Opinion
# 2015-041-025 Claim No. 123399 Motion No. M-85659
03-10-2015
SCOTT TURNER, Individually and as Administrator of the Estate of Jane Doe1, Deceased v. THE STATE OF NEW YORK
WILLIAM M. BORRILL, ESQ. HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Anthony Rotondi, Esq. Assistant Attorney General
Synopsis
Defendant's motion to dismiss amended claim alleging that defendant negligently released, monitored and supervised parolee who raped and murdered decedent is granted for the following reasons: Quasi-judicial determinations of Parole Board to release parolee and of Office of Mental Health not to civilly confine parolee are entitled to absolute immunity; discretionary governmental decisions as to monitoring and supervision of parolee are immune from liability; amended claim fails to allege facts showing that defendant owed claimant a special duty under ministerial negligence theory; and court lacks jurisdiction over federal constitutional cause of action.
Case information
Anonymously referenced.
Decision
Defendant moves, in lieu of answering, to dismiss the amended claim (claim) which seeks recovery for defendant's purported negligence and federal constitutional violations in granting parole release to convicted rapist Robert Blainey (Blainey) in May, 2009 and in thereafter failing to adequately monitor and supervise Blainey while he was on parole release. Defendant's claimed negligence is allegedly a "direct and proximate cause" of "the rape and strangulation of Jane Doe [decedent] on November 3, 2011," acts for which Blainey "pled guilty to First Degree Murder" on January 20, 2012.
The claim alleges that Blainey had been convicted of raping an eight (8) year-old child in 1984 and, after serving three (3) years for the crime, was released and thereafter convicted of raping two women in 1988. Blainey was sentenced to 12½ to 25 years for the second conviction.
The claim further alleges that during his parole hearing in 2008, Blainey made the following statements, among others: "I am a bad person;" "society is safer with me in prison;" and "I am not going anywhere, I will refuse a conditional release date at all cost."
Claimant asserts that Blainey's potential parole release was reviewed by the New York State Office of Mental Health (OMH) pursuant to the Sex Offender Management and Treatment Act (SOMTA) to determine whether Blainey should be civilly confined or subjected to enhanced community based supervision if he were to be released to parole. According to the claim, OMH determined after its review that Blainey did not require civil confinement or enhanced supervision in the event he was paroled.
As set forth above, the Parole Board granted parole release to Blainey in May 2009. Blainey failed to report as required to his parole officer on September 27, 2011 and was not located by defendant until he raped and murdered decedent on November 3, 2011.
Defendant moves to dismiss the claim pursuant to CPLR 3211 on the grounds that it is entitled to absolute immunity from liability for the quasi-judicial determinations of the Parole Board and OMH, that it is entitled to immunity for the allegedly negligent discretionary governmental acts or omissions in monitoring and supervising Blainey while on parole, that the claim fails to state a cause of action for ministerial negligence by failing to allege any basis of a legal duty running from defendant to decedent and that the Court lacks jurisdiction over the State of New York for damages based upon alleged deprivations of rights under the US Constitution.
In reviewing a motion brought pursuant to CPLR 3211 (a) (7) alleging failure to state a cause of action the court should determine "whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). The "criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Rappaport v International Playtex Corp., 43 AD2d 393, 394-395 [3d Dept 1974]; Gizara v New York Times Co., 80 AD3d 1026, 1027 [3d Dept 2011]).
The alleged negligence of the Parole Board in granting Blainey parole fails to state a cause of action. This is so whether the theory of liability is based upon a failure of the Parole Board to consider all of the purportedly relevant records regarding Blainey or upon the Parole Board's allegedly incorrect or unsupportable determination to release Blainey. A parole release determination cannot serve as a basis of liability because absolute immunity attaches to the acts or omissions of quasi-judicial Parole Board proceedings (Tarter v State of New York, 68 NY2d 511, 518-519 [1986]; see Eiseman v State of New York, 70 NY2d 175, 183-184 [1987]); Executive Law § 259-i [5]: "Any action by the board [of parole] or by a hearing officer pursuant to this article shall be deemed a judicial function").
Claimant next asserts that defendant was negligent in that the OMH determined that Blainey would not be placed in a "secure treatment [facility]" or placed "in the community under strict and intensive supervision and treatment" pursuant to SOMTA after his parole release. The claim alleges that OMH made this determination after "Blainey was interviewed by a multi-disciplinary team, as well as a case review team." Claimant alleges that "had [defendant] properly assessed Blainey, he would never have been released."
The OMH determination not to civilly confine or mandate enhanced supervision of Blainey was made after an administrative review prescribed by Mental Hygiene Law 10.05, which sets forth the requirements for considering civil commitment or enhanced supervision of sex offenders approaching parole release. The cause of action based upon the OMH determination fails to state a cause of action because the defendant is entitled to absolute immunity with respect to the quasi-judicial OMH determination or, at the very least, entitled to immunity because it was a discretionary decision made in the exercise of a governmental function (McLean v City of New York (12 NY3d 194, 203 [2009]: "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").
Further, the defendant's alleged negligence in monitoring and supervising Blainey after he was granted parole release fails to state a cause of action. Monitoring and supervision of a parolee is a form of governmental custody or confinement and is plainly a governmental function:
"Post-release supervision, admitting of the possibility of revocation and additional jail time, is considered to be 'custody.'" (Earley v Murray (451 F3d 71, 75 [2nd Cir 2006]).
The New York State Court of Appeals recognizes that the monitoring and supervision of a parolee is a limitation on liberty, a form of confinement:
"PRS represents a significant punishment component that restricts an individual's liberty" (Matter of Garner v New York State Dept. of Correctional Servs. (10 NY3d 358, 362-363 [2008]).
McLean (12 NY3d at 203) mandates that the discretionary decisions of the defendant as to the monitoring and supervision of Blainey while on parole "may not be a basis for liability" and the claim fails to state a cause of action in that respect.
Claimant's allegation of ministerial negligence by defendant based upon the alleged failure of the Department of Corrections and Community Supervision to provide all required information to OMH in the context of the OMH civil confinement review conducted pursuant to Mental Hygiene Law 10.05 also fails to state a cause of action. McLean (12 NY3d at 203), and subsequent case law, demand that the claimant plead facts tending to show that the decedent was owed a special duty by defendant (see Applewhite v Accuhealth, Inc., 21 NY3d 420 [2013]; Metz v State of New York, 20 NY3d 175 [2012]; Valdez v City of New York, 18 NY3d 69 [2011]).
A "[special] duty is born of a special relationship between the [claimant] and the governmental entity. When such a relationship is shown--and it is [claimant's] burden to establish it--the government is under a duty to exercise reasonable care toward the [claimant]" (Pelaez v Seide, 2 NY3d 186, 198-199 [2004]). The Pelaez opinion explains that a "special relationship can be formed in three ways: (1) when the [defendant] 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 [defendant] assumes positive direction and control in the face of a known, blatant and dangerous safety violation" (Pelaez, 2 NY3d at 199-200 [2004]).
Claimant has not alleged facts to show the existence of a "special relationship" between defendant and the decedent as contemplated by Pelaez. Decedent was thus owed no duty by defendant.
With respect to claimant's cause of action asserting defendant's alleged violations of 42 USC 1983 and 1988, respectively, the law is settled that "claims for damages against the State based on alleged deprivations of rights under the US Constitution are beyond the jurisdiction of the Court of Claims" (Shelton v New York State Liq. Auth., 61 AD3d 1145, 1151 [3d Dept 2009]; see Flemming v State of New York, 120 AD3d 848, 849 [3d Dept 2014]).
Defendant's motion to dismiss the claim is, in all respects, granted. The claim is dismissed.
March 10, 2015
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion to Dismiss, filed September 12, 2014;
2. Affirmation of Anthony Rotondi, dated September 12, 2014, and annexed exhibits;
3. Affidavit of William M. Borrill, sworn to January 6, 2015;
4. Reply Affirmation of Anthony Rotondi, dated January 12, 2015.