Suit Proceeds Over Placement of Special Needs Children

, New York Law Journal

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Three children in silhouette

The judge noted that a federal §1983 claim accrues when a plaintiff "knows or has reason to know of the allegedly impermissible conduct and the resulting harm"—a concept of accrual dubbed the "discovery rule."

Here, Vitaliano said the "pertinent question is when plaintiffs knew, or should have known, that the agency defendants had committed the conduct that plaintiffs allege led to their placement with Leekin."

The children argued—and the agencies did not challenge— that they couldn't have known they were "wrongfully placed" in foster care until Leekin was arrested in July 2007.

"Thus it is not necessary to determine when, exactly, accrual of each plaintiff's §1983 claim occurred; it is sufficient to say that it could not have occurred while plaintiffs were in Leekin's custody," Vitaliano said.

The trio's negligence claims were a "different matter," the judge said. They argued the "discovery rule" for the civil rights claim also applied to the negligence claims, but Vitaliano said that was not the case for torts under New York law.

They also said equitable tolling should apply—a theory used in federal court when, according case law, "as a matter of fairness ... a plaintiff has been prevented in some extraordinary way from exercising his rights."

Vitaliano said though the case's facts "might well merit such extraordinary intervention," the negligence claim was "governed by state law, and New York law does not recognize the federal rule of equitable tolling."

New York does recognize the doctrine of equitable estoppel, but the agencies were not alleged "to have deceived or misled plaintiffs regarding timely filing of their claims," so they could not invoke equitable estoppel either.

"We think this is an excellent ruling. The judge recognized that the plaintiffs are entitled to their day in court" said William Kapell of Children's Rights, who is a lead counsel at the organization.

Marcia Lowry and Melissa Cohen of Children's Rights also appeared for the plaintiffs.

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