New York State Court of Claims

New York State Court of Claims

KASSIM v. THE STATE OF NEW YORK, #2002-016-088, Claim No. 99248, Motion No. M-64942


Court denied claimants' motion for summary judgment on their claim alleging that decedent was attacked by another patient at Manhattan Psychiatric Center, resulting in his death.

Case Information

MARGUERITA KASSIM, as Administratrix of the Estate of DONALD JOHNSON, Deceased, and MARGUERITA KASSIM, Individually
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:
Henry Ramirez, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Nancy Hornstein, Esq., AAG
Third-party defendant's attorney:

Signature date:
September 10, 2002
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimants' motion for summary judgment on liability. In the underlying claim, it is alleged that because of defendant's negligence, Donald Johnson, a patient at Manhattan Psychiatric Center ("MPC"), died as a result of a November 12, 1996 assault by another patient, Jermaine Clare.

Claimants rely upon the final report of the New York State Commission on Quality of Care for the Mentally Disabled (the "Commission"), dated June 30, 1997, in which it was found following investigation, inter alia: that there was forewarning that Mr. Johnson was at risk as he had been involved in a previous incident with Mr. Clare earlier in the day; that his death could have been prevented had the staff taken appropriate steps to increase the level of observation on one or both patients; and that it was a lapse in judgment for the ward psychiatrist to fail to assign increased supervision to the two patients. It is stated in the report that the underlying investigation "included a review of the MPC clinical records of [both patients], a review of the MPC Special Investigation Report of this case and interviews with several MPC administrative staff. Commission staff also reviewed the November 12, 1996 Emergency Service treatment record for Mr. Johnson's care at Metropolitan Hospital." See exhibit B to the March 27, 2001 sic] affirmation of Henry Ramirez, Esq. (the "Ramirez Aff.").

Claimants have also submitted MPC's July 25, 1997 response to the Commission's report, which contains statements that claimants characterize as admissions, such as: "[T]he conclusions of our investigation about the psychiatrist's role and lapses are in accord with your findings."; "[W]e believe that [the MHTA] was . . . responsible because of her failure to monitor the hallway crossroads; and that the nurse was responsible for failing to ensure the monitoring was occurring."; "We believe that the lapses which eventuated in this incident are largely those of individuals, not systems. . . " See exhibit B to the Ramirez Aff.[1]

Defendant has submitted the May 24, 2002 affidavit of Gary O'Brien, chair and chief executive of the Commission (the "O'Brien Aff."), who states that the Commission is a "watchdog" agency created by the Legislature in 1977, the purpose of which is to oversee the quality of care provided to individuals served by the mental hygiene system. He explains that the Commission is authorized to conduct investigations, including a review of the circumstances of the death of a patient which was related to his or her care and treatment, and to report its recommendations. See ¶¶4-6 of the O'Brien Aff.

Claimants have cited no authority for the proposition that the conclusions of the Commission (or of MPC) on the ultimate liability issues in this case – e.g., the legal conclusion as to whether Mr. Johnson's death could have been prevented – should be substituted for those of the Court. In fact, the case law is to the contrary. See, e.g., Bogdan v Peekskill Community Hospital, 168 Misc 2d 856, 642 NYS2d 478 (NY Sup 1996), in which it was noted that conclusions of law in public investigative report have traditionally been found inadmissible.

In addition, such conclusions, as well as any other findings, may be based upon hearsay or otherwise be inadmissible.[2] Their bases ultimately rest on underlying investigation that is privileged under Mental Hygiene Law §§29.29 & 45.15(d) and Education Law §6527(3). See Katherine F. v State of New York, 257 AD2d 539, 684 NYS2d 243 (1st Dept 1999), affd 94 NY2d 200, 702 NYS2d 231 (1999).

In sum, claimants are not entitled to summary judgment and the Court thus need not reach defendant's remaining arguments. For the foregoing reasons, having reviewed the parties' submissions,[3] IT IS ORDERED that motion no. M-64942 be denied.

September 10, 2002
New York, New York

Judge of the Court of Claims

  1. [1]Claimants also submit: (1) redacted medical records of Jermaine Clare, which contain numerous references to his history of assaultive behavior; (2) Donald Johnson's medical records and (2) the transcript of the August 23, 2001 deposition of Margaret Nwankpah, R.N., who dealt with Mr. Johnson and Mr. Clare following the initial incident between them. See exhibits C-E to the Ramirez Aff.
  2. [2]See Bogdan, supra; Kaplan v State of New York, Ct Cl filed 4/22/96, Benza, J. (unreported, claim no. 92937, motion no. M-52970).
  3. [3]The following were reviewed: claimants' notice of motion with affirmation in support and exhibits A-D; and defendant's affirmation in opposition with the May 24, 2002 affidavit of Gary O'Brien and undesignated exhibit.