AFFIDAVIT OR AFFIRMATION IN SUPPORT OF PROPOSED OSC/EXPARTE APP April 20, 2021

On April 20, 2021 a Motion-Secondary was filed involving a dispute between Jane Doe - 19240, and County Of Dutchess, The Children'S Home Of Poughkeepsie, for Torts - Child Victims Act in the District Court of Dutchess County.

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FILED: DUTCHESS COUNTY CLERK 04/20/2021 08:20 AM INDEX NO. 2021-51440
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/20/2021

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
Index #
___.._______ __--- ---------------------------- ----X
JANE DOE -
19240,
Plaintiff, EX-PARTE
-against-
AFFRIMATION IN
SUPPORT FOR AN
THE CHILDREN'S HOME OF POUGHKEEPSIE ORDER TO
and COUNTY OF DUTCHESS, SHOW CAUSE FOR
LEAVE TO
Defendants·
FILE A CIVIL ACTION
--------- ---------------------------------- X UNDER
THE CHILD VICTIMS
ACT USING
A PSEUDONYM

ROBERT J. GREENSTEIN, ESQ., an attorñcy admitted to practice before the

Courts of this State affirms the truth of the following under the penalty of perjury:

1. I am a member of the Law firm of GREENSTEIN & MILBAUER, LLP,

attorneys for the Petitioner herein and as such I am fully familiar with the facts

and circumstances of this action based upon a review of the case file and the

investigation materials contained therein.

2. This matter involves the sexual abuse of a minor. Petitioner brings their claim

under the Child Victims Act ("CVA"), CPLR 214-g, and 22 NYCRR §202.72.

3. Pursuant to C.P.L.R. § 2217(b), no prior application has been made to this or any

other Court for the relief requested herein.

Defendants'
4. The negligence caused the Petitioner to sustain serious and

permañeñt personal injuries as a result of being sexually abused as a child.

5. Petitioner's Complaint attached hereto as EXHIBIT A describes in detail the

events surrounding Petitioner's claims.

6. In view of the highly sensitive nature of the allegations, the fact that the matter

involves child sexual abuse, and the fear of being subjected to cmbairassment,

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NYSCEF DOC. NO. 3 stigma, and humiliation, the name of Petitioner has not been RECEIVED
disclosed to the NYSCEF: 04/20/2021

media or otherwise made public.

7. Additionally, Petitioner has expressed their desire to keep their identity ecaceakd

from the public to protect their privacy and to insulate them from social

stigmatization.

8. Petitioner in this matter is alleging that they were sexually abused as a child by an

adult. The sexual abuse of a child by an adult is a highly sensitive matter.

Survivors do not only suffer embarrassment and shame as a result of the abuse but

have historically been subjected to social stigma. These are the very same factors

that have caused survivors of childhood sexual abuse not to come forward with

their allegations and necessitated the passage of the Child Victims Act.

9. Although judicial proceedings are open to the public and the public has an interest

in the disclosure of court records, the "public's right to inspect and copy judicial

discretion."
records is not absolute nor unrestricted and is a matter of judicial Doe

v. Bellmore-Merrick Cent. High Sch. Dist., 770 N.Y.S.2d 847, 848-49 (Sup. Ct.

Nassau Cty. 2003) (internal citations omitted).

10. In deciding whether to allow a plaintiff to proceed anonymously, "the ultimate

inquiry must be whether the plaintiff has a substantial privacy right which

outweighs the customary and constiononally-embedded presumption of openness

proceedings."
in judicial Doe. v. N.Y.U., 786 N.Y.S.2d. 892, 903 (Sup. Ct. N.Y.

Cty. 2004).

11. Civil Rights Law § 50-b gives New York Courts the power to keep the identities

of victims of sex crimes confidential. See Bellmore-Merrick Cent. High Sch.

Dist., 770 N.Y.S.2d at 850; see also N.Y. Civ. Rights Law § 50-b(1) ("The

identity of any victim ofa sex offense...shall be confidential.").

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12. Beyond the clear directive provided in N.Y. Civ. Rights Law §
RECEIVED
50-b, another NYSCEF: 04/20/2021

factor to be considered as to whether a plaintiff's privacy right outweighs the

presumption of open proceedings is whether the plaintiff's situation involves

matters" stigmatization."
"highly sensitive including "social N.Y.U., 786

N.Y.S.2d at 903. These factors are all present here.

13. Other factors, also present here, include "whether identification poses a risk of

embarrassment"
mental or physical harm, harassment, ridicule, or personal and

intimacy."
"whether the case involves information of the utmost Doe v. Szul

Jewelry, 2008 NYLJ LEXIS 169, *13-14 (Sup. Ct. N.Y. Cty. 2008).

14. Finally, a grant of anonymity impacts the public's right to open proceedings far

less than the closing of a courtroom or the sealing of records. Id. at *15; see also

Anonymous v. Anonymous, 744 N.Y.S.2d 659, 660 (Sup. Ct. N.Y. Cty. 2002)

'Anonymous'
("Granting defendant the right to proceed as does not·prevent the

public from accessing court records.").

15. Here, the sensitive nature of Petitioner's injuries presents a proper case where the

Court may invoke itsinherent power to preserve anonymity in order to protect

Petitioner from the further harm that would likely result from unwanted

harassment and social stigmatization.

16. Aside from the statutory mandate to keep Petitioner's identities anonymous, New

York common law has recognized that the use of an anonymous caption in cases

like these are a proper exercise of judicial discretion. See Szul Jewelry, 2008

NYLJ LEXIS at *15-16 (plaintiff permitted to proceed anonymously in a case

involving a sexually explicit video recording); N.Y.U., 786 N.Y.S.2d at 904

(plaintiff permitted to proceed by pseudonym in civil sexual assault case);

Bellmore-Merrick Cent. High Sch. Dist., 770 N.Y.S.2d at 851 (plaintiff permitted

to proceed anonymously in civil sexual abuse case).

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NYSCEF DOC. NO. 17.
3 Petitioner to proceed would pose no RECEIVED
prejudice to
NYSCEF: 04/20/2021
Allowing anonymously

Defendants, as the Petitioner's identity can be confidentially disclosed to

Defendants, as it isnot the Petitioner's intent to hide their identity from

Defendants. Thus, Defêñdañts are able to investigate and defend against

Petitioner's claims through the standard means of discovery. Under such

circumstances, there is no prejudice to Defendents. See E.K. v. New York Hosp.

Cornell Med. Ctr., 600 N.Y.S.2d 993, 994 (Sup. Ct. Orange Cty. 1992) (plaintiff

allowed to proceed using her initials because her identity was previously

disclosed to defendants).

18. In addition, allowing the Petitioner to proceed under a pseudonym will not

prejudice the public's interest in open judicial proceedings. Petitioner is not

requesting that court filings be sealed, nor that any measure be affected that would

conceal from the public all of the facts underlying this lawsuit, other than the

Petitioner's identity as a survivor of childhood sexual abuse. As such, Petitioner's

request to proceed anonymously is the appropriate balance of preserving

Petitioner's privacy interests while allowing the public to know the nature of the

allegations.

WHEREFORE, based upon the foregoing, itis respectfully requested that this Court

issue an Order for the following relief:

Petitioner's use of the pseudonym JANE DOE - 19240 and the
(i) Deeining

caption JANE DOE - 19240 v. THE CHILDREN'S HOME OF POUGHKEEPSIE

and COUNTY OF DUTCHESS to be proper;

(ii)Permitting Petitioner to proceed in this action under the pseudonym JANE

DOE - 19240 and with the caption JANE DOE - 19240 v. THE CHILDREN'S

HOME OF POUGHKEEPSIE and COUNTY OF DUTCHESS;

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NYSCEF DOC. NO. 3 (iii)Directing that the parties, their attorneys, and agents RECEIVED
refrain from NYSCEF: 04/20/2021

publishing Petitioner's true identity;

(iv) Directing that all papers filed in this action, and alljudgments, orders,

decisions, notices to the Court and any other document relating to the action

refer to Petitioner the pseudonym JANE DOE - 19240 and bear the
by

caption "JANE DOE - 19240 v. THE CHILDREN'S HOME OF

POUGHKEEPSIE and COUNTY OF DUTCHESS and directing the County

Clerk to enter and record all papers in the action under the titleJANE DOE -

19240 v. THE CHILDREN'S HOME OF POUGHKEEPSIE and COUNTY

OF DUTCHESS and

(v) Granting such other and further relief as may be just and proper.

Dated: New York, New York
April 19, 2021

Robert J. Greenstein

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"A"
EXHIBIT

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SUPREME COURT OF THE STATE OF NEW YORK Index No.:
COUNTY OF DUTCHESS
----------------- ------------------ ----------------X SUMMONS
JANE DOE -
19240,
Plaintiff, Plaintiff designates
-against- DUTCHESS as the place of
trial.
THE CHILDREN'S HOME OF POUGHKEEPSIE
and COUNTY OF DUTCHESS, The basis of venue is:
Place of Business of
Defendants. Defendant
---------------- -----------------------------------X 10 Children's Way
Poughkeepsie, NY

To the above-named Defendant:

You are hereby summoned to answer the complent in this action, and to serve a copy of
your answer, or, ifthe complaint is not served with this summons, to serve a notice of appearance
on the Plaintiff s attorneys within twenty days after the service of this summons, exclusive of the
of where service is made upon - trgersã within the within
day service, by delivery ally state,or,
30 days after completion of service where service i ade in any o er maimer. In case of your
failure to appear or answer, judgment will be take against you by default for the relief demanded

in the complaint.

Dated: NEW YORK, NY
Aril 19, 2021

Ro e J. G'¾ stein, Esq.
E TEIN ILBA13ER, LLP

Attorney or Plaintiff
JANE DO - 19240
1825 Park venue

9th Floor

New York, N 10035

(212) 685-8500

Our File No. 19240

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TO:
THE CHILDREN'S HOME OF POUGHKEEPSIE
10 Children's Way
Poughkeepsie, NY

COUNTY OF DUTCHESS
22 Market Street

Poughkeepsie, NY 12601

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
------------~ ----- '--------------------------X
Index No.:
JANE DOE -
19240,

Plaintiff, yggypygp
-against-
COMPLAINT

THE CHILDREN'S HOME OF POUGHKEEPSIE
and COUNTY OF DUTCHESS,

Defendants,
----------- ----------------------------------------------X

Plaintiff
by her attorneys, GREENSTEIN & MILBAUER, LLP complaining of the

Defendants, respectfully alleges, upon information and belief:

From approximately 1978-1979, Plaintiff, then a minor, was sexually abused on multiple

occasions while a resident at The Children's Home of Poughkeepsie, a facility where the Plaintiff was

placed by the Defeñdañt, County of Dutchess. Throughout the period in which the abuse occurred,

Defendants were generally negligent, in that the minor Plaintiff was negligently placed and retained

at The Children's Home of Poughkeepsie without the proper investigation, vetting, supervision and/or

oversight. Defendant Children's Home of Poughkeepsie negligently employed, supervised, and

retained employees, agents and/or representatives who negligently allowed minor residents to

sexually abuse other minor residents. This lawsuit arises out of Plaintiff's significant damages from

that sexual abuse, described below. Plaintiff, by and through Plaintiff s attorneys, states and alleges

as follows:

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PARTIES

A. Plaintiff

1. At all times material to this Complaint, Plaintiff was a resident of The Children's Home of

Poughkeepsie.

2. At all times material, Plaintiff resided in the State of New York.

B. Defendants

3. Whenever reference is made to any Defendant entity, such reference includes that entity, its

parent companies, subsidiaries, affiliates, predecessors, and successors. In addition, whenever

reference is made to any act, deed, or transaction of any entity, the allegation means that the entity

engaged in the act, deed, or transaction by or through itsofficers, directors, agents, employees, or

regeserdatives while they were actively engaged in the management, direction, control, or transaction

of the entity's business or affairs.

4. The Children's Home of Poughkeepsie is a private, non-profit residential treatment facility

and school for children who have suffered abuse, neglect, and maltreatment.

5. At all times material, The Children's Home of Poughkeepsie was and continues to be an

organization and/or entity which includes, but is not limited to, civil corporations, decision making

eñtities, officials, and employees, authorized to conduct business, and conducting business in the

State of New York with itsprincipal place of business at Poughkeepsie, New York.

6. The Children's Home of Poughkeepsie is a domestic not-for -profit corporation established in

or about 1847.

7. The Children's Home of Poughkeepsie has several programs for at risk youth, including, but

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not limited to,schools and other edüéational programs, residential treatment, and psychological

treatment, The Children's Home of Poughkeepsie, through itsofficials, has complete control over

those activities and programs involving children. The Children's Home of Poughkeepsie has the

power and authority to appoint, train, supervise, monitor, remove, and terminate each and every

person working with children within The Children's Home of Poughkeepsie.

8. At all times herein mentioned, Defendant County of Dutchess (hereinafter referred to as

"County") was and continues to be a governmental entity that was created and authorized under the

laws of the State of New York, with headquarters located at 22 Market Street Poughkeepsie, NY

12601.

9. At all times herein mentioned, the County maintained and continues to maintain multiple

departments, including the Department of Community and Family Services (hereafter "DCFS").

DCFS is located at 60 Market St., Poughkeepsie, NY 12601.

10. At all times herein mentioned, DCFS has been wholly operated, inanaged, maiñuined, and

controlled by Defendant County.

11. At all times herein mentioned, Defendant County DCFS has provided child welfare, including

foster care services, nutritional services, juvenile justice, and educational services to Dutchess

County's children and families.

12. At all times herein mentioned, Defendant County DCFS, subject to relevant laws and

regulations did operate, alanãge, and maintained the authority and assumed the responsibility to

and oversee the welfare of minors for various reasons were adjudged to require non-
supervise, who,

familial domestic supervision and maintenance, including residential foster care and/or residential

treatment services.

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JURISDICTION

Defendant'
13. This Court has jurisdiction pursuant to C.P.L.R. §301 as principal places of

business are in New York and because the unlawful conduct complained of herein occni1ed in New

York.

14. Venue is proper pursuant to C.P.L.R. §503 in that Dutchess County is the principal place of

business of Defendant and itsdepartment DCFS. In of the events rise
County addition, many giving

to this action occurred in Dutchess County.

FACTUAL ALLEGATIONS

A. Background

15. Plaintiff resided at CHP from the time she was approximately 8-9 years old, from 1978-1979.

16. During Plaintiff's time at CHP, she was sexually assaulted by a much older resident who

resided in the same room and cabin with Plaintiff

17. The sexual abuse began with Mssing then progressed to fondling and eventually led to a

continual course of oral sex and eventually vaginal sexual contact.

18. CHP was aware or should have been aware of the serious problem of child sexual abuse

within itsresidential treatment facility and its programs.

19. At no time did CHP discipline, transfer or otherwise remove the older resident from Plaintiff's

room or cabin or report her to the proper goveramental authorities.

20. At no time were any changes made in discipline, programming and/or supervision or

otherwise to protect Plaintiff from further abuse.

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21. CHP officials used their authority and/or power and influence to discourage and/or prevent

victims and their families from disclosing allegations of sexual abuse.

22. Plaintiff's relationship as a vulnerable child and resident at CHP, was one in which Plaintiff

was subject to the ongoing influence of Defendant CHP and Plaintiff's abusers.

B. Specific Allegations

23. Plaintiff was a severely neglected child with profound emotional problems who placed at

CHP.

24. Defendant CHP was in an in loco parentis relationship with Plaintiff during the duration of

Plaintiff's residency at CHP.

25. Plaintiff, as a minor and vulñërable child, was depcñdent on Defendants County and DCFS,

their employees, agents, representatives and/or administrators to place her in a proper, safe and secure

foster facility and/or residential treatment center. Plaintiff, as a minor and vulnerable child, was fully

depeñdent on Defendants County, DCFS and CHP to meet all of her basic needs. Defendants County,

DCFS and CHP had custody of Plaintiff and accepted the entrustment of Plaintiff and, therefore, had

responsibility for Plaintiff's welfare and authority over Plaintiff.

26. Plaintiff was placed in a position where the youngest and smallest residents were preyed upon

and sexually assaulted and abused older and more advanced residents of CHP.

AS AND FOR A FIRST CAUSE OF ACTION: NEGLIGENCE AGAINST
DEFENDANT COUNTY

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27. Plaintiff repeats and realleges each and every allegation set forth above with the same force

and effect as though set forth herein at length.

28. At all times herein mentioned, Defendant County and itsdepartment, DCFS, contracted with

various residential treatnient facilities, including CHP, for children not able to safely remain at home.

29. At all times herein mentioned, Defendant County and DCFS were responsible for carrying out

fundamental duties when placing children in residential foster care and residential treatment facilities

by investigating the placement facility pre-placenient, including but not limited to the background

and number of staff and complaints of child abuse and maltreatment.

30. At all times herein mentioned, Defendant County and DCFS were required to provide

reasonable supervision of the children they placed in residential foster care and residential treatment

facilities.

31. From approximately 1978-1979, Plaintiff was placed at CHP by Defendant County and

DCFS.

32. By accepting Plaintiff for placement, Defendant County and DCFS entered into a fiduciary

relationship with Plaintiff which relationship was implicated by placement at CHP.

33. As a result of Plaintiff's minority, and by Defendant County and DCFS's undertaking to

provide for the welfare of vulnerable minor children such as the Plaintiff, Defendant County and

DCFS, held a position of power and control over Plaintiff.

34. Defendant County and DCFS, by holding themselves out as being able to provide a safe

environment for children, solicited and/or accepted this position of power and control. This power

and control prevented the then minor Plaintiff from effectively protecting herself.

35. As a result of the foregoing Defendant County and DCFS bad a special relationship with and

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were responsible for the welfare of Plaintiff.

36. In light of their superior knowledge about the risk of sexual abuse in CHP and/or residential

foster homes and residential treatment programs, generally, and/or the risks that itsresidential foster

homes and/or residential treatment programs posed to minor children, Defendant County and DCFS

owed Plaintiff a duty of reasonable care.

37. Defendant County and DCFS owed Plaintiff a duty of reasonable care because they solicited .

and encouraged youth and parêñts to place minor children in residential foster care and/or residential

treatment programs with which they contracted, including CHP.

38. At alltimes herein mentioned, Defendant County and DCFS undertook the counseling and

guidance of minor children, including Plaintiff; promoted their residential foster home and/or

resideñtial treatment program, including CHP, as being safe for children; held out their agents at CHP

as safe to work with children; and/or encouraged their agents at CHP to spend time with, counsel, and

interact with children in their residential foster care and/residential treatment school for neglected

and/or troubled and abused children and/or residential treatment programs.

39. Defendant County and DCFS held out CHP as a safe environment for children to work, study

and reside.

40. Defendant County and DCFS owed Plaintiff a duty to protect Plaintiff from harm because

Defendant County and DCFS's actions and inactions created a foreseeable risk of harm to Plaintiff.

41. Defendant County and DCFS's breaches of their duties included, but were not limited to:

negligent investigation, screening, vetting, assessment and monitoring of CHP; negligent

investigation, screening, vetting, assessment and monitoring of minors placed at CHP; negligent

placement and retention of minora, including Plaintiff at CHP; failure to acquire the amount and type

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of information accessary to protect children residing at CHP from sexual abuse; failure to monitor

CHP's compliãñce with the applicable standard of care for child safety; failure to have sufficient

policies and procedures to prevent child sexual abuse at CHP; failure to properly implement the

policies and procedures to prevent child sexual abuse at CHP; failure to take reasonable measures to

make sure that the policies and procedures to prevent child sexual abuse at CHP were effective and

working; failure to adequately inform families and children of the risks of child sexual abuse at CHP;

failure to investigate risks of child sexual abuse at CHP; failure to properly train the workers at CHP

and their programs; failure to determine whether employees at CHP were adequately trained to

identify signs of sexual abuse at CHP; failure to conduct periodic assessments, interviews and/or

investigations of the minors residing at CHP; failure in improperly relying on employees at CHP

and/or negligently relying on people who claimed that they could safely care for children at CHP.

42. Defendant County and DCFS also breached their duties to Plaintiff by failing to warn Plaintiff

and Plaintiff's family of the risk of child sexual abuse at CHP.

43. Defendant County and DCFS also failed to warn Plaintiff and Plaintiff's family about

knowledge that they had about child sexual abuse at CHP.

44. By placing children at CHP Defendant County and DCFS, through their employees, agents or

represcñtatives affirmatively represented to minor children and their families that this foster care

institution and/or residential treatment facility did not pose a threat to children.

45. Defendant County and DCFS induced Plaintiff to rely on these representations and the minor

children and their families did rely on them.

46. At a minimum, any reâsoñable and prudent governmental agency would have conducted a

thorough investigation of the prevalence and occurrence of child sexual abuse at CHP.

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47. At no point in time did any employee, agent, and/or representative of Defendant County and

DCFS attempt to investigate CHP and the child sexual abuse of Plaintiff.

48. Defendant County and DCFS failed in their legal duty to report known and/or suspected

sexual abuse of children to the proper governmental authorities.

49. In failing that duty, the predatory sexual abuse of Plaintiff by another older resident was

allowed to take place and permitted to continue at CHP.

50. Defendant County and DCFS failed to provide the necessary monitoring of minors they

placed at CHP, Plaintiff, and failed to recognize signs that P1aintiff and other
including warning

minor residents were being sexually abused at CHP.

51. Defendant County and DCFS provided an incomplete, inadequate, and unacceptable child

protective response at CHP,

52. Defendant County and DCFS failed to adequately document reports of sexual abuse at CHP

which would have led to investigations.

53. Defendant County and DCFS lack of thorough follow up reports of sexual abuse at CHP were

major contributing factors to the ongoing sexual abuse at the facility.

54. Defendant County and DCFS lack of thorough follow up reports of sexual abuse at CHP

proximately caused the ongoing sexual abuse at the facility.

55. Defendant County and DCFS systematic policy choices limited the amount of staffing,

resources, and available training that would have prevented widespread abuse in foster care

institutions and/or residential treatment facilities such as CHP.

56. These systematic policy choices embodied a quintessential deliberate indifference to the plight

and suffering of vulacrabic children placed in residential foster care and/or residential treatment

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facilities such as CHP.

57. Defendant County and DCFS knew and/or resonably should have known, and/or covered up,

the inappropriate and unlawful sexual activities of certain older residents,

Case Info

Judge

Maria G Rosa Track Judge’s New Case

Case No.

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Document Filed Date

April 20, 2021

Case Filing Date

April 20, 2021

County

Parties

COUNTY OF DUTCHESS Defendant
GASPARINI, LOUIS U Attorney for the Defendant
JANE DOE - 19240 Plaintiff
LOFTUS, CAROLYN ANN Attorney for the Defendant
MILBAUER, SETH Attorney for the Plaintiff
Pitcoff, Kenneth E Attorney for the Defendant
ROSEDALE, REBECCA JUNE Attorney for the Defendant
THE CHILDREN'S HOME OF POUGHKEEPSIE Defendant
SIDNEY ROSEN Attorney
LOUIS UCCELLO Attorneys for Defendants
ROBERT GREENSTEIN Attorneys for Plaintiffs
MARISSA PADOVANO Attorneys for Defendants
BARTOLOMEO PITTARI Attorney
PAUL OLIVERI Attorney

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Motion-Secondary: Jane Doe - 19240 v. The Children'S Home Of Poughkeepsie, County Of Dutchess

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