Estate of Benitez v City of New York

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Estate of Benitez v City of New York 2019 NY Slip Op 33400(U) November 14, 2019 Supreme Court, New York County Docket Number: 152323/2017 Judge: Lyle E. Frank Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 11/18/2019 09:35 AM NYSCEF DOC. NO. 49 INDEX NO. 152323/2017 RECEIVED NYSCEF: 11/18/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. LYLE E. FRANK IAS MOTION 52EFM Justice --------------------------------------------------------------------------------X ESTATE OF JOSE L. BENITEZ, INDEX NO. MOTION DATE Plaintiff, MOTION SEQ. NO. 152323/2017 11/13/2019 001 -vTHE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 15, 16, 17, 18, 19, 20,21,22,23,24,25,26,27,28,29, 31, 32,33,34, 35, 36,37,38, 39,40,41,42,43,44,45,46,47,48 were read on this motion to/for SUMMARY JUDGMENT This action arises out of the tragic and unfortunate suicide of New York City Police Department (NYPD) Sergeant Jose Benitez on March 10, 2015. Plaintiff alleges that the NYPD failed to take decedent's mental condition into consideration when assigning him to an overnight shift in the Video Interactive Patrol Enhancement Response (VIPER) unit, thereby causing his suicide. Defendants, The City of New York and the New York City Police Department (City), now move for summary judgment on the grounds that the complaint fails to state a cause of action as the City did not have a duty to prevent Sgt. Benitez's suicide. Plaintiff opposes the instant motion on the grounds that there are questions of fact with respect to whether defendants had a duty to provide a safe working environment, as well as provide accommodations for employees with documented mental health conditions 1, and whether defendants negligently 1 The Court does not address plaintiffs arguments with respect to claims of unsafe working environment and failure to provide accommodations as neither was mentioned in either the notice of claim or complaint. 152323/2017 Motion No. 001 Page 1of4 1 of 4 [*FILED: 2] NEW YORK COUNTY CLERK 11/18/2019 09:35 AM NYSCEF DOC. NO. 49 INDEX NO. 152323/2017 RECEIVED NYSCEF: 11/18/2019 violated that duty. For the reasons set forth below, the City's motion is granted, and the action is dismissed. Sergeant Benitez was employed by the New York City Police Department from July 2006 until his passing on March 10, 2015. It was not until September 2014 when Sgt. Benitez's mental health was called into question as a result of a Facebook video posted by Sgt. Benitez and viewed by fellow officers. Lieutenant Deckert, Sgt. Benitez's commanding officer, and two other officers visited Sgt. Benitez at his home for a wellness check; upon this visit Lt. Deckert referred Sgt. Benitez to the psychiatric unit of the NYPD. Upon examination by the psychiatric unit, whose purpose is to determine whether an officer is fit for duty and whether the officer will be placed on restricted duty, Sgt. Benitez was placed on restricted duty 2 • Between September 2014 and December 2014, Sgt. Benitez was hospitalized on three occasions, for approximately four weeks, and diagnosed with Bipolar I disorder. Sgt. Benitez was assigned to the VIPER unit, a non-enforcement position that did not require him to have his service weapon, from November 2014 until his suicide by hanging on March 10, 2015. Discussion Plaintiffs notice of claim alleges "wrongful death caused by the blatant negligence and failure to properly assess, attend, treat, and provide care for Decedent's mental state and condition, which blatant failure and neglect exacerbated Decedent's deteriorating mental condition and directly precipitated his death". Plaintiffs complaint states that "several medical 2 Restricted duty meant that Sgt. Benitez was fit for duty however, would not be in possession of his firearm and would be assigned to non-patrol or enforcement duties. 152323/2017 Motion No. 001 Page 2 of4 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 11/18/2019 09:35 AM NYSCEF DOC. NO. 49 INDEX NO. 152323/2017 RECEIVED NYSCEF: 11/18/2019 professionals, including but not limited to psychologists employed by the NYPD," diagnosed decedent with bipolar disorder and that "[NYPD] negligently assigned him to a position that would precipitate decedent's untimely death." Plaintiff has failed to allege any duty much less how defendants breached that duty. In support of its motion, defendants argue that its doctors do not treat police officers thus there cannot be a claim for alleged failure to treat or provide.care. In any event, the crux of the City's argument is that it was under no duty to prevent Sgt. Benitez's suicide. In Cygan v New York, the First Department held that there were two instances where liability exists for a failure to prevent a suicide. 165 AD2d 58, 67 [1st Dept 1991]. "One is where a facility such as a hospital or jail which is in actual physical custody of an individual fails to take reasonable steps to prevent a reasonably foreseeable suicide. The second is where a [ ... ] mental health professional with sufficient expertise to detect suicidal tendencies and with the control necessary to care for the person's well-being fails to take such steps" id (internal citations omitted). Here, the City was not in actual physical custody of Sgt. Benitez nor was Sgt. Benitez under the care of a mental health professional employed by the NYPD. The record is also devoid of any evidence that Sgt. Benitez had suicidal tendencies, nor that the NYPD had control over the actions or inactions of Sgt. Benitez. Consequently, the City has established its prima facie entitlement to judgment as a matter of law and plaintiff has failed to raise a triable issue of fact. Accordingly, it is hereby ORDERED that the City's motion is granted, and the complaint is dismissed; and it is further ORDERED that the Clerk is to enter judgment accordingly. 152323/2017 Motion No. 001 Page 3 of 4 3 of 4 [*FILED: 4] NEW YORK COUNTY CLERK 11/18/2019 09:35 AM NYSCEF DOC. NO. 49 INDEX NO. 152323/2017 RECEIVED NYSCEF: 11/18/2019 This constitutes the Decision and Order of the Court. 11/14/2019 DATE CHECK ONE: CASE DISPOSED GRANTED APPLICATION: CHECK IF APPROPRIATE: D DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN 152323/2017 Motion No. 001 ~ ~'L"Y'fE NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT D D E. FRANK OTHER REFERENCE Page 4 of 4 4 of 4 J,$.C,
Primary Holding

The City of New York Police Department is not liable for the suicide of one of its sergeants, disabled by bipolar disorder, since the sergeant was not in the custody of a city facility which could have taken reasonable steps to prevent a reasonably foreseeable suicide nor was the sergeant under the control of a mental health professional with expertise in detecting suicidal tendencies who failed to take steps to prevent the suicide. Accommodation claims under both the state and city Human Rights Laws were not raised. Since decedent's estate failed to raise disability accommodation claims the First Department was constrained to affirm the Supreme Court's decision.

Facts

Sergeant Benitez suffered with bipolar disorder. He brought attention to his mental health with a Facebook video posting. Officers made a wellness check to Benitez' residence. A psychiatric evaluation placed him on restricted duty. Over the course of less than 4 months he was hospitalized 3 times for approximately 4 weeks. He was assigned a non-enforcement position which did not require a service weapon. No records suggested suicidal tendencies. He died by hanging approximately 6 months after being diagnosed with Bipolar 1 disorder, which disability was not being treated by the city's health professionals.

Case Commentary

Both trial and appellate courts point out that potential claims under both state and city Human Rights Laws appeared viable. But the estate failed to timely raise them. Personal injury and wrongful death actions are distinct from discriminatory practices under Human Rights Laws. Statutory duties to address known disabilities are unlike common law duties to exercise reasonable care. Bipolar disorder is so serious that most larger police departments would likely be duty-bound to initiate interactive processes. Unfortunately, failure to explore accommodations was not timely raised and therefore waived.


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