New York State Court of Claims

New York State Court of Claims

THOMAS v. THE STATE OF NEW YORK, #2002-016-015, Claim No. 96750, Motion Nos. M-58161

M-59717, CM-58459


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):
Alan C. Marin
Claimant's attorney:
Harriette N. Boxer, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, Esq., AAG
Third-party defendant's attorney:

Signature date:
February 13, 2002
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Motion Nos. M-58161 and M-59717 are claimants' motions to amend their claim. Cross-motion no. CM-58459 is defendant's motion to dismiss. The underlying claim arises from two incidents in which Anjola Thomas was injured while at a State-certified facility for developmentally disabled clients. On August 14, 1996, Mr. Thomas, then 31 years old, was a client at the Institute of Applied Human Dynamics ("IAHD"), a nonresidential facility which provides day programs for developmentally disabled persons. It is alleged that on that date, Thomas, who had indicated he had to use the bathroom, was encouraged by an IAHD aide to enter the bathroom by himself, without assistance. It is further alleged that another client, "Joey," also unsupervised, went into the bathroom and proceeded to bite and sever the tip of Thomas' left fourth finger. A second incident is also the subject of the claim: it is alleged that on October 1, 1996, Thomas "was again in a bathroom of IAHD, alone, without supervision. Upon information and belief, [he] involuntarily leaned against a jagged edge" in the bathroom, cutting his right hand.

In their first motion (no. M-58161), claimants state that "[t]o the extent that the original Claim did not specifically or adequately identify and plead against the State of New York . . . [they] seek to amend the Claim to unequivocally assert that the State . . . is directly responsible

. . . to the claimants . . ." For example, claimants seek to add references to IAHD being a State- certified facility and they seek to add a new cause of action based on "respondeat superior." In claimants' second motion (no. M-59717), they seek to amend their claim to assert a cause of action under the State Constitution, pursuant to Brown v State of New York, 89 NY2d 172, 652 NYS2d 223 (1996).

In defendant's cross-motion (no. CM-58459), it seeks an order granting summary judgment dismissing the claim on the grounds that the incidents alleged in the claim involve "day-to-day" operations of IAHD, as to which the State is not involved, having only issued an operating certificate to IAHD.
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It is undisputed that IAHD is not a State entity, but rather an independent corporation which was issued an operating certificate by the State Office of Mental Retardation and Developmental Disabilities ("OMRDD"). The issue here is whether the State may be held liable for injuries sustained by Thomas while at a facility issued such a certificate.

In Harris v State of New York, 117 AD2d 298, 502 NYS2d 760 (2d Dept 1986), the Second Department, citing Hawley v State of New York, 16 NY2d 809, 263 NYS2d 6 (1965), held that a State-certified family care home for developmentally disabled persons could not be held vicariously liable for the negligence of the facility if due care had been taken in the selection of such facility. The Court noted that while the State has a duty to exercise reasonable care in protecting developmentally disabled patients in its care, it is not an insurer against any and all injuries suffered by such persons. If liability is to attach, the cause of the injury must be one that the State could reasonably foresee under the circumstances. Moreover, the negligence found must be a proximate cause of the injuries suffered.

In Harris, the claimant was a "mildly retarded" 16-year old known to have a history of epileptic seizures which rendered her immobile for minutes at a time. She had been placed in a family home in which the bathroom had a standard residential lock and thus no emergency access from outside. During certification inspections, the family was not told to change this lock. At some point, the claimant went into the bathroom to take a bath and locked the door. She stepped into the tub, turned on the hot water and then had an epileptic seizure which rendered her immobile. The caretaker was alerted to the situation by another client, and there was some delay in reaching the claimant as the bathroom door had to be forced open. It was found that she had suffered first, second and third degree burns. The Second Department found that it was readily foreseeable by the State that a patient known to suffer seizures that rendered her immobile would be in additional jeopardy when behind a locked door with no means of emergency access; the State "breached its duty to take reasonable precautions to protect her from injury by knowingly placing her in a State-inspected and certified family care home with bathroom facilities which prevented access to her in the event of an emergency. . ." Proximate cause was found because medical experts agreed that the amount of time during which the skin is exposed to heat is a significant factor in the development and degree of severity of a burn.
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Claimants here have presented no information indicating that due care was not taken in the selection of a facility for Anjola Thomas. Moreover, even assuming that he was improperly left alone in the IAHD bathroom or was otherwise improperly supervised,[1] claimants have presented nothing to suggest that the cause of his injury could be reasonably foreseeable to the State. Rather, they have cited a variety of alleged regulatory violations which, even if proven, do not demonstrate negligence on the part of defendant:

First, they argue that IAHD failed to employ qualified personnel, noting, for example, that the aide supervising Thomas signed certain documents with a "hybrid" title, "case coordinator," not listed in regulations found in 14 NYCRR. It is further alleged that the aide's personnel file does not contain required documentation of licensure, although it is not asserted that the aide was not in fact licensed. Similarly, for example, claimants seem to argue that the program administrator of IAHD should have had a master's degree in a field of psychology instead of education. But nowhere is it explained how it would be foreseeable to the State that any such irregularities could cause injury to Thomas or for that matter, how any such irregularities were the proximate cause of Thomas' injuries.

Next, claimants argue that IAHD "did not adequately address how its bathrooms would be safely utilized," but provide no specifics.

Claimants argue that pursuant to §624.7(a) of 14 NYCRR, IAHD was required to inform the State on a monthly basis of the progress of the investigation of the August 16 incident. From what has been submitted, it is impossible to discern whether the State was in fact given monthly updates. But in any event, even if it were not, claimants fail to show how the State's knowledge of the investigation progress on the August attack could have prevented the incident some one-and-a-half months later where Thomas cut his hand in some unknown fashion.

Finally, claimants seem to argue that Statewide OMRDD policies and procedures – not IAHD policies and procedures -- may not have been filed with the Department of State. Even if so, claimants again fail to show how this would make it foreseeable that Thomas would be injured or how this would be the proximate cause of Thomas' injuries.
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As to a State constitutional claim under Brown v State of New York, in Martinez v City of Schenectady, 97 NY2d 78, 735 NYS2d 868 (2001), the Court of Appeals described such cause of action as a narrow remedy addressing two interests: "the private interest that citizens harmed by constitutional violations have an avenue of redress, and the public interest that future violations be deterred." The facts at bar do not, even assuming all of claimants' allegations, fall within the protection of Brown.
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For the foregoing reasons, having reviewed the parties' submissions[2], IT IS ORDERED that motion nos. M-58161 and M-59717 be denied, that cross-motion no. CM-58459 be granted and claim no. 96750 be dismissed.

February 13, 2002
New York, New York

Judge of the Court of Claims

  1. [1]While claimants asserts that both Thomas and his attacker went into the bathroom alone on August 14, 1996, the internal IAHD investigative report states that a "case coordinator" accompanied Thomas to the bathroom and remained seven feet away in the doorway while Thomas used the facilities. The report also indicates that the attacker was accompanied by two staff members when he suddenly lunged at Thomas. As to the October 1, 1996 incident, how Thomas cut his hand is apparently unknown as claimants allege on information and belief that he leaned against a jagged edge.
  2. [2]Along with the pleadings, the following were reviewed: claimants' notice of motion no. M-58161 with affirmation in support and exhibits A-D; defendant's notice of cross motion no. CM-58459 with affirmation in support of cross-motion and in opposition to motion no. M-58161 and exhibits A-E; defendant's reply affirmation in support of motion no. M-58161 and in opposition to cross-motion no. CM-58459 with memorandum of law in opposition to cross-motion no. CM-58459; defendant's reply affirmation in support of cross-motion no. CM-58459 with exhibit A; claimants' notice of motion no. M-59717 with memorandum of law in support; defendant's affirmation in opposition to motion no. M-59717; claimants' reply affirmation in support of motion no. M-59717; claimants' further affirmation in support of motion nos. M-58161 and M-59717 and in opposition to cross-motion CM-58459 and accompanying exhibits A-BB; and defendant's letter dated August 23, 2001.