(dissenting in part). While I concur in part with the majority view as to plaintiffs’ claims, there are areas in which I believe the majority view to be in error.
The plaintiffs’ claims pursuant to the Adoption Assistance and Child Welfare Act of 1980 (AACWA; 42 USC §§ 620-628, 670-679a) provisions at 42 USC § 671 (a) (16) and § 675 (1) and (5) (B) are viable, despite the majority’s conclusion to the contrary. The majority relies on Suter v Artist M. (503 US 347) to defeat these claims; however, when Suter is read through the prism of the 1994 amendment of 42 USC § 1320a-2 and Blessing v Freestone (520 US 329, 117 S Ct 1353), it is clear that Suter’s suggestion that none of the paragraphs of section 671 (a) could support a private right of action1 is either dictum or the precise type of sweeping “analysis” for which the Blessing Court criticized the Ninth Circuit and to which Congress responded by enacting the amendment.
The test for determining whether a Federal statute creates a private right of action pursuant to 42 USC § 1983 is articulated in Wilder v Virginia Hosp. Assn. (496 US 498). Beginning with the holding in Maine v Thiboutot (448 US 1, 4) that “§ 1983 provides a cause of action for violations [by State agents] of federal statutes as well as the Constitution”, the Wilder Court (at 508) cites two exceptions to that rule: where “ ‘the statute [does] not create enforceable rights, privileges, or immunities within the meaning of § 1983’ ” or where “ ‘Congress has foreclosed such enforcement of the statute in the enactment itself ’ ” (quoting Wright v Roanoke Redevelopment & Hous. Auth., 479 US 418, 423). In determining whether an enforceable Federal right has been created, the Wilder test asks whether the provision is intended to benefit the plaintiff; if so, an enforceable right is created provided the statute also creates a binding obligation on the State, as opposed to merely *34reflecting a Congressional preference, and provided the statute is not so vague and amorphous as to be judicially unenforceable (Wilder v Virginia Hosp. Assn., supra, at 509). The initial burden belongs to plaintiffs to establish these criteria, and if they are successful, it then switches to the State to demonstrate contrary Congressional intent (Wright v Roanoke Redevelopment & Hous. Auth., supra). Such demonstration requires a showing, inter alia, that Congress provided “ ‘a comprehensive enforcement mechanism for the protection of the federal right’ ” (Marisol A. v Giuliani, 929 F Supp 662, 681, quoting Harris v James, 883 F Supp 1511, 1518, revd on other grounds 127 F3d 993) superior to or inconsistent with an action under section 1983, but which must consist of more than the mere availability of administrative relief (supra).
Subsequent to Wilder, the Supreme Court sought to further refine this test in Suter v Artist M. (503 US 347, supra) and Blessing v Freestone (520 US 329, 117 S Ct 1353, supra). In those cases, the Court emphasized, among other things, the need for careful scrutiny of the provision in question, in light of the entire enactment, and rigorous application of each of the Wilder criteria to the claimed rights and statutes at issue.
The question in Suter was whether Congress unambiguously conferred upon plaintiffs the right to enforce section 671 (a) (15) of the AACWA, a provision which requires the State to make “reasonable efforts” to preserve and reunite families. The Court held that it did not. The Court appeared to rely, without express acknowledgment, upon a version of the Wilder analysis that, among other things, featured a heightened emphasis on the contractual analogy noted in Pennhurst State School v Halderman (451 US 1, 17),2 blurred the distinction between the two exceptions to Maine v Thiboutot (supra) by suggesting that the existence of an alternative enforcement mechanism may be relevant to whether the statute creates rights enforceable by section 1983 as opposed to the issue of whether Congress precluded a section 1983 remedy in the statute itself (Suter v Artist M., supra, at 360-361 [majority opn], 375-376 [Black-mun, J., dissenting]; Note, Suter v. Artist M. And Statutory Remedies Under Section 1983: Alteration Without Justification, 71 NC L Rev 1171, 1197-1198), and appeared to shift the *35burden of production from defendants to plaintiffs with regard to demonstrating Congressional intent to permit section 1983 relief (Suter v Artist M., supra, at 376 [dissenting opn]; 71 NC L Rev, op. cit., at 1200-1201). The Court concluded that with regard to a statute, such as AACWA, enacted by Congress pursuant to its spending power, a private right of action could exist only where Congress’ intent to create one was unambiguous. It read the statute as requiring only that the State have a Federally approved plan that “provides that * * * reasonable efforts” be made at preserving or reunifying the home, but as otherwise unspecific as to how the plan would be implemented, leaving the State broad discretion in that regard; consequently, the statute was found to be too vague to be judicially enforceable. It read section 671 (a) (3)’s related language, that the State plan “provide [ ] that the plan shall be in effect in all political subdivisions of the State, and, if administered by them, be mandatory upon them” (emphasis added), narrowly to mandate only that the plan apply to such subdivisions, not that it need be enforced. Although the only claims before the Court were pursuant to section 671 (a) (9) and (15), in footnote 10 of the opinion (see, supra, n 1) it strongly suggested that none of the 17 paragraphs of section 671 (a) could support a private right of action. Finally, the Court repeatedly emphasized the importance of careful review of the statutory language at issue in the context of the entire act.
In a probing, strongly worded dissent, Justice Blackmun analyzed section 671 (a) (15) within the framework established by the Court in Wilder (supra) and its antecedents and found that the statute supported a private right of action pursuant to section 1983, that the majority departed from such precedents without acknowledgment, explanation or justification and that the majority’s purported distinction between the statute at issue in Wilder and that at issue in Suter was nonexistent for section 1983 purposes.
In my view, Suter was, among other things, a result-oriented attempt to seriously restrict access to private enforcement of Federal statutes by way of section 1983. While Suter is basically grounded in Wilder and its antecedents and perhaps reaches the correct result as to 42 USC § 671 (a) (15), it created a great deal of confusion among the lower courts regarding the exact nature of its holding, due to its dicta, its failure to expressly reference and follow the Wilder analysis and its failure to clearly state how it was attempting to refine Wilder (71 NC L Rev, op. cit., at 1201-1202).
*36Suter was decided in 1992. In 1994, Congress amended 42 USC § 1320a-2 to state, in relevant part: “In an action brought to enforce a provision of this chapter [which includes the AACWA and the CAPTA], such provision is not to be deemed unenforceable because of its inclusion in a section of this chapter requiring a State plan or specifying the required contents of a State plan. This section is not intended to limit or expand the grounds for determining the availability of private actions to enforce State plan requirements other than by overturning any such grounds applied in Suter v. Artist M., [503 US 347,] 112 S.Ct. 1360 (1992), but not applied in prior Supreme Court decisions respecting such enforceability; provided, however, that this section is not intended to alter the holding in Suter v. Artist M. that section 671 (a) (15) of this title is not enforceable in a private right of action.” Congress’ intent in enacting the amendment was to: “assure that individuals who have been injured by a State’s failure to comply with the Federal mandates of the State plan titles of the Social Security Act are able to seek redress in the federal courts to the extent they were able to prior to the decision in Suter v Artist M.” (HR Rep No. 6, 140 Cong Rec H10250 [Sept. 28, 1994]).
Several courts have found that the amendment forecloses a reading of Suter that would preclude section 1983 enforcement of a provision in a State plan statute merely because it was included in such a statute (see, Harris v James, 127 F3d 993, 1002-1003, supra; Doe v District of Columbia, 93 F3d 861, 876; Value Behavioral Health v Ohio Dept, of Mental Health, 966 F Supp 557, 567; Norman v McDonald, 930 F Supp 1219, 1227-1228). Some opine that it limits Suter to its facts and/or returns the law to its pre-Suter (Wilder) state (Visiting Nurse Assn, v Bullen, 93 F3d 997, 1003, cert denied 519 US 1114; Stanberry v Sherman, 75 F3d 581, 583-584; Vogelsang v Cayuga County, 1998 US Dist LEXIS 3848 [ND NY, Mar. 25, 1998, Pooler, J.]; Messier v Southbury Training School, 916 F Supp 133, 143). The confusion regarding the interpretation of this amendment is a direct reflection of the confusion engendered by the Suter decision itself.
In Blessing v Freestone (supra), a 1997 decision, the issue was whether provisions in title IV-D of the Social Security Act create enforceable Federal rights, via section 1983, in parents of children entitled to receive child support services from the State of Arizona. Title IV-D, part of the Aid to Families with Dependent Children (AFDC) program, requires that States *37seeking to qualify for Federal AFDC funds must certify that their child support enforcement programs conform with the title’s numerous requirements. The Court, expressly relying on Wilder (supra), unanimously reversed the Ninth Circuit’s decision in favor of plaintiffs, holding that they failed to establish that title IV-D gave them individually enforceable Federal rights. The Court held that plaintiffs, for the most part, failed to sufficiently specify the rights they were claiming and the statutory provisions supporting such claims, and that the Ninth Circuit failed to conduct the required “methodical inquiry” to determine whether the claims and corresponding provisions satisfied the Wilder test (supra, 520 US, at 343). The Court, in addition, offered a refinement to the first criterion of the Wilder test in that it distinguished between statutory intents to benefit plaintiff directly or indirectly. A private right of action would be found only if the provision evidenced an intent to benefit plaintiff as an individual, i.e., directly, as opposed to conferring benefits by improving the over-all efficiency of the system, i.e., indirectly.
The Court did examine several claims it was able to discern from the Ninth Circuit decision and the complaint. It found the statute’s “substantial compliance” requirement to be primarily an indicator by which the Secretary of Health and Human Services could determine whether a State’s program was performing as required, and thus only indirectly linked to the services received by individuals such as plaintiffs. Hence it found that the intended remedy for substantial noncompliance was for the Secretary to increase the frequency of audits and reduce the State’s Federal grant, not a private right of action. Using the same rationale, the requirement of sufficient staffing levels was rejected as a basis for private enforcement. Despite the Court’s rejection of plaintiffs’ claims based on these operational requirements and of the Ninth Circuit’s blanket analytical approach to the question of rights under title IV-D, it specifically declined to foreclose the possibility that some title IV-D provisions might give rise to private rights of action (Blessing v Freestone, supra, 520 US, at 345). The case was remanded to the District Court to specifically identify the remainder of plaintiffs’ claims and the corresponding statutory provisions and to review them pursuant to Wilder (supra).
Blessing artfully calmed the waters roiled by Suter (supra). It reanchored this area of section 1983 jurisprudence in the pre-Suter precedents, accomplished, to a degree, the Supreme Court’s not-so-hidden agenda of restricting the private enforce*38ment of Federal rights pursuant to section 1983, quietly addressed the Congressional concerns that resulted in the amendment, and, generally, cleared up most of the detritus and uncertainty created by Suter, wisely citing it only for limited purposes.
The Eleventh Circuit in Harris v James (127 F3d 993, 1004, supra) noted that the state of the law in this area, in the wake of Suter, the amendment and Blessing, would seem to be: “First, the holdings of Wright, Wilder, and Suter all remain good law. Second, the three-prong ‘enforceable rights’ test developed in Wright and Wilder remains good law. Finally the Supreme Court’s admonitions in Suter which fall short of proposing that State-plan statutes are a fortiori unenforceable under § 1983 remain good law”. I would add that the Harris court’s reference to State plan statutes should specifically mention the paragraphs of section 671 (a) not at issue in Suter.
In the matter before us, the majority cites Baby Neal v Casey (821 F Supp 320, read on other grounds 43 F3d 48) and Eric L. v Bird (848 F Supp 303) for the proposition that “The language of Suter is clear. Plaintiffs may not bring an action under the Adoption Act itself or 42 U.S.C. § 1983 for alleged failures of the Commonwealth to implement any feature of its plan which has been approved by the Secretary” (Baby Neal v Casey, supra, at 327 [emphasis added]). However, this view, based upon footnote 10 of Suter, is unpersuasive for several reasons. First, footnote 10 appears to be dictum, since the remaining paragraphs of section 671 (a), including paragraph (16), are not at issue in Suter. Second, it predates the 1994 amendment and runs contrary to the amendment’s express prohibition against a fortiori section 1983 unenforceability of State plan provisions. Third, it violates Blessing’s admonitions against sweeping, unmethodical determination of whether a State plan statute creates private enforceable rights, which the Court underlined with its pointed refusal to “foreclose the possibility that some provisions of [the statute at issue there] give rise to individual rights.” {Blessing v Freestone, supra, 520 US, at 345.)
It is plaintiffs’ contention that they have viable claims arising from defendants’ failure to comply with section 671 (a) (16), and section 675 (1) and (5) (B), by failing to produce, for the children in foster care, legally mandated case plans designed to either reunite the children with their families or to provide the children with permanent homes, or, where such a plan was produced, failing to take steps to implement it. Section 671 (a) *39(16) is one of a list of 17 required features for State plans seeking to qualify for Federal funding. Section 675 (1) and (5) (B) define the terms “case plan” and “case review system” mentioned in section 671 (a) (16). The provisions read in relevant part as follows:
“§ 671. State plan for foster care and adoption assistance “(a) Requisite features of State plan
“In order for a State to be eligible for payments under this
part, it shall have a plan approved by the Secretary which
* * *
“(16) provides for the development of a case plan (as defined in section 675 (1) of this title) for each child receiving foster care maintenance payments under the State plan and provides for a case review system which meets the requirements described in section 675 (5) (B) of this title with respect to each such child”.
Ҥ 675. Definitions
“As used in this part or part B of this subchapter:
“(1) The term ‘case plan’ means a written document which includes at least the following:
“(A) A description of the type of home or institution in which a child is to be placed, including a discussion of the safety and appropriateness of the placement * * *
“(B) A plan for assuring that the child receives safe and proper care and that services are provided to the parents, child, and foster parents in order to improve the conditions in the parents’ home, facilitate return of the child to his own home or the permanent placement of the child * * *
“(C) To the extent available and accessible, the health and education records of the child * * *
“(5) The term ‘case review system’ means a procedure for assuring that * * *
“(B) the status of each child is reviewed periodically but no less frequently than once every six months by either a court or by administrative review”.
The issue is whether Congress unambiguously conferred upon the child beneficiaries of section 671 (a) (16) a right to enforce the requirements that the State provide for the development of a case plan for each child receiving foster care maintenance payments and provide a case review system meeting certain specifications with respect to each such child.
When reviewed in accordance with the principles set forth in, inter alia, Blessing (supra) and the amendment, I find that *40section 671 (a) (16) does create a Federal right enforceable under 42 USC § 1983. With reference to the first Wilder criterion, the statute is clearly intended to benefit plaintiffs directly, since it purports to provide a case plan consisting of specified elements and a case status review within a specific time frame for each child receiving support payments (see, Blessing v Freestone, supra, 520 US, at 345 [compare the discussion regarding the staffing-levels provision, which was found to be too indirectly beneficial to create an enforceable right, to that regarding the child-support collection pass-through provision, which the Court strongly suggests would create an enforceable right]; see also, Marisol A. v Giuliani, supra, at 683; Jeanine B. v Thompson, 877 F Supp 1268, 1283-1284, reconsidered and mod on other grounds 967 F Supp 1104).3 As for the second criterion, the statutory language places a binding obligation on the State, the mandate being that the State, in order to qualify for Federal funding, provide an approved plan that provides the described case plan and case review system (Marisol A. v Giuliani, supra, at 683; Jeanine B. v Thompson, supra, at 1283-1284; see, Suter v Artist M., supra, at 358). The third Wilder criterion, whether the statutory language is too vague and amorphous for judicial enforcement, must be answered in the negative. Section 671 (a) (16), in conjunction with the definitions at section 675 and the accompanying regulations at 45 CFR 1356.21 (c) and (d), clearly sets forth requirements for the case plan and case review system. For example, the case plan must be a written document, must be prepared within 60 days and must include, inter alia, a description of the services offered and provided to prevent removal of the child from the home. The case review system must assure, inter alia, that each child has a case plan consistent with his best interest, in specified areas, and his special needs, and that the child’s status is judicially or administratively reviewed at least every six months with regard to several specified concerns.
Accordingly, I would reinstate plaintiffs’ AACWA claims.
As for plaintiffs’ remaining claims, I would also find viable the G. family’s claims under various sections of the State Social *41Services Law and their negligence claims based on the theory that a special relationship was created, as well as certain of the F. family’s claims under the Social Services Law and the State Constitution.
The G. family claims that defendants violated various sections of the State Social Services Law as follows: section 424 (6) (failure to conduct investigations within the 24-hour notice period); section 424 (7-a) (failure of case worker to timely respond and to timely file 90-day follow-up reports); section 424 (13) (failure to provide protective services to train and enable the mother to care for her children, and when services were provided, failure to monitor the mother to make certain that she complied with conditions imposed); section 417 (1) (a) and section 424 (9) (failure to remove children from home upon determination that their well-being was at risk); and section 417 (2) (failure to protect children’s health by returning them to filthy and abusive home environment without imposing statutory safeguards to ensure against subsequent risk). These claims involve the failure of defendants to provide specific, statutorily mandated, nondiscretionary services, i.e., timely initial investigations of reports of abuse or neglect and timely subsequent monitoring and follow up of the situation, and the failure led directly .to the injuries suffered by plaintiffs, thus giving rise to private rights of action (Klostermann v Cuomo, 61 NY2d 525; Grant v Cuomo, 130 AD2d 154, affd 73 NY2d 820).
The G. family, not Alan G. only as the motion court held, would also appear to have grounds for holding defendants liable for acts of negligence on the theory that a special relationship was created. The basis for such a relationship was arguably established when the caseworkers responded to complaints, and investigated and documented the unhealthy home environment and the obvious indications of physical abuse, but failed to initiate or maintain appropriate measures to safeguard the children’s welfare (see, Nowlin v City of New York, 81 NY2d 81; Kircher v City of Jamestown, 74 NY2d 251; De Long v County of Erie, 60 NY2d 296; Florence v Goldberg, 44 NY2d 189; Boland v State of New York, 218 AD2d 235; Rodriguez v City of New York, 189 AD2d 166, 178). This conduct would appear to speak to the first three elements of a special *42relationship.4 I am also of the view, the City’s contentions notwithstanding, that sufficient legal authority exists to support the inference that the children justifiably relied on the City’s clear assumption of responsibility for their well being (Boland v State of New York, supra, at 241 [Social Security Law, article 6, title 6’s “extensive and detailed statutory scheme” sufficiently establishes the third and fourth necessary elements of a special relationship]; see also, Barnes v County of Nassau, 108 AD2d 50, 54 [“a State or its subdivisions may be answerable for injuries suffered by children as a result of negligence in the placement or supervision of children in their charge”]; Bartels v County of Westchester, 76 AD2d 517, 521-522 [“one assuming to act, though not under a duty, must act with care, especially when looking after children”]). The special relationship theory would also pertain where the children were removed from their home into the City’s custody and were subsequently returned to that abusive environment without complying with the statutorily mandated protective procedures. Having stated all the above, we are of course mindful that the existence of a special relationship is generally a question for the trier of fact (De Long v County of Erie, 60 NY2d 296, 306, supra) and should be so here.
Thus, the motion court’s dismissal of the G. children’s claims, both those pursuant to the Social Services Law provisions cited above and those arising from their special relationship with defendant City, was error, and those claims should be reinstated.
The F. children were repeatedly removed illegally from their home (Family Ct Act §§ 1021-1024) without any initial determination of whether removal was appropriate, or any development of a plan to keep the family together, contrary to mandated, nondiscretionary procedures (Social Services Law §§ 409-e, 409-a). This failure to provide any of the preventive services the family needed and was entitled to was particularly egregious here, where, for instance, the obvious need for communication services was never addressed despite the caseworker’s awareness of the mother’s deafness and the problem it *43caused in caring for the children; indeed, it was his justification for removing the children. Where there is such failure to make a mandated initial determination as to the need for services, a privately enforceable right should exist.
Finally, the right to substantive due process guarantees an individual’s right to be free from harm while in State custody (see, Youngberg v Romeo, 457 US 307, 315-316; Society for Good Will to Retarded Children v Cuomo, 737 F2d 1239, 1245-1246; Doe v New York City Dept, of Social Servs., 649 F2d 134, 141; Yvonne L. v New Mexico Dept, of Human Servs., 959 F2d 883, 890-894; Norfleet v Arkansas Dept, of Human Servs., 989 F2d 289, 291-293; Matter of Ford v Civil Serv. Empls. Assn., 94 AD2d 262, 264-265, lv dismissed 62 NY2d 799). This freedom from harm includes physical harm and, arguably, psychological or emotional harm (see, Marisol A. v Giuliani, supra, at 675, citing B.H. v Johnson, 715 F Supp 1387, 1395; Aristotle P. v Johnson, 721 F Supp 1002, 1009-1010; Doe v New York City Dept, of Social Servs., 670 F Supp 1145, 1175-1176), subject, of course, to evidentiary proof. The breadth of the protection and care need not be optimal (see, Baby Neal v Casey, supra, at 337; B.H. v Johnson, supra, at 1397-1398; Del A. v Roemer, 111 F Supp 1297, 1319-1320), but, at a minimum, must include the bare essentials of food, shelter, clothing and medical care (Youngberg v Romeo, supra, at 324) and must bear a reasonable relationship to the purpose of the custody, which in the child welfare context is “ ‘to further the best interest of children’ ” (Marisol A. v Giulani, supra, at 676, quoting Doe v New York City Dept, of Social Servs., 670 F Supp 1145, 1174; Jackson v Indiana, 406 US 715, 738).
Given these principles, there is legal merit in the F. children’s substantive due process claim. The repeated displacement and the abuse the F. children allegedly suffered while in foster care would constitute a violation of their rights, provided an evidentiary nexus between foster care and the injuries can be established at trial and no intervening causation is shown to relieve the City of liability.
In New York City, every few weeks we hear another story about a child dead as a result of child abuse, often in foster homes. Countless others of whom we never hear are undoubtedly being harmed. Obviously, many, if not most, of these incidents are not the result of municipal misfeasance, malfeasance or nonfeasance. Often, however, we hear of incidents that were avoidable had those charged with responsibility performed their duties in reasonable compliance with the for*44midable phalanx of laws and procedures, such as those at issue, which we have implemented at a cost of millions of dollars.
It is a harsh fact that despite the lofty moral and practical reasons to protect and nurture our children, resort to the sanction of monetary damages is probably the most effective means of both attempting to restore to these children some measure of what has been taken from them and forcing those entrusted with safeguarding children’s lives to fulfill their duties. The nature of our society is that pecuniary incentives are perhaps the most powerful of all. There is no question that the resulting municipal exposure to liability might be enormous and that, in some cases, the putative claimants or beneficiaries of such claims might bear responsibility for some of the claimed injuries. But these concerns can be addressed. Why can’t these laws be administered as intended? Otherwise, how else may these children be helped? Unfortunately, if pressure is not exerted to remedy these problems at this point, the thousands of damaged children will become a generation of damaged adults who will cost us infinitely more in dollars or any other measure we might choose, and will engender succeeding generations of similarly damaged individuals.
Thus, where Congress sees fit to enact these child welfare statutes and has in place a mechanism for their private enforcement, and the States accept the funding, put the required laws on the books, but fail to properly effectuate them, it would seem to be the clear function of the courts to maximize rather than restrict access for the adjudication of the resulting claims. Instead, the trend has been to render these laws ineffectual with decisions that do not allow these children or their representatives to enforce them when they have the greatest need for enforcement, i.e., when those charged with enforcement have failed. It is the type of situation to which detractors of our justice system point in order to show how politics and socioeconomic status typically render the law unjust and unworthy of respect. How can we be content to offer only illusory protection to these helpless, but crucial, members of our society?
Sullivan, J. P., and Milonas, J., concur with Andrias, J.; Rubin and Williams, JJ., dissent in part in a separate opinion by Williams, J.Orders, Supreme Court, New York County, entered June 3, 1996 and June 28, 1996, affirmed; order, same court and Justice, entered July 3, 1996, modified, on the law, defendants’ *45motion for partial summary judgment further granted, and plaintiffs’ claims, insofar as they allege violations of Social Services Law § 409 et seq. and article XVII of the NY Constitution, dismissed, and otherwise affirmed; order, same court and Justice, entered July 11,1996, modified, on the law, defendants’ motion for partial summary judgment further granted, and plaintiffs’ claims under the tenth cause of action, insofar as they allege violations of Social Services Law § 409 et seq. and article XVII of the NY Constitution, dismissed, and otherwise affirmed; order, same court and Justice, entered July 9, 1996, modified, on the law, defendants’ motion for partial summary judgment further granted, and plaintiffs’ claims under the tenth and fourteenth causes of action, insofar as they allege violations of Social Services Law § 409 et seq. and article XVII of the NY Constitution, dismissed, and otherwise affirmed; and order, same court and Justice, entered July 9, 1996, modified, on the law, defendants’ motion for partial summary judgment further granted and plaintiffs’ claims, insofar as they allege violations of Social Services Law § 409 et seq., dismissed, and otherwise affirmed, all without costs.
. Footnote 10 of Suter (supra, at 359) states:
“Respondents also based their claim for relief on 42 U.S.C. § 671 (a) (9) which states that the state plan shall ‘provid [e] that where any agency of the State has reason to believe that the home or institution in which a child resides whose care is being paid for in whole or in part with funds provided under this part or part B of this subchapter is unsuitable for the child because of the neglect, abuse, or exploitation of such child, it shall bring such condition to the attention of the appropriate court or law enforcement agency :jc >
“As this subsection is merely another feature which the state plan must include to be approved by the Secretary, it does not afford a cause of action to the respondents anymore than does the ‘reasonable efforts’ clause of § 671 (a) (15).” (Emphasis added.)
. The legitimacy of Congress’ power to legislate pursuant to its spending power depends on the State’s knowing and voluntary acceptance of the terms upon which a grant of Federal funds is made. Thus, as in a contractual relationship, any term or condition Congress imposes on the grant must be unambiguous.
. At 967 F Supp 1104, the court, in light of Blessing, reconsidered its prior decision that CAPTA (42 USC) § 5106a (b) was privately enforceable; it directed (at 1119) the parties to submit briefs on the question of whether reconsideration was also warranted of its prior holding that sections of AACWA, including 42 USC § 671 (a) (16), were privately enforceable. To date, no decision on that issue has been reported.
. The requirements for creation of a special relationship are: “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” (Cuffy v City of New York, 69 NY2d 255, 260).