New York State Court of Claims

New York State Court of Claims

Romano v. THE STATE OF NEW YORK, #2000-005-501, Claim No. 91936, Motion No. M-59206


Synopsis


Summary judgment for State granted; immunity for claim arising out of the purely governmental function of releasing a juvenile from a youth facility.

Case Information

UID:
2000-005-501
Claimant(s):
BONITA ROMANO as Administratrix of the Estate of NICHOLAS ROMANO, Deceased
Claimant short name:
Romano
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
91936
Motion number(s):
M-59206
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
LIPSITZ, GREEN, FAHRINGER, ROLL, SALISBURY & CAMBRIA, LLPBY: JOSEPH T. KREMER
Defendant's attorney:
HON. ELIOT SPITZER
ATTORNEY GENERALBY: SEAN E. GLEASON
Third-party defendant's attorney:

Signature date:
April 10, 2000
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


The following papers, numbered 1 through 8, were considered on Defendant's motion for summary judgment dismissing the claim:


Notice of Motion, Affirmation, Affidavits and Exhibits Annexed 1, 2, 3, 4

Claimant's Affirmation in Opposition and Exhibits Annexed 5

Defendant's Reply Affirmation 6

Filed Papers: Claim, Answer 7, 8

Upon the foregoing papers, the motion is granted and the claim is dismissed.

This action is brought by the widow of Nicholas Romano, who died on October 31, 1994, after being shot several times by Julio "Pito" Nieves. The shooting occurred at approximately 6:45 p.m. outside of a bar in the City of Rochester. Claimant alleges that the State is liable for her husband's death because it negligently and wrongfully discharged Nieves from a State Division for Youth (DFY)[1] facility.

After this claim was filed, Defendant immediately moved to dismiss the claim on the grounds that there was no allegation that Defendant owed a special duty to the decedent (DeLong v County of Erie, 60 NY2d 296; Melanson v State of New York, 215 AD2d 43; Yearwood v Town of Brighton, 101 AD2d 498, affd 64 NY2d 667) and, in addition, that the State is entitled to absolute immunity in connection with discretionary acts relating to the release of inmates on parole (Tarter v State of New York, 68 NY2d 511). That motion was denied as inappropriate at that early stage because some courts had drawn a distinction between the State's role with respect to its adult prisoners and other general police activities, and its role with respect to delinquent youth in its custody (see Robilotto v State of New York, 104 Misc 2d 713). That Defendant might later bring this motion for summary judgment on the same grounds was anticipated in that earlier decision (Motion No. M-52143, filed February 2, 1996).

The Court of Appeals has resolved this issue quite firmly. In Sebastian v State of New York (93 NY2d 790), the high Court effectively ended any debate relating to the State's potential liability in this area, holding that, absent a special relationship with the injured party, the State is immune from negligence claims in carrying out "purely governmental" functions and that the State's role in taking custody of and supervising adjudicated juveniles is "a quintessentially governmental activity" (id., at 795). The Court specifically rejected the argument put forth by counsel for Claimant in opposition to this motion: to wit, that because the State stands in the shoes of a parent, in loco parentis, when it takes custody of a youth, it is subject to the same duty placed on a parent who is responsible for the supervision of a child with known dangerous propensities (id., at 794). The claim in Sebastian (supra) arose from serious injuries inflicted by a youth who had escaped from State custody after he was assigned to a non-secure facility.

In the instant claim, there had been a conscious decision to place Nieves into the community, an act which is even more clearly entitled to the protection of immunity that is afforded purely governmental functions.

Defendant's motion is granted and the claim is dismissed.



April 10, 2000
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims




[1] This agency is now known as Office of Children and Family Services (OCFS).