New York State Court of Claims

New York State Court of Claims

FRAZIER v. THE STATE OF NEW YORK, #2000-014-105, Claim No. 87812


Synopsis



Case Information

UID:
2000-014-105
Claimant(s):
NAOMI FRAZIER and LEMUEL FRAZIER, JR. as Executors of the Estate of LEMUEL FRAZIER, SR., NAOMI FRAZIER as Mother and Natural Guardian of NEESHA FRAZIER, SHAYNA FRAZIER and SHAQUANNA FRAZIER, all Infants under the age of 14, and NAOMI FRAZIER, Individually
Claimant short name:
FRAZIER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
87812
Motion number(s):

Cross-motion number(s):

Judge:
S. Michael Nadel
Claimant's attorney:
Michael B. Parson, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Victor J. D'Angelo, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 28, 2000
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim has its antecedents in the tragic psychiatric illness that afflicted Ghana Frazier, and ultimately his family. Ghana Frazier suffered from chronic paranoid schizophrenia. In October of 1981 he killed his 18-month-old nephew by throwing him out of a fifth floor window. He was found not responsible by reason of mental disease or defect and he was, in accordance with the provisions of Criminal Procedure Law (CPL) §330.20(6), by Order of the Bronx Supreme Court on June 24, 1983, committed to the custody of the Commissioner of Mental Health, and hospitalized at Mid-Hudson Psychiatric Center, a secure State psychiatric facility.[1]

He was retained at that facility, in accordance with the provisions of subdivisions (8) and (9) of CPL §330.20, by Orders of the Orange County Court, on December 6, 1983 and November 28, 1984. On January 21, 1987, in accordance with the provisions of subdivisions (9) and (11)[2]
of CPL §330.20, and upon application of the Commissioner of Mental Health, Orange County Court determined that Ghana Frazier was mentally ill but did not have a dangerous mental disorder, and that "consistent with the public safety and welfare of the community and the defendant . . . that the clinical condition of the defendant warrants his transfer from a secure facility to a non-secure facility." He was transferred to Bronx Psychiatric Center, a non-secure State psychiatric facility.
A year later, on January 14, 1988, he escaped from the Bronx facility and was at large for approximately one year. In January of 1989, while still at large, he appeared at the Brooklyn home of his sister, claimant Naomi Frazier, who lived there with her three children and her father, decedent Lemuel Frazier, Sr. According to the testimony of Naomi Frazier, Ghana Frazier told the family he was out on a pass from the hospital. She also testified that while Ghana Frazier was in her home he made death threats to various family members and accused her daughter of making the walls move. This behavior induced Naomi Frazier to telephone the police. The police arrived at the home, took him into custody and returned him to the Bronx facility on January 25, 1989. Naomi Frazier further testified that during the incident the police telephoned Bronx Psychiatric Center from her home and that she overheard the conversation. She stated that during the telephone conversation, the police officer reported that her brother had threatened her. According to Naomi Frazier, the officer also asked, while on the telephone, if Ghana Frazier belonged out of the facility.[3]

Subsequent to his return to Bronx Psychiatric Center in January 1989, he was retained at that facility, in accordance with the provisions of CPL §330.20(9), by Orders of the Bronx Supreme Court, on April 26, 1989 and September 26, 1990, each of which recited the determination that he "does not currently suffer from a dangerous mental disorder."

From the time of his return to Bronx Psychiatric Center in January of 1989 until the time of his second escape on August 28, 1991, Ghana Frazier's medical records[4]
indicate that there were several incidents of assaultive behavior involving other patients, threats made to the staff, as well as an attempted escape in early 1991. The records further indicate that on September 12, 1989, his status was changed from escorted to unescorted grounds privileges, which permitted him to leave the ward unaccompanied by staff within the confines of the hospital grounds.[5] On August 28, 1991, Ghana Frazier, while accompanied on the grounds by another patient, escaped from Bronx Psychiatric Center.[6]
Naomi Frazier testified that in the early morning hours of October 1, 1991, the still at large Ghana Frazier once again unexpectedly appeared at the family's Brooklyn home. She stated that she was awakened by an argument between her brother Ghana and her father in the living room. She arose and called the police, then she went to her children's room, hid them under the bed and told them to keep quiet. She testified that she then peered out from behind a glass door that looked onto the scene in the living room, at which point she witnessed her brother stab her father to death with a large knife. She also stated that her three children witnessed the death of their grandfather. Ghana Frazier was ultimately arrested by the police.

This claim sounds in medical malpractice and common law negligence. Claimants maintain that Bronx Psychiatric Center committed medical malpractice by breaching a duty owed to the claimants when, under accepted standards of psychiatric care, it failed to have Ghana Frazier placed in a more secure facility, and when it granted Ghana Frazier unescorted grounds privileges despite incidents of assaultive behavior and a history of an escape and an escape attempt. Claimants also assert that the defendant was negligent in the security at the facility which enabled him to escape, and in its failure to employ proper escape notification procedures. Claimants argue that these breaches of duty were proximate causes of Lemuel Frazier, Sr.'s death.

The claimants relied on the testimony of John Lucas, M.D., a board-certified psychiatrist and neurologist. Dr. Lucas testified, based on his review of Ghana Frazier's redacted medical records from Bronx Psychiatric Center,[7]
and other records, including the depositions of claimant Naomi Frazier and Bronx Psychiatric Center employee Renata Acevedo, that Ghana Frazier was at high risk for repeated dangerous behavior. According to Dr. Lucas, this high risk for dangerous behavior should have been apparent to Bronx Psychiatric Center staff in view of Ghana Frazier's propensity for violence and his threats of violence while under inpatient psychiatric care, as well as his history of actual and attempted escape from the facility. Dr. Lucas opined that Ghana Frazier was a risk to the community in general and his family in particular.
Dr. Lucas concluded that Bronx Psychiatric Center failed to take into account Ghana Frazier's high risk behavior and thus significantly deviated from the standard of care required when it: 1) granted him unescorted grounds privileges; 2) failed to have him recommitted to a secure facility; and 3) failed to follow proper procedures to effectively notify potential victims of his escape.

On cross-examination Dr. Lucas acknowledged that the decisions to transfer the patient from Mid-Hudson Psychiatric Center to Bronx Psychiatric Center and to retain him there were both based on the medical judgment of the treatment team and treating psychiatrist. Dr. Lucas also conceded that the treatment team's determination of the level of privileges the patient was granted was based on medical judgment.

Where the State provides medical and psychiatric care, it is engaged in a proprietary function and is thus held to "the same duty of care as private individuals and institutions engaging in the same activity."
Schrempf v State of New York, 66 NY2d 289, 294. But, "[f]or liability to ensue, it must be shown that the medical provider's treatment decision was ‘something less than a professional medical determination' (see, Darren v Safier, [207 AD2d 473], at 474; Davitt v State of New York, 157 AD2d 703)." Ibguy v State of New York, 261 AD2d 510, lv den, 93 NY2d 816.
More is required to make out a prima facie case of medical malpractice against the defendant than was presented by the testimony of the claimants' expert. While he disagreed with the retention of Ghana Frazier at a non-secure facility, and with his level of supervision, Dr. Lucas acknowledged that both determinations were based on the exercise of professional medical judgment. No evidence was offered to establish that the medical judgment was not based upon an intelligent and careful determination.
See, e.g., Clark v State of New York, 99 AD2d 616; Snow v State of New York, 98 AD2d 442, affd 64 NY2d 745; Larkin v State of New York, 84 AD2d 438; Huntley v State of New York, 62 NY2d 134; Pigno v Bunim, 43 AD2d 718, affd 35 NY2d 841; Herold v State of New York, 15 AD2d 835. Accordingly, there is no basis for a finding of liability against the State on the claim of medical malpractice.
Two distinct theories are advanced in support of the claim of common law negligence. The first is that inadequate security at the facility enabled Ghana Frazier to escape.

When a psychiatric patient escapes due to a breach in security and the facility had notice of the patient's propensity for violence and escape, and a foreseeable consequence ensues, liability will attach.
See, Rattray v State of New York, 223 AD2d 356; Thall v State of New York, 69 Misc2d 382, affd 42 AD2d 622.
According to Renata Acevedo, a social worker at Bronx Psychiatric Center, the facility was surrounded by a chain link fence with three entrances, with only the main entrance staffed by security personnel.[8]
The claimants' proof does not demonstrate that the unmanned entrances constituted a breach in security. There is no statute, rule, or regulation that requires that Bronx Psychiatric Center be secure.[9] Indeed, once Ghana Frazier was transferred there pursuant to Court order, "the purpose of his custody in the Commissioner of Mental Health was no longer ‘security, confinement and prevention of escapes', but ‘therapy and rehabilitation' [citation omitted]." People v Ortega, 69 NY2d 763, 764-765.
It appears that Ghana Frazier did not evade a faulty security system but rather simply walked out of one of the entrances to the facility in order to effectuate his escape.
Cf., Rattray v State of New York, supra. Such a scenario does not implicate a breach of security, but rather, goes to the patient's level of supervision, which, as acknowledged by the claimants' expert, was the result of an exercise of professional medical judgment, for which, as previously discussed, there can be no liability. Id.
Finally, the claimants contend that Bronx Psychiatric Center failed to notify family members and potential victims of Ghana Frazier's escape. Dr. Lucas testified that good clinical care and accepted medical practice require that potential victims be notified when a patient escapes from a psychiatric facility. His opinion is confirmed by statute and by regulations promulgated by the Commissioner of Mental Health.[10]

Subdivision 19 of CPL §330.20 provides:
If a defendant is in the custody of the commissioner pursuant to an order issued under this section, and such defendant escapes from custody, immediate notice of such escape shall be given by the department facility staff to: (a) the district attorney, (b) the superintendent of state police, (c) the sheriff of the county where the escape occurred, (d) the police department having jurisdiction of the area where the escape occurred, (e) any person the facility staff believes to be in danger, and (f) any law enforcement agency and any person the facility staff believes would be able to apprise such endangered person that the defendant has escaped from the facility.
The regulations promulgated[11]
by the Commissioner of Mental Health (14 NYCRR 541) provide:
Defendants Committed to the Custody of the Commissioner Pursuant to CPL Section 330.20.

541.12 Escape

(a) In the event a defendant leaves the grounds of the facility without prior authorization or fails to return on time from a furlough, the clinical director, the unit chief, the defendant's physician, the defendant's treatment team leader or any other member of the facility staff shall immediately notify:

(1) the district attorney of the county from which the defendant was committed;

(2) the Superintendent of State Police;

(3) the sheriff of the county where the facility is located;

(4) the court which issued the order under which the defendant is currently being held;

(5) the police department having jurisdiction of the area where the facility is located, of the area in which the defendant last resided, of the area in which any person who might be harmed resides; and any other law enforcement agency the clinical staff deem appropriate;

(6) any person who may reasonably be expected to be assaulted or otherwise harmed by the patient;

(7) the patient's immediate family;

(8) the patient's attorney, if any; and

(9) any person or entity the court that committed the defendant to the custody of the commissioner may have designated in the order issued under Criminal Procedure Law, section 330.20 .

(b) The Director of Forensic Services and the Mental Health Information Service shall also be notified immediately.

(c) The notice shall be given as soon as the facility staff discover the defendant's absence, and shall include the information necessary to identify the defendant and any person or persons believed to be in danger and the nature of the danger.

(d) Each notice shall be given by telephone. If notice cannot be effected by telephone, a telegram shall be sent and a request shall be made that the telegram be hand-delivered. The police having jurisdiction over the area in which a person who might be harmed resides shall be notified if that person is not contacted by telephone. The facility shall keep a record of notices given pursuant to this section.

(e) the defendant returns to the facility, persons notified of his escape shall be so advised.
It appears that the means by which the facility prepares itself to make the required notifications in the event of an escape, is by maintaining, in a patient's records, the names, phone numbers and addresses of those persons to be notified. Five pages of forms titled "Notification of Escape Record" were included in Exhibit 2B. The forms are intended to record the information necessary to effectuate the notifications required in the event of the escape of a patient admitted pursuant to CPL §330.20, such as Ghana Frazier.

In Part III of the forms, entries indicate that notification of Ghana Frazier's January 1988 escape was provided to the facility safety department, the State Police, the local sheriff, the local police, the District Attorney, the Bureau of Forensic Services, Mental Health Information Service, and several offices at the facility. The portions of the form which provide for corresponding entries of notification upon the patient's return, are all blank. An entry dated 8/29/91 on an otherwise blank page in the forms, indicates that the District Attorney, the Bureau of Forensic Services, the local police, and the local sheriff were notified of Ghana Frazier's August 1991 escape.

Not only are the claimants members of the patient's immediate family (14 NYCRR 541.12[a][7],
supra), but, given Ghana Frazier's history, starting with the reason he was in custody in the first place, and including incidents of assaultive behavior at the facility and his escape and apprehension at his family's home where he threatened at least one family member, they are also persons "who may reasonably be expected to be assaulted or otherwise harmed by the patient" (14 NYCRR 541.12[a][6], supra), in the event of his escape.[12]
Information concerning Ghana Frazier's family appears at several places on the forms. In Part II (stated on the form to be information which "should be obtained as soon as possible after admission and updated as necessary"), under the heading "Relatives, Potential Victims, Others" there are three names. Lemuel Frazier is listed first, noted to be his father, and not a potential victim. Two telephone numbers are lined through. An incomplete address in Manhattan is lined through, as is the address "619 Bainbridge Ave, Bkly, 11233."

The second entry is Olivia Frazier, noted to be his sister, stated not to be a potential victim, with an unknown telephone number. Her address is noted as "1515 Boston Rd #4E Bx."

On the third line on the form, Lemuel Frazier is again listed as his father, with an unknown telephone number, the address "1390 Bolton Ave," and no entry under the heading "potential victim."
Naomi Frazier testified that the family, including her father, had moved at some point in 1988 from 1390 Boston Road in the Bronx, to 619 Bainbridge Street in Brooklyn. She stated that when the police apprehended Ghana in her home in January 1989, it was at 619 Bainbridge Street in Brooklyn. Naomi Frazier testified that she had never received any notification of either of her brother's escapes and she was unaware of any such notification to any other family member

Bolivia Frazier, one of Ghana Frazier's other sisters and mother of his slain nephew, testified that she had moved from the family residence at 1390 Boston Road in the Bronx, to 1415 Bristow Street in the Bronx, in 1986. She testified that she had never lived at 1515 Boston Road, that she had never received any notification of either of her brother's escapes, and that neither she nor any other family member was known as Olivia.

In Part III of the forms, entries indicate that on the occasion of Ghana Frazier's first escape on January 14, 1988, the only family member who was notified was "Olivia" Frazier, on January 14, 1988, by "telegraph." Also included in Claimants' Exhibit 2B is a copy of a letter addressed to "Olivia" Frazier, dated January 15, 1988, at 1515 Boston Road, Bronx, NY, #4E. The first sentence of the letter states: "We have been trying to contact you and your father but have been unable to do so."

The only indication in the "Notification of Escape Record" that any family member was notified of the 1991 escape, is a notation dated August 29, 1991, that a mailgram notification of Ghana Frazier's escape had been sent to "Mr. Frazier & Ms. Frazier," without any indication of an address.

Examination of the "Notification of Escape Record" supports the unrebutted testimony of Bolivia Frazier that she was never notified of Ghana Frazier's escape, and the unrebutted testimony of Naomi Frazier that although she was living with her father at the time, she was unaware that he had ever been notified. To the extent that "619 Bainbridge Ave" appears as an
address for Lemuel Frazier, the correct address was 619 Bainbridge Street, and the address on the forms was crossed out, while another incorrect address for him had been entered, two lines below. The inference is inescapable that anyone using the information on the form to notify Lemuel Frazier would have used the second, incorrect, address. In addition, the facility failed to update or verify Bolivia Frazier's address, phone number, or even her name as evidenced by the erroneous entries in the records.
The foregoing supports the otherwise unrebutted evidence that the claimants were not notified by the facility of Ghana Frazier's escape on August 28, 1991. Based upon the information contained in the "Notification of Escape Record," it was impossible to notify either Lemuel Frazier, or Bolivia Frazier, the only relatives of Ghana Frazier listed on the form. Notwithstanding Ghana Frazier's apprehension by police in Naomi Frazier's residence in Brooklyn in early 1989, no one at the facility included information about her in the records. Inexplicably, a not quite correct address for her and her father at the time, had been written onto the forms, and then crossed out.

The family members were not notified as a result of the defendant's failure to maintain current, correct information. The forms do not include a correct address or telephone number for any member of Ghana Frazier's family.[13]
The requirement that family members and potential victims be notified when a patient escapes, is meaningless if correct information about who they are and where they can be notified is not maintained. While Bronx Psychiatric Center cannot be expected to continually revise and update a patient's "Notification of Escape Record" by constantly verifying the information, the January 1989 apprehension of Ghana Frazier and his return to the facility, provided an appropriate occasion to update the forms by obtaining correct information concerning his family. The facility's inability to locate either "Olivia" or Lemuel Frazier, which was noted in the January 15, 1988 letter to "Olivia" Frazier, provided a compelling reason to do so.
And although the "Notification of Escape Record" indicates that Ms. Acevedo reviewed the forms on September 12, 1989, the date on which it is indicated that Ghana Frazier was placed on "unescorted on grounds" status (another appropriate occasion to update the information), there is no evidence that the information was properly reviewed, corrected or updated. Information could and should have been investigated by the facility staff due to the events that took place as a result of Ghana Frazier's first escape which lasted approximately one year, particularly his apprehension by the police under circumstances that indicated he had threatened family members.

It is well settled that the violation of a specific duty imposed by a regulation is some evidence of negligence,[14]
in an action brought by those for whose benefit the duty exists "to recover for injuries of the character it was designed to prevent, if proximately produced by such violation [citation omitted]." Monroe v City of New York, 67 AD2d 89, 99. See, also, Chester Litho v Palisades Interstate Park Commission., 33 AD2d 202, affd 27 NY2d 323; O'Leary v American Airlines, 100 AD2d 959. In other words, as with all negligence claims, in order to find liability, the failure to comply with the regulation must be the proximate cause of the injury. See, Sheehan v City of New York, 40 NY2d 496.
Based on the clear language of the regulation, no further inquiry is needed to establish that its provisions are intended to protect these claimants against the potential consequences of an escape by a patient committed to a psychiatric facility pursuant to CPL §330.20. As previously determined, not only are they members of the patient's immediate family, but, given Ghana Frazier's history, starting with the reason he was in custody in the first place, and including incidents of assaultive behavior at the facility and his previous escape and apprehension at his family's home where he threatened at least one family member, they are also persons who may reasonably be expected to be assaulted or otherwise harmed by the patient, in the event of his escape.

Although the foregoing conclusion, which is supported by Dr. Lucas' expert testimony, is at odds with the apparent determination made by the facility at the time (that no one was a "potential victim"), it does not amount to a "second guess" of a psychiatric medical judgment. (
Topel v Long Island Jewish Medical Center, 55 NY2d 682, 685). The determination as to who might be in danger from a patient, in the event of his escape, is not made for the purpose of treatment. While the professional medical judgment which placed Ghana Frazier on unescorted grounds privileges at a non-secure psychiatric facility is insulated from liability, the failure to recognize that, given his history, if he escaped, his family would be in danger, is not. In order to be prepared to notify those who may be in danger in the event of a patient's escape, it is misplaced to rely upon an assessment which was only one component of a professional medical judgment made for the purpose of treatment, a decision which often involves a calculated risk. Schrempf v State of New York, supra, at 295. On facts such as these, those who are not in danger so long as the patient remains in custody, become so once he escapes.
The well established social policy underlying the latitude accorded the State in exercising psychiatric medical judgment in the treatment of those persons who have committed the most serious of violent criminal acts (but as a matter of equally well established penal policy are not held accountable for those acts by reason of their need for such treatment), is not in any way undermined by requiring, on facts such as these, a measure of vigilance by the State to be reasonably able to fulfill the mandate imposed, namely: when one has escaped its care, to notify his family, not only so that they can assist in returning him to the State's care, but also so that they can protect themselves from the known likelihood of harm.

The consequences of the defendant's failure to notify the family cannot be considered as remote, but rather were eminently foreseeable, based on Ghana Frazier's assaultive history, his prior escape and attempt to escape, his violent history with family members, and his apprehension at his family's home on his prior escape.
See, e.g., Rattray v State of New York, supra.
In situations where the defendant fails to perform a legal duty, as here, causation is established if the performance of the act would have prevented the consequence.
See, Harper v Remington Arms Co., 156 Misc 53, affd 248 AD 713. Naomi Frazier testified that if she had been notified by the facility of her brother's escape she would have, out of fear, removed her family from their home. Given her brother's history, this would have been the only reasonable course of action.
The Court therefore finds that Bronx Psychiatric Center was negligent when it failed to notify the claimants of Ghana Frazier's escape on August 28, 1991, as required by 14 NYCRR 541.12. Claimants are members of a class the regulation was intended to protect. The injuries suffered were the foreseeable consequence of defendant's failure to comply with the regulation. A causal connection between defendant's failure to notify, and claimants' injuries was established. As such, the defendant's failure in its legal duty owed to the claimants was the proximate cause of Lemuel Frazier, Sr.'s death.[15]

All motions at trial not specifically ruled upon are denied.

The issue of damages will be set down for trial upon the filing of a note of issue and certificate of readiness pursuant to Rule 206.12 of the Uniform Rules for the Court of Claims.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.


June 28, 2000
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims




[1]A secure facility is "a psychiatric center or unit of a psychiatric center operated by the Office of Mental Health staffed with personnel adequately trained in security methods and so equipped as to minimize the risk or danger of escapes." 14 NYCRR § 541.1(z).
[2] CPL §330.20(11) states: "The commissioner may apply for a transfer order . . . when a defendant is in his custody pursuant to a retention order . . . and the commissioner is of the view that the defendant does not have a dangerous mental disorder or that, consistent with the public safety and welfare of the community and the defendant, the clinical condition of the defendant warrants his transfer from a secure facility to a non-secure facility under the jurisdiction of the commissioner * * * The court must grant the application and issue a transfer order if the court finds that the defendant does not have a dangerous mental disorder, or if the court finds that the issuance of a transfer order is consistent with the public safety and welfare of the community and the defendant and that the clinical condition of the defendant, warrants his transfer from a secure facility to a non-secure facility."
[3] At trial the defendant objected on hearsay grounds to admissibility of the testimony that there was a telephone call made by the police to the facility and to the overheard one-sided content of that conversation. The statements of the police officers, as testified to by Naomi Frazier, were not offered for their truth but for the fact that there was such a telephone call and that the facility had knowledge of the apprehension of Ghana Frazier and its attending circumstances. See, Stern v Waldbaum, Inc. 234 AD2d 534, 535: "Anyone who heard an out-of-court utterance which is offered merely to prove that it was made may testify to it, and have his veracity tested upon cross examination in the ordinary way [citations omitted]."
[4]Claimants' Exhibit 2B, Ghana Frazier's Bronx Psychiatric Center redacted medical records.
[5]Claimants' Exhibit 1, Deposition of Renata Acevedo, Social Worker at Bronx Psychiatric Center, at page 20.
[6]Claimants' Exhibit 1, Deposition of Renata Acevedo, Social Worker at Bronx Psychiatric Center, at page 47. According to Ms. Acevedo, at the time of the August 28, 1991 escape, Ghana Frazier was on a buddy system type of status, where one patient is accompanied by another patient, but not by a staff member.
[7]Claimants' Exhibit 2B, Ghana Frazier's Bronx Psychiatric Center redacted medical records.
[8]Claimants' Exhibit 1, Deposition of Renata Acevedo, Social Worker at Bronx Psychiatric Center, at pages 21-22.
[9]It is not one of the four State psychiatric centers designated in 14 NYCRR § 541.1 as secure. See, footnote 1.
[10] The record indicates that claimants cited CPL §330.20(19), but did not specifically cite 14 NYCRR 541.12, however, the Court takes judicial notice of the regulation. CPLR §4511 ["Every court shall take judicial notice without request of the common law, constitutions and public statutes of the United States and of every state, territory and jurisdiction of the United States and of the official compilation of codes, rules and regulations of the state . . . and of all local laws and county acts."] See also, Chanler v Manocherian, 151 AD2d 432.
[11] Pursuant to the authority of Mental Hygiene Law §7.09(b).
[12] Given its precise wording, the record is insufficient to support finding a violation of the requirement of CPL §330.20(19) that the facility notify "(e) any person the facility staff believes to be in danger."
[13] On another page in Exhibit 2B, headed "Bronx Psychiatric Center Face Sheet" Lemuel Frazier and Olivia Frazier are listed as emergency contacts. That portion of the "Face Sheet" includes the following instruction: "List Address Change below and cross out old address." Lemuel Frazier is noted to be the patient's father, with the address "1390 Boston Road Bronx NY" and a telephone number, which is the same as one of those entered in Part II of the "Notification of Escape Record" forms. Olivia Frazier is noted to be the patient's sister, with the address "1515 Boston Rd. Bx NY." None of the information is crossed out.
[14] The failure to properly maintain records in situations such as this one, has been recognized to constitute negligence. Santangelo v State of New York, 129 Misc 2d 898, affd 127 AD2d 647.
[15]The Court of Appeals has reaffirmed the principle that "‘[w]hen an intervening intentional act of another is itself the foreseeable harm that shapes the duty imposed, the defendant who fails to guard against such conduct will not be relieved of liability when that act occurs.' Kush v City of Buffalo, 59 NY2d [26,] at 33." Bell v Board of Education of the City of New York, 90 NY2d 944, 947.