Wagstaffe v State of New York

[*1] Wagstaffe v State of New York 2014 NY Slip Op 50658(U) Decided on February 6, 2014 Ct Cl Weinstein, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 6, 2014
Ct Cl

Horatio Wagstaffe, Claimant,

against

The State of New York, Defendant.



122523



For Claimant:

Halperin & Halperin, P.C.

By: Jeffrey Weiskopf, Esq.

For Defendant:

Eric T. Schneiderman, New York State Attorney General

By: Suzette C. Rivera, Assistant Attorney General

David A. Weinstein, J.

In a claim filed March 18, 2013, claimant Horatio Wagstaffe seeks monetary damages for injuries he sustained "as a consequence of negligent security and defective locks at a building owned, operated, maintained and controlled by" defendant the State of New York (Claim ¶ 2).

The claim alleges that on February 4, 2013, claimant was a business invitee at the New York State Department of Labor building at 250 Schermerhorn Street in Brooklyn, New York, when he was assaulted by an unknown intruder who gained access to the building through a security door at the employee entrance to the premises. At the time of the incident, Wagstaffe was employed by DEP Associates, Inc., an independent contractor of defendant, with its offices at said premises (Wagstaffe Aff. ¶ 2).

The claim alleges that the assault upon Wagstaffe was caused by the negligence of defendant in: a) the ownership, management, operation, maintenance and control of the premises; b) failing to take precautionary measures to protect invitees upon the premises; c) failing to secure the premises; d) failing to lock the premises; e) failing to equip the premises with proper locks, and in particular, furnishing the doors to the employee entrance with defective locks; f) failing to maintain the premises, and specifically the defective locks on the doors to the employee entrance; g) failing to adequately train security guards employed upon the premises; h) [*2]failing to provide assistance to claimant after responding to the scene of claimant's assault; i) failing to lock or otherwise secure the door located at the employee entrance after the assailant left the premises; j) failing to guard the door located at the employee entrance after the assailant left the premises; k) failing to repair the defective lock on the employee entrance; l) failing to provide security to invitees and employees who use the employee entrance on the premises; m) failing to timely contact the police; n) failing to comply with the applicable rules and regulations of the New York State Department of Labor; o) failing to comply with the applicable statutes, laws and ordinances of the City of New York; and p) otherwise being careless and negligent (Claim ¶ 3).

Defendant now moves to dismiss the claim pursuant to CPLR 3211, on the grounds that the State had no special duty to claimant and is immune from liability in this case because the alleged acts of negligence arose from the performance of discretionary governmental functions[FN1] (Aff. in Supp. ¶ 2). The State's application is supported by the affirmation of an assistant attorney general and a transcript of a 911 call made in response to the assault by a security officer employed by defendant (Aff. in Supp. Ex. C). The transcript indicates that a security officer on the scene requested emergency medical services and police backup, which defendant asserts was a "discretionary" decision (Aff. in Supp. ¶ 44).

Claimant neither alleges in his claim, nor does he argue in his opposition papers, that he was owed a special duty by defendant. Rather, he opposes the motion by asserting that the application is premature, and that in any event the acts complained of were proprietary in nature, and not governmental or discretionary (Aff. in Opp. ¶ 2). Claimant's submission in opposition to defendant's motion is supported by Wagstaffe's affidavit, in which he describes how he normally entered the building via a card reader located on the employee entrance door, and depicts how the assault at issue occurred (Aff. in Opp. Ex. A).

Discussion

The contours of the State's potential liability in this case are determined by whether defendant's allegedly negligent actions were undertaken in its governmental, or in its proprietary, capacity. If the former, the State would be liable only if it was engaged in a ministerial act, and if claimant can prove a special duty (see Applewhite v Accuhealth, Inc., 21 NY3d 420, 426 [2013]). If the latter, the defense of governmental immunity does not apply, and the State is subject to the "ordinary rules of negligence applicable to non governmental parties" (see id. at 425; see also Price v New York City Hous. Auth., 92 NY2d 553, 557-558 [1998] ["[w]hen a public entity acts in a proprietary capacity as a landlord, it is held to the same duty as private landlords in providing [*3]security devices in the building"]).

A government entity's obligation to protect the public on its property is assessed along "a continuum of responsibility" (Miller v State of New York, 62 NY2d 506, 511-512 [1984]). At one end of the spectrum are "the simplest matters directly concerning a piece of property for which the entity acting as landlord has a certain duty of care, [such as] the repair of steps or the maintenance of doors" (id.). Such matters fall squarely within the State's proprietary function (id.). When the State's actions involve "more complex measures of safety and security for a greater area and populace," however, they become governmental in nature, and fall under the umbrella of governmental immunity (id.). Such immunity is based on the "recognition that a governmental entity's allocation of limited public resources to provide security to the public remains a matter of legislative and executive decision making, as it requires the exercise of discretion in making the necessary policy tradeoffs between various security measures" (McEnaney v State of New York, 267 AD2d 748, 749-750 [3d Dept 1999], citing Weiner v Metropolitan Transp. Auth., 55 NY2d 175, 181-182 [1982]).

In determining where along the continuum the alleged negligence lies, "[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, 55 NY2d 175, 182 [1982]; accord Miller, 62 NY2d at 513; see also Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 447 [2011] ["in light of the fact that the varied functions of a governmental entity can be interspersed with both governmental and proprietary elements, the determination of the primary capacity under which a governmental agency was acting turns solely on the acts or omissions claimed to have caused the injury"]).

Claimant, in arguing that the State's alleged negligence arose from its proprietary role, relies on Miller, supra. The claimant in Miller was a SUNY college student who was raped by an assailant that entered her dormitory through an unlocked door. The Court of Appeals found that the State's failure to provide locked doors fell within its proprietary function as a landlord, even though the claim also implicated the State's actions in its governmental capacity, in the provision of police protection at a public university.

For its part, defendant argues that all of the negligent acts alleged in the claim arose out of the State's governmental functions (Aff. in Supp. ¶ 8). In support of this argument, the State relies on Bonner v City of New York (73 NY2d 930 [1989]). In Bonner, the plaintiff New York City public school teacher was assaulted by intruders that gained entry into a playground through an unlocked gate. The Court found the claim barred by governmental immunity. Distinguishing its holding from Miller, the Bonner court held that "the provision of security against physical attacks by third parties in circumstances as are presented here is a governmental function involving policymaking regarding the nature of the risks presented, and . . . no liability arises from the performance of such a function absent a special duty of protection" (id. at 932). In particular, the Court noted that the claimant had been "station[ed] at the schoolyard's north gate . . . in accordance with prior instruction, for the security of the school children" (id.).

The Court of Appeals harmonized Bonner and Miller, and explained generally its precedents in this area, in Matter of World Trade Ctr. Bombing Litig. In that case, the majority stated that it was "compell[ed] . . . to conclude that even when proprietary functions may be [*4]involved, if the essential nature of the governmental agency's injury-causing acts or omissions was a failure to provide security involving police resources—i.e., police protection—then a governmental function was being performed" (17 NY3d at 452 [emphasis added]). The Court noted that in those cases where a defendant was found to have acted in its governmental capacity, "[t]he touchstone . . . [was] the authority of the public entities, after reasoned consideration, to opt (or not opt) for a certain configuration of security measures involving the allocation of finite police resources" (id.).

In the present case, the averments set forth in the claim provide support to both parties' positions. The claim (like the claim upheld in Miller) alleges in part that the State failed in its proprietary role of maintaining functioning locks on the door through which the assailant allegedly entered. Other aspects of the claim, however — such as Wagstaffe's assertions that the State failed to guard the door, adequately train its security staff, or provide claimant adequate assistance after the assault — appear (like the claim dismissed after trial in Bonner) to fall within defendant's governmental capacity.

The State argues that, as a whole, claimant's allegations are "far closer to the governmental end of the government conduct spectrum than the proprietary end" (Aff. in Supp. ¶ 40). But that argument misconstrues the Court's role on a motion to dismiss. I cannot, given the procedural posture of this case, weigh the various allegations to determine whether, in their totality, the balance tips on the side of the State's governmental or proprietary capacity. Rather, I must accept the facts alleged in the claim as true, accord claimant the benefit of every possible favorable inference, and determine only if his allegations fit within any cognizable legal theory[FN2] (see EBC 1, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Whether Wagstaffe's claim "will later survive a motion for summary judgment, or whether [claimant] will ultimately be able to prove [his] claims . . . plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss" (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34 [2d Dept 2006], citing EBC 1, 5 NY3d at 19).

Applying these standards to the claim before me, I find that a number of the allegations therein implicate purely governmental functions, but others (such as the allegation that the defendant employed defective locks) can be read to arise out of actions taken by the State in its proprietary capacity, as they do not concern the allocation of finite police resources, but rather reflect the role of a landlord in "maintaining [the] property in a reasonably safe condition in view of all the circumstances" (Miller, at 513 [citations omitted]). In this way, the case is comparable to Miller, where claimant asserted two theories of liability: 1) the failure of SUNY to provide adequate police protection, and 2) the negligence of the University, acting in its proprietary capacity as a landlord, to maintain the locks on the premises. The first theory was found inadequate to overcome governmental immunity, but the second was upheld (see Miller, at 509-510; see also Rubino v City of New York, 114 AD2d 243, 252-253] [1st Dept 1986] [Bloom, J., dissenting in part] [plaintiff in Miller "advanced two separate theories of liability; one predicated [*5]on the failure of the university to provide adequate police protection and the other, that in renting dormitory rooms to students, it was acting as a landlord, i.e., in a proprietary capacity . . . [and w]hile the first theory was held inadequate to establish liability, the second theory was sustained"]). In short, Miller teaches that a claimant can advance alternative constructions of the defendant's negligence, and so long as one such construction concerns defendant's actions in its proprietary capacity, the action may go forward — at least at the pleading stage.

Thus, accepting the facts alleged in the claim as true, and according claimant the benefit of every possible inference as I must, I cannot say that there is no set of facts alleged in the claim before me that could not sustain a cause of action to recover damages for the State's failure to fulfill its proprietary function, such as maintaining locks on the entrance doors to its buildings[FN3] (see Bonner, 73 NY2d at 932). As a result , I am compelled to deny defendant's motion.

Finally, defendant argues that it has no "special duty" to claimant distinct from the duty it owed the general public (see e.g. Aff. in Supp. ¶ 8). The question of special duty, however, only comes into play when a governmental function is at issue (see Applewhite, 21 NY3d at 426 ["[I]f it is determined that a municipality was exercising a governmental function, the next inquiry focuses on the extent to which the municipality owed a special duty' to the injured party"]; Valdez v City of New York, 18 NY3d 69, 75 [2011] [case "involves the provision of police protection . . . [and] [t]hat being so, the facts potentially implicate" the public duty rule]). Given the above finding that the claim contains allegations that arise out of the State's proprietary role, I need not address this argument. Nor need I consider whether the claim sufficiently alleges that any actions undertaken in the State's governmental role may be ministerial, and if so whether claimant has adequately pled a special duty. These issues may be addressed on motions for summary judgment or at trial, after the parties have had the opportunity to conduct discovery. At present, it is sufficient that the claim has pled negligent acts by the State in its proprietary capacity, and thus survives a motion to dismiss.

Accordingly, it is ordered that motion No. M-84144 be denied.

Albany, New York

February 6, 2014

DAVID A. WEINSTEIN

Judge of the Court of Claims Footnotes

Footnote 1:Defendant's notice of motion also refers to dismissal under CPLR 3212, which governs motions for summary judgment. No other mention of such relief is made in the defendant's papers, and to the extent the State is moving under this rule, it has failed to meet its burden since the only competent evidence submitted on defendant's motion — the 911 transcript — does not demonstrate the absence of an issue of material fact. To the extent the motion may be construed as one seeking dismissal on the basis of extrinsic evidence, it fails for the same reason, since the State's evidence does not "negate[] beyond substantial question" the "essential facts" set forth in the claim (see Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1st Dept 1999] [citation omitted]).

Footnote 2:Indeed, what distinguishes this case from essentially all the authorities relied upon by both parties is that the present motion is made on the face of the pleadings, rather than following motions for summary judgment or a trial.

Footnote 3:Defendant states that the facility where the assault is alleged to have taken place is open to the public, and thus its security involves the government's police protection function (Aff. in Supp. ¶ 39). That assertion, however, is at odds with the claimant's submission (see Wagstaffe Aff. ¶¶ 3-4). Given the procedural posture of the present motion, which requires that I take claimant's factual averments as true, I cannot dismiss based on this assertion by the State.