New York State Court of Claims

New York State Court of Claims

MASON v. THE STATE OF NEW YORK, #2002-001-015, Claim No. 98765, Motion No. M-64473


Case Information

LAWRENCE MASON, SR., for the estate of LAWRENCE MASON, JR. The Court of Claims has no jurisdiction to hear claims against individuals or entities other than the State of New York and certain other entities specified by statute; therefore, the caption has been amended, sua sponte, to reflect the only proper defendant here (see, Court of Claims Act § 9).
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court of Claims has no jurisdiction to hear claims against individuals or entities other than the State of New York and certain other entities specified by statute; therefore, the caption has been amended, sua sponte, to reflect the only proper defendant here (see, Court of Claims Act § 9).
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Gary Todd Certain, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Anne C. Leahey, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
March 25, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on defendant's motion for summary judgment pursuant to CPLR 3212: Notice of Motion, dated December 21 and filed December 24, 2001; Affirmation in Support of Motion of Anne C. Leahey, Esq, AAG, dated December 21 and filed December 24, 2001, with annexed Exhibits A-L; Memorandum of Law in Support of Motion, dated December 21 and received December 24, 2001; Affirmation in Opposition to Defendant's Motion of Dr. Lone Thanning, MD, affirmed January 18 and filed January 22, 2002; Affirmation in Opposition of Gary Todd Certain, Esq., dated January 17 and filed January 22, 2002, with annexed Exhibits 1-7; Claimant's Memorandum of Law, dated January 17 and received January 22, 2002; Response to Defendant's Discovery Demands, received February 1 and filed February 8, 1999[1]; Verified Bill of Particulars, dated January 26 and filed February 8, 1999; Claim, dated August 4 and filed August 7, 1998; and Answer, dated September 8 and filed September 10, 1998.

Claimant Lawrence Mason, Sr. ("claimant") filed this wrongful death claim (see, EPTL 5-4.1) against defendant State of New York ("defendant" or "the State") on August 7, 1998. He alleges that defendant failed to provide adequate security at the State University of New York's College at Old Westbury ("SUNY"), which allowed an unknown gunman to enter the campus, dormitory and room of his son, Lawrence Mason, Jr. ("decedent"), and shoot his son in the head, causing his death (claim, dated August 4 and filed August 7, 1998, ¶¶ 6-9).

I. Background

A. Factual setting

On May 11, 1997, decedent was a student living on the SUNY campus. His friend, Dax William Church ("Church"), was supposed to meet him for brunch at approximately 1:00 P.M. that day, a Sunday, but decedent did not respond when Church knocked on the window of decedent's dormitory room at the appointed hour to rouse him. Church returned at approximately 6:00 or 6:30 P.M. to get decedent for dinner, but again decedent did not respond when Church knocked on the window (Affirmation in Support of Motion of Anne C. Leahey, Esq., AAG, dated December 21 and filed December 24, 2001, with annexed Exhibits A-L ["Leahey Aff."], Exh. G).

Sometime after 7:00 P.M., decedent's girlfriend telephoned Church to report that she had talked to decedent's mother, who was worried about decedent because she had not heard from him. This conversation prompted Church to return to decedent's dormitory room, reach into the "hole" in the drop ceiling above the room's door to retrieve the extra key kept hidden there by decedent and open the locked door.

As he entered the room the lights were off, but Church still caught sight of decedent lying on the floor. When he turned on the lights, Church saw that decedent was lying in a pool of blood, and he spotted the box in which decedent kept his handgun. Church was aware that decedent stored a handgun in this box (which was lying on the bed when he discovered decedent's body) in the bottom drawer of a cabinet near his bed (id.).[2]

SUNY Campus Public Safety Officer Thomas Weiner ("Weiner") responded to the dormitory and met Church, who again unlocked decedent's door to permit entry into the room (Leahey Aff., Exh. H, p. 12). Weiner saw decedent lying on the floor and saw a firearm between his feet. After observing a single gunshot wound to decedent's head, Weiner backed out of the room, closed the door and maintained the scene (id., at 12-13). Another student, Anthony Munoz, stated that he had heard a "pop" that sounded like a firecracker at around 6:00 P.M., but had not given it any thought (id., at 18; Discovery Response, p. 37).

A short time later, the Suffolk County Deputy Medical Examiner, Dr. Tamara Bloom ("Bloom"), was notified that a SUNY student had been found with a gunshot wound to the head and that the incident appeared to be a self-inflicted death (Leahey Aff., Exh. K., pp. 8-9). After arriving on the scene, Bloom was informed by detectives that the decedent had been discovered shot to death in his locked room (id., at 13).

Bloom found decedent face down on the floor with his head turned towards the right (id., at 17, 33). She did not find a suicide note, but stated that some handwritten notes present at the scene exhibited what she characterized as "suicidal ideations" such as, she recalled, "something about heaven in ‘97" (id., at 14-15).[3] Although Bloom did not recall seeing it, decedent's handgun was found lying on the floor between his legs (id., at 18, 40; Discovery Response, pp. 23, 71).

Bloom performed an autopsy on decedent the next morning and noted, among other things, that the presence of gunpowder and soot deep inside the wound indicated that it was a "contact gunshot wound," which appears to mean that the gun's barrel was placed directly against decedent's forehead before firing (Leahey Aff., Exh. K, pp. 28-29; Discovery Response [Autopsy Report], p. 8). The caliber of the recovered projectile appeared to be large, consistent with a .38 caliber bullet. Bloom admitted at her deposition, however, that she did not have the expertise to determine the exact caliber of the bullet definitively (Leahey Aff., Exh. K, pp. 29, 44).

During the autopsy, Bloom noted two abrasions on decedent's face (Discovery Response, p. 55). This type of injury, she explained during her deposition, is common when a body falls after a fatal wound and can be caused by scraping contact with objects as the body collapses (Leahey Aff., Exh. K, pp. 30-33). The scrapes, Bloom stated, were not consistent with blunt force trauma (id., at 31).

While examining the scene, Bloom noted that there were a few drops of blood on the bed sheet, blanket and a jacket hanging on a chair next to the body (Discovery Response, p. 65). During her deposition, she stated that there was nothing about the blood spatter or body position to suggest anything other than a self-inflicted wound, especially since decedent's wound would not have been immediately fatal (Leahey Aff., Exh. K, pp. 52-53, 57-59).

When asked if certain gun residue tests had been performed on decedent's hands to determine if he had fired the weapon, Bloom responded that the first two types of tests mentioned by counsel were not reliable due to their tendency to produce false positives, and that they were no longer used (id., at 45-47).[4] She acknowledged that a third type of test, the "energy diversion x-ray micro analysis," was accurate, but noted that there were no facilities to conduct such a test in the area (id., at 66-67), and that she would not have ordered the test in this case anyway because nothing in the circumstances, background or her autopsy findings indicated that decedent's death was caused by anything other than a self-inflicted gunshot wound (id., at 70).

Bloom certified decedent's death as a suicide on May 12, 1997, the day after he died. Upon being informed that the death was still under investigation, she amended the New York State Department of Health ("DOH") "Certificate of Death" to read "Pending further investigation" (id., at 18-19; Leahey Aff., Exh. L).

On June 12, 1997, a month later, Bloom certified the cause of decedent's death as "Gunshot Wound to Head and Brain" and the manner of death as "Suicide" on a "Report of Autopsy" (Discovery Response, pp. 5, 52). That same day, she affirmed a DOH "Medical/Burial Death Correction Report," in which she specified the immediate cause of death as "Gunshot Wound to Head and Brain"; that decedent "Shot self"; and that his manner of death was "Suicide" (id., at 47). This report is "presumptive evidence" of the facts stated in it (see, CPLR 4520; Public Health Law § 4103; Holder v H.A.N.A.C. Home Servs. Sys., 248 AD2d 509; Gioia v State of New York, 22 AD2d 181, 184).

Nassau County Police Department Homicide Detective Swenson closed the homicide investigation regarding decedent's death on September 2, 1997, concluding that
[a]fter reviewing information from the scene, statements from the resident students, personal observations by the responding police officers of the scene and conferring with Dr. Bloom, from the Medical Examiner's Office, all evidence suggest[s] that [decedent's] death was self-inflicted (Discovery Response, p. 24).
The Nassau County Police Department's "Scientific Investigation Bureau Receipt/Report" indicates that the .38 caliber revolver recovered from decedent's room contained five live cartridges and that the one discharged case recovered had been fired from this weapon (Discovery Response, pp. 40-44).

B. Defendant's motion for summary judgment

After discovery was complete and claimant filed a Note of Issue, the State moved for summary judgment (Notice of Motion, dated December 21 and filed December 24, 2001). In sum, the State takes the position that since there is absolutely no proof that decedent's death was the result of anything other than a self-inflicted wound, claimant cannot establish that the State's alleged negligence proximately caused the death, or raise a triable issue of fact without resorting to speculation (Leahey Aff., ¶¶ 8, 10; Memorandum of Law in Support of Motion, dated December 21 and received December 24, 2001 ["Def. Mem. of Law"], Point I). In order to establish that claimant cannot show the necessary causal connection between the alleged inadequate security at SUNY and decedent's death (Leahey Aff., ¶¶ 8, 10; Def. Mem. of Law, Point I), the State offers, among other items, Church's contemporaneous statement (Leahey Aff., Exh. G); Weiner's deposition testimony (Leahey Aff., Exh. H); Bloom's deposition testimony (Leahey Aff., Exh. K); and a copy of the DOH "Certificate of Death" dated May 12, 1997, which specifies decedent's manner of death as suicide "Pending further investigation" (Leahey Aff., Exh. L).[5]

To counter defendant's motion, claimant relies principally upon the affidavit of forensic pathologist Dr. Lone Thanning ("Thanning") (Affirmation in Opposition to Defendant's Motion of Dr. Lone Thanning, MD, affirmed January 18 and filed January 22, 2002 ["Thanning Aff."]) to question the soundness of the investigation into the cause of decedent's death and the medical examiner's determination that the cause of death was suicide. Thanning opines that decedent did not die of a self-inflicted gunshot wound but was, instead, a victim of homicide (Thanning Aff., ¶¶ 8-20; Affirmation in Opposition of Gary Todd Certain, Esq., dated January 17 and filed January 22, 2002, with annexed Exhibits 1-7 ["Certain Aff."], ¶¶ 16-38).

II. Discussion

As the proponent of summary judgment, the State must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence sufficient to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Zuckerman v City of New York, 49 NY2d 557). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, 64 NY2d at 853); however, if the proponent of summary judgment has made a prima facie showing, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to demonstrate the existence of material issues of fact which require trial (Zuckerman v City of New York, 49 NY2d at 562; Alvarez v Prospect Hosp., 68 NY2d 320).

To sustain an action for wrongful death under EPTL 5-4.1, a claimant must establish, among other things, that the alleged wrongful act(s) or neglect on the part of defendant was a substantial factor or proximate cause of the death (see generally, Chong v New York City Tr. Auth., 83 AD2d 546, 547; Brownrigg v Boston & Albany R.R. Co., 8 AD2d 140; 1A NY PJI 1:61, at 61 [3d ed]). Because of its proof that decedent committed suicide, the State argues, claimant cannot establish that any purported lapses in campus security were a proximate cause of decedent's death and therefore has no cause of action for wrongful death. Claimant tries to rebut the State's prima facie showing and demonstrate disputed material issues of fact regarding decedent's manner of death by way of Thanning's affidavit.

Specifically, Thanning opines that the investigation and determination of decedent's cause of death were erroneous and arrived at under a "hastily reached assumption that [decedent's] death was a suicide and [conducted in] a cursory, incomplete and biased" manner (Thanning Aff., ¶ 11-12).[6] For instance, Thanning states that the authorities should not have relied upon the fact that decedent was found in his locked room to reach a conclusion that his wound was self-inflicted because a master key had been stolen a month earlier, and a number of unsolved burglaries of dormitory rooms had recently occurred with, as was the case here, no signs of forced entry (Thanning Aff., ¶ 10). Thanning also points to items that were alleged to have been missing upon a survey of decedent's property, including a video player, jacket, sneakers and some jewelry, as support for her theory that decedent was murdered in his room by an unknown gunman (Thanning Aff., ¶ 16).[7] She additionally states, without elaboration, that photographs taken of the scene (see, Discovery Response, pp. 68-79) "demonstrate compelling evidence that [decedent's] death was a homicide" (Thanning Aff., at ¶ 15), and that there was no evidence to show that decedent fired the weapon, such as recoil abrasions, traces of powder, or "stippling marks" (id., at ¶ 19). Thanning concludes that, based upon her evaluation of the evidence, "the most likely and compelling conclusion that can be drawn is that [decedent] was the victim of a homicide . . . [and] that his room was burglarized and/or robbed by an individual or individuals with a key that accessed his room" (id., at ¶ 20).

"[A]n expert's affidavit proffered as the sole evidence to defeat summary judgment must contain sufficient allegations to demonstrate that the conclusions it contains are more than mere speculation and would, if offered alone at trial, support a verdict in the proponent's favor" (Romano v Stanley, 90 NY2d 444, 451). In other words, the expert's ultimate conclusions must rest on a foundation of established fact, not mere contingencies, speculation or possibilities (see, Wright v New York City Hous. Auth., 208 AD2d 327; see also, Kirker v Nicolla, 256 AD2d 865).

Here, Thanning's opinion relies heavily upon the supposed fact that a master key to the dormitories was stolen, which allows her to hypothesize how an unknown perpetrator(s) might have entered decedent's locked room (and obviously thought to re-lock it upon leaving, since Weiner testified that once unlocked, the door to decedent's room would remain open until re-locked [Leahey Aff., Exh. H, p. 14]) (see, Thanning Aff., ¶ 10; Affirmation in Opposition of Gary T. Certain, Esq., dated January 17 and filed January 22, 2002, with annexed Exhibits 1-7 ["Certain Aff."], ¶ 26). Yet, a review of the exhibit that claimant includes to support the theory of the missing master key--an excerpt from the campus newspaper dated April 11, 1997--contains a quotation by the Director of Public Safety that "[t]he rumor of a stolen master key is false" (Certain Aff., Exh. 4).

Indeed, nothing in this record indicates that a missing master key was anything but a "rumor" (see, Leahey Aff., Exh. H, pp. 29-31). Further, the mere fact that certain items of decedent's personal property remain unaccounted for does not establish that a burglary occurred, especially since other items of value, including decedent's wallet (Discovery Response, p. 20), were found in the room. More significantly, Thanning's affidavit ignores completely that decedent's fatal gunshot wound was, by any fair reading of the objective evidence, inflicted with his very own handgun, which he kept in a drawer in a cabinet near his bed.

In short, Thanning's affidavit supports its ultimate conclusion that decedent was murdered by pointing to purported shortcomings in the manner in which the cause of decedent's death was determined and by extrapolating a theory of burglary and murder based upon speculation. Such evidence does not rebut the presumption that decedent died of a self-inflicted wound, as stated in the death certificate and autopsy report (see, CPLR 4520; Public Health Law § 4103; Holder v H.A.N.A.C. Home Servs. Sys., Inc., 248 AD2d 509, supra). Concomitantly, Thanning's affidavit fails to raise a triable issue of material fact: "Speculation, guess and surmise . . . may not be substituted for competent evidence, and where . . . there are several possible causes of [death], one or more of which a defendant is not responsible for, a [claimant] cannot recover without proving that the injury was sustained wholly or in part by a cause for which the defendant was responsible" (Agius v State of New York, 50 AD2d 1049, 1050; see also, Bernstein v City of New York, 69 NY2d 1020; 1A NY PJI 1:61, at 61 [3d ed]; D'Meza v City of New York, 286 AD2d 471 [summary judgment warranted because plaintiff proffered only speculation on how accident occurred and consequently failed to raise genuine issue of fact regarding whether defendant's alleged negligence proximately caused injury]).

III. Conclusion

While summary judgment is a drastic remedy, it is proper and warranted unless the opposing party "assemble[s] and lay[s] bare affirmative proof to establish that the matters alleged are real and capable of being established upon a trial" (Hasbrouck v City of Gloversville, 102 AD2d 905, affd 63 NY2d 916; see, Zuckerman v City of New York, 49 NY2d 557, supra). Here, claimant has proffered no proof to support his contention that decedent's death was a homicide rather than self-inflicted;[8] therefore, no triable issue of fact regarding proximate cause has been put forward (see, Teplitskaya v 3096 Owners Corp., ___ AD2d ___, 735 NYS2d 585; Johnson v Sniffen, 265 AD2d 304), and the Court has been offered no reason to believe that this deficiency is remediable at trial. The Court therefore grants the State's motion for summary judgment and dismisses the claim.

March 25, 2002
Albany, New York

Judge of the Court of Claims

[1]The Response to Defendant's Combined Demands, received February 1 and filed February 8, 1999 ("Discovery Response") includes the medical examiner's autopsy report; the Nassau County Police Department Detective Division Supplementary Report; and the Department of Health Medical/Burial Death Correction Report, dated June 12, 1997, among other things. The Court has numbered the pages comprising the Discovery Response for ease of reference.
[2]Ovie Uwode, another student, was also aware that decedent kept a revolver in his room (Leahey Aff., Exh. I).
[3]The homicide investigation report notes that "[r]ap verse lyrics were found near the deceased entitled ‘The end of ‘96' and refer to death and dying" (Discovery Response, p. 24).
[4]Bloom's view on these particular tests appears to be accurate (see, e.g., People v Seda, 139 Misc 2d 834, 838 [noting paraffin residue test unreliable]; People v Huddleston, 176 Ill. App. 3d 18, 33, n 2 [describing nitrate/paraffin test and noting it is considered unreliable due to frequency of false positives]; C. Stone, Evidence of Firearms Discharge Residues, 33 Baylor L Rev 285 [1981]).
[5]On the motion, defendant's counsel also tries to establish that decedent was troubled and thus had, for lack of a better word, a "motive" to kill himself, while claimant's counsel protests that decedent was planning for his future or was not depressed and thus was not suicidal. Whether a person's state of mind creates a susceptibility to suicide can only be answered by competent expert psychiatric opinion, which is absent from these motion papers (see, e.g., Matter of Altes v Petrocelli Elec. Co., 283 AD2d 829; Matter of Miller v International Bhd. of Elec. Workers Local 631, 237 AD2d 641 [in workers' compensation claims, expert psychiatric evidence utilized regarding causal connection between depressed mental condition attributable to work-related injury and the decedents' suicides]). Thus, the Court has disregarded both parties' arguments and suggested evidence on this point.
[6]Of course, "[a] medical examiner's determination that a decedent committed suicide is a quasi-judicial determination . . . and, hence, is reviewable in a proceeding pursuant to CPLR article 78" (Matter of Leib v Paparo, 84 AD2d 538, lv denied 55 NY2d 603; see, Mitchell v Helpern, 17 AD2d 922, affd 14 NY2d 817).
[7]When asked if items missing from the room "might have been relevant to [her] assessment," Bloom stated that "if something big was missing, yeah" (Leahey Aff., Exh. K, p. 51).
[8]The claim appears fatally deficient for another reason as well. While the State as a landowner and landlord has a duty to provide adequate security for its premises (see, Miller v State of New York, 62 NY2d 506), claimant must, at a minimum, establish that the alleged gunman was an intruder, as opposed to a person entitled to be on campus or in the dormitory, in order to recover damages for breach of this duty (see, Weitz v State of New York, 182 Misc 2d 320; Fulford v State of New York, Ct Cl, Fitzpatrick, J., UID #2001-018-103 []). Without some evidence to this effect--and, of course, decedent's death was unwitnessed and the identity of the hypothesized gunman is unknown--claimant cannot possibly establish proximate cause (see, Burgos v Aqueduct Realty Corp., 92 NY2d 544, 550; Chattergoon v New York City Hous. Auth., 268 AD2d 251, lv denied 95 NY2d 757 [affirming summary judgment for defendant when plaintiff failed to present evidence that assailant was intruder who gained access to premises due to alleged inadequate security]; Gleaton v New York City Hous. Auth., 221 AD2d 504 [summary judgment should have been granted in absence of evidence that attacker gained access due to lax security measures]).