Opinion
No. 0025–2009.
04-16-2012
Sharen BRANCH, as Administratrix of the Estate of Robert Bastian, Deceased, Plaintiff, v. COUNTY OF SULLIVAN, Defendant.
Michael H. Sussman, Esq., of Counsel, Sussman & Watkins, Goshen, attorneys for plaintiff. Bryan R. Kaplan, Esq., of Counsel, Law Offices of Bryan R. Kaplan, Monticello, attorneys for defendant.
Michael H. Sussman, Esq., of Counsel, Sussman & Watkins, Goshen, attorneys for plaintiff.
Bryan R. Kaplan, Esq., of Counsel, Law Offices of Bryan R. Kaplan, Monticello, attorneys for defendant.
Opinion
MICHAEL H. MELKONIAN, J.
Defendant County of Sullivan (hereinafter “defendant” or “the County”) moves for summary judgment pursuant to CPLR § 3212 dismissing plaintiff Sharen Branch, (hereinafter “plaintiff”) as Administratrix of the Estate of Robert Bastian, deceased's causes of action holding the County liable for Robert Bastian's death from cardiac arrest after he collapsed while in the dormitory at Sullivan County Community College.
On a motion for summary judgment, the proponent bears the initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle it to judgment in its favor without the need for a trial (CPLR § 3212 ; Winegrad v. NYU Medical Center, 64 N.Y.2d 851 ; Zuckerman v. City of New York, 49 N.Y.2d 557 ). Plaintiff's primary cause of action is one sounding in negligence. To make out a prima facie case of negligence, a plaintiff must show that the defendant owed a duty to plaintiff, defendant breached such duty, and plaintiff's injuries resulted from defendant's breach (Barksdale v. Henry, 228 A.D.2d 947, 948 ). Thus, in order to meet its initial burden on this summary judgment motion, the County must address and break at least one of the three necessary links in plaintiff's chain.
On November 8, 2007, 17–year–old Robert Bastian (hereinafter “decedent”) was playing video games with friends in the dormitory where he resided as a student on the campus of the Sullivan County Community College (hereinafter “the College”) when he suffered cardiac arrest and died. Thereafter, plaintiff commenced this wrongful death action alleging negligence on the part of the County; more specifically, the complaint alleged that (1) the College failed to have a defibrillator ready to respond to medical emergencies at the dormitory and failed to have an employee trained in the use of defibrillators that was accessible on premises at the time that decedent collapsed from cardiac arrest ; and (2) that the College failed to have an “emergency response system” in place at the time of decedent's death.
In its motion for summary judgment, the County argues that it owed no duty of care to plaintiff because the County does not own, operate, maintain or control either the dormitory where decedent was living at the time he suffered cardiac arrest or Sullivan County Community College where decedent was a student. In this regard, the County points to the deed dated February 17, 1998 which shows that the property comprising the dormitories vested in the Sullivan County Community College Dormitory Authority, a not-for-profit corporation. In addition, the County submits that Education Law § 6306(5) assigns responsibility for the College's daily operation to the College's Board of Trustees. Sullivan County Community College, is chartered under Education Law Article 126 and is sponsored by Sullivan County (see, Education Law § 6302 ). As the sponsor of the College, the County is only responsible for the College's fiscal operation (see, Meyer v. Wiess, 25 A.D.2d 174 ). The College's operations, however, are governed by its own Board of Trustees (see, Education Law §§§ 6304, 6306, 6310 ). Specifically, Education Law § 6306(5) assigns responsibility for the maintenance of buildings and facilities to the Board of Trustees, as follows: The board of trustees shall have the care, custody, control and management of the lands, grounds, buildings, facilities and equipment sued for the purposes of such college and of all other property belonging to such college and used for carrying out its purposes, and it shall have the power to protect, preserve and improve the same. The statutory scheme designating its Board of Trustees as the sole party responsible for the operation of the College's facilities shields Sullivan County, the local sponsor, from liability that might otherwise attach (Matter of Weinstein v. Caso, 44 A.D.2d 690 ; Meyer v. Wiess, 25 A.D.2d 174, 176–177 ; Jackson v. Board of Educ. of City of New York, 30 AD3d 57 [although Education Law § 6302(3) makes the New York City Board of Education “sponsor” and fiscal overseer of Fashion Institute of Technology, a community college established pursuant to Education Law Article 126, the College's Board of Trustees is vested with the responsibility for the care and custody of its campus buildings under Education Law § 6306(5) and, consequently, the Board of Education not liable for injuries arising from unsafe condition on premises] ). The County also proffers the affidavit of Ira Cohen, the Sullivan County Treasurer, who avers that the County of Sullivan does not own or manage the Sullivan County Community College, nor runs the day to day operation. Mr. Cohen further submits that while the County owns the land upon which the College sits, the land is held in trust for the benefit of the Board of Trustees of the College. Inasmuch as the County neither owns the dormitory or the College nor shares authority with the College's Board of Trustees with respect to the care and control of the premises, it has no duty of care toward decedent and cannot be held liable for his untimely death.
Defendant has met its initial burden of proof. Thus, it falls to plaintiff to demonstrate that the law does not support summary judgment and/or assemble and present facts sufficient to require a trial of any issue of fact to defeat the motion (Zuckerman v. City of NY, 49 N.Y.2d 557, 562 ). Summary judgment requires that the Court engage in an exercise of issue finding rather than issue determination (Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404 ). The Court's function is to view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference, and to determine whether there is any triable issue of fact outstanding (Matter of Suffolk DSS v. James M., 83 N.Y.2d 178 ; Simpson v. Simpson, 222 A.D.2d 984 ; Boyce v. Vazquez, 249 A.D.2d 724 ). Summary judgment is not appropriate where there is any doubt as to the existence of triable and material issues of fact.
The plaintiff, in opposition, fails to demonstrate as a matter of law that the County owed decedent a duty and breached that duty by virtue of Sullivan County Community College's failure to maintain a defibrillator on campus and fails to raise any triable issue of fact in this regard. In opposition to the County's motion, plaintiff submitted a conclusory affirmation from counsel (and accompanying memorandum of law) which merely reiterates the allegations made in plaintiff's complaint; that the College is a “department” of the County and therefore the County had a legal duty to ensure that the College had a defibrillator on campus and breached that duty. Other than the plaintiff's attorney's own conclusory allegations, there exists no evidence in admissible form tending to show that the County had a duty of care to the decedent and breached that duty.
Accordingly, the County's motion is granted and plaintiff's complaint is dismissed.
This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorneys for the defendant. All other papers are delivered to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.
SO ORDERED.
Papers Considered:
Notice of Motion dated November 22, 2011;
Affirmation of Bryan R. Kaplan, Esq., dated November 22, 2011, with exhibits annexed;
Affirmation of Michael H. Sussman, Esq., dated December 29, 2011, with exhibits annexed;
Memorandum of Law;
Affirmation of Bryan R. Kaplan, Esq., dated January 6, 2012.