New York State Court of Claims

New York State Court of Claims

DIANE F. v. THE STATE OF NEW YORK, #2004-033-086, Claim No. 106193, Motion No. M-68414


Case Information

DIANE F. (Anonymous)
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:
Blodnick, Gordon, Fletcher & Sibell, P.C.By: James L. Iannone, Esq.
Defendant's attorney:
Newman Fitch Altheim Myers, P.C.By: Michael H. Zhu, Esq.
Third-party defendant's attorney:

Signature date:
December 1, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises from the alleged injuries to Diane F. (hereinafter "claimant") due to the alleged negligence of the State of New York. The claim is based upon the State's failure to protect claimant or supervise her dorm to prevent non-residents from entering the premises.
Defendant moves for summary judgment[1]. The State argues that the attack on claimant by another student was not within its duties to guard against as a landlord of the property.

Claimant was a student at State University of New York at Stony Brook (hereinafter "SUNY") and a resident of O'Neill College[2] at the time of the incident. On the night of the incident, claimant became intoxicated at a party in Irving College, a dorm which adjoined her own. Claimant recalls seeing Daniel Ginzburg (hereinafter "Ginzburg") at the party. According to claimant's deposition (defendant's Exhibit E), she left the party at approximately 3:30 a.m. with a female friend who then decided to return to the party. Claimant testified that she returned to her dorm herself, went into her room and lay face down on her bed having navigated her way home alone and not meeting anyone along the way. Claimant states that after she was in her room, Ginzburg entered her room, turned her over, got on top of her and sexually assaulted and raped her.[3] Claimant testified that she told Ginzburg no when he began, but she seemed to drift in and out of consciousness due to her inebriated condition.

According to Ginzburg[4], he met claimant at the party. He then left the party with claimant and her female cousin. As they left Irving College and entered a hallway connecting Irving College and O'Neill College, the cousin told claimant she was leaving to go to her room and then left Ginzburg and claimant alone. Claimant and Ginzburg walked hand in hand from Irving College to O'Neill College to go to claimant's room. Ginzburg testified that he was a full time student at SUNY at the time of the incident but did not live in either Irving or O'Neill College. According to Ginzburg's deposition, he and the claimant gained entry into O'Neill College when claimant used an entry card to open the door. Ginzburg recalls seeing other students as he and claimant walked, but does not recall having a conversation with anyone. He states that they walked directly to her room. According to Ginzburg, he undressed claimant while in her room but she fell asleep and nothing further happened.

The other deposition presented in support of defendant's motion was Nicholas Pichardo (hereinafter "Pichardo") (defendant's Exhibit F). Pichardo was employed by SUNY as a Resident Assistant in O'Neill College. At the time that claimant and Ginzburg were walking from Irving College and through O'Neill College to claimant's room, Pichardo was in the O'Neill lounge playing pool. Pichardo states that at this time he was not on duty as a Resident Assistant. According to Pichardo, he was given a manual with the scope of his duties. Pichardo states that he was playing pool in the lounge with other people when he noticed claimant and Ginzburg walking in the hallway. When Pichardo first saw the claimant she was at the entrance to the lounge and was leaning up against the wall. Pichardo knew claimant as a resident in O'Neill. He observed that claimant was with Ginzburg at this time. Pichardo had seen Ginzburg prior to this occasion. Pichardo could not recall if Ginzburg (pp. 35 -36) was a student, but knew that he was not a resident of O'Neill College. Pichardo also could not recall what the rule was as to non-residents being present in the dorm at certain hours. According to Pichardo, he and claimant exchanged greetings and then she said something else which he could not understand due to her slurred speech. Pichardo asked claimant if she was alright and if she needed help in getting to her room. Pichardo asked Ginzburg if he needed help getting claimant back to her room and was told no. Pichardo wrote claimant up for a conduct code violation but could not recall what he wrote.

Claimant opposes the defendant's motion based on Pichardo's failure to act.

Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v Scally, 99 AD2d 713). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion. Summary judgment may only be granted if movant provides evidentiary proof in admissible form to demonstrate that there are no questions of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Wanger v Zeh, 45 Misc 2d 93, aff'd 26 AD2d 729). Once the movant has demonstrated a prima facie entitlement to summary judgment as a matter of law, the burden shifts to the opposing party to submit evidentiary proof in admissible form sufficient to create an issue of fact or demonstrate an acceptable excuse for his failure to submit such proof (Alvarez v Prospect Hosp., 68 NY2d 320). Mere conclusions, speculation or expressions of hope are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77 NY2d 525).

In the ownership of property, the State of New York serves two functions. The first role casts the State in a proprietary function and the other role is that of a governmental function (Miller v State of New York, 62 NY2d 506). The functions are not mutually exclusive. Instead, the functions are opposite ends of a continuum (See Miller).
A governmental entity's conduct may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions. This begins with the simplest matters directly concerning a piece of property for which the entity acting as landlord has a certain duty of care, for example, the repair of steps or the maintenance of doors in an apartment building. The spectrum extends gradually out to more complex measures of safety and security for a greater area and populace, whereupon the actions increasingly, and at a certain point only, involve governmental functions, for example, the maintenance of general police and fire protection. Consequently, any issue relating to the safety or security of an individual claimant must be carefully scrutinized to determine the point along the continuum that the State's alleged negligent action falls into, either a proprietary or governmental category. [Miller at 511 - 512.]

In regard to its proprietary function, "the State " ‘must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk' " (Basso v Miller, 40 NY2d 233, 241, quoting Smith v Arbaugh's Rest., 469 F2d 97, 100)" (Preston v State of New York, 59 NY2d 997, 998). The State's proprietary function subjects it to the same rules of liability as apply to a private citizen.

On the other end of the continuum, is the State's governmental function. The State "remains immune from negligence claims arising out of governmental functions such as police protection unless a special relationship with a person creates a specific duty to protect, and that person relies on performance of that duty" (Price v New York City Housing Authority, 92 NY2d 553, 557 - 558).

From the evidence before the Court, defendant has failed to demonstrate that it is entitled to summary judgment. Questions of fact remain as to the role of Pichardo as a Resident Assistant. He was unclear as to what rules pertained to non-residents at various hours of the day. In addition, he was not clear as to what his duties were when he was "off duty". Defendant has not presented sufficient evidence, in admissible form, to demonstrate entitlement to summary judgment as to liability.

Based upon the foregoing, defendant's motion for summary judgment is denied.

December 1, 2004
Hauppauge, New York

Judge of the Court of Claims

[1]The following papers have been read and considered on defendant's motion for summary judgment: Notice of Motion dated May 6, 2004 and filed May 10, 2004; Attorney's Affirmation in Support of Michael H. Zhu, Esq. with annexed Exhibits A-G dated May 6, 2004 and filed May 10, 2004; Affirmation in Opposition of James L. Iannone, Esq. with annexed Exhibits 1-2 dated July 28, 2004 and filed August 6, 2004; Memorandum of Law of James L. Iannone, Esq. dated July 28, 2004 and received August 6, 2004; Attorney's Affirmation in Reply of Michael H. Zhu, Esq. dated August 2, 2004 and filed August 5, 2004.
[2]This is the dormitory in which claimant resided.
[3]Claimant details the encounter in her deposition, but the details are unnecessary for purposes of this motion.
[4]This is according to Ginzburg's deposition (defendant's Exhibit G).