5,6 Filed Papers: Claim, Answer John Isaacs alleges in his claim that on October
10, 2003 he fell and tore a tendon in his foot while alighting from a bunk bed
at the Palladia Parole Residence Program facility to which he had been assigned
by the New York State Division of Parole. He indicates that he fell because he
was not supplied with an appropriate ladder and because the lighting was
Notably, in a prior Decision and Order denying the Defendant's Pre-Answer
motion to dismiss this court said: "While the issue of what duty the State owes
to someone in claimant's position seems apparent - specifically, what duty is
owed by the State with respect to bunk bed safety in a privately owned and
operated facility used by competent adults - that issue is not raised by the
instant motion and indeed would properly be raised by a motion for summary
judgment after issue is joined and at least some disclosure has occurred so that
the issue of the defendant's duty may be addressed in an appropriate factual
context." [Isaacs v State of New York, Claim No. 108531, Motion No.
M-67767, unreported decision (April 13, 2004 Scuccimarra, J.)].
Defendant now moves for summary judgment dismissing the claim, arguing that
because the State does not own or operate the accident situs, nor does it own or
control the instrumentality of the injury - namely the bunk beds or the step
ladder used by Claimant to alight - it cannot be held liable.
In an Affirmation by Kathleen M. Kiley, an Assistant Counsel to the New York
State Division of Parole, she writes that the agency has "no control . . .
whatsoever since Palladia is a separate entity entirely. Palladia is a New York
State corporation that provides services to parolees that have been released
from prison, however the Division does not have any control over the premises or
activities of Palladia, Inc. . . .[It] is not an agency or department of the
Division. In addition, the Division does not own, operate or control the step
ladder which allegedly caused the injury." [Affirmation in Support by Gwendolyn
Hatcher, Assistant Attorney General, Exhibit 7].
Land records establish that the owner of the property where Claimant's accident
occurred is Lenmort Realty, not the State of New York. [ibid. Exhibit 8].
Records from the New York State Department of State establish that Palladia -
in its several incarnations - is a not-for-profit corporation issued operating
certificates pursuant to Article 32 of the Mental Hygiene Law [Mental Hygiene
Law §32.01 et seq] for its provision of substance abuse services in
residential and other programs. [ibid. Exhibits 5 and 6]. It offers a
parole transition treatment program to which parolees are admitted only "through
referrals from The New York State Division of Parole." [ibid. Exhibit 4].
Pursuant to Correction Law §149, Mr. Isaacs was released to parole
supervision on April 29, 2003 - subject to such supervision until May 27, 2006 -
with the indication being that his residence would be "Palladia Parole Residence
Program, 1808 3rd Avenue, New York, N.Y." [ibid. Exhibit 3]. The
Certificate of Release to Parole Supervision includes the condition that
Claimant participate in a substance abuse treatment program as directed by his
parole officer, and lists the Palladia Parole Residence Program as well.
[ibid. Exhibit 3].
When the State's agent, the New York State Division of Parole, assumes
supervisory responsibilities over those granted parole sentences, it is acting
in a governmental capacity. These responsibilities involve the exercise of
discretion, for which the State has not waived sovereign immunity, absent some
special relationship between a claimant and the State. Claimant's placement by
the New York State Division of Parole in a non-profit housing and rehabilitation
facility offering substance abuse services as a condition of his parole does not
create a special duty to Claimant lifting the immunity protections afforded
performance of governmental functions.
Even assuming a mixed governmental/proprietary function as shown in cases
involving universities or public housing facilities, ". . . [w]hen the liability
of a governmental entity 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' (Weiner v Metropolitan
Transp. Auth., 55 NY2d 175, 182)." Miller v State of New York, 62 NY2d
506, 513 (1984). This is because the State's duty may be defined upon a
"continuum" between its actions in a governmental capacity - such as provision
of police protection whereby only a Claimant who can show that a special duty
exists between the agency and the individual may establish liability when such
duty is breached - and those performed in a proprietary capacity. State operated
dormitory facilities, when the university also has a security force, as well as
housing projects with security forces, may involve duties on either end of the
Thus in Miller the Court of Appeals concluded that the failure to lock
dormitory doors at a State University campus, in light of prior complaints that
intruders had been roaming the halls and prior criminal behavior, was a breach
of the State's duty, in its proprietary capacity, to take minimal security
measures as a landlord. The Claimant's rape was a foreseeable result of the
breach of that duty, and the failure to lock the doors was a proximate cause of
the rape. cf. McEnaney v State of New York, 267 AD2d 748 (3d Dept
To determine whether a special duty has been established, claimant must show
". . . 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 (see Cuffy v City of New York,
69 NY2d 255, 260)." Melanson v State of New York, 215 AD2d 43, 45 (3d
Dept 1995), lv denied, 87 NY2d 810 (1996).
At his deposition, Claimant testified that he had been a resident at the
Palladia home at 1808 Third Avenue since his release from the custody of the New
York State Department of Corrections on April 29, 2003. [Affirmation in
Opposition by Maryann H. Lattner, Exhibit A, p. 15]. Although he had originally
been accepted for a 90-day program, he "got caught up in it for a little bit
longer." [id. p.16]. He saw his parole officer at that location every
Tuesday, and that officer as well as others used an office there to meet with
parolees. He was assigned a counselor and a vocational counselor, to assist him.
[id. p.p. 24-25].
The room he slept in was on the second floor, and housed nine (9) other
parolees. [id. p. 23]. On the same floor were "offices for the staff,
counselors and . . . a t.v. room." [id. p. 24]. At midnight, there were
"lights out" rules at the facility during the week, but the lights were
controlled by the residents. [id. p. 25]. The top bunk - to which he had
been assigned since April 2003 - was approximately five feet from the floor and
accessed by a "metal step ladder" that was "not stable."[id. p.p. 41,
42]. Mr. Isaacs said he had reported unsteadiness of the ladder to his Palladia
counselor. [id. p. 42]. At approximately 3:30 a.m. on October 10, 2003
Claimant "was getting down to go to the bathroom, the ladder flipped over and my
weight came down on the part that holds the ladder open, you know, the middle
part that opens the ladder up . . . [a]ll my weight came down on the middle part
that holds the legs open. Ripped my toe open like a razor blade." [id.
p.p. 48-49]. After he was injured, he alerted "the guy that worked at night"
downstairs - a Palladia employee who checked people in and out of the facility -
and an ambulance was called. [id. p.p. 55-56]
Claimant appears to argue that his placement and participation in Palladia's
residential substance abuse program as a condition of parole, and the weekly
meetings he had with his parole officer at that location "after work", created a
special duty as between the New York State Division of Parole and the Claimant
such that the agency had a duty to assure that bunk beds in premises it did not
own or lease or control in any fashion, contained means of alighting that would
have prevented this adult Claimant from injuring himself when he got out of bed
at 3:30 a.m. Clearly, from the kind of negligence alleged only if the State of
New York was operating as a landowner or landlord would a cause of action lie -
albeit rather tenuously - under these facts.
Assuming a movant has made a prima facie showing of entitlement to
judgment as a matter of law by proffering sufficient evidence to eliminate any
genuine material issues of fact, the party in opposition to the motion for
summary judgment must tender evidentiary proof in admissible form to establish
the existence of material issues which require a trial. Winegrad v New York
University Medical Center, 64 NY2d 851 (1985); Zuckerman v City of New
York, 49 NY2d 557 (1980).
In Walker v State of New York, 104 Misc 2d 221 (Ct Cl 1980), the
wrongful death claim by the mother of two infants who died in a fire at their
foster care home due to the alleged negligence by the New York State Department
of Social Services and the Onondaga County Department of Social Services in
placing the children in a foster care home was dismissed. The Court found that
although the State had a general authority to oversee and review the local
agency's actions, any ". . . failure to discover a violation of regulations,
absent a showing of notice, is not actionable . . . (citations omitted) .
. . [T]he primary responsibility for the care and placement of children in the
foster care programs was vested in the local agencies . . . " Walker v State
of New York, supra, at 223; see also LaPierre v State of
New York, Claim No. 111478, Motion No. M-71075, unreported decision (March
20, 2006, Mignano, J.).
Claimant's version of events is fairly straightforward in terms of his
participation in the program and the happening of the accident. Nothing
stated or submitted by Claimant, however, raises a triable issue of fact
relative to the State's ownership or control of the premises, or relative to
another theory whereby State liability could be imposed that is not attenuated
in the extreme. Even if arguably the State had some modicum of control over the
premises by virtue of the meetings between Claimant and his parole officer, or
because this residence option was a condition of parole, or because another
agency was involved in licensing, imposing a duty under these facts would render
the State an insurer.
Accordingly, Defendant's motion for summary judgment and for dismissal of the
within claim is granted, and Claim Number 108531 is dismissed in its