This claim is brought for the wrongful death of Maria Garcia, (hereinafter
"decedent"), by Benjamin Garcia, as Executor (hereinafter "claimant"), which
claimant alleges was caused as a result of the negligence of the defendant.
Decedent was murdered by an independent citizen, Donny Ray Batts. At the time
of decedent's murder, Mr. Batts was on parole for a prior offense. The claim
alleges that the defendant's negligence was the proximate cause of the
decedent's demise. Claimant alleges that the defendant was negligent by
releasing Mr. Batts from a hospital owned and maintained by the defendant. By a
separate cause of action, claimant alleges that defendant was negligent in that
it failed to issue a warrant to arrest Mr. Batt's after learning of violent
The following recitation of facts is based upon the Court's examination of the
pleadings and motion papers, and the deposition of Michael White, Mr. Batts'
parole officer. In 1994, Mr. Batts was released from the custody of a state
correctional facility and placed on parole. Mr. Batts had been confined to
prison for Attempted Burglary 2o. In February 1995, the parole officer had
been contacted by Aideen Munoz, Mr. Batt's girlfriend at the time. Ms. Munoz
asked that parole impose a condition on Mr. Batt's that he have no contact with
her. Mr. White imposed this condition and made Mr. Batts aware of it. During
the period of November 6, 1996 through November 13, 1995, Mr. White received
several phone calls from Donna Batts, Mr. Batts' wife since July 1, 1995.
Specifically, during a call on November 13, 1995, Mrs. Batts indicated that Mr.
Batts had been violent with her in the past and that she was seeking a condition
of parole forbidding any contact with her. Mr. White imposed this condition
that day, and informed Mr. Batts of this condition that same day at an office
meeting. On or about December 8, 1995, Mr. Batts was admitted to Kings Park
Psychiatric Hospital by his sister, following his ingestion of eight aspirin.
Mr. Batts was released by the facility approximately two weeks later. Mr.
White indicated, at his deposition, that Mr. Batts contacted him on December 21,
1995, when he was released from Kings Park Psychiatric Center. At that time,
Mr. White scheduled an office visit for January 8, 1996. On December 26, 1995,
Mr. White visited the Third Precinct of the Suffolk County Police Department.
The purpose of this visit was to determine if any one of the parolees assigned
to Mr. White were causing trouble. According to Mr. White, the police
department had no interest in Mr. Batts on this date. Thereafter, Mr. Batts was
arrested for the murder of the decedent on December 29, 1995.
Thereafter, on November 1, 1996, claimant filed the instant claim against the
defendant. The defendant filed its answer on December 10, 1996. Since that
time the parties have engaged in discovery.
Defendant moves this Court, pursuant to CPLR 3212, for summary judgement. It is
the defendant's argument that the facts of this case are not contested, the
defendant has followed all statutes, rules and regulations in regard to the
supervision of Mr. Batts and that the actions of the parole officer are
quasi-judicial in nature and therefore, immune from liability.
In opposition, claimant argues that question of fact exist as to whether or not
the defendant failed to follow a statutory procedure in regard to reporting Mr.
Batts for a possible violation. In addition, claimant argues that questions as
to the actions of the defendant's hospital remain unaddressed by the defendant.
Summary judgment is a drastic remedy which deprives a party of its day in court
and should not be granted where there is any doubt as to the existence of a
material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v
Scally, 99 AD2d 713). The Court's function is to determine if an issue
exists. In doing so, the Court must examine the proof in a light most favorable
to the party opposing the motion. Summary judgment may only be granted if
movant provides evidentiary proof in admissible form to demonstrate that there
are no questions of fact (Winegrad v New York Univ. Med. Center, 64 NY2d
851; Wanger v Zeh, 45 Misc2d 93, aff'd 26 AD2d 729). Once the
movant has demonstrated a prima facie entitlement to summary judgment as a
matter of law, the burden shifts to the opposing party to submit evidentiary
proof in admissible form sufficient to create an issue of fact or demonstrate an
acceptable excuse for his failure to submit such proof (Alvarez v Prospect
Hosp., 68 NY2d 320). Mere conclusions, speculation or expressions of hope
are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77
An examination of the papers and supporting exhibits provided by the parties
shows that summary judgment is appropriate for one of the causes of action. The
facts leading to the tragic death of the decedent are agreed upon by the
parties. As to the first cause of action, defendant's negligence for failure to
carry out a statutory duty, the Court cannot impose liability without a special
relationship having been established.
In Sebastian v State of New York, 93 NY2d 790, the Court of Appeals
defined a government's responsibilities to its citizens as points along a
continuum. Depending upon the point each service provided fell along the
continuum, the level of responsibility owed by the government to its citizens
varied. The two types of functions provided by the government were identified
as governmental and proprietary functions. Sebastian defines
governmental functions as those which are performed for the protection and
safety of the public at large (id at 793). "[T] he State remains generally
immune from negligence claims, absent a special relationship between the injured
party and the State" (id at 793). Proprietary functions are those functions
which supplement traditionally private functions. "Activities catalogued in the
proprietary ledger generally subject the State ‘to the same duty of care
as private individuals and institutions engaging in the same activit[ies]'
(Schrempf v. State of New York, 66 N.Y.2d, at 294, 496 N.Y.S.2d 973, 487
N.E.2d 883, supra)" (id at 793).
Defendant contends that parole is a governmental function. Therefore, to
prevail, defendant argues that the claimant must prove a special relationship
between the defendant and the decedent in addition to any negligence of the
defendant. Defendant cites to the legion of cases supporting this
Claimant argues that the parole officer should have filed a report with his
superiors that Mr. Batts had violated a condition of his parole. Claimant
alleges that the failure of the parole officer to report Mr. Batts for a parole
violation violated 9 NYCRR 8004.2(a). Claimant theorizes that had the parole
officer filed such a report, Mr. Batts would have been arrested on a parole
violation warrant and decedent would be alive today.
To refute the need for a special relationship and any immunity which the
defendant may claim, claimant relies on Best v State of New York, 264
AD2d 404. In Best, the claimant was on parole and was incarcerated twice
for allegedly violating his conditions of parole. Both times, the claimant
obtained his release by a writ of habeas corpus. Claimant then sued the State
alleging that the parole officers who authorized his incarceration falsely
imprisoned him. The Court stated that the parole officers who reported the
claimant pursuant to 9 NYCRR 8004.2(a) were performing an investigatory function
rather than a governmental function. Thus, the Court stated, the parole
officers were only entitled to qualified immunity rather than absolute immunity
as argued by the State. Therefore, the Court ruled that to deny the defendant
summary judgment was proper.
The case at bar is readily distinguishable from Best
. In Best
the claimant was the parolee and therefore had a direct relationship with the
parole officers. In the case at bar, claimant had no relationship with the
defendant at the time of the decedent's murder. The supervision of Mr. Batts,
in regard to the general public, was indeed a governmental function. While the
public at large relied upon the defendant to supervise Mr. Batts' parole, the
decedent, in particular, was not owed a specific duty of protection by the
defendant. Claimant does not allege a special relationship between the
defendant and the decedent.
According to 9 NYCRR 8004.2(a), if a parole officer believes that a parolee "has
violated one or more of the conditions of his release in an important respect,
such parole officer shall report such fact to a member of the board or a
designated officer." Claimant argues that Mr. Batts' wife asked for a condition
of his parole to be that he stay away from her, by alleging that he had
committed violent acts against her. Therefore, claimant theorizes that the
parole officer should have made a report pursuant to 9 NYCRR 8004.2(a).
Defendant argues that this behavior was in the past and not while Mr. Batts was
on parole. However, in examining the deposition of the parole officer, the
Court can find no reference as to when these acts occurred. While it is
arguable that the parole officer was negligent in failing to report Mr. Batts
pursuant to 9 NYCRR 8004.2(a), the Court is not persuaded to deny defendant's
motion for summary judgment as to this cause of action. "Absent a special
relationship creating a municipal duty to exercise care for the benefit of a
particular class of individuals, no liability may be imposed upon a municipality
for failure to enforce a statute or regulation" (Sanchez v Liberty, 42
NY2d 876, 878). In the case at bar, the ordinance involved does not create a
Defendant's motion for summary judgment is granted as to claimant's cause of
action for damages based on the alleged negligence of the defendant's parole
However, as to claimant's remaining cause of action, involving the release of
Mr. Batts from Kings Park Hospital, the Court reaches a different conclusion.
This cause of action is not one that is ripe for summary judgment. The
defendant has failed to demonstrate a prima facie entitlement to summary
judgment. Claimant correctly points out that defendant's moving papers are void
of any evidence in connection with this cause of action. In defendant's reply
papers, counsel argues that the release of Mr. Batts was based upon medical
judgment which claimant has not contested to this point. Claimant's lack of
pursuit of a particular cause of action to date does not relieve the defendant
from setting forth sufficient evidence which would demonstrate its entitlement
to a favorable summary judgment decision.
Based upon and consistent with the foregoing, defendant's motion for summary
judgment is granted in part and denied in part. The Clerk of the Court is
directed to enter judgment accordingly.