New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2004-030-589, Claim No. 109348, Motion No. M-68835


Case Information

DAQUAN BROWN by his mother and natural guardian LOVANDER DENISE LIDE, and LOVANDER DENISE LIDE 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):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
November 18, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 6 were read and considered on Defendant's motion

to dismiss the within claim pursuant to Civil Practice Law and Rules §§3211(a)(2) and (7):

1-3 Notice of Motion; Affirmation by Judith C. McCarthy, Assistant Attorney General; Affirmation by Diane M. Deacon, Assistant Deputy Counsel for the New York State Office of Children and Family Services (OCFS)

  1. Affirmation in Opposition by Steven Bournazos, Attorney for Claimant
  1. Reply Affirmation by Judith C. McCarthy, Assistant Attorney General and attached exhibit
  1. Filed Papers: Claim
After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

Daquan Brown, the infant Claimant herein, alleges in Claim Number 109348 that he was sexually assaulted on or about February 15, 2004 by another minor while both were in the custody - pursuant to a Family Court Order - of Abbott House, a not-for-profit corporation apparently subject to licensing and inspection by the New York State Office of Children and Family Services (hereafter OCFS), a State agency. The Claim was served on the Attorney General on May 11, 2004, and filed with the Court of Claims on May 13, 2004.

Defendant argues in this timely, pre-Answer motion, that the Claim should be dismissed because the State of New York does not own, operate, maintain or control the daily operations of Abbot House, thus the Court does not have subject matter jurisdiction over the Claim, and the Claim does not state a cause of action. Civil Practice Law and Rules §§3211(a)(2) and (7). As noted in the Affirmation submitted by Diane M. Deacon, Assistant Deputy Counsel with the OCFS, Abbott House is a "private authorized agency within the meaning of Social Services Law §371(10)(a) . . . subject to licensure and inspection by OCFS (see Social Services Law §§375, 377)." [Affirmation by Diane M. Deacon, ¶¶3 and 4]. She affirms that Abbott House is not owned by the State of New York, its employees are not State employees and the infant Claimant herein was never in the custody of the State of New York. [Ibid, ¶¶ 5-7].

Claimant argues that the State of New York - through its agent OCFS - is ". . . responsible for the visitation, inspection and supervision of Abbott House . . . [and] [h]ad the OCFS properly supervised and inspected Abbott House as required by the Social Services Law this assault upon the infant plaintiff would not have occurred." [Affirmation in Opposition by Steven Bournazos, Attorney for Claimant, ¶¶6 and 12]. Counsel avers that the State is a proper party, in that "it is their negligence, supervising, visiting, and inspecting Abbott House which led to the assault on the infant plaintiff." [Ibid, ¶13].

In her Reply Affirmation, the Assistant Attorney General correctly indicates that it is undisputed that the Defendant does not own, operate, maintain or control Abbott House. She argues that any State involvement is in a regulatory and discretionary capacity for which there is no State liability. See Anton v State of New York, 304 AD2d 510 (2d Dept 2003); Brown v Speed, 302 AD2d 915 (4th Dept 2003); VanBuskirk v State of New York, 38 AD2d 349 (3d Dept 1972); Classen v State of New York, 131 Misc 2d 346 (Ct Cl 1985); Watson v State of New York, Claim No. 104649, UID#2001-010-076, M-64038 (Ruderman, J., October 23, 2001).

Certainly, as an authorized agency, Abbott House would be subject to licensing and inspection requirements provided for by statute and by regulation. See Social Services Law §§371[1], 375 and 377; 18 NYCRR §443.1 et seq. When the State's liability is at issue, ". . . ‘[i]t is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred which governs liability, not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred' . . . (citation omitted)." Miller v State of New York, 62 NY2d 506, 513 (1984)[2]. Thus, for example, where the State is a landowner, it must maintain the property in reasonably safe condition - including maintaining "minimal security measures . . . in the face of foreseeable criminal intrusion upon tenants . . . (citations omitted)." Id.; cf., Fulford v State of New York, Claim No. 99881, Motion No. M-63356, UID#2001-018-103 (Fitzpatrick, J., September 18, 2001).[3]

The discretionary, quasi-judicial act of licensing facilities is the kind of governmental action for which the State has not waived sovereign immunity, absent some "special relationship," between a claimant and the State entity.

"A governmental entity may be held liable for the negligent performance of a governmental function, such as the failure to provide police protection, where a ‘special relationship' was created between it and the injured party . . . (citations omitted). Among the elements of a ‘special relationship' are the assumption by the governmental entity, by promise or action, of an affirmative duty to act on behalf of the injured party and the injured party's justifiable reliance on that undertaking." Melanson v State of New York, 215 AD2d 43, 45 (3d Dept 1995), lv denied, 87 NY2d 810 (1996); see also Collins v State of New York, 224 AD2d 273 (1st Dept 1996). Thus, children injured by exposure to lead paint in homes subject to inspection by a local municipality were not owed a special duty by the municipality for negligent inspection or health counseling services. Pelaez v Seide, 2 NY3d 186 (2004). Similarly, parents of deceased children who died as a result of a fire in their foster care home were not owed a special duty by the State - pursuant to its general authority to oversee, inspect and review the actions of local social services departments - where the primary responsibility for the care and placement of children in the foster care program lies in the local agencies. Walker v State of New York, 104 Misc 2d 221, 223-224 (Ct Cl 1980).

In this case, the Claim itself alleges actions only referable to the day-to-day operations of Abbott House. Indeed, the Claim alleges the infant Claimant's placement in Abbott House by Family Court Order, his sexual assault by a fellow resident on the day of his placement, notice only to Abbott House employees of the assailant's propensities to sexual violence, as well as direct and/or attributed Abbott House staff awareness of ongoing assaultive behavior between residents. The OCFS is not mentioned in the Claim, except by the oblique reference to Social Services Law. Examining the Claim, the only "actions" by the State mentioned are licensing and regulation of Abbott House. See Miller v State of New York, supra; Brown v Speed, supra Watson v State of New York, supra; Fulford v State of New York, supra. These are governmental functions protected by sovereign immunity. The existence of a special relationship is not raised or established. Accordingly, no cause of action is stated against the State of New York.

Defendant's motion number M-68835 is hereby granted, and Claim Number 109348 is in all respects dismissed.

November 18, 2004
White Plains, New York

Judge of the Court of Claims

[1] ". . . ‘Authorized agency' means (a) Any agency, association, corporation, institution, society or other organization which is incorporated or organized under the laws of this state with corporate power or empowered by law to care for, to place out or to board out children, which actually has its place of business or plant in this state and which is approved, visited, inspected and supervised by the department or which shall submit and consent to the approval, visitation, inspection and supervision of the department as to any and all acts in relation to the welfare of children performed or to be performed under this title . . . " Social Services Law §371 (10)(a).
[2] State's failure to lock the doors of student dormitory proximate cause of rape of student Claimant. Prior complaints of strangers in dormitory and elsewhere, as well as complaints concerning failure by the State as landlord to assure that doors locked.
[3] State not liable for injuries suffered by student Claimant during a physical altercation in dormitory with drunken fellow student. No prior notice of enmity or crimes; no showing that the possession or consumption of alcohol allowed by resident advisor - not present on the day of the assault - causally related to assault on Claimant.