New York State Court of Claims

New York State Court of Claims

GARCIA v. THE STATE OF NEW YORK , #2001-028-802, Claim No. 95058, Motion No. M-62886


Defendant moves for summary judgment pursuant to CPLR 3212.

Case Information

BENJAMIN GARCIA, Individually, and as Executor of the Estate of MARIA GARCIA, Deceased
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):

Claimant's attorney:
Siben & Ferber, LLPBy: David M. Schwart, Esq.
Defendant's attorney:
Attorney General of the State of New YorkBy: John Shields, Esq.
Third-party defendant's attorney:

Signature date:
April 12, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On April 4, 2001, the following papers, numbered 1 to 4, were read on motion by defendant for summary judgment:

Papers Numbered

Notice of Motion, Affirmation

and Exhibits Annexed 1

Affirmation in Opposition and

Exhibits Annexed 2

Reply Affirmation 3

Defendant's Memorandum of Law 4
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 behavior.

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 NY2d 525).

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 proposition.

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.[1]

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 special relationship.

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 officer.

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.

April 12, 2001
Hauppauge , New York

Judge of the Court of Claims

  1. [1]A special relationship must be established by showing: "(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking" (Cuffy v City of New York, 69 NY2d 255, 260).