New York State Court of Claims

New York State Court of Claims

ANTON v. THE STATE OF NEW YORK, #2001-001-528, Claim No. 92390


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Susan Phillips Read
Claimant's attorney:
Manton, Sweeney, Gallo, Reich & Bolz, LLPBy: Arthur W. Lonschein, Esq. and Rosemarie A. Klie, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Grace A. Brannigan, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
April 2, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

While walking from the subway station on his way home on November 2, 1993, claimant Mace Anton ("claimant")[1]
was cornered by two male strangers who demanded his money and his watch. After he complied, these men pummeled him and knocked him to the ground, allegedly causing him to suffer serious facial and head injuries (T 15-17;[2] claim, dated Aug. 10 and filed Aug. 23, 1995 ["claim"]). Claimant subsequently identified Martin Mullins ("Mullins") in a police lineup as one of the two muggers who had attacked him (T 17-18).
Mullins was an adjudicated juvenile delinquent who had been released from a Division for Youth ("DFY"or "the division")[3]
facility to foster care from which he was absent without leave ("AWOL") when he participated in the attack against claimant. Claimant accordingly brought this claim to seek damages from defendant State of New York ("defendant" or "the State") for negligence premised on metamorphosing theories, as will presently appear.
I. Factual Background and Testimony
Having found that Mullins, a 14-year old at the time, had committed the crime of the attempted criminal sale of marijuana in the fourth degree and required placement, Family Court on November 11, 1992 placed him in DFY's custody for 12 months (def. exh. C). DFY subsequently timely petitioned to extend the placement solely for purposes of releasing Mullins from its Brentwood Residential Center ("Brentwood"), where he was deemed to have made excellent progress, to the care of a foster parent (def. exh. A; T 75-76). Family Court granted the petition (def. exh. B; T 75-76).
Trina Lloyd ("Lloyd"), a youth division aide who had become acquainted with Mullins through her job at Brentwood, agreed to be his foster parent (DT-L 8, 11-12, 24).[4]
She described Mullins as a "handsome boy" who "could be very personable. A lot of times he was very quiet so you really weren't sure what he was thinking about but he was neat. He was clean with himself. And I thought he was a nice fellow" (DT-L 14). Before taking Mullins into her home, she knew very little about his background, "only that he had been adopted previously and then he had gotten into trouble and it seemed like the family that adopted him didn't want anything to do with him.[5] That he would be going into a GED program and that's about it. [DFY] didn't tell me very much about him" (DT-L 15).
On October 7, 1993, William Reyes ("Reyes"), a youth division counselor in DFY's Queens Community Care Office, was assigned to supervise Mullins after his release from Brentwood to Lloyd's foster care (T 20-23). According to Reyes, once a case is assigned to him by his supervisor
I call the family of the youngster and arrange for an appointment to see the youth in my office or visit the home, depending. And then I follow up with arranging for the youngster to be serviced in the community such as refer[ring] him . . . to [his] Office of High School Admission, or if it is a drug situation, to a drug rehab program and a drug rehab program called basically both school and therapy which I did on [Mullins]
(T 21; see also, T 47, DT-L 27).
In this instance, Reyes met with Lloyd and Mullins in his office on October 12, 1993 to review the conditions of Mullins's release to foster care (e.g., no drug possession or use; regular attendance at school/program; observance of curfew) (T 25; DT-L 30-32), and referred Mullins to "Daytop Village, 9 to 5, Substance Abuse Day Treatment Program in Jamaica, Queens, New York" (T 31, 71-72;
see also, clt. exh. 2). At this meeting, Mullins "presented himself as a quiet, sociable youngster that makes friends easily. . . . more as a quiet, passive type of youth" who was very likeable and, in fact, "was so likeable that [Lloyd] took him home" (T 72).
However winning and manageable Mullins might have seemed, he quickly proved himself unsuited to the foster care program. On October 23, 1993, he left his scheduled Daytop activity (a Saturday health fair) without permission; that same day Lloyd discovered some items (coins and her husband's wedding band) missing from her home, which she confronted Mullins about (DT-L 39, 41-42), and Mullins admitted to her that he had smoked marijuana (T 53-60; DT-L 35-41; clt. exhs. 3, 7 and 53). When Lloyd reported these transgressions to Reyes, she told him that she "[did] not want [Mullins] living with her any longer," as he contemporaneously recorded the communication (clt. exh. 3;
see also, T 70-71).
Whatever Lloyd's exact words and however Reyes paraphrased them, he understood that she was telling him "that it would be good to start looking for a place for [Mullins] because she wasn't going to be tolerating this [behavior] much" (T 55;
see also, T 79-80), not that she expected or asked for DFY to remove Mullins from her home and care immediately or had, in effect, evicted Mullins from her home, as claimant would have it. Although Lloyd's memory of her conversation with Reyes is at best hazy, her testimony on this point is consistent with his: she confirmed that she "wouldn't want anyone living in my home that stole" (DT-L 36; see also, DT-L 42-43), and that "[DFY personnel] probably would have told me something like as soon as we can find another place, as soon as we can get [Mullins] into another facility. They probably would have said something like that. I don't remember" (DT-L 41); and that in the event of any "problem" with Mullins, she understood that she was supposed to "call the . . . after care office and they were supposed to place him someplace else," but that she "knew that this would not be done immediately because there were procedures they had to go through to try to find someplace else to place him and that was my understanding" (DT-L 44).
On October 25, 1993, the following Monday, Reyes met with Mullins, who admitted to committing all of the infractions of which he was accused, except stealing the wedding ring (T 62-65; clt. exh. 53). Reyes advised Mullins that because Lloyd did not want to continue as his foster parent and no other foster home space was then available, he would have to return to a DFY facility or, alternatively, opt for Daytop's residential treatment program, which is what Reyes encouraged him to do (clt. exh. 53). According to Reyes' contemporaneous notes, Mullins indicated that he would "think about this plan" (
Reyes testified to his expectation and understanding that Mullins would continue to live with Lloyd while new housing arrangements were being made for him (T 79-80); however, claimant asserts that there was "no testimony from [Lloyd] that Mullins ever returned to her home" after October 23, 1993 and that Reyes knew that Lloyd "did not want [Mullins] in her home" (clt. brief, p. 9), implying that Reyes had essentially relegated Mullins to roam the streets. Lloyd was confused about exactly what happened after the weekend of October 23, 1993 or how much time elapsed between that weekend and Mullins's subsequent arrest: she testified both that she thought that he came back to her home to live after October 23, 1993 and that she did not recall whether he had done so (DT-L 41-42, 47-49). As noted earlier, however, Lloyd displayed a straightforward understanding and expectation that DFY would not have immediately removed Mullins from her foster care.

Reyes journeyed to the Daytop facility in Jamaica on November 1, 1993 for the dual purpose of checking on Mullins and meeting with Susan Plaza ("Plaza"), a Daytop official, about admitting him to a residential setting substance abuse program. When he called into the Queens Community Care Office, he learned from his supervisor that Lloyd had that morning brought Mullins's belongings to the office; she reported that Mullins had run away from her home the previous day (T 81; DT-L 42). Reyes' supervisor accordingly instructed a co-worker to issue a warrant for Mullins immediately (T 81-82). Claimant was assaulted by Mullins and another male on the day after this warrant was issued.

When asked whether he had made any efforts to locate Mullins on November 1, 1993, Reyes recounted that he
went to Daytop . . . in the morning, spoke to [Plaza], and also there was a lady [who] was a counselor assigned to this youngster, and she said that the youth had gone in [sic] Long Island and he was in a hospital there not because any--nothing wrong happened. It was that he did not have a place to be and that he had run away from home. So I think I, if I recall, vaguely, I spoke to the hospital. I don't remember what was the hospital on Long Island, and I got to speak to some people there and I asked for [Mullins] to come down to Daytop in Jamaica because my plan was to speak to this youth and put him upstate or take him into YDC, which is the Youth Development Center for New York for DFY at the time, so it was two alternatives. If I were to look in to either put[ting] this kid in a program residential setting in the Bronx or speak[ing] to [Plaza] to put him in an upstate program
(T 82-83).
Moreover, "on November 1st, I think the kid--when I entered in the afternoon, he was there. When I went to go to see [Plaza], he had split from the waiting room bench that was there. So at the time, we continue[d] ahead with the warrant. And that was it" (T 83; see also, clt. exh. 8).
When asked what action he would usually take upon learning that a youngster assigned to him had broken a condition of release, Reyes answered, in effect, that he tailored the action to fit the situation:
[W]e could take an appropriate action such as looking for--if a youngster is using drugs, we look for an alternative to put him in a drug counseling program. If a youngster misses two days from school, I go and sit down with the counselor at school and find out--check on the progress. If a youngster is being kind of disruptive at home and not obeying rules such as reasonable commands, I give the youngster a major rule violation which is a conduct event report. See, you don't put a youngster back [into a DFY facility] immediately because he violated one rule. It depends on the rule. The only rule that we issue warrants immediately is when a youngster runs away from the home because then they would be at large and we have to protect the youth and the community
(T 84 [emphasis added]).
When asked directly whether he possessed the discretion to do this, Reyes replied "Yes" (T 85). With specific reference to Mullins's case, he observed that
when [he] left that program on that Saturday . . . my next approach was to sit down with the people of the program [i.e., Daytop] and find out whether they have available a residency or a setting because it requires that a youngster be in a more kind of supervising setting. So I did that approach. . . . If that youngster doesn't want to go into the program, then we issue a warrant because the youngster refused the services. But that was not the case with [Mullins]
II. Discussion

Claimant pleaded that the State violated Executive Law § 510-a; specifically, that the State "conditionally released [Mullins] into aftercare without the provision of suitable care and supervision; [and] that the conditional release of [Mullins] was a foreseeable danger to the public safety and was the proximate cause of the personal injuries to [claimant]" (claim, ¶ 2). These allegations essentially mimic section 510-a, which provides at subdivision (1) that "[t]he division may conditionally release any youth placed with the division to aftercare[6]
whenever it deems such conditional release to be in the best interest of the youth, that suitable care and supervision can be provided and that there is a reasonable probability that the youth can be conditionally released without endangering the public safety. . . ." Claimant wisely abandoned this theory at trial, however, in view of the Court of Appeals' decision in Sebastian v State of New York (93 NY2d 790).
Sebastian, claimants, a taxicab driver and his wife, sought to recover damages from the State for severe injuries inflicted on claimant husband by a juvenile delinquent who had escaped from a non-secure DFY facility. The Court observed that the removal of juveniles from the community by court order and their placement, which is done "at least in part for the protection of the society as a whole," is a "quintessentially governmental activity," not a proprietary function (Sebastian, 93 NY2d at 795); and therefore held that the State was immune from tort liability for its acts and omissions with respect to the adjudicated juvenile's escape absent a special relationship with claimant, which was not alleged. By parity of reasoning, the State is immune from tort liability for Mullins's conditional release to foster care in the absence of a special relationship, which is not only unclaimed, but specifically disavowed in this case (T 18-19; clt. brief, p 12; see also, Romano v State of New York, Corbett, J., UID # 2000-005-501 [State not liable for shooting of claimant's husband by juvenile discharged from DFY facility absent special relationship because discretionary decision to place individual in community is even more clearly entitled to governmental immunity than was the case in Sebastian, which involved a juvenile who escaped]).
At trial claimant segued from Executive Law § 510-a to a new theory centering on Executive Law § 510-b (1). In October 1993, this statutory provision specified that
[i]f a child under the jurisdiction of the division runs away from a division facility or an authorized agency[7] or violates any condition of release therefrom, the division shall cause said child to be apprehended and returned to a division facility or authorized agency pursuant to the regulations of the division (emphasis added).[8]

Claimant argues that this provision imposes a mechanical, purely ministerial duty on DFY to return a child in aftercare to a DFY facility immediately upon acquiring knowledge that the child has violated any condition of release; that Reyes admittedly knew on October 25, 1993 that Mullins had violated several requirements of his conditional release, yet failed to take him into custody on the spot; that this nonfeasance was a proximate cause of claimant's injuries; and that this case is therefore very different from and not controlled by
Sebastian, which recognized DFY's immunity from tort liability for its discretionary acts. The Court must therefore consider whether Executive Law § 510-b (1) is, in fact, ministerial in the way that claimant contends; and if so, whether the State is liable to claimant in tort for Reyes' breach of this provision.
To establish the ministerial nature of section 510-b (1), claimant calls particular attention to the Legislature's use of the word "shall"; i.e., in the event that a child under DFY's jurisdiction runs away or violates any condition of release, then DFY "shall cause" the child's apprehension and return to a DFY facility. While the Court certainly agrees with claimant that "shall" is peremptory and that the Legislature might have used the permissive word "may" in section 510-b (1) had it chosen to do so, the scope or nature of DFY's discretion under the Executive Law is not as a result so cramped as claimant proposes.

In particular, section 510-b coexists with section 510-a, the statutory provision governing conditional release, which in 1993 stated at subdivision (2) that

[i]t shall be a condition of such release that the youth so released shall continue to be the responsibility of the division for the period provided in the order of placement, notwithstanding the youth's conditional release therefrom, and that the division, pursuant to its regulations, may cause such youth to be returned to a division facility or authorized agency at any time within the period of placement, where there is a violation of the conditions of release or a change of circumstances (emphasis added).
This provision clearly vests DFY with discretion as to whether to return a youth violating conditions of release to a DFY facility.
Claimant's interpretation of section 510-b (1) completely disregards and effectively abrogates section 510-a (2). Reading sections 510-b (1) and 510-a (2) in such a way as to give them both effect and harmonize them in context, this Court therefore holds that the Executive Law authorizes the return to a DFY facility of a youth who has violated a condition of release, but mandates such return only in those instances where the youth has violated a condition by running away from the care to which he was consigned.

In further support of the proposition that section 510-b (1) is principally concerned with runaways, the Court notes that this provision uses the phrase "apprehend[] and return[]" whereas section 510-a (2) uses the single word "return[]." Moreover, section 523 of the Executive Law (the predecessor of section 510-a;
see, L 1992, ch 465, § 13) is cited as the authority for
9 NYCRR Part 169, entitled "Release and Return," DFY's regulations dealing with the revocation of release for violation of a condition of release (see, e.g., 9 NYCRR § 169.1, which provides that release pursuant to Executive Law § 523 may be revoked upon a violation of one or more conditions of release including, but not limited to, those conditions violated by Mullins),[9] while section 524 (the predecessor of section 510-b; see, L 1992, ch 465, § 13) is cited as the authority for 9 NYCRR Part 181, entitled "WARRANTS AND AWOL'S--POLICIES AND PROCEDURES." Finally, the Court finds some support for its reading of sections 510-a (2) and 510-b (1) in the legislative history of these two provisions.
Chapter 478 of the Laws of 1978 amended section 524 (1) of the Executive Law (subsequently renumbered § 510-b [1];
see, L 1992, ch 465, § 13) to replace the word "may" with the word "shall." Chapter 478, dubbed "The Juvenile Justice Reform Amendment of 1978," was adopted specifically to toughen the Juvenile Justice Reform Act of 1976 in various ways and, in furtherance of this general purpose, strengthened procedures for apprehension of runaways placed with DFY or an authorized agency (see, Bill Jacket, L 1978, ch 478, esp. Mem of the Division of Criminal Justice Services, dated July 7, 1978; Mem of Support from DFY, dated July 10, 1978, at 2; the Budget Report on Bills from the Division of the Budget, dated July 3, 1978, at 3; Mem of New York State Police, dated June 28, 1978; and Mem of Office of Court Administration, dated June 26, 1978, at 2). The amendment of section 524 (1) to mandate DFY to apprehend and return a child who runs away or violates a condition of release was thus in keeping with Chapter 478's overall deterrent purpose and its specific objective to deal more effectively with runaways.
Chapter 465 of the Laws of 1992 subsequently reorganized those provisions of New York statutory law bearing on DFY's operations, duties and responsibilities, including sections 523 and 524, which, as previously noted, were renumbered sections 510-a and 510-b respectively by this chapter. As part of this reorganization, the phrases "pursuant to its regulations" and "where there is a violation of the conditions of release or a change of circumstances" were added to section 510-a (2). The Court found no explanation in the bill jacket for this new language, which had the effect, however, of conforming section 510-a with DFY's apparent practice under section 523 as indicated by the existing regulations at 9 NYCRR Part 169; and removing any ambiguity created by the 1978 amendment to section 524 (1) as to whether DFY, in fact, possessed the discretion not to take immediate charge and control of a non-absconding youth who violated a condition of release.

Next, even if Reyes had breached a ministerial duty by not returning Mullins to a DFY facility on October 25, 1993, as claimant contends, the State would not inevitably be liable to claimant for this failure to act, as claimant seems to assume. As the Court of Appeals observed in
Lauer v City of New York (95 NY2d 95), "[m]inisterial negligence may not be immunized, but it is not necessarily tortious" (id., at 99). A ministerial breach does not give rise to governmental tort liability absent proof of the essential elements of a cause of action for negligence, which include breach of duty and proximate cause. Moreover, "the duty breached must be more than that owed the public generally" (id., at 100).
Here, claimant can not point to a duty running directly to him which the State breached. There could be no breach of duty deriving from any violation of section 510- b (1) because "[v]iolation of a statute resulting in injury gives rise to a tort action only if the intent of the statute is to protect an individual against an invasion of a property or personal interest" (
id., at 101). Claimant has disclaimed any special relationship, another potential source of duty.
Nor has claimant established that Reyes' purported ministerial breach was a proximate cause of his injuries. He testified that he was assaulted by Mullins and another male stranger without providing any detail whatsoever. This sparse record does not supply proof by a fair preponderance of the credible evidence that the State's failure to return Mullins to a DFY facility on October 25, 1993 was a substantial factor in bringing about claimant's injuries on November 2, 1993.

III. Conclusion
Based on the foregoing, the Court now grants defendant's motion to dismiss the claim for failure to establish a prima facie case of negligence, which was made at the close of claimant's proof and on which decision was reserved: the State is immune from tort liability for DFY's decisions to release Mullins to foster care; to maintain him in foster care rather than return him to a DFY facility on October 25, 1993; and not to issue a warrant for him until November 1, 1993, after having learned from Lloyd that he had run away from his foster home the previous day (Sebastian v State of New York, 93 NY2d 790, supra). In the alternative, claimant has not established the existence of any duty owed directly to him and breached by the State, and has not proved proximate cause by a fair preponderance of the credible evidence. Any other motions on which the Court previously reserved judgment or which were not previously decided are denied.
The Chief Clerk is directed to enter judgment accordingly.

April 2, 2002
Albany, New York

Judge of the Court of Claims

[1]The claim of claimant Anna Anton is derivative in nature; therefore, "claimant" refers solely to Mace Anton as indicated.
[2]"T" followed by a number(s) refers to the corresponding page(s) in the transcript of the trial on liability.
[3]Effective April 1, 1997, section 123 of Chapter 436 of the Laws of 1997 transferred DFY's functions, powers and duties to the Office of Children and Family Services, an autonomous office within the Department of Family Services, the successor agency to the Department of Social Services established as of April 1, 1997 by section 122 of Chapter 436.
[4]"DT-L" followed by a number(s) refers to the corresponding page(s) in the transcript of Lloyd's deposition, conducted on September 7, 2000 (clt. exh. 43).
[5]Andrew Mullins testified that he and his wife "decided that we would like to try adoption because we wanted to help somebody else out in the world" (T 101) and that Mullins, whom they adopted in 1986, lived with them for about two years, from 1985 to 1987 (T 101,107). One day late in 1987 Andrew Mullins and his wife woke up to discover that their biological son "was complaining that his hand was bleeding and he didn't know how it happened because he had just slept through the incident. And when we found out later . . . [Mullins] had taken apart a sharpener, pencil sharpener, taken the razor part out of it and sliced his hand in the middle of the night," which caused Andrew Mullins to take Mullins to a psychiatric center right away upon the advice of child protective services (T 102, 108). The Andrew Mullins family subsequently terminated its relationship with Mullins (T 103-105, 108-110).
[6]Section 502 (9) of the Executive Law defines "[a]ftercare" to "mean[] supervision of a youth on conditional release status under the continued custody of the division."
[7]Section 371 (10) of the Social Services Law defines what qualifies as an "authorized agency."
[8]Section 510-b (1) was amended by Chapter 687 of the Laws of 1993, effective December 2, 1993. The amendment is not relevant to the Court's conclusion in this case.
[9]According to Reyes, a youth conditionally released to foster care is not entitled to the revocation hearing provided for in 9 NYCRR Part 169, however (T 73).