Ellis v. State of New York

Ellis v State of New York 2026 NY Slip Op 05596 October 1, 2026 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Anna Ellis et al., Claimants-Appellants, v The State of New York, Defendant-Respondent. Decided and Entered: October 01, 2026 Index No. 135761|Appeal No. 7103|Case No. 2025-02881| Before: Moulton, J.P., Kennedy, Friedman, Michael, Hagler, JJ. Goldberg Segalla, LLP, Buffalo (Adam S. Katz of counsel), for appellants. Letitia James, Attorney General, New York (Gillian Barna of counsel), for respondent. [*1] Order of the Court of Claims of the State of New York (Javier E. Vargas, J.), entered March 18, 2025, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. This wrongful death action arises from the death of claimants' infant child from injuries sustained at a nonparty private daycare. The parties agree that a heavy stroller fell on the child at the daycare, causing his death. Claimants assert that defendant owed them and their infant child a special duty relating to the operation, management, maintenance, inspection, supervision, control, and monitoring of the facility. Claimants further allege that defendant was aware of prior violations at the daycare that were subject of a pending license verification proceeding, but failed to communicate those licensing issues or violations to them, failed to ensure that information concerning such violations and potential license revocation were posted at the daycare, or failed to close the daycare while the license revocation proceeding was pending. The Court of Claims correctly granted summary judgment dismissing the claim because claimants failed to sustain their burden of showing that defendant owed a special duty to them or to the infant, as is necessary to hold the State of New York liable for negligence (see Ferreira v City of Binghamton, 38 NY3d 298, 309-310 [2022]; Applewhite v Accuhealth, Inc., 21 NY3d 420, 426 [2013]; Ellis v City of New York, 248 AD3d 436, 436 [1st Dept 2026]). Claimants did not demonstrate that defendant exercised positive direction and control over a known and dangerous condition, or that defendant took affirmative actions that placed the infant in harm's way (Ferreira, 38 NY3d at 310). Instead, claimants' theories of liability stem from defendant's inaction or omissions when performing its government oversight functions, rather than from any affirmative action by defendant. Claimants have not asserted that defendant actually told them that the daycare was safe, but instead assert that defendant made such a representation by not communicating the daycare's violations or licensing issues to them. Additionally, claimants' assertion that defendant should have done more to shut down the daycare while the license revocation proceedings were pending, does not constitute a sufficient basis for a finding of a special duty (see Smullen v City of New York, 28 NY2d 66, 71-72 [1971]; Ellis, 248 AD3dat 437; Sutton v City of New York, 119 AD3d 851, 852-853 [2d Dept 2014]). [*2] Further, in their depositions, claimants acknowledged that neither of them communicated with defendant before the incident. Thus, they could not prove either direct contact with defendant or justifiable reliance on an affirmative undertaking by defendant, each of which must be established under the rubric of voluntary assumption of duty (Ferreira, 38 NY3d at 312). Claimants also did not show that defendant made any promises or took any actions on their behalf beyond its duty to any other parent or child in need of daycare (id. at 313; McLean v City of New York, 12 NY3d 194, 201 [2009]; Ellis, 248 AD3d at 436-437). We have considered claimants' remaining contentions and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: October 1, 2026