Isaacs v State of New York

[*1] Isaacs v State of New York 2006 NY Slip Op 51109(U) [12 Misc 3d 1168(A)] Decided on April 13, 2006 Ct Cl Scuccimarra, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 13, 2006
Ct Cl

John Isaacs Claimant

against

The State of New York, Defendant



108531



Claimant's attorney:JOELSON & ROCHKIND

BY: MARYANN H. LATTNER, ESQ.

Defendant's attorney:HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL

BY: GWENDOLYN HATCHER, ASSISTANT ATTORNEY GENERAL

Third-party defendant's attorney:

Thomas H. Scuccimarra, J.

John Isaacs alleges in his claim that on October 10, 2003 he fell and tore a tendon in his foot while alighting from a bunk bed at the Palladia Parole Residence Program facility to which he had been assigned by the New York State Division of Parole. He indicates that he fell because he was not supplied with an appropriate ladder and because the lighting was inadequate.

Notably, in a prior Decision and Order denying the Defendant's Pre-Answer motion to dismiss this court said: "While the issue of what duty the State owes to someone in claimant's position seems apparent - specifically, what duty is owed by the State with respect to bunk bed safety in a privately owned and operated facility used by competent adults - that issue is not raised by the instant motion and indeed would properly be raised by a motion for summary judgment after issue is joined and at least some disclosure has occurred so that the issue of the defendant's duty may be addressed in an appropriate factual context." [Isaacs v State of New York, Claim No. 108531, Motion No. M-67767, unreported decision (April 13, 2004 Scuccimarra, J.)].

Defendant now moves for summary judgment dismissing the claim, arguing that because the State does not own or operate the accident situs, nor does it own or control the instrumentality of the injury - namely the bunk beds or the step ladder used by Claimant to alight - it cannot be held liable.

In an Affirmation by Kathleen M. Kiley, an Assistant Counsel to the New York State Division of Parole, she writes that the agency has "no control . . . whatsoever since Palladia is a separate entity entirely. Palladia is a New York State corporation that provides services to parolees that have been released from prison, however the Division does not have any control over the premises or activities of Palladia, Inc. . . .[It] is not an agency or department of the Division. In addition, the Division does not own, operate or control the step ladder which allegedly caused the injury." [Affirmation in Support by Gwendolyn Hatcher, Assistant Attorney General, Exhibit 7].

Land records establish that the owner of the property where Claimant's accident occurred [*2]is Lenmort Realty, not the State of New York. [ibid. Exhibit 8].

Records from the New York State Department of State establish that Palladia - in its several incarnations - is a not-for-profit corporation issued operating certificates pursuant to Article 32 of the Mental Hygiene Law [Mental Hygiene Law §32.01 et seq] for its provision of substance abuse services in residential and other programs. [ibid. Exhibits 5 and 6]. It offers a parole transition treatment program to which parolees are admitted only "through referrals from The New York State Division of Parole." [ibid. Exhibit 4].

Pursuant to Correction Law §149, Mr. Isaacs was released to parole supervision on April 29, 2003 - subject to such supervision until May 27, 2006 - with the indication being that his residence would be "Palladia Parole Residence Program, 1808 3rd Avenue, New York, NY" [ibid. Exhibit 3]. The Certificate of Release to Parole Supervision includes the condition that Claimant participate in a substance abuse treatment program as directed by his parole officer, and lists the Palladia Parole Residence Program as well. [ibid. Exhibit 3].

When the State's agent, the New York State Division of Parole, assumes supervisory responsibilities over those granted parole sentences, it is acting in a governmental capacity. These responsibilities involve the exercise of discretion, for which the State has not waived sovereign immunity, absent some special relationship between a claimant and the State. Claimant's placement by the New York State Division of Parole in a non-profit housing and rehabilitation facility offering substance abuse services as a condition of his parole does not create a special duty to Claimant lifting the immunity protections afforded performance of governmental functions.

Even assuming a mixed governmental/proprietary function as shown in cases involving universities or public housing facilities, ". . . [w]hen the liability of a governmental entity is at issue, [i]t is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred which governs liability, not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred' (Weiner v Metropolitan Transp. Auth., 55 NY2d 175, 182)." Miller v State of New York, 62 NY2d 506, 513 (1984). This is because the State's duty may be defined upon a "continuum" between its actions in a governmental capacity - such as provision of police protection whereby only a Claimant who can show that a special duty exists between the agency and the individual may establish liability when such duty is breached - and those performed in a proprietary capacity. State operated dormitory facilities, when the university also has a security force, as well as housing projects with security forces, may involve duties on either end of the continuum.

Thus in Miller the Court of Appeals concluded that the failure to lock dormitory doors at a State University campus, in light of prior complaints that intruders had been roaming the halls and prior criminal behavior, was a breach of the State's duty, in its proprietary capacity, to take minimal security measures as a landlord. The Claimant's rape was a foreseeable result of the breach of that duty, and the failure to lock the doors was a proximate cause of the rape. cf. McEnaney v State of New York, 267 AD2d 748 (3d Dept 1999).

To determine whether a special duty has been established, claimant must show ". . . the assumption by the governmental entity, by promise or action, of an affirmative duty to act on behalf of the injured party and the injured party's justifiable reliance on that undertaking (see [*3]Cuffy v City of New York, 69 NY2d 255, 260)." Melanson v State of New York, 215 AD2d 43, 45 (3d Dept 1995), lv denied, 87 NY2d 810 (1996).

At his deposition, Claimant testified that he had been a resident at the Palladia home at 1808 Third Avenue since his release from the custody of the New York State Department of Corrections on April 29, 2003. [Affirmation in Opposition by Maryann H. Lattner, Exhibit A, p. 15]. Although he had originally been accepted for a 90-day program, he "got caught up in it for a little bit longer." [id. p.16]. He saw his parole officer at that location every Tuesday, and that officer as well as others used an office there to meet with parolees. He was assigned a counselor and a vocational counselor, to assist him. [id. p.p. 24-25].

The room he slept in was on the second floor, and housed nine (9) other parolees. [id. p. 23]. On the same floor were "offices for the staff, counselors and . . . a t.v. room." [id. p. 24]. At midnight, there were "lights out" rules at the facility during the week, but the lights were controlled by the residents. [id. p. 25]. The top bunk - to which he had been assigned since April 2003 - was approximately five feet from the floor and accessed by a "metal step ladder" that was "not stable."[id. p.p. 41, 42]. Mr. Isaacs said he had reported unsteadiness of the ladder to his Palladia counselor. [id. p. 42]. At approximately 3:30 a.m. on October 10, 2003 Claimant "was getting down to go to the bathroom, the ladder flipped over and my weight came down on the part that holds the ladder open, you know, the middle part that opens the ladder up . . . [a]ll my weight came down on the middle part that holds the legs open. Ripped my toe open like a razor blade." [id. p.p. 48-49]. After he was injured, he alerted "the guy that worked at night" downstairs - a Palladia employee who checked people in and out of the facility - and an ambulance was called. [id. p.p. 55-56]

Claimant appears to argue that his placement and participation in Palladia's residential substance abuse program as a condition of parole, and the weekly meetings he had with his parole officer at that location "after work", created a special duty as between the New York State Division of Parole and the Claimant such that the agency had a duty to assure that bunk beds in premises it did not own or lease or control in any fashion, contained means of alighting that would have prevented this adult Claimant from injuring himself when he got out of bed at 3:30 a.m. Clearly, from the kind of negligence alleged only if the State of New York was operating as a landowner or landlord would a cause of action lie - albeit rather tenuously - under these facts.

Indeed, "special relationship" findings vis a vis the New York State Division of Parole have concerned the agency's role in supervising the parolee, and negligence associated with failures to properly supervise causing harm to identified members of the public who have been assured of their safety. See generally Hammond v State of New York, 157 AD2d 391 (1st Dept 1990); cf. Tarter v State of New York; Tyner v State of New York, 68 NY2d 511 (1986).

Civil Practice Law and Rules §3212(b) provides in pertinent part: . . . A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the [*4]papers and proof submitted the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party . . . the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.

Assuming a movant has made a prima facie showing of entitlement to judgment as a matter of law by proffering sufficient evidence to eliminate any genuine material issues of fact, the party in opposition to the motion for summary judgment must tender evidentiary proof in admissible form to establish the existence of material issues which require a trial. Winegrad v New York University Medical Center, 64 NY2d 851 (1985); Zuckerman v City of New York, 49 NY2d 557 (1980).

In Walker v State of New York, 104 Misc 2d 221 (Ct Cl 1980), the wrongful death claim by the mother of two infants who died in a fire at their foster care home due to the alleged negligence by the New York State Department of Social Services and the Onondaga County Department of Social Services in placing the children in a foster care home was dismissed. The Court found that although the State had a general authority to oversee and review the local agency's actions, any ". . . failure to discover a violation of regulations, absent a showing of notice, is not actionable . . . (citations omitted) . . . [T]he primary responsibility for the care and placement of children in the foster care programs was vested in the local agencies . . . " Walker v State of New York, supra, at 223; see also LaPierre v State of New York, Claim No. 111478, Motion No. M-71075, unreported decision (March 20, 2006, Mignano, J.).

Claimant's version of events is fairly straightforward in terms of his participation in the program and the happening of the accident. Nothing stated or submitted by Claimant, however, raises a triable issue of fact relative to the State's ownership or control of the premises, or relative to another theory whereby State liability could be imposed that is not attenuated in the extreme. Even if arguably the State had some modicum of control over the premises by virtue of the meetings between Claimant and his parole officer, or because this residence option was a condition of parole, or because another agency was involved in licensing, imposing a duty under these facts would render the State an insurer.

Accordingly, Defendant's motion for summary judgment and for dismissal of the within claim is granted, and Claim Number 108531 is dismissed in its entirety.

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