Opinion
April 27, 1971
Appeal by the State from an order of the Court of Claims denying its motion to dismiss the claim and granting respondent's motion for an examination before trial. The case evolves from the brutal murder of respondent's daughter by one Gary Sickler, a prison parolee of this State. Respondent's claim alleges that the murder and death were brought about "as a result of the negligent acts, omissions to act, negligent failures and omissions of the State of New York, its agents, servants, employees, Parole Board * * * Parole Officers, Department of Correction, Department of Mental Hygiene * * * and other personnel". More specifically, the claim asserts that the release of Sickler on parole was contrary to law, careless, reckless and with total disregard to the public safety insofar as Sickler was known to be "a convicted felon, a prior sexual offender, a dangerous, irresponsible, violent, homocidal, perverted individual". It is further alleged that the above-named tendencies and facts were known to the State or should have been known by it from the statements of the prisoner, his requests for psychiatric treatment, his numerous psychiatric examinations and his overall record. Respondent also claims that in addition to this negligence, the State through its agents and employees was negligent in supervising Sickler while on parole and neglected to "restrain, control, survey, treat and keep in custody the said Gary Sickler, whom it was required by law to restrain". The Court of Claims in denying the motion to dismiss agreed with the State's proposition that decisions of the Parole Board are nonreviewable in the absence of a positive statutory violation but noted that "the claim does allege in broad terms, negligent acts of the State and its employees which may not have been involved or concerned with the Board of Parole process in releasing the prisoner and thus may state a cause of action against the defendant". Of course, on a motion to dismiss the complaint must be construed liberally (CPLR 3026), all factual averments of the pleadings must be taken as true ( Dulberg v. Mock, 1 N.Y.2d 54) and only where the plaintiff has not stated any cause of action, whether or not it is properly stated, will the complaint be dismissed (e.g., Heram Holding Corp. v. City of Albany, 33 A.D.2d 1086). On the other hand a cause of action cannot be predicated solely on mere conclusory statements unsupported by factual allegations (e.g., Kalmanash v. Smith, 291 N.Y. 142; Foley v. D'Agostino, 21 A.D.2d 60). In reviewing this case it is difficult to forget the tragic and brutal murder of Kathleen Taylor, but the State cannot be an insurer as to the acts of those it releases from its confines (see Williams v. State of New York, 308 N.Y. 548). We hold that while section 212 Correct. of the Correction Law does not cloak the actions of the Board of Parole with complete judicial immunity, the State is not responsible for the Parole Board's release of Sickler predicated as it presumably was on the professional judgment of a qualified and competent physician ( St. George v. State of New York, 283 App. Div. 245, affd. 308 N.Y. 681; Taig v. State of New York, 19 A.D.2d 182). Where there is any substantial support in the record for the Parole Board's action, we cannot substitute our evaluation as to whether there is a reasonable probability of a safe return to society for the board's "opinion" even if we deem the board's "opinion" to be unreasonable (Correction Law, § 213). However, we would also note that the State's obligation does not end with a prisoner's release but rather includes a "duty of supervising all prisoners released on parole" (Correction Law, § 210). The extent of this duty obviously varies with the case history of the individual to be released (compare, Wasserstein v. State of New York, 32 A.D.2d 119, affd. 27 N.Y.2d 627). Here Sickler had an extensive background of violent, antisocial, deviant behavior and his last psychiatric report indicated that if released he should "be intelligently guarded and closely supervised" (italics added). Thus the extent of the State's duty of supervision is at issue in this case as well as the question of whether Sickler's actions were foreseeable should that duty be found to have been breached. The instant claim, however, does not set forth any facts to support a claim that the State breached such a duty. All that are stated are conclusions of alleged negligence unsupported by any factual allegations. There are no factual allegations as to the manner in which the State was allegedly negligent in its supervision and the terms of Sickler's parole are not even set forth. Negligence in supervision, of course, may not be presumed solely from the fact that Kathleen Taylor was murdered by Sickler. No facts giving rise to a cause of action based on negligent supervision by the State having been alleged, the State's motion should have been granted. Our determination, however, is made without prejudice to the service of an amended claim if the claimant be so advised (CPLR 3211, subd. [e]; Joffe v. Rubenstein, 24 A.D.2d 752, app. dsmd. 21 N.Y.2d 721). Order reversed, on the law, without costs, and the State's motion to dismiss granted with leave to the claimant, in our discretion, to make application to the Court of Claims to serve an amended claim. Reynolds, J.P., Staley, Jr., and Greenblott, JJ., concur. Cooke and Sweeney, JJ., dissent and vote to affirm in the following memorandum by Cooke, J.: We vote for affirmance. The sole issue here is one of procedure, the sufficiency of the pleading. Substantively, there is no dispute. The majority recognizes the State's duty of supervision and the question of whether Sickler's actions were foreseeable upon breach of that duty. On that subject and among the rather verbose allegations of the claim, it is recited: that on November 4, 1967 at the Town or City of Poughkeepsie in Dutchess County, Kathleen M. Taylor, born May 31, 1947, the daughter of Arthur A. and Margaret Taylor, was murdered by Gary Sickler, a New York State prison parolee, by means of a sharp or other instrument in the course of an attempt by Sickler to commit rape upon Kathleen M. Taylor, the death resulting from hemorrhagic shock, multiple stab "wound" in and about the chest, abdomen, neck and elsewhere upon her person, without any negligence on the part of claimant; that the death was caused as a result of the negligent acts and omissions to act of the State of New York, its parole board, parole division, agents, servants and employees; that after his release the State, its agents, servants and employees referred to neglected and omitted to restrain, control, survey, treat and keep in custody said Sickler whom it was required by law to restrain, control, survey, treat and keep under custodial control and surveillance; that the State, its agents, servants and employees had actual or constructive notice of Sickler's rapist and homicidal tendencies, as well as knowledge of his propensities, his record of molestation, sexual perversion, deviation and sexual crime, as well as his assaultive and homicidal tendencies; that as a result of such failure and neglect to act it did thereby cause, permit and allow the murder of Kathleen M. Taylor; and that as a result of the State's negligence claimant suffered damages for injuries, pain and suffering endured by Kathleen M. Taylor, as well as her death, she having left her father and mother as her only next of kin and dependents. Thus, the essential facts required to give notice have been stated ( Foley v. D'Agostino, 21 A.D.2d 60, 63) and the claim should not be dismissed or ordered amended since a cause of action is stated, the factual allegations are sufficiently particular to apprise the court and parties of the subject matter of the controversy and it does not appear that substantial rights of the State are prejudiced by defects in pleading (CPLR 3013, 3026; Van Gaasbeck v. Webatuck Cent. School Dist., 21 N.Y.2d 239, 245-246; Holzer v. Feinstein, 23 A.D.2d 771, 772: 3 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 3013.03; Practice Commentary by David D. Siegel, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 3013, 1970-71 Supp., p. 98). After pointing out the State's duty, the claim asserts, among other things, a failure, omission and neglect to act and this specific is definitely more factual than the allegations of negligence in certain official forms adopted by the Judicial Conference under the authority of CPLR 107, which are directed by statute to "illustrate the simplicity and brevity of statement which the civil practice law and rules contemplate" (see McKinney's Forms, CPLR, §§ 4:48, 4:49). A method for securing amplification of the claim may be found in a demand for a bill of particulars (Court of Claims Act, § 9, subd. 9; cf. Daukas v. Shearson, Hammill Co., 26 A.D.2d 526).