Summary
recognizing "wrongful adoption" cause of action grounded in fraud and fraudulent misrepresentation
Summary of this case from Mckinney v. StateOpinion
January 10, 1995
Appeal from the Supreme Court, New York County (Beverly Cohen, J.).
Plaintiffs, as adoptive parents, commenced the underlying action against the defendant adoption agency seeking to recover monetary damages plaintiffs sustained as a result of the alleged fraud committed by the agency during the course of plaintiffs' adoption of their now deceased son on May 13, 1966, when the agency allegedly fraudulently misrepresented and refused to disclose to the plaintiffs a significant and severe psychiatric, psychological and medical history of the adopted son's natural mother, and withheld other information, which, if known to the plaintiffs, as the adoptive parents, would have resulted in the plaintiffs not adopting the child.
The IAS Court, prior to compelling disclosure, properly determined that the plaintiffs' complaint, grounded in claims of fraud and misrepresentation, alleged a cognizable cause of action for "wrongful adoption" ( 159 Misc.2d 314, 315) a heretofore new tort action in New York, which has been recognized in other jurisdictions (Burr v. Board of County Commrs., 23 Ohio St.3d 69, 491 N.E.2d 1101; Michael J. v. Los Angeles County Dept. of Adoptions, 201 Cal.App.3d 859, 247 Cal.Rptr. 504), since New York's vital social interest in the welfare of its children (Barry E. v. Ingraham, 43 N.Y.2d 87, 94), and in the adoption process, which advances that vital interest (Matter of George L. v. Commissioner of Fulton County Dept. of Social Servs., 194 A.D.2d 955), warrants an extension of common law fraud principles to the adoption setting (Roe v. Catholic Charities, 225 Ill. App.3d 519, 588 N.E.2d 354).
Nor did the IAS Court improperly exercise its discretion in overseeing discovery and directing in camera disclosure, so as to safeguard the natural parents (Matter of Louis F., 42 N.Y.2d 260, 265), upon a showing of good cause (Matter of Linda F.M. [Department of Health], 52 N.Y.2d 236, appeal dismissed sub nom. Mason v. Abrams, 454 U.S. 806). Social Services Law § 373-a and Domestic Relations Law § 114, which statutes have been given retroactive effect (Matter of Malowsky v. D'Elia, 160 A.D.2d 798), require disclosure of the information that plaintiffs contend was wrongfully withheld from them by the agency prior to the adoption which includes "non-identifying" medical and psychological background information pertaining to the natural parents, data regarding the agency's employees who participated in the plaintiffs' adoption, and confidential background data concerning the adopted child's natural parents (Golan v. Wise Servs., 69 N.Y.2d 343, 346; Matter of Hayden, 106 Misc.2d 849).
Plaintiffs herein demonstrated both their adopted son's and their vital need for disclosure of the information requested in plaintiffs' interrogatories and motion to compel disclosure, since the affirmation of a family physician submitted in support of the motion, indicated that their adopted son, who had a long history of psychological disorders, had been diagnosed, treated and hospitalized at numerous facilities for mental illnesses, including schizophrenia (Matter of Linda F.M. [Department of Health], supra, at 240).
The IAS Court also properly determined that the information sought by plaintiffs, relating to the defendant agency's adoption procedures and with respect to those employees who worked in connection with the present adoption, was not barred as privileged information by CPLR 4508 (a), which governs disclosure of confidential communications by certified social workers, since the privilege, the purpose of which is to encourage uninhibited disclosure by individuals for the purpose of securing necessary assistance, was not created to conceal willful misrepresentations by adoption agencies in their dealings with potential adoptive parents (see, Matter of Grand Jury Proceedings [Doe], 56 N.Y.2d 348, 352).
Concur — Kupferman, J.P., Ross, Rubin and Williams, JJ.