NO. 950970/2021 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/06/2021 care safe for Plaintiff. Plaintiff was sexually abused after Defendant CITY knew or should have known that Plaintiff was being sexually abused at the foster residence. 72. Defendants DOES 1-10 was negligent in the placement and supervision of Plaintiff while at the foster residence, and in the retention of the foster residence as a foster home to which Defendants entrusted the care of foster children. 73. It was reasonably foreseeable to Defendants DOES 1-10 that allowing PERPETRATOR unfettered access to children may result in sexual abuse of the same children. 74. As a direct and proximate result of Defendants DOES 1-10’s negligence, Plaintiff has suffered and continues to suffer severe and permanent psychological, emotional, and physical injuries, shame, humiliation, and the inability to lead a normal life. 75. Defendants DOES 1-10’s acts, conduct and omissions showed a reckless or willful disregard for the safety and well-being of Plaintiff and other children. DEMAND FOR JURY TRIAL 76. Plaintiff demands a jury trial in this action. WHEREFORE, the amount in controversy exceeds the jurisdictional limits of all lower courts, and Plaintiff demands judgment against Defendants jointly and severally for compensatory damages, pain and suffering, punitive damages, attorney fees, the costs and disbursements of this action, and such other and further relief as this Court deems necessary just and proper. Dated: New York, New York August 6, 2021 Respectfully submitted, HERMAN LAW 434 W. 33rd St., Penthouse New York, NY 10001 Tel: 212-390-0100 By: ____________________ Jeff Herman jherman@hermanlaw.com 13 13 of 13