Opinion
114883.
Decided April 22, 2010.
Tacopina Arnold, LLP, By: Antin, Ehrlich Epstein, LLP, Anthony V. Gentile, Esq. (Of Counsel), for Claimants.
Hon. Andrew M. Cuomo, Attorney General, By: Ross N. Herman, AAG, for Defendant.
Defendant, the State of New York (State), moves for summary judgment dismissing this claim. Claimants oppose, and the State replies. Pursuant to leave, claimants file supplemental opposition, and the State replies. Both sides, primarily claimants, also submitted letters. The Court has not considered claimants' five page letter with attachments dated January 18, 2010, and has given appropriate weight to the other letters. The motion was submitted on February 26, 2010.
In this wrongful death action, claimants seek to recover damages for the beating, rape and murder of Imette Saint-Guillen by Darryl Littlejohn (parolee), who, while on Federal and State parole and considered a "high-risk parolee" and a "violent felony offender", was employed improperly as a bouncer at a bar where Ms. Saint-Guillen came into contact with him. Claimants allege that the State is liable as the New York State Division of Parole negligently and improperly failed to perform its function, failed to effectuate its duties and failed to comply with its own manual, resulting in this heinous crime. They allege that the Division of Parole was negligent and failed to properly monitor this parolee, should not have disbanded the "Special Offender Unit", and failed to communicate and coordinate with the Federal probation/parole agencies. Claimants further allege that the probation/parole officer was grossly overworked and was directed and forbidden from working evening hours, which would have allowed her to properly supervise the parolee's curfew and employment restrictions.
Claimants do not allege in the verified claim that a special relationship existed between the State and Ms. Saint-Guillen.
In the first cause of action, claimants also allege negligent hiring, training, supervision and retention of State employees. The second cause of action asserts a derivative claim.
In this summary judgment motion, the State met its initial burden and demonstrated that there are no remaining material factual issues in dispute and that it is entitled to judgment dismissing the claim as a matter of law, because claimants did not allege and cannot demonstrate that a special relationship existed between the State and Ms. Saint-Guillen. The State argues that absent a special relationship and the resulting special duty, the claim must be dismissed.
Although claimants' papers are voluminous in length and offer extensive arguments, claimants have failed to defeat this showing. While according claimants the benefit of every reasonable inference and viewing the proof in the light most favorable to claimants, the Court finds that claimants fail to demonstrate the existence of a triable issue of fact as to the lack of a special relationship, and do not succeed in their attempts to distinguish or recast controlling case law so as to evade the resulting dismissal due to such lack. To the extent, if at all, claimants raised any issue, the State rebutted it. Similarly, the State demonstrated that it is entitled to judgment dismissing claimants' remaining conclusory allegation of negligent hiring, training, supervision and retention.
In deciding this motion, the Court is necessarily guided by the recent Court of Appeals' opinions in McLean v City of New York , 12 NY3d 194 , and Dinardo v City of New York , 13 NY3d 872 , as well as the cases cited therein. As in those cases, claimants here cannot recover against the State, as they have "not shown a special relationship giving rise to a special duty". McLean, 12 NY3d at 199.
The Court of Appeals has "long followed the rule that an agency of government is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public'(citations omitted)." McLean, 12 NY3d 194, 199. This "duty to exercise reasonable care toward the plaintiff'-is born of a special relationship between the plaintiff and the governmental entity'." Id. citing Pelaez v Seide , 2 NY3d 186 , 198-199.
A special relationship between a claimant and the State "can be formed in three ways:
1) when the [State] 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 [State] assumes positive direction and control in the face of a known, blatant and dangerous safety violation.'" McLean , 12 NY3d 194 , 199, citing Pelaez, 2 NY3d 186, 199-200.
Claimants have not defeated the State's showing of a lack of a triable fact supporting the formation of a special relationship between the claimant and the State in any of these three ways.
As to the first, the Court of Appeals in McLean, 12 NY3d at 200, citing Pelaez, stated that:
"To form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action. One may be fairly implied when (1) the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme (citation omitted). If one of these prerequisites is lacking, the claim will fail."
Contrary to their arguments, claimants have not shown that such a private right of action was explicitly or implicitly authorized here or would promote the legislative purpose of the governing statute.
Claimants similarly have not shown that a special relationship was formed by the State assuming positive direction and control in the face of a known, blatant and dangerous safety violation. Claimants do not identify any affirmative act undertaken and communicated by the State to Ms. Saint-Guillen which placed her in a known dangerous condition.
"Nor is this one of the narrow class of cases in which a special relationship can arise from a duty voluntarily undertaken by [the State] to an injured person." McLean v City of New York, 12 NY3d 194, 201. See also Dinardo v City of New York , 13 NY3d 872 .
The elements of a duty voluntarily undertaken, as listed in Cuffy v City of New York, 69 NY2d 255, 260, and restated in McLean v City of New York , 12 NY3d 194 , 199, are:
"(1) an assumption by the [State], through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the [State's] agents that inaction could lead to harm;
(3) some form of direct contact between the [State's] agents and the injured party; and (4) that party's justifiable reliance on the [State's] affirmative undertaking."
The State demonstrated that there are no triable issues of fact supporting the existence of these four elements, and claimants are unsuccessful in their attempts to demonstrate to the contrary by stretching or recasting the facts and decisional law. Here, the State did not undertake an affirmative duty to act on behalf of Ms. Saint-Guillen, there was no direct contact between her and the State, and she did not justifiably or at all rely on the non-existent affirmative undertaking.
Claimants also attempt to fashion, within this negligence claim, a new category of a special relationship: between a bar patron and the State. This argument is not supported by a reading of case or statutory law and the Court finds this argument without merit.
Nor can claimants defeat the motion by asserting, as plaintiff also unsuccessfully argued in McLean, that no special relationship is needed, because the acts and omissions on which they rely were ministerial rather than discretionary.
First, the Court does not agree with claimants' arguments that the alleged acts and omissions were ministerial in nature. Here, the acts were discretionary and of a quasi-judicial nature. They involved the exercise of reasoned judgment which could typically produce different acceptable results, and involving policy determinations. Therefore, the State is entitled to absolute immunity for the allegedly negligent acts. See e.g. Arteaga v State of New York, 72 NY2d 212; Tarter v State of New York, 68 NY2d 511; Tango v Tulevech, 61 NY2d 34.
Second, even assuming that the alleged acts or lack thereof were ministerial in nature, and the Court makes no such finding, a special relationship is still needed. "Government 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. McLean, 12 NY3d 194, 203. Without a special duty owed by the State to claimants, "even if, as [claimants] allege, defendants failed to comply with the Probation Department's own regulations . . . in the manner in which it supervised [the parolee's] probation, it may not, as a governmental agency, be held liable for the negligent performance of a governmental function'". Brinkerhoff v County of St. Lawrence, 70 AD3d 1272, — citing McLean, 12 NY3d 194, 199.
Because claimants have "shown no special duty, there can be no liability." McLean, 12 NY3d 194, at 203. See also Lauer v City of New York, 95 NY2d 95; Tango v Tulevech, 61 NY2d 34; Brinkerhoff, 70 AD3d 1272.
Claimants also raise a number of additional arguments challenging the sufficiency of the summary judgment motion papers. Contrary to their arguments, defendant's papers are sufficient. Nor have claimants met their burden and demonstrated that the motion should be continued or should be denied pursuant to CPLR Rule 3212(f), as claimants have failed to demonstrate that facts essential to justify opposition may exist but cannot be stated. Neither the depositions nor the additional documents sought bear on or alter the pivotal focus and issue herein: the lack of a special relationship.
The Court has carefully examined claimants' remaining arguments on the negligence claim, and finds them to be without merit.
The claim also alleges, as part of Paragraph 33, "negligent hiring, training, supervision and/or retention of agents, servants and/or employees". The State first points out that it is clear from the claim's allegations that claimants are contending that the State employees were acting within the scope of their employment and that, therefore, claimants are seeking to recover against the State under the doctrine of respondeat superior. The State correctly argues that, accordingly,
1) claimants' boilerplate allegation must be dismissed, as when a claimant alleges that an employer is liable for its employees' negligence under the doctrine of respondeat superior, the claimant may not also proceed with a cause of action to recover damages for negligent hiring, supervision, training or retention; and 2) here it is entitled to immunity for its discretionary functions in relation to training, supervision, hiring and/or retention of personnel.
Claimants argue that they may maintain this cause of action as they are asserting gross negligence, and that the motion should not be considered until discovery of hiring practices and procedures are complete. These arguments are insufficient to stave off summary judgment. As the second cause of action is a derivative claim, it too must be dismissed.
Although the Court expresses deepest sympathies for the terrible pain and suffering of Ms. Saint-Guillen and her family and outrage at the brutality of her assault, rape and murder, the State has demonstrated that here it is not subject to tort liability.
Accordingly, it is
ORDERED that defendant's summary judgment motion is granted and the claim dismissed.