New York State Court of Claims

New York State Court of Claims

LODGE-STEWART v. THE STATE OF NEW YORK, #2006-015-080, Claim No. 109063, Motion Nos. M-71071, M-71077, CM-71208


After note of issue and certificate of readiness was filed defendant moved for summary judgment. Claimant's attorney cross-moved to stay the defendant's motion pending outcome of defendant's motion for a protective order prohibiting the disclosure of the Division of Parole's Policy and Procedure Manual. Court found claimant's efforts to discover the manual were too little, too late and granted the State's motion to dismiss the claim for inadequate parole supervision absent a showing by defendant of a special relationship.

Case Information

IRENE LODGE-STEWART, individually and as Administratrix of THE ESTATE OF NATHALIE LODGE, and as Guardian of decedent's, minor child, TENAE TERELL LODGE
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-71071, M-71077
Cross-motion number(s):
Claimant’s attorney:
Andrew J. Spinnell, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 12, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's cross-motion for an order extending the claimant's time to oppose defendant's motion for summary judgment until after the determination of defendant's motion for a protective order is denied. Defendant's motion for summary judgment dismissing the claim is granted. The claim seeks to recover damages for the wrongful death and conscious pain and suffering of claimant's decedent (Nathalie Lodge) who tragically died at the hands of Robert Kinley, a New York State parolee, in Brooklyn, New York in October 2002. The verified claim filed with the Court on March 22, 2004 alleges that the murder took place at 9:00 a.m. on October 20, 2002. Claimant's verified bill of particulars however states: "On September 17, 2002 [sic] while on parole, at approximately 9:00 a.m. at 488 Kosciuszko Street, Brooklyn, New York 11221, Claimant's daughter, Nathalie Lodge, deceased, was then assaulted, battered and killed by Robert Kinley by reason of "Injuries including Blunt Impact Head Trauma and Asphyxia Due to Smothering and Ligature Strangulation". In a "supplemental verified bill of particulars[1]" filed subsequent to the instant summary judgment motion claimant alleges: "The death of Claimant's daughter Nathalie Lodge took place on October 21, 2002 at approximately 6:00-6:30 a.m. notwithstanding that the death certificate states the date and time of death as October 21, 2003 [sic] at 1:45 a.m., which in fact is not the date and time of death but is the date and time when her body was found".

Claimant asserts in the claim that the State was negligent in placing Robert Kinley on parole in September 2002 and in failing to adequately supervise him during his parole. On the cross-motion claimant's attorney, allegedly based upon conversations with another of his clients and upon the deposition testimony of the assailant regarding conditions of his prior parole in the State of Maryland, alleges that the defendant's agents may have failed to conduct unannounced home visits and telephone calls during the hours Mr. Kinley was subject to a curfew (9:00 p.m. to 7:00 a.m.). Counsel contends that the Division of Parole Policy and Procedure Manual (the Manual) requires home visits or other contact with a parolee during curfew based upon what he "has been led to believe by discussions with other inmates on parole with a curfew i.e., Donald Davis, one of your affirmant's clients, and by the deposition testimony of Robert Kinley who testified that when he was on parole in Maryland with a curfew, his parole officer made many unannounced home visits during his curfew hours." Claimant contends that should the Manual require home visits during curfew the failure to comply therewith would subject the defendant to liability for failure to perform a ministerial act.

The Court will first address the peculiar nature of the motions herein. Defendant almost simultaneously moved for a protective order pursuant to CPLR 3103 and for summary judgment pursuant to CPLR 3212. Claimant opposed the motion for a protective order and cross-moved for an order pursuant to CPLR 2004 and 3212 (f) adjourning the defendant's summary judgment motion and/or granting a continuance of the motion pending resolution of the defendant's motion for a protective order. For the following reasons the motion seeking the protective order and the cross-motion for an adjournment or continuance of defendant's summary judgment motion are denied. Defendant's summary judgment motion is granted.

In most instances a party obtains disclosure by stipulation or on notice without leave of Court (see CPLR 3102 [b]). A party seeking discovery and production of a document serves a notice on the other party to produce and permit copying of the document (see CPLR 3120). In the event a party served with such a notice objects to the disclosure of an item, that party serves a response which states with reasonable particularity the reason for each objection (see CPLR 3122). Rule 3122 provides "[t]he party seeking disclosure under rule 3120 or section 3121may move for an order under rule 3124 or section 2308 with respect to any objection to, or other failure to respond to or permit inspection as requested by, the notice or subpoena duces tecum, respectively, or any part thereof." CPLR 3124 authorizes a motion to compel compliance or a response where there has been a failure to "respond to or comply with any request, notice, interrogatory, demand, question or order under this article .. ." Claimant herein neither moved nor cross-moved for such relief.

In his affidavit in support of the motion for a protective order Assistant Attorney General Rizzo asserts that claimant's request to obtain portions of the Manual is untimely since it was made on the eve of trial[2] long after the November 30, 2005 filing of claimant's note of issue and statement of readiness.

The documentation attached to defendant's motion as Exhibits C-F demonstrate that claimant's attorney knew from defendant's responses to claimant's second notice for discovery and inspection dated June 20, 2005 that the Manual would not be produced without a court order. Despite such knowledge claimant failed to timely move for an order compelling either disclosure of the Manual or an in camera inspection by the Court. Claimant filed her note of issue and statement of readiness certifying that discovery was complete on November 30, 2005 without having made a discovery related motion.

"It has long been the rule in [the third] department that the statement of readiness rule [see 22 NYCRR 206.12 (c)] will be rigidly enforced absent a showing of special, unusual or extraordinary circumstances warranting the exercise of the court's discretion (Wahrhaftig v Space Design Group, 33 AD2d 953)" (Haviland v Smith, 101 AD2d 626, 627; see also Laudisio v Diamond "D" Constr. Corp., 281 AD2d 942). Claimant has neither alleged nor demonstrated the presence of special, unusual or extraordinary circumstances warranting additional discovery in this matter. The cross-motion (CM-71208) to adjourn or to continue defendant's summary judgment motion to allow further discovery is accordingly denied (Tunstall v Seifer & Co., 242 AD2d 493).

Despite the Court's denial of further discovery in this trial-ready matter, defendant's motion for a protective order (M-71071) must also be denied. Although defense counsel averred in his affidavit in support of the motion that the material sought was immune from disclosure since its production would "interfere with law enforcement investigations, reveal criminal investigative techniques or procedures and/or endanger the life [sic] or safety of individuals", he has failed to set forth any facts supporting his assertion. Defendant's proof is, therefore, insufficient to demonstrate that the contents of the Manual are non-discoverable (see Carberry v Bonilla, 65 AD2d 613; Boylin v Eagle Telephonics, 130 AD2d 538). Defendant's motion for a protective order is, accordingly, denied.

Defendant's motion for summary judgment dismissing the claim remains to be addressed. Technically, claimant did not oppose the motion since claimant's cross-motion is fashioned as one to postpone the Court's consideration of the motion. Indirectly, however, claimant's attorney argues that absent disclosure of portions of the Manual claimant cannot properly oppose the summary judgment motion.

CPLR 3212 (f) provides:
Facts unavailable to opposing party. Should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had and may make such other order as may be just.

As related previously herein, the affirmation of claimant's counsel cites nothing other than conjecture to support the contention that "facts essential to justify opposition may exist". Speculation that the Manual contains specific criteria requiring home visits and other contact during curfew hours based upon the anecdotal experiences of Kinley and one of counsel's other clients is simply insufficient for this purpose (Firth v State of New York, 287 AD2d 771; Pank v Village of Canajoharie, 275 AD2d 508, 509).

In addition, summary judgment may not be defeated by claims that additional discovery is required where the party seeking discovery failed to obtain the information through its own inaction (see Meath v Mishrick, 68 NY2d 992, 994, Michaels v Wetsell, 255 AD2d 298). As discussed above, claimant failed to timely move to compel production of the Manual after learning that the defendant would not provide it voluntarily. The absence of material which might have been discovered but for inaction on claimant's part cannot be used to defeat the defendant's summary judgment motion (see Gillinder v Hemmes, 298 AD2d 493; Michaels v Wetsell, supra; Gold v City of New York, 141 AD2d 502).

Defense counsel asserted in paragraph 6 of his reply affidavit on the summary judgment motion that claimant appears to have abandoned her claim based upon the negligent release of Robert Kinley from custody to the supervision of the Division of Parole. Claimant has not refuted the allegation of abandonment of that cause of action. Nevertheless, defendant argues that Robert Kinley was not paroled by the Division of Parole but that his release from custody was statutorily mandated by Penal Law § 70.40 [1][b] and Correction Law § § 803, 805.

Pursuant to Tarter v State of New York, 68 NY2d 511, 518) parole release decisions are classically judicial in nature and deserving of full immunity. Likewise "[s]etting the conditions of release [pursuant to Penal Law § 70.40 [1] (6)] was properly recognized as a discretionary function within the State's absolute immunity, foreclosed from judicial review" ( Eiseman v State of New York, 70 NY2d 175, 184). In Arteaga v State of New York, 72 NY2d 212, 217 the Court of Appeals stated:
[T]he acts of correction officials and parole supervisors in establishing the level of restrictions on and the degree of supervision for a released inmate (Eiseman v State of New York, 70 NY2d 175, 184) . . . sufficiently evinced the attributes of judicial decision making to merit full immunity.

With regard to the acts of parole officers and supervisors the Court in Eiseman (supra) quoted approvingly the holding of the Appellate Division, Fourth Department below (109 AD2d 46, 57-58) which found that "[t]he acts of the corrections officials and the parole supervisors in monitoring [a parolee's] release involved the kinds of policy determinations which are of a discretionary or quasi-judicial nature and therefore insulated from liability".

Similarly, even if the Manual contained recommendations for home visits or telephonic communications with a parolee during curfew hours by a parole officer and his or her supervisor, any departure therefrom is not a basis for imposing liability in light of the Court of Appeals holding in Tarter v State of New York, 68 NY2d 511, 519) wherein the Court stated:
Finally, any claim based upon the negligent supervision of the parolees must fail because of the complete lack of allegations of both a special duty to protect the claimants as identified individuals and the reliance on the part of the claimants on specific assurances of protection (Helman v County of Warren, 67 NY2d 799, 801, 501 NYS2d 325, 492 NE2d 398; Delong v County of Erie , 60 NY2d 296, 469 NYS2d 611, 457 NE2d 717).

The claimant does not allege that the decedent had a special relationship with the State and presented no evidence in opposition to the State's motion tending to show that "the State, through promises or actions, assumed an affirmative duty to act on behalf of claimant or that he justifiably relied on such an affirmative undertaking [citations omitted]" (McEnaney v State of New York, 267 AD2d 748, 752; see also Davis v State of New York, 257 AD2d 112, 115).

Under either precedent, a failure to comply with any potentially applicable provisions of the Policy and Procedure Manual cannot form the basis of a finding of liability against the State. As a result the defendant's motion for summary judgment dismissing the claim is granted and the trial scheduled for April 27, 2006 is cancelled.

April 12, 2006
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

Motion No. M-71071:
  1. Notice of motion dated December 15, 2005;
  2. Affidavit of Michael C. Rizzo sworn to December 15, 2005 with exhibits;
  3. Affirmation of Andrew J. Spinnell dated December 27, 2005 with exhibits;
  4. Affidavit of Michael C. Rizzo sworn to December 30, 2005 with exhibit;
  5. Letter dated January 3, 2006 from Andrew J. Spinnell.

Motion Nos. M-71077, CM-71208

1. Notice of motion dated December 19, 2005;
  1. Affidavit of Michael C. Rizzo sworn to December 19, 2005 with exhibits;
  2. Affidavit of Vanessa Howard sworn to December 13, 2005 with exhibits;
  3. Notice of cross-motion dated January 18, 2006;
  4. Affirmation of Andrew J. Spinnell dated January 18, 2006 with exhibits;
  5. Reply affidavit of Michael C. Rizzo sworn to January 25, 2006.

[1].The supplemental bill of particulars does not meet the criteria for a supplemental pleading set forth in CPLR 3025 (b) nor was it filed upon leave of Court or stipulation of all parties. Absent objection by defense counsel this defect will be ignored pursuant to CPLR 2001.
[2].Trial is scheduled for April 27, 2006.