STEEL v. THE STATE OF NEW YORK, #2003-016-500, Claim No. 100531, Motion Nos.
M-63001, M-65323, CM-63484
LINDA STEEL, as Administratrix of the Estate of Michelle Brey, Deceased
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Alan C. Marin
Parker & Waichman, P.C.By: Jerrold S. Parker, Esq.
Eliot Spitzer, Attorney GeneralBy: Alan B. Berkowitz, AAG
January 15, 2003
See also (multicaptioned
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
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..." Lauer v City of New
, 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
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
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
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
§2:70. In any event, the exact manner in which an injury
occurs does not have to be foreseen. Id.
§2:12; Restatement of
§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.
"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
, 201 AD2d 514, 607 NYS2d 410 [2d Dept 1994]).
Scruggs was also a problem inside prison. His inmate profile indicates he had
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..."
, 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 &
That a violent felon would commit another violent felony is within what Judge
Cardozo described as the "range of
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.
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
); 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
, 70 NY2d 175, 518 NYS2d 608
); 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 ).
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.
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
Once potential immunity defenses are overcome - - in Haddock
City failed to exercise the discretion it did
and in Steel-Dillon
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.
, as Judge Bellacosa stated in Sebastian
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
Steel-Dillon, a violent felon went out and committed additional violent
felonies. Defendant points to the fact that
Scruggs had not previously committed an A
felony. 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
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 forth...in 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
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
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
their motions are sufficiently timely to be considered on the merits.
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
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
[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 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)
For the foregoing reasons: claimants' motions for summary judgment on
liability (M-63001 and M-64618) are
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
York, New York
HON. ALAN C. MARIN
Judge of the Court of Claims
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.
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.
"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
See Boland v State of New York
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.
"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.
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.
These were felonies for which he was
convicted; no credible argument can be advanced as to comparative
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.
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.
"[P]laintiff failed to amend his pleadings
during the course of the action to [provide notice]...so that [defendant] could
prepare its defense or adjust its trial strategy." Cole
93 NY2d at 40, 687 NYS2d at 600. See also Detrinca v DeFillippo
AD2d 505, 568 NYS2d 586 (1st Dept 1991).
 Mtr of New York City Asbestos
[Maltese v Westinghouse Electric Corp; Stallone v Westinghouse
], 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,
§34 (5th ed) (citations and internal quotation marks omitted).