DeGraffe v City of New York

[*1] DeGraffe v City of New York 2010 NY Slip Op 50234(U) [26 Misc 3d 1223(A)] Decided on January 8, 2010 Supreme Court, Bronx County Schachner, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 8, 2010
Supreme Court, Bronx County

Linda DeGraffe, Administratrix of the Estate of GLORIA BROWN, Deceased, Plaintiffs,

against

The City of New York, Defendant.



26882/02



Appearances:

Plaintiff: Gary E. Divis, Esq.

Defendant: Michael A. Cardozo, Corporation Counsel of the City of New York

By: Steven M. Koulish, Assistant Corporation Counsel

Larry S. Schachner, J.

Plaintiff Linda Degraffe as the administrator of the estate of her mother, Gloria Brown, commenced this action to recover damages for negligence, wrongful death, breach of ministerial duty, malpractice, statutory violations, and violation of decedent's civil rights pursuant to 42 U.S.C. § 1983. On November 18, 2001, Ms. Brown who suffered from Alzheimer's disease and lived alone, left her apartment building at approximately 6:00 A.M. where she was last seen by security guards in her apartment complex. On November 20, 2001, Ms. Brown was found dead on the bank of the East River, near 128th Street and the FDR Drive.

Procedurally, the answer of defendant City of New York (City) was struckby the decision/order of Justice Bowman, dated December 19, 2006; reargument and renewal was denied by Justice Bowman in her decision/order dated May 30, 2007 and that order was not appealed. Defendant City now moves to dismiss plaintiff's complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7). Plaintiff cross-moves for a determination that claimant has established a viable cause of action pursuant to CPLR 3211 (a) and CPLR 3126. As neither CPLR 3211 (a) nor CPLR 3126 provide for plaintiff's requested relief, the court will treat plaintiff's cross motion only as opposition to defendant's motion to dismiss.

On a motion to dismiss, "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law..." Guggenheimer v Ginzburg, 43 NY2d 268, 275 (1977) (citation omitted). Moreover, "[w]hen evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader is not a fact at all and [*2]unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate." Guggenheimer v Ginzburg, supra, at 275 (citation omitted). Further, on a motion to dismiss, the factual allegations must be accepted as true and the complaint liberally construed in favor of the pleader. Anguita v Koch, 179 AD2d 454, 457 (1st Dept 1992) (citation omitted).

Plaintiff decedent Gloria Brown began suffering from the early stages of Alzheimer's disease in the early part of 1998. Ms. Brown's family requested a medical examination of Ms. Brown for the purpose of requesting home Personal Care Services under the federal Medicaid program and provided through the City's Human Resources Administration (HRA), the local office of the New York State Department of Social Services administering the Medicaid program in New York State. The physician who conducted the examination of Ms. Brown believed that she needed Personal Care Services and as per protocol submitted a form labeled M-11q and entitled "Medical Request for Home Care," requesting HRA to authorize such services. After its receipt of the M-11q form, HRA sent a nurse and a case manager to evaluate Ms. Brown. The nurse's assessment was conducted on May 14, 1998 and the case manager's social assessment was conducted on May 19, 1998. On May 22, 1998, an HRA-affiliated doctor, Max Greenlee, M.D., recommended that Ms. Brown receive Personal Care Services three days per week. Based upon the nurse's assessment, the case manager's social assessment and Dr. Greenlee's recommendation, HRA authorized Personal Care Services for Ms. Brown on three days per week for a total of 14 hours each week. Ms. Brown began receiving the Personal Care Services in June 1998. In addition to her home care services, Ms. Brown was enrolled in a day care center, Morningside Center for Alzheimer's Patients, seven days a week from approximately 6:15 A.M. to 3:00 P.M.

From June 1998 until April 2000, Ms. Brown received 14 hours per week of Personal Care Services from HRA. During that period, Ms. Brown's family on three different occasions had a doctor submit M-11q forms requesting additional hours of home care services, including 24-hour care services in their last request. In April 2000, HRA increased Ms. Brown's Personal Care Services to 29 hours per week. Fromapproximately June 2000 until November 2000, Ms. Brown received 29 hours per week of personal home care services.

In September 2000, plaintiff's doctor sent another M-11q form requesting 24-hour Personal Care Services for Ms. Brown. In response and pursuant to protocol, HRA conducted another nurse's assessment and case manager's social assessment of Ms. Brown. Based on the assessments and other relevant materials, HRA increased Ms. Brown's Personal Care Services from 29 hours per week to 37 hours per week beginning on or about November 27, 2000. Under the new assessment, Ms. Brown would receive Personal Care Services from approximately 3:00 P.M. to 8:00 P.M. on Monday to Friday and 3:00 P.M. to 9:00 P.M. on Saturday and Sunday. During the time when Ms. Brown received home care services, starting in June 1998 and up until her death on November 20, 2001, Ms. Brown went missing on at least three occasions. It is undisputed that HRA was aware that Ms. Brown had previously wandered off when it increased her home care services to 37 hours per week.

However, on October 23, 2000, before HRA had increased Ms. Brown's care services to 37 hours per week, plaintiff had requested a hearing before the State Department of Health on her appeal from HRA's determination to afford 29 hours per week of Personal Care Services for Ms. Brown and to compel HRA to increase her care services from 29 hours per week. Ms. Brown, [*3]along with her daughter, Ms. Linda DeGraffe, appeared before the Honorable David Traum, Administrative Law Judge, New York State Department of Health, for the hearing.

A decision after fair hearing was issued on January 17, 2001 by the Commissioner of the New York State Department of Health (DOH Commissioner) which reversed the decision of HRA to provide 29 hours of weekly Personal Care Services to Ms. Brown. Pursuant to the decision, HRA was directed to immediately conduct a new evaluation of Ms. Brown's eligibility for Personal Care Services and render a new determination as to her ongoing need for Personal Care Services. The decision noted that on one occasion Ms. Brown had wandered off while waiting for an ambulette service and suggested that HRA should investigate whether Ms. Brown's tendency to wander makes her eligible for certain increased tasks, such as time allocated to escort to appointments. However, the decision also noted that "despite the wishes of[Ms. Brown's] family, the [HRA] may decide not to authorize Personal Care Services task time purely to prevent [Ms. Brown] from wandering as this might constitute pure safety monitoring." The decision cited Rodriguez v City of New York, 197 F3d 611 (2d Cir 1999) as applicable law that the City Agency is not required to provide safety monitoring as an independent Personal Care Services task in evaluating the needs of applicants and/or recipients of Personal Care Services.

Thus, while the decision after fair hearing was pending, HRA had already made a determination to increase Ms. Brown's Personal Care Services hours from 29 to 37 hours per week. Correspondingly, from November 2000 until November 18, 2001, Ms. Brown received home care services in the amount of 37 hours per week without further challenge to HRA by plaintiff to increase that amount. Plaintiff did not initiate a further proceeding either for enforcement of the decision after fair hearing, or through a lawsuit pursuant to CPLR Article 78, which were the remedies referenced in the notice of decision accompanying the decision after fair hearing.

In its motion to dismiss, the City claims that HRA's actions in evaluating Ms. Brown and making a determination as to the level of Personal Care Services she needed was a discretionary act which may not be the basis for liability. Defendant also argues that the decision after fair hearing was effectively moot since HRA had already made a determination to increase Ms. Brown's Personal Care Services hours from 29 to 37 hours per week and HRA was aware when it made its determination that Ms. Brown had previously wandered. In addition, defendant contends that plaintiff did not exhaust all of the administrative and/or other remedies available to her prior to bringing this lawsuit even though the notice of decision which accompanied the decision after fair hearing explained the steps to be taken to appeal or enforce the decision.

The crux of plaintiff's argument in opposition is that HRA's non-compliance with the DOH Commissioner's decision after fair hearing in failing to re-evaluate Ms. Brown's Personal Care Services needs in light of the discussion in the decision that her tendency to wander may make her eligible for certain increased tasks, such as time allocated to escort to appointments, constitutes a breach of a ministerial act for which the City is liable. Plaintiff also argues that sending a copy of the decision after fair hearing to Ms. Brown and not to her daughter, plaintiff Linda DeGraffe, was a ministerial breach. Plaintiff further contends that HRA's obligation to re-evaluate Ms. Brown's personal care service needs as per the DOH Commissioner's order is a "voluntarily assumed duty" which, coupled with Ms. Brown's reliance on the DOH administrative order, establishes a "special relationship."

[*4]"[T]he rule to be derived from the cases is that discretionary or quasi-judicial acts involve the exercise of reasoned judgment which typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result." Tango v Tulevech, 61 NY2d 34, 41 (1983). In addition, "[a] public employee's discretionary acts - meaning conduct involving the exercise of reasoned judgment - may not result in the municipality's liability even when the conduct is negligent." Lauer v City of New York, 95 NY2d 95, 99 (2000). In contrast, "ministerial acts - meaning conduct requiring adherence to a governing rule, with a compulsory result- may subject the municipal employer to liability for negligence." id. Moreover, "[g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general." McClean v City of New York, 12 NY3d 194, 203 (2009). The Court of Appeals has determined that there are three ways to form a special relationship:

"(1) when the municipality violates a statutory duty enacted

for the benefit of a particular class of persons; (2) when it

voluntarily assumes a duty that generates justifiable reliance

by the person who benefits from the duty; or (3) when the

municipality assumes positive direction and control in the

face of a known, blatant and dangerous safety violation."

id. (quoting Palaez v Seide, 2 NY3d 186, 199-200 [2004]) (emphasis added).

Plaintiff asserts that the DOH Commissioner's "order, to reevaluate time allotted to making appointments,' set the duty; the ministerial failure to review the evidence submitted at the administrative hearing and notification errors breached the duty; and the proximate cause existed between the breach and Ms. Brown's final wandering that resulted in her death from hypothermia due to environmental conditions."Plaintiff also asserts that through the DOH Commissioner's decision HRA "voluntarily became obligated to reasonably act to reevaluate decedent" and Ms. Brown's reliance on that order created a special relationship.

However, since the actions of HRA in evaluating Ms. Brown and making a determination as to the level of Personal Care Services she needed involved the evaluations and assessments of doctors, nurses, and case managers, these actions and the ultimate determination involved the exercise of reasoned judgment, which typically produce different acceptable results, and therefore constitute a discretionary governmental act which even if negligent cannot form the basis for liability against the municipality.

Even if HRA immediately re-evaluated Ms. Brown's eligibility for Personal Care Services as per the DOH administrative order and considered her tendency to wander in the evaluation, there is still no "compulsory result" as to the number of hours her personal care services would have been increased or how those hours would have been allocated which indicates that this is not a ministerial act as defined by the case law. Cf. Hunt v State of New York, 36 AD3d 511 (1st Dept 2007) (where court officer's duty to record judge's directive on securing order that pretrial detainee be placed in protective custody was ministerial act that court officer failed to perform).

Moreover, given that HRA had already made a determination to increase Ms. Brown's Personal Care Services hours from 29 to 37 hours per week prior to the DOH Commissioner's [*5]decision, and was aware of her tendency to wander in making that determination, in effect the order was rendered moot.

Even if this court were to find that the actions of HRA were ministerial with respect to the non-compliance with the DOH Commissioner's order, plaintiff has not set forth the requisite proof of a special relationship in order to impose liability. The DOH Commissioner's order directed HRA to immediately conduct a new evaluation of Ms. Brown's eligibility for Personal Care Services and render a new determination as to her home care service needs, but the result of that evaluation and the corresponding new determination were unspecified in the decision and therefore cannot constitute any type of assumed duty or promise upon which Ms. Brown could justifiably rely. The DOH Commissioner's decision did not order 24 hour care for Ms. Brown nor did it order that she be allocated time to escort to appointments. Rather, the decision simply ordered a new evaluation and determination of Ms. Brown's home care services eligibility and assessment of her needs and even acknowledged that Ms. Brown's family may be disappointedif HRA decides not to authorize Personal Care Services task time solely to prevent Ms. Brown from wandering. In fact, Ms. Brown did receive an increase in her Personal Care Services from 29 to 37 hours per week which remained unchallenged. Moreover, approximately eleven months passed between the fair hearing decision and Ms. Brown's death without enforcement or appeal of that order by plaintiff. Therefore, plaintiff's claim of a special duty and a special relationship generating justifiable reliance based merely on the DOH administrative order which, on its face,was not specific as to the final determination of Personal Care Services resources to be allocated to Ms. Brown, is untenable.

Thus, despite the fact that the City's answer was previously strickenand notwithstanding the sad and tragic death of plaintiff decedent, Gloria Brown, "[w]here a valid cause of action is not stated, the party moving for judgment is not entitled to the requested relief, even on default." Green v Dolphy Construction Co., 187 AD2d 635, 636 (2d Dept 1992); see also Fappiano v City of New York, 5 AD3d 627 (2d Dept 2004).

Accordingly, the court is constrained to grant the City's motion to dismiss in its entirety.

This constitutes the decision and order of the court.

___________________________

LARRY S. SCHACHNER, J.S.C.

Dated: January 8, 2010