New York State Court of Claims

New York State Court of Claims

NAVEDO v. THE STATE OF NEW YORK, #2005-015-017, Claim No. 107668, Motion No. M-69917


Court found State owed no legal duty to claimant to notify her of her attacker's release from prison where she failed to use means available to obtain such notification and failed to demonstrate the existence of a special relationship with the defendant.

Case Information

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:
DiJoseph & Portegello, P.C.By: Laurel Kallen, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 3, 2005
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion for summary judgment dismissing the claim on the ground that defendant had no legal duty to notify claimant of her assailant's release from prison is granted. On April 25, 2002 at 21-60 Holland Avenue, Bronx, New York, the claimant was attacked and injured by Charles Woods, a parolee with whom she had a brief relationship in 2000. After the breakup claimant charged Woods with harassment and testified against him at a preliminary parole revocation hearing in October, 2001. Claimant was not required to testify at a final revocation hearing upon Woods' acceptance of a plea agreement whereby he waived his right to a final hearing. Woods' parole was revoked and he was returned to jail.

Sometime following the revocation of Woods' parole in November, 2001 claimant contacted parole officer Stuart Levine to inquire about Woods' anticipated release date. Mr. Levine advised claimant that he had no information concerning Woods' release date and recommended that she contact Carole Sohn, a parole revocation specialist who was then handling Woods' file. Sohn in turn provided the claimant a telephone number for the Division of Parole's Victim Impact Unit so that claimant could register with the unit and request that she be notified when Woods was released from custody.

Claimant does not recall speaking with Carole Sohn and does not recollect being advised by her to contact the Victim Impact Unit. In any event, claimant admitted that she did not request notification of Woods' release from the Victim Impact Unit.

Charles Woods was released from custody to parole on April 18, 2002 and was assigned to a different parole officer (Hector Cruz) who admitted that he did not notify claimant of Woods' release. The claimant was injured when she was attacked by Woods one week following his release from custody.

The claim alleges that the State was negligent in failing to have in place "appropriate and sufficient systems and procedures . . . to prevent the release of Charles Woods without first notifying claimant". It is argued in opposition to the motion that a special duty to notify claimant arose from her testimony at the preliminary parole revocation hearing and that ministerial error prevented the Division of Parole's Victim Impact Unit from notifying claimant of Woods' release.

The defendant moved for summary judgment seeking an order dismissing the claim on the ground that absent proof of a special relationship between claimant and the State there was no duty to notify claimant of Woods' release.

Defendant's motion is supported by copies of the pleadings; the affidavit of Ralph Rahm, a senior parole officer who supervises the Division of Parole's Victim Impact Unit; the affidavit of Janet Koupash, Director of the Department of Correctional Services (DOCS) Office of Victim Services and portions of the examinations before trial of the claimant, Hector Cruz (Woods' parole officer in April 2002), Carole Sohn (parole revocation specialist) and Stuart Levine (Woods' previous parole officer). Defendant also submitted certified Parole records.

The affidavit of Ralph Rahm (Exhibit G) in relevant part states that "[t]he Division of Parole had no affirmative obligation to inform Ms. Navedo of Mr. Woods' release from DOCS to Parole". He further avers that "I have had a search made of the Victim Impact Unit's records and no evidence of a request made by Ms. Navedo for services was found". The portion of the examination before trial transcript of parole officer Hector Cruz submitted by the defendant relates that persons requesting information regarding the status of inmates must contact the "Crime Victims Unit"[1]. The Unit then contacts the appropriate parole officer who must conduct a home visit and inform the requesting individual of any prospective release date.

The affidavit of Janet Koupash, Director of the DOCS Office of Victim Services (Exhibit H), alleges that DOCS contracted with a corporation known as APPRISS which developed a victim notification system known as "Victim Information and Notification Everyday" (VINE). She explained that one activates the system by phoning a toll free number and entering an offender's NYSID number, full name and date of birth or a DOCS' identification number along with a telephone number at which the caller wishes to be contacted and a four digit personal identification number to confirm the caller's identity. Ms. Koupash explained that following an offender's release, the system would direct calls to the registered number for 24 hours until the recipient answers and enters her personal identification number. According to the affiant "[t]he APPRISS database does not indicate any phone number was registered for notification of the release of inmate Charles Woods".

The defendant has established through the examination before trial testimony of Stuart Levine that he informed the claimant he did not know Woods' release date and referred her to parole revocation specialist Carole Sohn. At her examination before trial Ms. Sohn confirmed that she spoke to the claimant concerning Mr. Woods one or two months prior to his release and provided her the phone number for the Victim Impact Unit. The claimant, in her examination before trial, confirmed that Stuart Levine did not know Woods' release date and could not recall speaking to Carole Sohn. Nowhere does the claimant state that Mr. Levine, Ms. Sohn or any other agent or employee of the defendant undertook or agreed to notify her of the date of Woods' release. The claimant never contacted the Division of Parole's Victim Impact Unit or the Department of Correctional Services Office of Victim Services. Instead she relied upon a notification system operated by Safe Horizons, an entity having no established (or alleged) link to the defendant.

These submissions were sufficient to meet defendant's burden of establishing a prima facie entitlement to judgment. As established long ago in Alvarez v Prospect Hosp. (68 NY2d 320, 324), "[o]nce 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)".

Claimant's opposition to the motion consists principally of the affirmation of her attorney who is without direct knowledge of the facts, excerpts of transcripts of examinations before trial of the claimant, Hector Cruz, Stuart Levine and Carole Sohn and certain uncertified records of the Division of Parole.

There is little doubt that claimant seeks to predicate liability upon a governmental rather than a proprietary function of the Division of Parole. In Lauer v City of New York (95 NY2d 95, 100) the Court of Appeals addressing the question of municipal liability stated, "Without a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm (see, Pulka v Edelman, 40 NY2d 781, 785, rearg denied 41 NY2d 901; see also Prosser and Keeton, Torts § 53 at 357 [5th ed.]; 3 Harper, James and Gray, Torts § 18.1 at 650 [2d ed.])." The majority opinion therein further observed "Time and again we have required 'that the equation be balanced; that the damaged plaintiff be able to point the finger of responsibility at a defendant owing, not a general duty to society, but a specific duty to him' (Johnson v Jamaica Hosp., 62 NY2d 523, 527; see also, Palsgraf v Long Is. R.R. Co., 248 NY 339, 341, rearg denied 249 NY 511)."

"It is well settled that a municipality cannot be held liable for injuries resulting from negligence in the performance of a governmental function absent a special relationship between the municipality and the injured party (see Kircher v City of Jamestown, 74 NY2d 251, 255; Cuffy v City of New York, 69 NY2d 255, 260; La Londe v Hurteau, 239 AD2d 858, 859, lv denied 90 NY2d 807)" (Gillette v City of Elmira, 285 AD2d 909, 910 ). The elements of a special relationship are " '(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking ***' (Cuffy v City of New York, supra at 260 [citations omitted])" (Grieshaber v City of Albany, 279 AD2d 232, 234 lv denied 96 NY2d 719).

Defendant's submissions amply demonstrate that the defendant's agents (Levine and Sohn) never assumed the responsibility to notify the claimant of Mr. Woods' release. Moreover, claimant failed to identify any statute, rule or regulation of the Division of Parole or Department of Correctional Services which imposed such a duty upon those agents[2]. Accordingly, claimant has not satisfied the first of the four necessary elements of a special relationship.

In addition, since neither parole officer Levine nor parole revocation specialist Sohn affirmatively undertook the responsibility to inform claimant of Woods' release, and their communication with claimant in that regard was unambiguous, claimant cannot claim justifiable reliance and is therefore unable to satisfy the fourth element. As the Appellate Division, Third Department observed in Clark v Town of Ticonderoga (291 AD2d 597, 599): "The 'reliance' that is required is not an abstract one that can be satisfied by evidence of plaintiff's hope or even belief that defendants could provide her with adequate police protection (see Berliner v Thompson, 166 AD2d 78, 82). To the contrary, it is plaintiff's burden to show that defendants' conduct actually lulled her into a false sense of security, induced her to either relax her own vigilance or forego other avenues of protection, and thereby placed her in a worse position than she would have been in had they never assumed the duty (see, Grieshaber v City of Albany, supra at 235-236; Berliner v Thompson, supra at 82)." No such showing has been made by the claimant. In fact, claimant relates in her examination before trial that she utilized a telephone notification system operated by Safe Horizons to determine whether Mr. Woods had been released.

In this case in which the claimant admittedly failed to register with either the Victim Impact Unit or DOCS Office of Victim Services and there was no assumption of an affirmative duty to notify the claimant by the defendant's agents, there could have been no corresponding justifiable reliance by her. Absent such proof a special relationship was not created and liability cannot be ascribed to the defendant for the assault upon claimant and her resulting injuries.

The defendant's motion for summary judgment dismissing the claim is granted.

June 3, 2005
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated March 28, 2005;
  2. Affirmation of Belinda A. Wagner dated March 25, 2005 with exhibits;
  3. Affidavit of Ralph Rahm sworn to March 25, 2005;
  4. Affidavit of Janet Koupash sworn to March 25, 2005;
  5. Affirmation of Laurel Kallen dated April 15, 2005;
  6. Affirmation of Belinda A. Wagner dated April 19, 2005.

[1]Presumably referring to the Division of Parole's Victim Impact Unit.
[2]It is noted that such a duty is, in fact, imposed upon the Department of Correctional Services pursuant to CPL § 380.50 with regard to victims of certain enumerated violent felonies who request notice.