New York State Court of Claims

New York State Court of Claims

PERSAUD v. STATE OF NEW YORK, #2004-015-400, Claim No. 106010, Motion No. M-68000


Case Information

SHERITA PERSAUD The caption of the claim was amended sua sponte by order of the Court dated August 15, 2002 to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of the claim was amended sua sponte by order of the Court dated August 15, 2002 to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
Fox & Lefkowitz, LLP By: Richard B. Lefkowitz, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 3, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion for summary judgment pursuant to CPLR 3212 on the ground that the non-liability of the State may be determined as a matter of law is granted. The claim seeks $5,000,000.00 in damages for personal injuries sustained by claimant, a student at the State University of New York at New Paltz (SUNY[1]), on February 9, 2002 at approximately 1:00 a.m. when she was struck in the face by a beer bottle wielded by a fellow SUNY student (Latisha Salfarlie). The incident took place at a social function organized and conducted by an entity known as "Tribe" which is not officially recognized or sponsored by SUNY and which was held at a recreational facility known as Sunny Acres in Plattekill, New York approximately 12 miles from the SUNY campus. Claimant was transported to Sunny Acres by a van which picked up claimant and her friends at approximately 11:00 p.m. on February 8, 2002 in front of the Haggerty Administration Building on the SUNY Campus.

Claimant denied having had any type of relationship with her attacker and admitted only that she and her assailant exchanged words approximately one and one-half hours prior to the assault. She alleges that she was approaching a bench in the facility in anticipation of her departure when she was tapped on the shoulder by a third student. As she turned around, Latisha Salfarlie struck her with a beer bottle on the left side of her head causing permanent, disfiguring scarring of her face and other injuries.

Claimant alleges in the claim that the defendant was negligent in many respects including causing and permitting alcohol to be served to minors and to those visibly intoxicated; negligently supervising or failing to provide adequate supervision and control of the premises where the injury occurred; negligently hiring and training instructors in the care, treatment and instruction of its patrons, guests and invitees; failing to provide proper and adequate safety equipment to prevent the occurrence; failing to warn claimant of the danger which existed and which was unknown to the claimant; failing to properly maintain the premises and its appurtenances; failing to take the necessary care and precaution to prevent the happening of the accident (sic); and otherwise being careless and negligent in the premises.

The defendant moved for summary judgment seeking dismissal of the claim on the ground that claimant's injuries were sustained through an unforeseeable criminal act of a third party, at an event not sponsored by SUNY, held at an off-campus location by an entity known as "Tribe", the membership of which allegedly includes both SUNY students and non-students. The organization was neither a University sanctioned nor sponsored entity which apparently advertised its events by posting and distributing handbills and flyers in/and around the SUNY New Paltz campus. The defendant further argues that while claimant may have traveled to the "Tribe" sponsored event at Sunny Acres in a van, the van was neither owned nor operated by SUNY. It is further alleged that SUNY provided no supervision, management or control over either the premises where claimant was injured or over the person who unforeseeably assaulted her.

Claimant opposed the motion arguing that SUNY staff and administrators had actual notice of a continuing pattern of conduct presenting a foreseeable risk of harm to its students and failed to act with necessary and appropriate care to limit such conduct in order to protect claimant and its other students.

The rules applicable to the determination of a motion for summary judgment were clearly stated by the Court of Appeals in Alvarez v Prospect Hosp., 68 NY2d 320, 324:
As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra, at p 853). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, supra, at p 562).
The proponent of a summary judgment motion may only meet its initial burden through the submission of evidentiary proof in admissible form (Rifenburgh v Wilczek, 294 AD2d 653).

In addition to the pleadings and transcripts of the examinations before trial of the claimant and Richard Barnhart (SUNY's Chief of University Police), the defendant also offered the affidavits of Linda J. Harleston (Dean of Students at SUNY) and Scott Van Pelt (Director of Student/College Activities at SUNY).

Dean Harleston avers that SUNY records fail to disclose that claimant's assailant, Latisha Salfarlie, was the subject of any disciplinary action by the University prior to the date of the incident. She further alleges that "Tribe" was not a club sanctioned or subsidized by SUNY nor would the University permit its vehicles to be utilized by non-sanctioned groups. She stated that the event at Sunny Acres which is located approximately 12 miles from SUNY was not sanctioned by the University and that SUNY did not provide transportation to or supervision of the event. She concluded that "there was no involvement in this event by the University or any student organization recognized by the University."

Similarly, Mr. Van Pelt, SUNY's Director of Student/College Activities, alleged that as part of his job responsibilities he reviews applications for formal recognition from student clubs and that "Tribe" never submitted an application seeking University recognition. "Tribe" has received no funds from SUNY, is not permitted to use the school's name or logo and is not permitted to hold events on University property. The activities of "Tribe" are neither condoned nor supervised by SUNY and the University provided neither transportation to nor supervision of the event at which claimant was injured.

The Chief of University Police (Barnhart) testified at his EBT that members of his staff would routinely remove handbills and flyers announcing "Tribe" sponsored social functions from University property primarily as a trash reduction measure. He also testified that patrol officers would occasionally prohibit non-University owned vans from picking up or discharging passengers at the traffic circle in front of the Haggerty Administration Building also known as HAG Circle. This practice would include preventing vans destined for "Tribe" sponsored events.

Claimant's opposition to the motion includes an unsigned affirmation of claimant's counsel, a copy of the claim and verified bill of particulars and transcripts of the examinations before trial of the claimant and Richard Barnhart, SUNY's Chief of University Police, previously submitted by the defendant in support of the motion.

At claimant's examination before trial she testified that at approximately 11:00 p.m. on the evening of February 8, 2002 she and several of her friends proceeded from their dormitory to HAG Circle where she boarded a van bearing no visible insignia, logo or other indications of SUNY ownership. The trip from SUNY to Sunny Acres took approximately 15 minutes. Upon arriving at the venue claimant paid an admission fee and entered the building which contained a bar serving alcoholic beverages to those attendees who provided identification and received a wristband identifying the wearer as someone over twenty-one years of age. She denied having obtained a wristband and further denied consuming any alcohol that evening. Sometime later claimant found herself engaged in a confrontational conversation with Latisha Salfarlie who accused her of having uttered some unspecified but presumably derogatory words. The conversation ended without physical contact upon the intervention of another student. Approximately one and one-half hours later, as claimant was approaching a bench where she had left her coat, she was tapped on the left shoulder by another student (Jeney Rickets) who asked her an unintelligible question about a jacket. Rickets then pointed toward Latisha Salfarlie and as claimant turned to look in Salfarlie's direction she was struck on the left side of her head by a bottle of Corona beer. She recalls little after the initial blow.

Claimant admitted that the event was sponsored by the "Tribe" and that she had been to Sunny Acres on two prior occasions for "Tribe" sponsored events. She never observed any fights or altercations either on those previous occasions or earlier on the night she was assaulted. On the night in question she did not observe any SUNY staff or employees at Sunny Acres except a woman she recognized as a dining hall worker at the University. Claimant acknowledged that she and Latisha Salfarlie had had no problems prior to the conversation earlier in the evening and that she had not reported the earlier conversation to anyone at Sunny Acres.

To sustain a common law negligence claim a claimant "must initially establish that the defendant breached a legal duty owed to him and that the alleged negligence was a proximate cause of his injuries" (Talbot v New York Inst. of Technology, 225 AD2d 611). Whether a legal duty exists is generally a question of law for the Court (Eiseman v State of New York, 70 NY2d 175) and the Appellate Division, Third Department has previously found that "it is well settled that colleges ‘have no legal duty to shield their students from the dangerous activity of other students'" (Ellis v Mildred Elley School, 245 AD2d 994, 995 quoting Eiseman v State of New York, supra, at 190). In so finding the Ellis court rejected the notion that a college stands in loco parentis thereby triggering a special duty of protection. The unanimous court distinguished the duty owed to college students from that owed to students of lower level educational institutions citing the college students' age and maturity as a distinguishing factor (Mintz v State of New York, 47 AD2d 570, cf., Rydzynski v North Shore Univ. Hosp., 262 AD2d 630).

In a case involving an assault upon a community college student struck in the head by a traffic cone unexpectedly thrown by a fellow student while waiting in line in a college cafeteria, the Third Department held that "[u]nder such circumstances, there was no duty to guard against an occurrence so extraordinary in nature" (Ruchalski v Schenectady County Community Coll., 239 AD2d 687, 689). In so holding the Court quoted the following language from Bonner v City of New York, 73 NY2d 930, 932: "the provision of security against physical attacks by third parties * * * is a governmental function involving policymaking regarding the nature of the risks presented, and that no liability arises from the performance of such a function absent a special duty of protection". This same position was espoused by the Appellate Division, Second Department in DiGravina v City of New York, 278 AD2d 359 in which a school janitor was shot after opening the school's main door for an unidentified man and most recently by the Third Department in McEnaney v State of New York, 267 AD2d 748 in which a student held a college class at gunpoint.

As in McEnaney, (supra) the instant claimant did not allege in the claim that the State owed her a special duty and has not argued on the motion that claimant should recover on that basis. Nor is there evidence in this record that the defendant through promises or actions assumed an affirmative duty to act on behalf of this young adult or that she justifiably relied on any such affirmative undertaking (see, Bogart v Town of New Paltz, 145 AD2d 110, 112; see also, Cuffy v City of New York, 69 NY2d 255, 260; Pike v State of New York, 214 AD2d 934; Pascarella v City of New York, 146 AD2d 61, 67-68, lv denied 74 NY2d 610). Unlike McEnaney, however, in the instant matter the State did not own or control the premises where the assault upon claimant took place and there is, therefore, no independent proprietary basis of liability.

In essence, the claimant contends that the defendant was negligent in failing to prevent an assault upon her by a fellow student, with whom she had no prior difficulties, at an off-campus venue which the defendant did not own or control, during an event sponsored by a group which was unaffiliated with the University and which the University did not recognize in any way. The mere posting of a handbill by a member of the "Tribe" at a place maintained for that purpose by the University does not establish a duty of supervision and protection running to the claimant. To so hold would subject the University to potential liability for intentional assaults and other torts occurring at each event so advertised. Furthermore, the fact that claimant boarded what she believed was a University owned van to attend what she believed was a University sponsored event is insufficient to establish the existence of a material issue of fact requiring a trial. Claimant's subjective beliefs are not germane to a determination of liability and do not serve to create a duty where none exists at law.

Despite the grievous injuries inflicted upon the claimant the Court finds that under the circumstances presented the defendant owed the claimant no legal duty to prevent the sudden attack upon her at an off-campus event not sponsored or endorsed by the University and held at a site it neither owned nor controlled.

The defendant's motion is, therefore, granted and the instant claim is dismissed.

May 3, 2004
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated January 30, 2004;
  2. Affidavit of Michael C. Rizzo sworn to January 30, 2004 with exhibits;
  3. Unsigned affirmation of Richard B. Lefkowitz dated March 15, 2004 with exhibits;
  4. Affidavit of Michael C. Rizzo sworn to March17, 2004.

[1]All references hereinafter made to SUNY are deemed to refer to SUNY at New Paltz.