New York State Court of Claims

New York State Court of Claims

STEEL v. THE STATE OF NEW YORK, #2003-016-500, Claim No. 100531, Motion Nos. M-63001, M-65323, CM-63484


Case Information

LINDA STEEL, as Administratrix of the Estate of Michelle Brey, Deceased
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-63001, M-65323
Cross-motion number(s):
Alan C. Marin
Claimant's attorney:
Parker & Waichman, P.C.By: Jerrold S. Parker, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Alan B. Berkowitz, AAG
Third-party defendant's attorney:

Signature date:
January 15, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)

Claimants and defendant have each previously moved for summary judgment in these cases, which arise from the rape of Stephanie Dillon on September 26, 1998 and two weeks later, the rape and murder of
Michelle Brey. These crimes were committed by an individual who should have been incarcerated at the time, but had been mistakenly released following his re-sentencing on one of two terms of imprisonment that he had been serving concurrently.
An Interim Order, filed February 7, 2002, denied that portion of defendant's motion which was based upon immunity.
Beyond such a determination, "a ministerial wrong ‘merely removes the issue of governmental immunity from a given case'...There still must be a basis to hold the municipality liable for negligence..."[1] Lauer v City of New York, 95 NY2d 95, 99-100, 711 NYS2d 112, 115 (2000).
Negligence requires conduct that creates a reasonably foreseeable risk of injury, which conduct is unreasonable in proportion to that danger or risk of injury. PJI 2:12. "Ordinary care must be in proportion to the danger to be avoided and the consequences that might reasonably be anticipated from the neglect..." Rotz v City of New York, 143 AD2d 301, 305, 532 NYS2d 245, 248 (1st Dept 1988) (citations omitted). The transformation of Judge Joel Lefkowitz's Order re-sentencing Franklin Scruggs on one of two concurrent 20-year to life sentences to a re-sentencing on both terms, each of which had a release date that had already passed, constituted a failure to exercise ordinary care.
Due care could have been exercised with a minimal expenditure of resources such as: comparing the
notations on the calendar with the actual sentence imposed; confirming the accuracy of the calendar note with the judge or his law secretary; reviewing the file insert page as to the accuracy of the calendar note; or a follow-up by the inmates record coordinator when the paperwork she received differed from her own prior understanding.[2]
The State was negligent, but was its negligence the proximate cause of what befell Ms. Bray and Ms. Dillon? The facts, at first, appear to present two formidable barriers to finding the defendant liable: i) the persons to whom a duty would be owed is largely unlimited - - any member of the general public within Scruggs' geographic reach; and ii) Scruggs' felonious actions against the claimants occurred nearly a year after his November 14, 1997 release from the custody of the Department of Correctional Services.

An act or omission is regarded as the proximate cause of an injury if it "was a substantial factor in bringing about the injury...if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury."
PJI §2:70. In any event, the exact manner in which an injury occurs does not have to be foreseen. Id. §2:12; Restatement of Torts §435, 2d ed.
While Scruggs was released by automatic operation of the calculation, albeit erroneous, of his sentence terms, he was still subject to parole supervision. Based on Scruggs' prior criminal history, he was placed in the special offender unit. According to his parole officer, Anthony Mayers, the unit is intended for individuals who have prior sex offenses or are deemed to be predators. Scruggs was made subject to a 7 a.m. to 7 p.m. curfew "to ensure that [he was] not on the street after certain hours..engaging in any criminal behavior or activity." (Steel affirm in support, exh H, p 26).
In determining how tightly Scruggs was to be supervised in the outside world, his "rap sheet" from the Division of Criminal Justice Services, was scrutinized.
Scruggs was convicted in 1977 of Attempted Rape I and Attempted Robbery III; in 1984 was convicted of Sexual Abuse I, Assault II and Robbery III; and was convicted in 1990 of Assault II and Reckless Endangerment I. Each of the foregoing is classified a D felony, except Attempted Rape I, which is a C felony. In addition, he had numerous arrests, including for Rape I and Kidnapping II. (Id., exhs H and I; def memo of law, p 3; People v Scruggs, 201 AD2d 514, 607 NYS2d 410 [2d Dept 1994]).
Scruggs was also a problem inside prison. His inmate profile indicates he had been transferred
on four occasions for disciplinary reasons and three times to separate him from other inmates. "Inmate's disciplinary record demonstrates a tendency to be confrontive [sic] with staff. Record shows a consistent pattern of harassment, threats and refusing direct orders... Overall disciplinary record is considered poor. Subject has a total of 24 enemies..." (Id., exh J).
In Lauer, supra, Chief Judge Kaye observed that "[f]ixing the orbit of duty has likely divided this Court more than any other issue." 95 NY2d at 103, 711 NYS2d at 118. The Lauer majority declined to permit plaintiff to maintain a suit for the negligent infliction of emotional distress where the medical examiner's office initially concluded that the death of Edward Lauer's three-year old son was a homicide, which had focused suspicion and obloquy on Mr. Lauer, but did not timely reveal its revised conclusion that the child had actually suffered a sudden brain aneurysm. The Court of Appeals concluded that:
for plaintiff's claim for negligent infliction of emotional distress to be successful, we would have to impose a new duty on the Office of the Chief Medical Examiner, which for the future would run to the members of the public who may become subjects of a criminal investigation into a death. This we refuse to do ...allowing emotional distress claims against a municipality for an official's negligent failure to transmit correct information to law enforcement authorities conducting criminal investigations in this case will have far-reaching effects in future cases...we cannot agree that the proposed enlargement of the orbit of duty, resting largely on the foreseeability of harm, is a sound one.

95 NY2d at 103 & 105; 711 NYS2d at 117 & 119.
That a violent felon would commit another violent felony is within what Judge Cardozo described as the "range of apprehension."[3]
Steel-Dillon is more akin to Haddock v City of New York, 75 NY2d 478, 554 NYS2d 439 (1990), than to Lauer or a case cited in Lauer, Steitz v City of Beacon, 295 NY 51 (1945), which ruled that a municipality's duty to supply fire protection runs to the public at large and not to any individual, thereby rejecting a claim that the negligent failure to maintain water pressure near plaintiffs' property was actionable.
Haddock case arose from the rape of a 9-year old girl at a Bronx playground by a New York City Parks Department employee, James Johnson. Had the City of New York followed its own guidelines for screening employees placed through the Work Relief Employment Program, the City would have been shielded by the immunity obtaining for the exercise of discretion, such as applies to the grant of parole (Tarter v State of New York, 68 NY2d 511, 510 NYS2d 528 [1986]); the issuance of a probation report that affected child custody (Tango v Tulevech, 61 NY2d 34, 471 NYS2d 73 (1983)]; the placement of an ex-felon in a special college program (Eiseman v State of New York, 70 NY2d 175, 518 NYS2d 608 [1987]); or the placement of a juvenile offender in a non-secure facility within the State Division for Youth (Sebastian v State of New York, 93 NY2d 790, 698 NYS2d 601 [1999]).
James Johnson had been convicted in 1946 of attempted rape and robbery. Sentenced to a term of 15 to 30 years, he was paroled in 1967. In 1968, within months of his release, Johnson was rearrested on charges of rape, assault and the use of a dangerous instrument. The charges were dismissed, but Johnson's parole was violated, he was returned to prison and finally released in July of 1974. Hired by New York City in September of that year, he committed the rape some seven months later in April of 1975.[4] Johnson had lied about having any criminal record and that fact was not uncovered until the police department did a fingerprint check in January, 1975; the City did not know until after the rape that his parole had previously been revoked.
Once potential immunity defenses are overcome - - in Haddock because the City failed to exercise the discretion it did possess[5] and in Steel-Dillon because the acts or omissions were ministerial - - the similarities between the two cases become evident: in each, the defendant's negligence had the effect of putting an individual in a place he should not have been because of his history of violence, and which enabled him to come in contact with the victim(s). Scruggs would not have been out at all; Johnson would not have been working at a playground setting where he had greater access to children and as the only employee at the playground, apparently enhanced credibility to approach them.
Both sides rely upon Williams v State of New York, 308 NY 548 (1955). Albert Williams had died of a brain hemorrhage brought on by fright when an escaped prisoner commandeered Williams' truck. The inmate, William Kennedy, had escaped from a minium security prison farm; the appropriate procedures had been followed in assigning him to such level of supervision. Kennedy had been sentenced for attempted robbery during which he was unarmed; his accomplice had a toy pistol.
Williams, as Judge Bellacosa stated in Sebastian, supra, 93 NY2d at 796, 698 NYS2d 605, primarily turned on a "foreseeability analysis applicable to ordinary negligence claims"; it did not address immunity. As the Court of Appeals explained in Williams:
[N]othing in Kennedy's record, his psychiatric history or his prison experience, gave any indication that he was likely to wander from the prison and assault members of the public... That Williams was frightened to death by Kennedy's willful acts may be conceded. That does not mean, however, that the State is liable for its alleged negligence in the absence of foreseeablity..." [308 NY at 556-57].[6]

Steel-Dillon, a violent felon went out and committed additional violent felonies.[7] Defendant points to the fact that Scruggs had not previously committed an A felony.[8] Apart from being unpersuasive as an undue narrowing of foreseeability, consider for example, that in determining the predicate offenses to support a long term of imprisonment under the persistent violent felony offender statute (Penal Law §70.08), a whole host of felonies down to E felonies are a part thereof (subd 1 of Penal Law §70.02).

The Motions to Amend Claimants' Pleadings
Defendant had included in its answers to the two claims
an affirmative defense based upon Article 16 of the CPLR, which restricts joint and several liability arising from non-economic damages for a defendant whose liability is fifty percent or less. Section 1602 contains a dozen subdivisions listing exceptions for which joint and several liability will be preserved. Procedurally, §1603 requires a party to "allege and prove... that one or more of the exemptions set section sixteen hundred two applies."
Claimants in their original pleadings had referred to §1602, but did not specify the subdivisions they were relying upon. Subsequently,
claimants moved to amend their claims so as to include the applicable subdivisions of §1602; these motions were opposed by defendant.[9]
While observing that §1603 is silent as to when the exception to §1601 must be pled and that in keeping with CPLR 3025, courts have generally granted leave to amend "at various points throughout an action in order to comply with CPLR 1603...," the Court of Appeals affirmed the rejection of such an amendment where it was first offered at the Appellate Division stage.
Cole v Mandell Food Stores, Inc., 93 NY2d 34, 39, 687 NYS2d 598, 600 (1999) (citations omitted). It is not clear from the Court's opinion, or from the court below, 242 AD2d 552, 662 NYS2d 89 (2d Dept 1997), whether reference to Article 16 in the original pleading was completely lacking, or that it was pled generally without the inclusion of one or more of the subdivisions.

Given that claimants here did initially plead §1602 (albeit in general fashion), that their proposed amendments covering specific subdivisions were made pre-trial and that defendant has identified no prejudice,[10]
their motions are sufficiently timely to be considered on the merits.
The claimants seek relief via any of the following four exceptions to Article 16 on the theory that:

- the liability arose by reason of a non-delegable duty or the doctrine of respondeat superior. This does not help claimants; the Court of Appeals has held the provision, §1602 (2) (iv) to be a savings provision that preserves vicarious liability, not an exception to apportionment under Article 16. Rangolan v County of Nassau, 96 NY2d 42, 725 NYS2d 611 (2001); or
- this is an action "requiring proof of intent," citing subdivision 5 of §1602. The Court of Appeals has recently ruled that the provision is intended to prevent defendants who have committed an intentional tort from benefitting from §1601 apportionment and not to the hybrid situation with one tortfeasor negligent and the other having acted intentionally. Chianese v Meier, 98 NY2d 270, 746 NYS2d 657 (2002); or
- the matter is covered by subdivision 1 (b) of §1602, which excludes from the Article 16 limitations a public employee's claim for indemnification under the General Municipal Law or the Public Officers Law. This exception is unavailing as well. No precedents or legislative history on the matter have been supplied or otherwise unearthed, but subdivision 1 (b), on its face, was apparently designed to ensure that, for example, a state employee's right to indemnification under §17 of the Public Officers Law would survive the enactment of Article 16. That goal is not in play in this Court, in which individual state employees cannot be sued; or - the defendant acted with "reckless disregard for the safety of others" (subd 7 of §1602). The Court of Appeals has for the purposes of subdivision 7 adopted the following reckless disregard standard:
[T]he actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome...[11]

The essential facts of this case were set out in my Interim Order, as well in the Steel and Dillon affirmations for M-63001 and M-64618.
These facts do not implicate the Court of Appeals standard. There was clearly no "conscious indifference to the outcome" of prematurely releasing the inmate Franklin Scruggs. The cases cited in support of this exception do not persuade. For example, claimants cite Detrinca v DeFillippo, 165 AD2d 505, 568 NYS2d 586 (1st Dept 1991), in which the plaintiff was struck by a car in a parking garage after she exited her vehicle and was waiting for an attendant. This was a garage that had poor lighting, no signage and 20 reported vehicle accidents in the previous three years.
In sum, while the motions to amend are timely, claimants do not satisfy the requisites for the specific exceptions upon which they seek to rely, and therefore, their motions (M-65289 and M-65323)
are denied.
For the foregoing reasons: claimants' motions for summary judgment on liability (M-63001 and M-64618) are
granted, subject to the application of Article 16 of the CPLR; and defendant's cross-motion (CM-63484) is denied. What remains then to be determined is the apportionment of responsibility between the negligent tortfeasor, the defendant, and the intentional tortfeasor, Franklin Scruggs. Accordingly, the decision on the liability of the defendant State of New York is held in abeyance pending further proceedings consistent with this Second Interim Order, such proceedings to be scheduled by Chambers.

January 15, 2003
New York, New York

Judge of the Court of Claims

[1] The interior quotation marks are from the First Department's Order below, Presiding Justice Sullivan, Concurring and Dissenting in Part, 258 AD2d 92, 111, 693 NYS2d 167, 182.
[2] See pp 36 -37 of the Affirmation in Support submitted on behalf of Steel; see footnote note 3 in the (First) Interim Order and the Interim Order, generally.

[3]As Palsgraf familiarly instructs: "The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension..." Palsgraf v Long Island R. Co., 248 NY 339, 344 (1928).

[4] See Boland v State of New York, 263 AD2d 801, 693 NYS2d 748 (3d Dept 1999). There the interval between the negligent act and the injury was too short to create the necessary causal link. Even though a call to the State child abuse hot line was incorrectly routed, there was no liability arising from a fatal beating administered by the stepmother less than two days later to one of the Boland children because it could not be established that even had the hotline report been properly directed, a timely investigation would have ensued, the stepmother and children would have been interviewed prior to the infliction of the fatal injuries and the stepmother would have been deemed to pose such an imminent danger to the children, that they would have been summarily removed from the house.

[5] "There is no indication that... the City made any effort to comply with its own personnel procedures for employees with criminal records, and no indication that it made a judgment of any sort when it learned that Johnson both had a criminal record and lied egregiously about it." 75 NY2d at 485, 554 NYS2d at 443.
[6] Two dicta from Williams run at cross purposes. "At the outset , it might be noted that this is not the case of an escaped convict being sued for the consequences of his willful assault upon another. Were this the case, a valid cause of action would lie [citations omitted]." 308 NY at 553. Secondly, though less clearly dictum: "Unlike a mental patient, Kennedy was being punished, and for that reason deprived of his liberty. Thus, if the State negligently permitted Kennedy's premature return to society, it breached only that public duty to punish, a duty owed to members of the community collectively, but importing no ‘crushing burden' of liability to individuals for the breach thereof [citing the aforementioned Steitz v City of Beacon relating to fire protection]." Id. at 556.
[7] These were felonies for which he was convicted; no credible argument can be advanced as to comparative negligence.
[8] Defendant also argues - -unpersuasively - -that Dunn v State of New York, 29 NY2d 313, 327 NYS2d 622 (1971) is analogous; had Scruggs, following his premature release, run a red light and injured someone in a vehicular accident, the State would not be liable.
[9] On these motions, the parties made submissions in addition to those detailed in the prior Interim Order - - for Steel/Brey: a Notice of Motion to Amend the Claim containing exhibits A - C; and a Reply Affirmation; for Dillon, a Notice of Motion together with an Affirmation in Support containing exhibit A; for the defendant State of New York, an Affirmation in Opposition.
[10] "[P]laintiff failed to amend his pleadings during the course of the action to [provide notice] that [defendant] could prepare its defense or adjust its trial strategy." Cole, supra, 93 NY2d at 40, 687 NYS2d at 600. See also Detrinca v DeFillippo, 165 AD2d 505, 568 NYS2d 586 (1st Dept 1991).
[11] Mtr of New York City Asbestos Litigation [Maltese v Westinghouse Electric Corp; Stallone v Westinghouse Electric Corp.], 89 NY2d 955, 956-57, 655 NYS2d 855, 856 (1997), quoting its standard from Saarinen v Kerr, 84 NY2d 494, 620 NYS2d 297 (1994), which drew from the gross negligence standard enunciated in Prosser and Keeton, Torts §34 (5th ed) (citations and internal quotation marks omitted).