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Case Name S.W. v. City of New York CW-NY-0008
Docket / Court 09-cv-1777 ( E.D.N.Y. )
State/Territory New York
Case Type(s) Child Welfare
Attorney Organization Children's Rights, Inc.
Case Summary
On April 29, 2009, ten former foster children with special needs sued the City of New York and four private foster care agencies in the US District Court for the Eastern District of New York. The plaintiffs asserted a § 1983 claim for violation of their substantive due process rights and asserted ... read more >
On April 29, 2009, ten former foster children with special needs sued the City of New York and four private foster care agencies in the US District Court for the Eastern District of New York. The plaintiffs asserted a § 1983 claim for violation of their substantive due process rights and asserted a state law claim for negligence for allowing a foster parent family to fraudulently obtain foster care custody of children, adopt them, and subject them to abuse, neglect, torture, imprisonment, and deprivation of educational opportunities and medical care over course of more than 15 years.

From 1986 to 1994, the plaintiffs were classified as special needs children by the agency, removed from their homes, and placed in the custody of the City. The agency defendants were private child care agencies that contracted with the City to provide foster care placement and other services for children in its custody. During this time, the private individual defendant, using at least four false identities, obtained foster care custody of plaintiffs and numerous other special needs children from the City and the agency defendants. She subsequently adopted each plaintiff. The defendant launched this scheme in order to collect subsidies provided by the City for the fostering and adoption of special needs children, which she used for her own purposes while neglecting to care for the plaintiffs. In 1998, the defendant transported the plaintiffs from New York to Florida, where she relocated them in various houses over the following years.

With the exception of one child who left the house in which they lived sometime between May 2004 and May 2005, the plaintiffs remained with the defendant until July 2007, when Florida authorities searched the house in which they were then residing, discovered and removed the plaintiffs, and arrested the defendant. From the point when the defendant obtained custody of the plaintiffs until they were released, the defendant abused, tortured, neglected, and held the plaintiffs in captivity, first in New York and then in Florida.

On December 19, 2012, the Court approved a settlement ("2012 Settlement") between the plaintiffs and the City in which the City agreed to pay the plaintiffs $9.7 million. Per the settlement, the City denied all allegation of wrongful conduct or liability and the plaintiffs agreed to fully and forever release any causes of action on claims arising from the action. Payment of the settlement was arranged to be made monthly for life, guaranteed for 30 years, beginning on March 1, 2013, with the last guaranteed payment on February 1, 2043.

Following extensive litigation, the remaining defendants moved for summary judgment. On January 17, 2014, the Court dismissed the claims against the foster agencies brought by plaintiffs L.J. and J.G., but the Court denied the motion as to the claims of all other plaintiffs. 46 F. Supp. 3d 176 (2014).

On June 25, 2014, those eight plaintiffs and the private foster care agencies reached a settlement ("2014 Settlement") through mediation that awarded a total of $17.5 million to the plaintiffs. On September 19, 2014, the Court found that the June 2014 settlement was fair and was of the best interest of the plaintiffs. In particular, it approved allocating one-third of the settlement to attorneys' fees following New York custom. However, the Court referred the issue of costs to Magistrate Judge Go for a recommendation because the 2012 settlement called for reconsideration of costs in the event of another settlement. Plaintiffs subsequently reduced their cost request by 13.6%.

On February 6, 2016, Judge Go recommended allowing $1.6 million in total costs along with a formula to equalize the costs across plaintiffs. After considering plaintiffs' objections, Judge Go issued minor updates to the February 6 report. The Court adopted Judge Go's modified report on July 17, 2017.

Despite settlement of plaintiffs' original claims, litigation continued relating to defendants' cross-claims, including breach of contract, and third-party claims. On May 13, 2015, the City moved for a stay to avoid prejudice in National Union v. Roman Catholic Diocese of Brooklyn, a related state court suit involving defendants' insurance providers. The Court agreed to avoid actions that might affect the outcome of the state court suit but declined to stay the proceedings on February 7, 2017.

Finally, the Court dismissed the remaining cross-claims and third-party claims on July 21, 2017. The case is now closed.

In addition, the court in National Union found that payments by defendants' insurers must be allocated pro rata over the period of abuse subject to "self-insured retention" payments. 2017 NY Slip Op 30368(U).

Soojin Cha - 04/10/2016
Timothy Leake - 11/22/2018

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Issues and Causes of Action
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Constitutional Clause
Due Process
Disability (inc. reasonable accommodations)
Foster care (benefits, training)
Mental Disability
Intellectual/developmental disability, unspecified
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Defendant(s) City of New York
Heartshare Human Services
SCO Family of Services
St. Joseph Services for Children, Inc.
Plaintiff Description Nine former foster children with special needs.
Indexed Lawyer Organizations Children's Rights, Inc.
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Damages
Source of Relief Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Order Duration 2012 - 2043
Filing Year 2009
Case Closing Year 2017
Case Ongoing No
Additional Resources
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  Legal Accountability in the Service-Based Welfare State: Lessons from Child Welfare Reform
Date: Summer 2009
By: Kathleen G. Noonan, Charles F. Sabel, William H. Simon (Center for High Impact Philanthropy , Columbia Law School and Stanford Law School Faculty)
Citation: 34 Law & Soc. Inquiry 523 (Summer 2009)
[ Detail ] [ External Link ]

1:09-cv-1777 (E.D.N.Y.)
CW-NY-0008-9000.pdf | Detail
Date: 08/04/2017
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint [ECF# 1]
CW-NY-0008-0001.pdf | Detail
Date: 04/29/2009
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 124] (E.D.N.Y.)
CW-NY-0008-0002.pdf | Detail
Date: 06/04/2010
Source: PACER [Public Access to Court Electronic Records]
Stipulation and Order of Discontinuance [ECF# 208] (E.D.N.Y.)
CW-NY-0008-0003.pdf | Detail
Date: 10/08/2010
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 238] (E.D.N.Y.)
CW-NY-0008-0004.pdf | Detail
Date: 11/17/2010
Source: PACER [Public Access to Court Electronic Records]
Order (2010 WL 4791712) (E.D.N.Y.)
CW-NY-0008-0005.pdf | WESTLAW | Detail
Date: 11/18/2010
Source: Bloomberg Law
Order (2010 WL 5185141) (E.D.N.Y.)
CW-NY-0008-0006.pdf | WESTLAW | Detail
Date: 12/15/2010
Source: Bloomberg Law
Order (2011 WL 2224976) (E.D.N.Y.)
CW-NY-0008-0007.pdf | WESTLAW | Detail
Date: 06/03/2011
Source: Bloomberg Law
Opinion [ECF# 311] (2011 WL 3038776) (E.D.N.Y.)
CW-NY-0008-0018.pdf | WESTLAW | Detail
Date: 07/25/2011
Source: PACER [Public Access to Court Electronic Records]
Memorandum & Order (2012 WL 1100906) (E.D.N.Y.)
CW-NY-0008-0015.pdf | WESTLAW | Detail
Date: 04/02/2012
Source: Westlaw
Settlement Release and Indemnity Agreement [ECF# 382-6]
CW-NY-0008-0019.pdf | Detail
Date: 12/06/2012
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order [ECF# 385] (2012 WL 6625879) (E.D.N.Y.)
CW-NY-0008-0008.pdf | WESTLAW | Detail
Date: 12/18/2012
Source: PACER [Public Access to Court Electronic Records]
Minute Entry and Order [for proceedings held before Magistrate Judge] [ECF# 406] (E.D.N.Y.)
CW-NY-0008-0009.pdf | Detail
Date: 02/12/2013
Source: PACER [Public Access to Court Electronic Records]
Minute entry and order [for proceedings held before Magistrate Judge] [ECF# 453] (E.D.N.Y.)
CW-NY-0008-0010.pdf | Detail
Date: 08/08/2013
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order (46 F.Supp.3d 176) (E.D.N.Y.)
CW-NY-0008-0014.pdf | WESTLAW| LEXIS | Detail
Date: 01/28/2014
Source: Google Scholar
Letter Requesting Briefing Schedule For Proposed Petition For Interlocutory Appeal [ECF# 476]
CW-NY-0008-0011.pdf | Detail
Date: 02/05/2014
Source: PACER [Public Access to Court Electronic Records]
Plaintiffs' Motion to Approve Settlement and for Disbursement of Costs Held in Escrow [ECF# 490]
CW-NY-0008-0020.pdf | Detail
Date: 08/25/2014
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order [re 490 Motion for Settlement] [ECF# 493] (E.D.N.Y.)
CW-NY-0008-0012.pdf | Detail
Date: 09/19/2014
Source: PACER [Public Access to Court Electronic Records]
Plaintiff's Amended Motion to Approve Costs [ECF# 496]
CW-NY-0008-0016.pdf | Detail
Date: 10/02/2014
Source: PACER [Public Access to Court Electronic Records]
Order [re 496 Amended Motion to Amend/Correct/Supplement to Approve Costs] [ECF# 514] (E.D.N.Y.)
CW-NY-0008-0013.pdf | Detail
Date: 07/06/2015
Source: PACER [Public Access to Court Electronic Records]
Letter on Motion to Stay Federal Court Action in Deference to the State Court Action (Re: National Union Fire Insurance co. v. The Roman Catholic Diocese of Brooklyn, the City of New York, et al., Supreme Court of New York). [ECF# 515]
CW-NY-0008-0017.pdf | Detail
Date: 02/18/2016
Source: PACER [Public Access to Court Electronic Records]
Report and Recommendation [ECF# 538]
CW-NY-0008-0021.pdf | Detail
Date: 02/06/2017
Source: PACER [Public Access to Court Electronic Records]
Decision/Order (2017 WL 748834)
CW-NY-0008-0022.pdf | WESTLAW | Detail
Date: 02/27/2017
Source: Westlaw
Judges Go, Marilyn D. (E.D.N.Y.) [Magistrate]
CW-NY-0008-0002 | CW-NY-0008-0004 | CW-NY-0008-0005 | CW-NY-0008-0006 | CW-NY-0008-0007 | CW-NY-0008-0009 | CW-NY-0008-0010 | CW-NY-0008-0013 | CW-NY-0008-0018 | CW-NY-0008-0021
Vitaliano, Eric Nicholas (E.D.N.Y.)
CW-NY-0008-0003 | CW-NY-0008-0008 | CW-NY-0008-0012 | CW-NY-0008-0014 | CW-NY-0008-0015 | CW-NY-0008-9000
Plaintiff's Lawyers Babbitt, Theodore (Florida)
CW-NY-0008-0001 | CW-NY-0008-0016 | CW-NY-0008-0019 | CW-NY-0008-0020 | CW-NY-0008-9000
Cohen, Melissa A. (New York)
CW-NY-0008-0020 | CW-NY-0008-9000
Gaier, Matthew (New York)
CW-NY-0008-0001 | CW-NY-0008-9000
Kapell, William (New York)
CW-NY-0008-0020 | CW-NY-0008-9000
Lambiase, Susan (New York)
Le Clainche, Stephan A. (Florida)
Lowry, Marcia Robinson (New York)
CW-NY-0008-0020 | CW-NY-0008-9000
Merson, Jordan K. (New York)
CW-NY-0008-0001 | CW-NY-0008-9000
Moore, Thomas A. (New York)
CW-NY-0008-0001 | CW-NY-0008-9000
Nothenberg, Shirim (New York)
Romanelli, Ami (Florida)
Talenfeld, Howard M. (Florida)
CW-NY-0008-0001 | CW-NY-0008-0020 | CW-NY-0008-9000
Walsh, John (Florida)
CW-NY-0008-0001 | CW-NY-0008-0020 | CW-NY-0008-9000
Defendant's Lawyers Ahmuty, Steven J. Jr. (New York)
Bienstock, Craig Garrett (New York)
Boccio, Robert (New York)
Brennan, Kevin J. (New York)
Capowski, Timothy Robert (New York)
Catalano, Thomas A. (New York)
Citrin, Marc J. (New York)
Cohen, Judd (New York)
Covitt, Adam S. (New York)
Delmond, Robert Scott (New York)
CW-NY-0008-0003 | CW-NY-0008-9000
Eniclerico, Richard (New York)
Fihma, Allison Naomi (New York)
Gallagher, Margo O'Donnell (New York)
Gonzalez, Juan C. (New York)
Hackworth, Thaddeus Jeremiah (New York)
Jack, Cheryl (Washington)
Kelly, Matthew James (New York)
Kutner, Charles E. (New York)
CW-NY-0008-0003 | CW-NY-0008-9000
Morales, Ralph Vincent (New York)
Nagassar/Asman, Ishmattie (New York)
Ortiz, Robert (New York)
Paterniti, John D. (New York)
Rosof, Jeremy S. (New York)
CW-NY-0008-0011 | CW-NY-0008-9000
Rubin, Steven I. (New York)
Schaerf, Carl Judah (New York)
CW-NY-0008-0003 | CW-NY-0008-9000
Smith-Valentine, Sonya A. (Maryland)
Spratt, William G. (New York)
Strikowsky, Bruce Michael (New York)
CW-NY-0008-0017 | CW-NY-0008-0019 | CW-NY-0008-9000
Tracey, Deirdre E (New York)
Other Lawyers Nandan, Kathleen Anne (New York)

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