Ross v. Louise Wise Services, Inc. (28 A.D.3d 272, 2006)

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered May 20, 2004, which denied defendant’s motion for summary judgment dismissing the complaint; granted the branch of defendant’s motion to dismiss the second and third causes of action as barred by the applicable statute of limitations; limited plaintiffs’ potential recovery of compensatory damages to the extraordinary out-of-pocket expenses of raising their adopted child to age 21; and denied defendant’s motion to dismiss plaintiffs’ claims for punitive damages, affirmed, without costs.

Nardelli and Sweeny, JJ., concur in a memorandum by Nardelli, J., as follows: In this action, it is alleged that defendant adoption agency concealed and misrepresented the subject infant’s bilateral family history of mental illness/schizophrenia at the time of adoption by plaintiffs, and continued to do so for decades thereafter, thereby hindering plaintiffs’ doctors from making an accurate diagnosis, while plaintiffs’ family unit gradually disintegrated. At issue in this appeal is whether the motion court properly dismissed plaintiffs’ second and third causes of action, sounding in negligence, breach of fiduciary duty and intentional infliction of emotional harm, and allowed plaintiffs’ claim for punitive damages to go forward.

This matter has at its core the adoption of nonparty Anthony Ross, by plaintiffs Arthur and Barbara Ross, through defendant adoption agency, Louise Wise Services, Inc. The complaint, filed in June 1999, seeks compensatory, emotional and punitive damages. The motion court declined to dismiss plaintiffs’ first cause of action for wrongful adoption and fraud, and that branch of the decision is not at issue on this appeal.

Background

Defendant’s adoption file indicates that plaintiffs first contacted the agency in 1960, seeking to adopt an infant, of either sex, “with a background as matchable [sic] as you deem important for the child’s well-being.” An interview was thereafter conducted, during the course of which the interviewer noted that plaintiffs “would be interested in hearing” everything that was known about the parents.

On December 5, 1960, the baby at issue, as yet unborn, was referred for adoption. The referral summary described the child’s biological mother as having had an unhappy childhood, which left many emotional scars, leaving her unable to care for a child. The referral also noted that the mother was unable to complete school because of various psychological factors, and that she affirmatively stated that her home situation was abnormal, and that perhaps she was not normal. The mother further opined that there was “so much sickness in her family,” and that her mother died of leukemia when she was four, and her father was plagued with illness, both physical and mental, including a period of IV2 years during which he was hospitalized for schizophrenia, believing people were trying to poison him. The birth mother herself, according to a contemporaneous report filed by a Louise Wise employee, was under the care of a psychiatrist, who described her as a “girl who was failing in her major adjustments to life . . . failed to maintain matriculation at two colleges; few friends; hostility to most people . . . feelings of hopelessness and isolation,” with a “guarded” prognosis.

The baby’s birth father, as set forth in the referral, had strong feelings regarding “pre-determination” and, prior to the completion of the adoption, was diagnosed as a paranoid schizophrenic, which diagnosis was documented in Louise Wise’s file. The file also included the summary notation that the child’s parents were “disturbed people.”

On March 28, 1961, plaintiffs were informed that a baby was available, that he had been born in a hospital, and that his physical condition was good. The birth mother was described as a bright person, and a high school graduate who later attended a school of design because she had “a talent for this.” The birth father was portrayed as a high school graduate who attended a university for a time and then a school of design, and was currently attending a fine arts school during the day and working at night to finance his courses. Plaintiffs, after seeing the baby and hearing of his background, indicated interest in adopting the child, and after defendant’s representative made several visits to the Ross home between April 1961 and February 1962, an order of adoption was issued in May 1962. Plaintiffs maintain that defendant and its staff made absolutely no suggestion of any mental illness in either of the birth parents, or their families, and that had they known of the infant’s true family history, they would have never agreed to the adoption.

The child, whom plaintiffs named Anthony, began exhibiting signs of abnormal emotional development and by age four, plaintiffs had consulted a social worker regarding Anthony’s abnormally impulsive and hyperactive behavior. The counseling, however, had little effect and by 1970, Anthony had little impulse control, was loud and abusive to guests, would strike Ms. Ross, throw things, use inappropriate language, and walk in his sleep, acting as if someone was trying to hurt him. Plaintiffs, as a result, contacted defendant’s executive director, Florence Kreech, who referred them to Barbara Miller, the head of defendant’s postadoption services.

Plaintiffs maintain that they requested any information available on Anthony’s background, to which Ms. Miller replied that plaintiffs were already in possession of all of Anthony’s medical background information. Ms. Miller testified at a deposition conducted in May 2001 that although it was not yet certain that Anthony was suffering from schizophrenia, “his behavior was aberrant enough to raise questions that that’s where he might be headed.” Ms. Miller, however, did not share this insight with plaintiffs, or information of Anthony’s family history of schizophrenia and mental illness, due to “agency policy.”

Plaintiffs were then referred to Dr. Anne-Marie Weil, a psychiatrist employed by defendant who, although aware of Anthony’s medical history, also neglected to advise plaintiffs of such, despite seeing Anthony on a number of occasions. Anthony’s condition, despite these visits, continued to deteriorate.

Plaintiffs, in 1973, engaged a psychiatrist, Dr. Stella Chess, to assist Anthony and, in conjunction therewith, Ms. Ross wrote to Ms. Miller requesting that all the information the agency had about Anthony’s background be sent to Dr. Chess. Ms. Ross, by this point in time, was in physical fear of Anthony, both for herself and the couple’s other adopted child, Susan, and that as a result, the couple’s marriage was deteriorating because of their inability to agree on how to cope with Anthony’s behavior. Once again, despite being aware of the foregoing familial stress and deteriorating behavior of Anthony, defendant, remarkably, provided no information regarding Anthony’s family history of mental illness and schizophrenia to Dr. Chess.

Ms. Ross, as Anthony’s behavior continued to regress, concluded that it was unsafe for her and Susan to remain in the same house with him and, as a result, they moved out. Plaintiffs were subsequently divorced in 1979 after 26 years of marriage.

Ms. Miller received a call from Ms. Ross in August 1981, at which time she learned that plaintiffs had divorced and that Anthony had remained with his father. Ms. Ross also informed Ms. Miller that Anthony continues to be “disturbed,” has very few friends, is withdrawn, relies on his father for menial jobs, and that Mr. Ross continues to be devoted to him. Armed with this information, Ms. Miller still withheld Anthony’s true medical history.

In June 1982, Anthony appeared at Dr. Weil’s office, without an appointment, asking about a report Dr. Weil had purportedly sent to someone. Ms. Miller noted in her records that “Dr. [Weil] was very concerned and frightened by Tony’s appearance and demeanor. She felt he was a paranoid schizophrenic, capable of violence and wanted me to be aware of this, should Tony ever request an appointment here” (emphasis added). Amazingly, whereas Dr. Weil found it necessary to issue a strong caution to defendant’s staff regarding Anthony, neither Dr. Weil, nor Ms. Miller, saw fit to warn plaintiffs that defendant’s staff psychiatrist had concluded that Anthony was a paranoid schizophrenic capable of violence.

Anthony, over the course of years that he resided with his father, generated numerous stressful incidents including: being arrested for stealing medications from a doctor’s office; harassing neighbors; breaking a surveillance camera specifically placed in the apartment building where he and his father resided to keep watch over him; being the subject of eviction proceedings due to his aberrant behavior; and sabotaging his father’s personal relationships.

In 1983, the New York State Legislature enacted section 373-a of the Social Services Law, which provided: “Notwithstanding any other provision of law to the contrary, to the extent they are available, the medical histories of a child legally freed for adoption and of his or her natural parents, with information identifying such natural parents eliminated, shall be provided by an authorized agency to such child’s prospective adoptive parent; and ... to such child when discharged to his or her own care. The medical histories shall include all available information setting forth conditions or diseases believed to be hereditary, any drugs or medication taken during pregnancy by the child’s natural mother, and any other information which may be a factor influencing the child’s present or future health” (L 1983, ch 326).

In 1985, the Legislature amended the above law to add the requirement that the disclosure be made not only to the child’s prospective parent, but also to the “adoptive parent when such child has been adopted” (L 1985, ch 103), and a second amendment, also enacted in 1985, provided that the disclosed information must incorporate “any psychological information in the case of a child legally freed for adoption or when such child has been adopted” (L 1985, ch 142).

The New York State Legislature, also in 1983, added sections 4138-b, 4138-c and 4138-d to the Public Health Law, which established an “adoption information registry” in the Department of Health, allowing an adult adoptee to register and obtain nonidentifying medical information concerning his/her birth parents. By letter dated December 28, 1983, defendant’s then executive director informed the Department of Health that Louise Wise “has established its own mutual consent adoption registry.” Defendant’s director of training, Roslyn Ganger, testified that it then became the agency’s practice to inform inquirers of their right to register.

In early 1984, Anthony called defendant to schedule an appointment in order to receive background and medical information and Ms. Miller expressly instructed her assistant, who was designated to meet with Anthony, that nothing was to be said about his family history of schizophrenia. Anthony was also not informed of his right to enroll in the adoption information registry. This information was not disclosed, according to Ms. Miller, “because the agency policy would not permit it.” Ms. Miller, in June 1984, was also informed that Anthony’s birth mother had committed suicide 11 years earlier, another piece of the puzzle that was never revealed to plaintiffs.

In 1994, Ms. Ross called defendant and voiced her belief that Anthony was suffering from attention deficit hyperactivity disorder. Defendant, despite the passage of, and amendments to, section 373-a of the Social Services Law almost 10 years earlier, did nothing to correct Ms. Ross’s misimpression, even though, 12 years earlier, its own psychiatrist diagnosed Anthony as a paranoid schizophrenic capable of violence.

In 1995, Mr. Ross awoke in bed to find Anthony standing on top of him, wielding a large flashlight with the apparent intent to injure him. Not long thereafter, Anthony began throwing stones into the courtyard of their apartment building, at which point Mr. Ross called the Bellevue Hospital Mobile Crisis Unit. Anthony was subsequently diagnosed as suffering from paranoid schizophrenia, and while he was initially placed in a facility for the mentally ill, further erratic behavior toward the facility’s employees resulted in his transfer to the psychiatric ward.

In 1999, due to the constant strain from the continuing difficulties with Anthony, Mr. Ross developed clinical depression so severe, he was hospitalized at Mount Sinai Hospital, where he underwent a series of electroshock treatments, resulting in some permanent memory loss. Ms. Ross also claims to suffer frequent bouts of depression stemming from her divorce and inability to help Anthony.

Defendant, in support of its motion for summary judgment, submitted an affidavit from Anita Longo Sorenson, a social worker, who opined that it was the general opinion and belief of social workers and other professionals in the adoption field in the 1960s and into the early 1980s that nurture played a much greater role than nature in the development of a child. Moreover, it was the belief and general opinion of social workers and other professionals in the adoption field at those times that mental illness would not be passed on if a child were placed in a loving environment.

It was also alleged by Ms. Sorenson that the general opinion and belief of social workers and other professionals in the adoption field at those times was that the disclosure of certain information to prospective adoptive parents would interfere with the bonding between adoptive parent and child and prove detrimental to the child, the parents and their relationship. Therefore, it was the practice of social workers and other professionals in the adoption field in the 1960s and into the early 1980s not to disclose information that could be viewed as negative and which was not believed to be hereditary for fear that it would influence the family adversely on how they would nurture the adopted child.

Ms. Kreech testified that defendant’s staff was instructed to never inform parents about schizophrenia in the family of a child offered for adoption, as it was considered “upset[ting].” Ms. Kreech acknowledged that while thought was given to the fact that this was a lifetime responsibility for parents, in those days it was simply not disclosed.

Ms. Miller echoed Ms. Kreech’s testimony regarding defendant’s policy toward disclosing any information about schizophrenia, one concern being that any such disclosure would create anxiety in adoptive parents “so every time the child sneezes, they think something is wrong.” Ms. Miller further testified that when the law changed in 1983, “we told the truth,” but, upon further questioning, backtracked and claimed that defendant did not, in fact, obey the 1983 disclosure laws because the agency’s attorney failed to advise defendant about the new laws until 1990. Ms. Miller’s testimony, however, is problematic at best, as the agenda of a conference held at Louise Wise on November 29, 1983, which was headlined as “The Adoption Registry Law: Implications and Implementation,” lists Ms. Miller as a speaker on the topic “The Impact of the Law on an Adoption Agency’s Practices, Past and Present.” Moreover, defendant’s director of training, Roslyn Ganger, testified that she discussed the Adoption Registry Law with Ms. Miller “[p]robably when it was promulgated.”

Plaintiffs, in sharp contrast, submitted an affidavit from Dr. Dolores Malaspina, an associate professor of psychiatry at Columbia University and research psychiatrist at the New York State Psychiatric Institute, whose work concentrates on schizophrenia. Dr. Malaspina opined, inter alia, that: research, as early as 1911, had established that 90% of schizophrenia cases were inherited; its familial basis has never been seriously contested; early disclosure to Anthony’s family would have led to earlier treatment, minimizing his deterioration and decreasing the enormous stress on his parents, as early diagnosis significantly improves the outcome for those with the disease; and it was difficult to postulate any justification for defendant’s failure to warn plaintiffs that they had assessed Anthony as dangerous. Dr. Malaspina also surmised that the false information given plaintiffs’ family psychiatrist made it 50 times less likely that he would be correctly diagnosed, as many other psychiatric disorders present with similar manifestations.

Dr. Malaspina noted that the type of chronic psychosocial stress experienced by caregivers of a child with schizophrenia is an absolutely accepted pathway to the development of severe major depression. Dr. Malaspina went into the symptoms that would be experienced, in detail, and noted a caregiver’s tendencies toward self-blame, which would have been ameliorated if plaintiffs had been advised of Anthony’s predisposing genetic factors toward schizophrenia.

Plaintiffs, in early 1999, once again contacted defendant to request information regarding Anthony’s medical history, having been prompted to do so by a New York Times article concerning a case with facts similar to those currently presented at bar. On April 6, 1999, defendant provided the psychiatric information it had withheld for almost 40 years and on June 25, 1999, plaintiffs commenced the within action.

Supreme Court Proceedings

Defendant, after the close of discovery, moved for summary judgment dismissing the complaint or, in the alternative, for partial summary judgment: dismissing the second and third causes of action as time-barred; dismissing plaintiffs’ claim for emotional distress, and limiting their damages to extraordinary out-of-pocket expenses in raising their adopted child to 21 years of age; and striking plaintiffs’ demand for punitive damages.

The motion court: denied that branch of defendant’s motion which sought to dismiss the complaint in its entirety; denied defendant’s request to dismiss plaintiffs’ claim for punitive damages; dismissed plaintiffs’ claims for negligence, breach of fiduciary duty and intentional infliction of emotional harm, as time-barred; and limited plaintiffs’ potential recovery of compensatory damages to the extraordinary out-of-pocket expenses of raising Anthony to age 21.

Defendant appeals, plaintiffs cross-appeal, and we now affirm.

Discussion

Punitive Damages

Initially, we note that claims for “wrongful adoption” have only recently been recognized as viable tort actions in New York, this Court having previously reasoned that New York’s vital interest in the welfare of its children, as well as in the adoption process, which advances that vital interest, warranted an extension of well-settled common-law fraud principles to the adoption process {Juman v Louise Wise Seros., 211 AD2d 446, 447 [1995]). Indeed, a growing number of jurisdictions have begun recognizing “wrongful adoption” actions, although such recognition is not uniform {see Milks, Annotation, “Wrongful Adoption” Causes of Action Against Adoption Agencies Where Children Have or Develop Mental or Physical Problems That Are Misrepresented or Not Disclosed to Adoptive Parents, 74 ALR5th 1).

It has long been understood that an award of punitive damages serves a dual purpose, to punish the offending party, and to deter similar conduct on the part of others {Krohn v New York City Police Dept., 2 NY3d 329, 335 [2004]; Honzawa v Honzawa, 309 AD2d 629, 629-631 [2003], lv dismissed in part and denied in part 2 NY3d 753 [2004], cert denied 541 US 1064 [2004]). In a fraud cause of action, punitive damages may only be recovered when the conduct in question is aimed at the public generally, involves a high degree of moral culpability, and rises to a level of “such wanton dishonesty as to imply a criminal indifference to civil obligations” {Walker v Sheldon, 10 NY2d 401, 405-406 [1961]; Kelly v Defoe Corp., 223 AD2d 529 [1996]; see also Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 613 [1994]). “Whether to award punitive damages in a particular case, as well as the amount of such damages, if any, are primarily questions which reside in the sound discretion of the original trier of the facts” {Nardelli v Stamberg, 44 NY2d 500, 503 [1978]; Swersky v Dreyer & Traub, 219 AD2d 321, 328 [1996]).

In the matter before us, defendant deprived plaintiffs of the key to their son’s illness when he was nine years old, lied to Anthony’s private psychiatrist when he was 12, failed, outrageously, to warn plaintiffs that Dr. Weil had diagnosed Anthony as schizophrenic and capable of violence when he was 19, and again lied to Anthony, this time in violation of the law, when he was 23. Defendant’s nearly four decades of duplicity and deceit subsequent to the adoption prevented Anthony from obtaining a correct diagnosis and treatment, deprived plaintiffs of the ability to understand their situation, and, finally, brought about the disintegration of the family unit, the ruin of Mr. Ross’s career, and his eventual hospitalization and treatment for severe depression.

Moreover, defendant’s justification for its actions is muddled, at best. Ms. Miller claims that she did not learn of the 1983 changes in the law requiring disclosure until 1990, yet evidence was presented that she lectured on the law, and its implications, and spoke to a colleague about it in 1983, shortly after the law was promulgated. Compounding the foregoing is defendant’s assertion, in this action, that it was not thought heredity was a factor in schizophrenia until 1980, yet its admission in a prior action that such evidence, which postulated that there was a genetic component to the etiology of schizophrenia, existed in 1968.

In sum, we find factual issues as to whether defendant’s actions and omissions, summarized above, especially its failure to warn plaintiffs of Anthony’s capability of violence, regardless of “agency policy” requiring the withholding of information from adoptive parents, constitutes a policy aimed toward the general public, sufficient to warrant the submission of plaintiffs’ claims for punitive damages to a jury.

Negligence/Breach of Fiduciary Duty

We agree with the motion court that plaintiffs’ second cause of action, sounding in negligence and breach of fiduciary duty, was properly dismissed as time-barred, as a cause of action asserting breach of fiduciary duty, which seeks monetary relief, is governed by a three-year limitations period (CPLR 214; Papp v Debbane, 16 AD3d 128 [2005]; Deutsch v Polly N. Passonneau, PC., 297 AD2d 571, 572 [2002]). Here, the adoption of Anthony was finalized in 1962, and it was at this juncture that the applicable limitations period began to run. Since plaintiffs do not allege any additional misrepresentations by defendant until 1970, some eight years later, this cause of action became time-barred in 1965.

Intentional Infliction of Emotional Distress

Plaintiffs’ third cause of action, asserting intentional infliction of emotional distress, is subject to a one-year limitations period (CPLR 215 [3]; Brasseur v Speranza, 21 AD3d 297, 298 [2005]; Spinale v Guest, 270 AD2d 39, 40 [2000]), and is therefore time-barred. Moreover, as this Court recently held in Juman v Louise Wise Servs. (3 AD3d 309, 309-310 [2004]), damages in a wrongful adoption case are limited to pecuniary losses which flow directly from the alleged fraud, and damages which purportedly arise as the result of emotional distress do not fall within that description (see also Juman v Louise Wise Servs., 254 AD2d 72, 73-74 [1998]; Becker v Schwartz, 46 NY2d 401, 413-415 [1978]).

Equitable Estoppel

Finally, we agree with the motion court that plaintiffs may not invoke the doctrine of equitable estoppel to preclude defendant from asserting the statute of limitations as a defense.

The doctrine of equitable estoppel, an “extraordinary remedy” (East Midtown Plaza Hous. Co. v City of New York, 218 AD2d 628, 628 [1995]), provides that a defendant may be estopped from pleading the statute of limitations where the plaintiff “was induced by fraud, misrepresentations or deception to refrain from filing a timely action” (Simcuski v Saeli, 44 NY2d 442, 448-449 [1978]; Kaufman v Cohen, 307 AD2d 113, 122 [2003]), or, stated another way, that the plaintiff was “lulled” into inaction by defendants so that the statute of limitations would expire (Incorporated Vil. of Rockville Ctr. v Town of Hempstead, 278 AD2d 279, 280 [2000]). The fraud upon which the application of the doctrine is based must be separate and distinct from the acts underlying the action itself (Rizk v Cohen, 73 NY2d 98, 105-106 [1989]; Kaufman v Cohen, 307 AD2d at 122). The doctrine requires proof that the defendant made an actual misrepresentation or, if a fiduciary, concealed facts it was required to disclose and that plaintiffs reliance resulted in an untimely action (Heffernan v Marine Midland Bank, 283 AD2d 337 [2001]; Powers Mercantile Corp. v Feinberg, 109 AD2d 117, 122 [1985], affd 67 NY2d 981 [1986]), and “ ‘mere silence or failure to disclose the wrongdoing is insufficient’ ” (Doe v Holy See [State of Vatican City], 17 AD3d 793, 795 [2005], quoting Zoe G. v Frederick F.G., 208 AD2d 675, 675-676 [1994]). Due diligence on the part of plaintiff in commencing the action is an essential element when plaintiff seeks the shelter of this doctrine (Simcuski v Saeli, 44 NY2d at 450; Fuchs v New York Blood Ctr., 275 AD2d 240, 241 [2000], lv denied 95 NY2d 769 [2000]).

In this matter, plaintiffs contend that the underlying breach of fiduciary duty occurred at the time of the adoption, but allege no additional separate and distinct acts upon which the application of the doctrine can be based. Indeed, the next alleged misrepresentations to plaintiffs were made in 1970, eight years after the cause of action accrued and five years after it was rendered time-barred. These alleged misrepresentations do not serve to resurrect the breach of fiduciary duty claim.

. Public Health Law section 4138-b was repealed, effective July 24, 1992.

. Perhaps in view of Dr. Weil’s warning.

. In Juman v Louise Wise Servs. (174 Misc 2d 49, 53 [1997], mod 254 AD2d 72 [1998]), the defendant advocated a somewhat different scientific time line. The court therein noted that “[t]he Agency claims that at the time of the adoption [1966] members of the scientific community held differing opinions concerning whether schizophrenia was a disease that could be inherited. They present evidence that it was not until 1968 that ‘the literature suggested that there was sufficient evidence to postulate that there was a genetic component to the etiology of schizophrenia’ ” (id. [emphasis added]). In this matter, defendant insists, through various parties, that the belief was schizophrenia was a product of “nurture not nature” until the 1980s.

. Arthur Ross, at the time of the adoption, stated that he was a nationally known figure in the advertising profession, had won more than 150 awards for creative film/radio and television productions, including “Best Commercial” in several different industry categories, and was awarded the Grand Prix de la Television at the Venice Film Festival in 1962.

Tom, J.P., and Saxe, J., concur in a separate memorandum by Tom, J.P., as follows:

In this action for wrongful adoption, plaintiffs allege that they were induced to adopt their infant son, Anthony, as a result of defendant’s fraudulent concealment of his family history of psychiatric illness. Defendant does not deny its failure to disclose the psychiatric history of the biological family, but admits that at the time of the 1962 adoption, it routinely withheld all such information from prospective adoptive parents. What divides this Court is whether defendant’s conceded pattern of nondisclosure will support a claim for punitive damages predicated upon acts constituting “such wanton dishonesty as to imply a criminal indifference to civil obligations” (Walker v Sheldon, 10 NY2d 401, 405 [1961]), in this instance, the obligations to provide information pertinent to the decision to adopt and to deal honestly and fairly with the adoptive family (see Juman v Louise Wise Servs., 211 AD2d 446, 447-448 [1995]).

This controversy raises the issue of the degree of proof that a plaintiff is required to supply in opposition to a motion seeking summary dismissal in order to avoid the striking of a claim for punitive damages. The dissenter, ignoring evidence that, even in 1962, the medical profession recognized a significant hereditary component to psychiatric illness, accepts without question defendant’s protestation that the social work profession remained ignorant of knowledge possessed by the larger medical community and, accepting such ignorance as the standard by which to judge defendant’s conduct, concludes that, as a matter of law, the record does not support plaintiffs’ claim for exemplary damages. In the context of a motion seeking dismissal of the complaint, where factual issues warrant trial of the underlying cause of action for which punitive damages are claimed, we discern no reason to summarily resolve contested factual issues merely because they concern the nature of the damages sought as well as the merits of the underlying action.

This matter is before us on defendant’s appeal from an order denying, in part, its motion for summary judgment dismissing the complaint (CFLR 3211 [a] [7]; 3212) to the extent of sustaining plaintiffs’ claim for punitive damages and on plaintiffs’ cross-appeal from the dismissal, as time-barred, of their second cause of action asserting negligence and breach of fiduciary duty and their third cause of action asserting intentional infliction of emotional distress. Affording the pleadings a liberal construction, accepting their allegations as true and providing plaintiffs with “every possible favorable inference” (Leon v Martinez, 84 NY2d 83, 87 [1994]), plaintiffs have demonstrated the existence of facts which, if proven at trial, establish a pattern of conduct, aimed at the public generally, that evinces a wanton indifference to the right of prospective adoptive parents to make an informed decision to proceed with adoption.

The pertinent facts can be succinctly stated. Plaintiffs adopted their son, Anthony Ross, through defendant adoption agency in 1962. While they were informed of many positive characteristics of the biological parents, they were not informed, either at that time or for many years thereafter, that both suffered from mental illness and that their families had a history of schizophrenia. The mother was under the care of a psychiatrist during her pregnancy and was described as “a seriously disturbed young woman who related minimally.” The father was diagnosed as paranoid schizophrenic and portrayed as “a seriously disturbed young man,” who had married Anthony’s mother “purely for her money.” Anthony’s maternal grandfather also suffered from schizophrenia and was hospitalized for a year and a half while under the delusion that people were trying to poison him. Anthony’s biological parents divorced about a year after giving him up for adoption, and his mother committed suicide about 10 years later.

Anthony began to show signs of emotional disturbance as a young child and, by the time he was four, plaintiffs had sought professional help. In 1970, when the nine-year-old boy was exhibiting hyperactivity, poor impulse control and hostility, plaintiffs contacted defendant for assistance. While it is clear that defendant’s employees recognized the distinct possibility that schizophrenia might be to blame for Anthony’s difficulties, they did not share this insight with plaintiffs. During the following year, the family periodically saw defendant’s staff psychiatrist, Dr. Anne-Marie Weil.

In 1973, Barbara Ross requested that defendant send “a summary of Tony’s birth history, background and foster home experience” to his psychiatrist. The resulting summary made no mention of the extensive family history of mental illness. Anthony continued to exhibit little impulse control, striking Ms. Ross, throwing things and using foul language. In 1978, responding to the threat that Anthony’s aberrant and aggressive behavior posed to her physical safety, Ms. Ross moved out of the family home, taking the couple’s adopted daughter with her. Disagreement about how to deal with Anthony’s erratic and hostile behavior, and the emotional and financial toll on the couple resulted in the deterioration of the marriage, culminating in a 1979 divorce.

In 1982, the now-adult Anthony arrived unannounced at Dr. Weil’s office. The doctor reported that “she was very concerned and frightened by Tony’s appearance and demeanor. She felt he was a paranoid schizophrenic, capable of violence.” In 1983, the Legislature enacted Social Services Law § 373-a (L 1983, ch 326, § 1), requiring the disclosure of an adopted child’s medical history (see Juman v Louise Wise Servs., 211 AD2d at 447-448). The next year, Anthony requested an appointment to obtain “background and medical information.” At the ensuing meeting in February 1984, he was told nothing about his birth family’s psychiatric history.

Anthony was diagnosed as a paranoid schizophrenic in 1995 after an incident in which his father awoke in bed to find Anthony on top of him, wielding a large flashlight in an apparent attempt to injure him. In 1999, Mr. Ross developed clinical depression as a result of the ongoing difficulties with his son. Mr. Ross was ultimately hospitalized and administered electroconvulsive therapy that resulted in some permanent memory loss. He was obliged to give up his career in advertising, and he has been unable to find other work. Barbara Ross also suffered from frequent bouts of depression following the couple’s divorce and has been required to seek professional counseling.

It was not until April 6, 1999 that defendant, responding to a request from Arthur Ross, disclosed the detailed medical information contained in its files, which included notes summarizing 13 interviews with the mother and 14 with the father as well as the results of psychiatric consultations with both parents and the psychiatric history for both sides of Anthony’s biological family. This lawsuit promptly followed stating causes of action for (1) fraud and wrongful adoption, (2) negligence and breach of fiduciary duty and (3) intentional infliction of emotional distress.

Defendant moved for summary judgment dismissing the complaint or, alternatively, for partial summary judgment (1) dismissing the second and third causes of action as time-barred; (2) dismissing plaintiffs’ claim for emotional distress and consequential loss of business and other income and limiting damages to extraordinary out-of-pocket expenses incurred in raising their adopted child to age 21; and (3) striking plaintiffs’ demand for punitive damages, as a matter of law, on the ground that the facts do not warrant their award. Supreme Court granted defendant’s motion for summary judgment to the extent of dismissing the second and third causes of action as time-barred and limiting plaintiffs’ compensatory damages. The court denied that part of defendant’s motion as sought to dismiss the claim for punitive damages.

On appeal, defendant argues that its concealment of Anthony’s biological family history was reasonable, and that its “personnel provided the information they believed to be relevant, in accordance with accepted practice at that time.” Plaintiffs contend that Supreme Court erred in failing to apply the doctrine of equitable estoppel to bar assertion of the statute of limitations in defense to their negligence and emotional distress causes of action.

Defendant has conceded engaging in a course of conduct, extending over a period of years, during which it concealed information material to the decision to adopt. We conclude that questions of fact exist concerning the extent to which family history was regarded as an etiological factor in the development of mental illness, particularly schizophrenia, at the time of the subject adoption. As to the cross appeal, there is no basis to apply equitable estoppel to preclude assertion of the time bar. In any event, plaintiffs’ second cause of action for negligence is redundant, and the recovery for emotional injury sought in the third cause of action is precluded as a matter of policy. Therefore, we affirm the order in all respects.

The wrong alleged in the complaint is that defendant’s concealment of Anthony’s family history of schizophrenia fraudulently induced plaintiffs to adopt the child and further caused them to refrain from seeking early aggressive intervention to treat the pathology underlying his emotional instability. Although defendant has not appealed from this aspect of the motion court’s order, we note that an action for fraud is timely if brought within two years of the discovery of the misrepresentation and that the complaint states a viable basis for recovery on that ground. Therefore, defendant’s motion for summary judgment dismissing the complaint was properly denied (see Moreau v Archdiocese ofN.Y., 261 AD2d 456, 457 [1999]).

Plaintiffs’ second cause of action asserts that defendant negligently failed to “disclose all facts bearing on their decision to adopt” Anthony. This merely restates their first cause of action, which alleges that “plaintiffs would not have adopted Anthony . . . had they known the true facts prior to the adoption or soon thereafter.” The contention that defendant occupied a position “of special trust and confidence,” advanced only in the second cause of action, adds nothing to plaintiffs’ claim. Whether or not the relationship between the parties is portrayed as fiduciary and whether the essence of the wrong alleged is deemed to be a breach of the adoption agreement or a breach of defendant’s duty of care, it remains that this is an action for wrongful adoption, and recovery is circumscribed accordingly (see Becker v Schwartz, 46 NY2d 401, 413 [1978]).

No recovery is available on the basis of plaintiffs’ third cause of action for intentional infliction of emotional distress. It is settled that in a wrongful adoption case, compensatory damages are “limited to damages for pecuniary loss directly attributable to the alleged fraud . . . Damages for emotional distress or for its somatic sequelae ... do not fall within this description” (Juman v Louise Wise Servs., 3 AD3d 309, 309-310 [2004]).

In any event, plaintiffs’ second cause of action sounding in negligence and breach of fiduciary duty is untimely (CPLR 214; Siler v Lutheran Social Servs. of Metro. N.Y., 10 AD3d 646, 648 [2004]), as is the third cause of action asserting an intentional tort (CPLR 215; Peters v Citibank, 253 AD2d 803 [1998]). The applicable limitations periods began to run at the time of Anthony’s adoption in 1962 and had long expired at the time this action was commenced in 1999.

Plaintiffs’ argument that defendant should be estopped to assert the statute of limitations as a bar to their second and third causes of action is unavailing. Application of this “extraordinary remedy” (East Midtown Plaza Hous. Co. v City of New York, 218 AD2d 628, 628 [1995]) requires affirmative action such as fraud, misrepresentations or deception by a defendant to conceal its wrongdoing until the applicable statutory limitations period has expired (Simcuski v Saeli, 44 NY2d 442, 448-449 [1978]). Plaintiffs’ assertion of equitable estoppel is predicated on defendant’s continuing failure to disclose the psychiatric history of Anthony’s biological family. However, the statute of limitations for negligence had already expired by the time plaintiffs made contact with defendant in 1970, some nine years after the adoption. Defendant simply had no opportunity to undertake affirmative action to further conceal its wrongdoing within the pertinent statutory limitations period. Moreover, the concealment of Anthony’s family history is the very wrong defendant is alleged to have committed and does not serve as a predicate for estoppel. At most, defendant engaged in mere nondisclosure during this time, for which estoppel to assert the statute of limitations is not warranted (see Simcuski, 44 NY2d at 452; Kaufman v Cohen, 307 AD2d 113, 122 [2003] [fraud]). As this Court noted in Zoe G. v Frederick F.G. (208 AD2d 675, 675-676 [1994]), “application of the doctrine of equitable estoppel is triggered by some conduct on the part of the defendant after the initial wrongdoing; mere silence or failure to disclose the wrongdoing is insufficient.”

The defense to this action is remarkable for its concessions. Defendant does not deny that it deliberately concealed the psychiatric history of Anthony’s biological family, both prior to the 1962 adoption and for nearly the remainder of the century. In seeking to strike the claim for punitive damages, defendant acknowledges that, even in 1962, there was a belief that schizophrenia had a genetic component; however it argues that it was “accepted practice” to conceal family psychiatric history because that view had not gained “general acceptance” among social workers. In support of this contention, defendant offered the affidavit of a social worker attesting that it was the practice, into the early 1980s, “not to disclose information that could be viewed as negative and which was not believed to be hereditary for fear that it would influence the family adversely on how they would nurture the adopted child.” The affidavit concludes that “defendant acted in conformity with such customs, standards and practice in not disclosing the psychiatric history of Anthony Ross’ biological parents.” In opposition, plaintiffs presented the affidavit of a research psychiatrist, who stated that, as of 1961, “it had been undisputed for over 50 years .at that time that schizophrenia was an inherited disease.” The psychiatrist further noted that the likelihood of developing schizophrenia for a child who inherits genes from two affected parents is “estimated from many studies to be an astounding 46%.”

Two questions immediately arise. First, even accepting defendant’s claim of uncertainty among psychiatric professionals concerning the relevance of family history to the onset of psychiatric illness, why should its social worker be deemed competent to decide that family history is irrelevant to the possible onset of schizophrenia in a child? Indeed, the knowledge possessed by “adoption professionals” or by the social work profession in general is, on its face, an inferior standard by which to assess whether defendant’s concealment of information was tortious as opposed to a standard consisting of the knowledge possessed by the apparently better-informed psychiatric profession. Second, if defendant truly regarded family history as being immaterial to the development of mental illness, including schizophrenia, why didn’t defendant merely disclose such information to prospective adoptive parents and let them reach their own conclusions regarding its relevance to their decision to adopt? The act of concealment suggests a perception in the mind of the actor that concealment is necessary. Defendant’s persistence in concealing the psychiatric history of Anthony’s family for some four decades only reinforces the notion that defendant regarded such concealment as essential to the protection of its own parochial interests.

The elements of a cause of action for fraud are a misrepresentation, that is material, known to be false and made with the intent of inducing reliance, upon which the victim actually relies and, as a result of which, sustains damages (see National Union Fire Ins. Co. of Pittsburgh, Pa. v Christopher Assoc., 257 AD2d 1, 9 [1999]). The only element of fraud contested by defendant is whether its misrepresentation was known to be material at the time it was made. Defendant denies any inkling, as of 1962, that concealing an adoptee’s family psychiatric history could result in injury to the child or his adoptive parents. Defendant asks this Court to accept, on the basis of a preliminary record, what it knew, or did not know, in 1962 based on a single affidavit from a social worker that is flatly contradicted by the affidavit of a research psychiatrist. The extent of defendant’s awareness of the state of psychiatric knowledge at that time presents a question of fact. It is the province of the trier of fact to resolve whether defendant’s concealment was innocent, negligent or reckless in deciding whether defendant is liable and, if so, whether its misconduct is sufficiently egregious to warrant the award of punitive damages.

Defendant’s suggestion that it concealed the family psychiatric history of adoptees solely out of a desire to promote familial bonding is unconvincing. Societal appreciation that family history plays a role in the emergence of psychiatric infirmity is as ancient as the taboo against incest. It doubtless occurred to defendant that disclosure of an extensive family history of mental illness would be likely to deter prospective parents from proceeding with an adoption, thereby depriving defendant of its placement fee. Thus, a jury might conclude that defendant placed its pecuniary interests ahead of its obligation to provide prospective adoptive parents with information necessary to make an informed decision as to whether to proceed.

Defendant expresses the concern that if plaintiffs are permitted to pursue their claim for punitive damages, “it is conceivable that jurors, unconvinced by plaintiffs’ claims for compensatory damages but acting out of a misplaced feeling of sympathy, could award such damages even if undeserved.” This concern is unwarranted. “Whether to award punitive damages in a particular case, as well as the amount of such damages, if any, are primarily questions which reside in the sound discretion of the original trier of the facts” (Nardelli v Stamberg, 44 NY2d 500, 503 [1978]). However, as the Court of Appeals has observed, “since an award of punitive damages—in a case where they may properly be allowed—rests in the ‘sound discretion’ of the jury (Kujek v Goldman, 150 N.Y. [176], at p. 180), it is subject to court review” (Walker, 10 NY2d at 405 n 3 [upholding denial of motion to strike demand for punitive damages as “irrelevant and prejudicial” {id. at 403) pursuant to Rules of Civil Practice, rule 103 (now CPLR 3024 [b])]). In the case at bar, if the trial court decides that the matter of punitive damages is appropriate for submission to a jury and if the trier of fact decides that such damages are warranted by the evidence, the propriety of the award will be ripe for appellate review {see Reinah Dev. Corp. v Kaaterskill Hotel Corp., 59 NY2d 482 [1983]; Tanbro Fabrics Corp. v Deering Milliken, Inc., 39 NY2d 632 [1976]).

The cases relied upon by defendant do not preclude the recovery of exemplary damages in this matter. In Juman v Louise Wise Servs. (3 AD3d 309, 310 [2004], supra), this Court held that defendant’s disregard of its disclosure obligations under Social Services Law § 373-a, enacted in 1983, was “irrelevant to plaintiffs’ wrongful adoption claim” concerning a 1966 adoption and, thus, could not serve as a basis for the award of punitive damages. Likewise, in this action, the relevant factual inquiry concerns defendant’s conduct surrounding the 1962 adoption, not its subsequent action or inaction over the ensuing decades. The material allegation of the complaint is that defendant deliberately concealed pertinent facts in order to induce plaintiffs to adopt Anthony. Plaintiffs assert that they were prompted to investigate the circumstances of the adoption only after learning of a similar case from a 1999 New York Times article, in which defendant was reported to have engaged in the same deceptive conduct. Indeed, defendant does not deny that it routinely withheld such information from prospective adoptive parents, conceding that this was its standard practice at the time. Plaintiffs further allege that defendant’s fraudulent concealment hindered the prompt diagnosis and treatment of Anthony’s psychiatric condition, resulting in pecuniary loss and the exacerbation of Anthony’s suffering. The consequences to the adoptive parents were severe, resulting in their treatment for depression, hospitalization for Mr. Ross and the abandonment of his career and, ultimately, the breakup of the family. Accepting the truth of these allegations, as we must on a summary judgment motion {see Ingle v Glamore Motor Sales, 73 NY2d 183, 194 [1989]; Rovello v Orofino Realty Co., 40 NY2d 633, 634 [1976]), they suggest that defendant, an agency offering adoption services to the general public, engaged in a pattern of deception by concealing the psychiatric family history of children available for placement, in wanton and reckless disregard of the substantial risk of harm that its conduct presented to plaintiffs and other adoptive parents.

The basis for sustaining the punitive damages claim in this matter is fraudulent conduct aimed at the public in general that reflects a criminal indifference to the obligation of an adoption agency to provide prospective parents with information necessary to make an informed decision as to whether or not to adopt a particular child (see Juman v Louise Wise Servs., 211 AD2d at 447; Walker, 10 NY2d at 405). Punitive damages are not available to compensate plaintiffs for emotional suffering, recovery for which is precluded by public policy in wrongful adoption cases (see Becker v Schwartz, 46 NY2d at 413; Juman v Louise Wise Servs., 254 AD2d 72, 74 [1998]). Thus, defendant’s compliance with Social Services Law § 373-a some two decades after the adoption and any consequent emotional impact on the family are simply not pertinent, either to the determination of liability or the assessment of punitive damages. That defendant was not in violation of any statutory duty at the time of the adoption, as the dissenter repeatedly emphasizes, is simply not material to the merit of plaintiffs’ claims. The cause of action for fraud and the attendant demand for punitive damages are not predicated upon any statutory violation but upon the breach of defendant’s common-law obligation to provide prospective adoptive parents with information that is vital to their ability to make an informed decision concerning the contemplated adoption.

Jeffrey BB. v Cardinal McCloskey School & Home for Children (257 AD2d 21, 25 [1999]), also relied upon by defendant, is likewise not dispositive. In contrast to a practice of concealing psychiatric information, conceded by defendant herein, the facts recited in Jeffrey BB. do not suggest any such pattern of deception. Rather the failure to disclose the adoptee’s sexual abuse appears to have been an isolated omission. Finally, in Juman v Louise Wise Servs. (254 AD2d 72 [1998], supra), cited by the dissenter, the issue of punitive damages was not before us and was not addressed.

We have no quarrel with the dissenter’s view that this case poses numerous unanswered factual questions, particularly those involving the state of psychiatric knowledge in 1962 with respect to the hereditary nature of schizophrenia and the weight that a family history of the disease would have been accorded in reaching a diagnosis of schizophrenia in a child. However, rather than attempt to answer such complex questions on the basis of a sparse record on summary judgment, it is appropriate to leave resolution to the trier of fact on the basis of expert testimony at trial.

We reject the dissenter’s conclusion that defendant’s conduct is explained by “then-widely-held beliefs about the etiology of mental illness, and was motivated by a desire to find a good home for the child in question, not by any malicious desire to harm plaintiffs, nor with any certainty that they would be harmed by the placement.” The record contains conflicting affidavits from expert witnesses concerning the state of psychiatric knowledge in 1962. Defendant’s motivation may be attributed to the pursuit of monetary gain as readily as concern for the welfare of the child. And there is no indication in the record that the interests of the adoptive parents received even minimal consideration in effecting the placement. In purporting to resolve these several issues in favor of defendant, the dissenter engages in speculation as to defendant’s motive and the improper determination of factual questions as a matter of law upon a motion seeking dismissal of the complaint. The function of a court on a summary judgment motion is issue finding, not issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; Wiener v Ga-Ro Die Cutting, 104 AD2d 331, 333 [1984], affd 65 NY2d 732 [1985] for reasons stated below). As this Court stated in Swersky v Dreyer & Traub (219 AD2d 321, 328 [1996]), the award of punitive damages and the amount thereof are questions within the sound province of the trier of fact, which must decide whether “the wrongdoing is intentional or deliberate, has circumstances of aggravation or outrage, has a fraudulent or evil motive, or is in such conscious disregard of the rights of another that it is deemed willful and wanton.”

Contrary to the dissenter’s assertion, it is not necessary to establish that defendant’s actions were prompted by an intention “to maliciously hurt others” in order to sustain plaintiffs’ claim for punitive damages. Malice can arise from the wanton disregard of obligations, whether owed to the public (see Sharapata v Town of Islip, 56 NY2d 332, 335 [1982] [malicious, wanton or reckless conduct indicating improper motive or vindictiveness]) or to an individual (see Giblin v Murphy, 73 NY2d 769, 772 [1988] [“ ‘wanton or reckless disregard of plaintiff’s rights’ ” (quoting 97 AD2d 668, 671 [1983])]; cf. Borkowski v Borkowski, 39 NY2d 982 [1976]). On the record before us, a trier of fact could conclude that defendant’s conduct in concealing material information without regard to potentially disastrous consequences for the adoptive family, concededly engaged in as a matter of practice over a period of years, amounts to “such wanton dishonesty as to imply a criminal indifference to civil obligations” (Walker, 10 NY2d at 405).

Upon the record adduced thus far, we conclude that plaintiffs will be able to produce evidence at trial which, if believed by the jury, would support the conclusion that defendant’s conduct was in sufficient disregard of the rights of adoptive parents to justify the award of punitive damages (see Walker, 10 NY2d at 406 [noting the difficulty of stating “an all-inclusive rule” concerning what constitutes an appropriate case warranting recovery of exemplary damages]).

Friedman, J., dissents in part in a memorandum as follows:

Plaintiffs are suing defendant Louise Wise Services, Inc. (LWS), an adoption agency, for its failure to disclose to them certain information about mental illness and instability in the biological family background of the child plaintiffs adopted in 1962. In the 4V2 decades since 1962—spanning nine presidential administrations—the world has seen many dramatic changes, from the first moon landing, to the fall of the Berlin Wall, to the transformation of our understanding of the connection between a person’s genetic endowment and his or her mental and emotional development. The main question on this appeal can be cast as whether the last mentioned transformation—the tremendous evolution in our collective view of the relationship between biology and psychology that has occurred since the early 1960s—should have any effect, as a matter of law, on the availability of an award of punitive damages against LWS. In my view, it should.

So far as the record shows, LWS’s decision not to disclose the history of psychological disturbance in the biological family of plaintiffs’ adoptive son, though potentially tortious under our holding in Juman v Louise Wise Servs. (211 AD2d 446 [1995], affg 159 Misc 2d 314, 316-320 [1994]), was the norm among adoption agencies in the early 1960s. Uncontradicted evidence in the record establishes that this practice was based on the belief, then still generally predominant among social workers, that “nurture” was more important than “nature” in determining a person’s susceptibility to mental illness of the kind plaintiffs’ son ultimately developed (he was diagnosed as a schizophrenic in 1995, at the age of 34). While, as the record shows, this belief had been challenged by some (but not all) scientists as of the early 1960s, what is relevant to determining LWS’s level of culpability is the consensus that prevailed in the social work profession, and specifically among adoption agencies. at the time.

Contrary to an assertion made by one of my colleagues, I do not “ignor[e]” the evidence that, at the time of the adoption, many in “the medical profession recognized a significant hereditary component to psychiatric illness.” Nor is there any basis for my colleague’s claim that I “accept[ ] without question [LWS’s] protestation that the social work profession remained ignorant” of such scientific developments. Rather, it is the majority that ignores the uncontroverted evidence that, whatever was happening on the frontiers of science in the early 1960s, social workers and adoption professionals of that time continued to believe that mental illness such as schizophrenia was largely caused by environmental factors, including dysfunction in the parent-child relationship. Plaintiffs have not presented an iota of proof to rebut LWS’s expert evidence on this point. Further, scientific literature in the record demonstrates that a significant camp within psychiatry continued, for years after the subject adoption, to view family dynamics as a substantial factor in the causation of the illness. Thus, the view prevailing among adoption agencies of the time—that even a child of disturbed biological parents would avoid mental illness if reared in a stable and nurturing adoptive home—was not without support in the contemporary psychiatric community.

Underscoring the change in attitudes on this matter that has taken place since the early 1960s, it was not until the 1980s that the Legislature enacted the statute that now requires that the mental health histories of a child’s natural parents be disclosed to prospective adoptive parents, and, in the case of a previously adopted child, to the adoptive parents “upon request” (Social Services Law § 373-a [L 1983, ch 326, as amended by L 1985, chs 103, 142, 270; L 1988, ch 584; L 1990, ch 165]). Social Services Law § 373-a became law more than 20 years after the completion of the subject adoption, and about 10 years after plaintiffs’ last request to LWS for medical information bearing on their son’s development (that is, their last request before the 1999 request that elicited the response precipitating this action). I do not question that plaintiffs may have a cognizable common-law claim based on conduct of a kind that was addressed by statute only years later. Still, the fact that there was no statutory mandate for the kind of disclosure at issue at the time of the underlying conduct, especially in a field as heavily regulated as adoption, should give us pause before allowing the undeniably subjective question of punitive damages to go to trial.

I do not believe that the judicial system should entertain a claim for punitive damages based on conduct that was normative in the relevant professional community when it occurred, but which will inevitably be assessed in accordance with the far-different beliefs and attitudes that prevail today, almost half a century later. While the discrepancy between the norms of the time of the conduct at issue an