New York State Court of Claims

New York State Court of Claims

BISHOP v. THE STATE OF NEW YORK, #2006-030-573, Claim No. 107484, Motion No. M-71774


Synopsis


Claimant’s decedent, was fatally assaulted on August 19, 2001 by Alexander Pasley, whom the Claim alleges was then under the supervision of the New York State Division of Parole. Claim asserts that the assault resulting in decedent’s wrongful death was the result of the Defendant’s “failing to supervise, monitor or train their employees.” Defendant’s motion for summary judgment granted - absolute immunity for the privileged discretionary determinations made by its agents in the scope of their employment.

Case Information

UID:
2006-030-573
Claimant(s):
MICHAEL BISHOP by his Administrator LORETTA BISHOP and LORETTA BISHOP Individually
Claimant short name:
BISHOP
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107484
Motion number(s):
M-71774
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
RENE MYATT, ESQ.
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: GAIL PIERCE-SIPONEN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
October 2, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

s

Decision


The following papers numbered 1 to 7 were read and considered on Defendant’s motion


for summary judgment dismissing the claim:

1-3 Notice of Motion; Affirmation in Support by Gail Pierce-Siponen, Assistant Attorney General and attached exhibits; Memorandum of Law

  1. Affirmation in Opposition by Rene Myatt, Attorney for Claimant
  1. Reply Affirmation by Gail Pierce-Siponen, Assistant Attorney General
6,7 Filed Papers: Claim, Answer

Michael Bishop, Claimant’s decedent, was fatally assaulted on August 19, 2001 by Alexander Pasley, whom the Claim alleges was then under the supervision of the New York State Division of Parole. The Claim asserts that the assault resulting in decedent’s wrongful death was the result of the Defendant’s “failing to supervise, monitor or train their employees.” [See Claim Number 107484, ¶9]. In its Answer, in addition to general denials, the Defendant raises the Defense of absolute immunity for the privileged discretionary determinations made by its agents in the scope of their employment, among other defenses. A note of issue was filed by Claimant on January 27, 2006.

Civil Practice Law and Rules §3212(b) provides in pertinent part:
. . . A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party . . . the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.
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). The use of an attorney’s affirmation appending pertinent deposition testimony, documentary evidence, and verified pleadings reciting material facts, is not a fatal procedural flaw in a presentation. Alvarez v Prospect Hospital, 68 NY2d 320, 325 (1986).[1]

As an initial matter, the Court will treat the motion as adequately supported. Indeed, the Court is satisfied, based upon Defendant’s presentation, and the Claimant’s failure to offer evidentiary proof in admissible form establishing that there are material issues of fact, that Defendant is entitled to judgment dismissing the claim as a matter of law, as there are no triable issues of fact warranting a plenary trial.

The State of New York has absolute immunity against any claim alleging it was negligent in the release or supervision of a parolee, absent the establishment of a special duty to the claimant. Tarter v State of New York, 68 NY2d 511 (1986). Tarter v State of New York, supra, decided two claims brought by claimants who had both been shot by individuals who had been released on parole. After serving minimum terms of their felony sentences, and within two months of their respective releases into parole supervision, the shootings took place. Claimants argued that the Board of Parole’s alleged failure to follow its own mandatory guidelines rendered otherwise discretionary determinations to release convicts on parole, ministerial rather than governmental, and thus potentially subject to liability. See Executive Law §259 et seq; 9 NYCRR §§8002.1, 8002.3. The Court of Appeals rejected that argument, and likened Board of Parole decisions as most analogous to sentencing decisions made by Judges, saying
“Just as a Judge performs the original sentencing function, weighing the defendant’s particular situation against case law, sentencing statutes and the Judge’s prior experience, the Board must fit the inmate’s factual circumstances within the guidelines and use its discretion in its disposition of the matter. Both are decisions which involve the officials’ expertise, an application of law and an exercise of their judgment. We do not suggest that every official act involving discretion will be considered a judicial function conferring absolute immunity. It is the peculiar nature of the duties of the Board of Parole with respect to the weighing of evidence, deciding the relative importance of the determining factors and the ultimate discretionary disposition which render it so. Therefore, the Board’s actions are entitled to absolute immunity, notwithstanding that discovery could prove claimants’ allegations [that the Board failed to consider the mandatory guidelines].” Tarter v State of New York, supra, at 518-519.

With regard to negligent supervision - a cause of action marginally pled herein - there must be “. . . 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 . . . (citations omitted),”[ Tarter v State of New York, supra, at 519; cf. Hammond v State of New York, 157 AD2d 391 (1st Dept 1990)[2]], versus a duty owed generally to the public at large. cf. Florence v Goldberg, 44 NY2d 189, 195 (1978)[3].

In Cuffy v City of New York, 69 NY2d 255, 260 (1987) the Court of Appeals summarized the elements of a special duty that may give rise to liability, indicating “[t]he elements of this ‘special relationship’ are: (1) an assumption by the . . .[State], 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 . . . [State’s] agents that inaction could lead to harm; (3) some form of direct contact between the . . . [State’s] agents and the injured party; and (4) . . . [the injured party’s] justifiable reliance on the . . . [State’s] affirmative undertaking . . . (citations omitted).” Absent a showing of such special relationship, a claim of inadequate parole supervision cannot be sustained. See Lodge-Stewart v State of New York, UID# 2006-015-080, Claim No. 109063, Motion Nos. M-71071, M-71077, CM-71208 (Collins, J., April 12, 2006); Garcia v State of New York, UID# 2001-028-802, Claim No. 95058, Motion No. M-62886 (Sise, J., April 12, 2001).

According to the deposition testimony appended to the moving papers, Claimant last saw her son Michael Bishop before he went out to the movies with friends. [Affirmation in Support by Gail Pierce-Siponen, Assistant Attorney General, Exhibit E]. She later received a telephone call, learning ultimately that Michael was robbed and killed by parolee Alexander Pasley on a subway station platform. Prior to this fatal encounter, neither Ms. Bishop nor the decedent had any contact with or knowledge of Mr. Pasley, indeed Ms. Bishop first heard the name several days later, when speaking with the District Attorney’s Office. She did not recognize Mr. Pasley at his criminal trial, indeed, she indicated she had never seen him before. None of the other friends present at the scene knew Mr. Pasley, and to Claimant’s knowledge the fatal assault was the first and only time decedent encountered Mr. Pasley. Prior to the assault, Ms. Bishop had never contacted the Division of Parole to express concern that Pasley might be a danger to her son.

As described by Mr. Pasley’s parole officer, before undertaking their duties parole officers for the New York State Department of Parole are required to complete more than two months of training to prepare them for their interaction with parolees. [Affirmation in Support by Gail Pierce-Siponen, Assistant Attorney General, Exhibit F]. When assigned a case, parole officers are advised of the parole conditions of the parolees whom they supervise, as set by the Board of Parole, and review such conditions with the parolee at their first meeting, held within 24 hours of the parolee’s release. It is a matter of judgment as to how often such conditions are reviewed with the parolee, and the individual parole officer may seek the assistance of supervisors if they need a second opinion on a case to determine, for example, whether surveillance is warranted in a given case. If a parole condition is violated or an officer’s directive is ignored, parole may not necessarily be immediately revoked. Alternatives are generally first discussed with a supervisor, including the determination to pursue revocation and the attendant notice to the parolee and the hearing process. From the parole officer’s deposition testimony, there is no indication that there was any special information linking this claimant’s decedent to the parolee at issue.

The papers submitted in opposition to this motion argue, essentially, that there should be a change in the law tantamount to placing the State and its agents in the position of insurer, when paroled felons engage in criminal acts after their release and while under parole supervision. [See Affirmation in Opposition by Rene Myatt]. Counsel argues that the law as it stands with regard to parolees is “outdated” and that the public at large should be warned of the release of a violent and dangerous person.[4] Counsel does not, however, set forth any relevant facts in evidentiary form to warrant a plenary trial under the law as it stands.

Decisions made by the Division of Parole are entitled to absolute immunity, and no special duty has been enunciated herein sufficient to sustain a cause of action premised upon negligent parole supervision or other theories. While the Court is very sympathetic to Ms. Bishop’s loss, the State cannot be held liable for the tragic events of August 19, 2001. For all of the foregoing reasons Defendant’s motion [M-71774] for summary judgment and for dismissal of the within claim is granted, and Claim Number 107484 is dismissed in its entirety.



October 2, 2006
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1].“A fair reading of the attorney’s affirmation, the hospital records and the defendant’s deposition testimony compel the conclusion that no material triable issues of fact exist as to the claims of malpractice asserted against the defendant in the amended complaint as amplified by the bill of particulars. The fact that defendant’s supporting proof was placed before the court by way of an attorney’s affirmation annexing deposition testimony and other proof, rather than affidavits of fact on personal knowledge, is not fatal to the motion . . . (citations omitted).”
[2]. First Department reversed decision dismissing claim on Defendant’s pre-discovery summary judgment motion in wrongful death action where Claimant established that parolee’s wife - the decedent - had been in constant contact with parole department, advised them of death threats against her, had an order of protection, and was promised protection upon which she relied.
[3]. Children within class of persons protected to whom a special duty owed by voluntary provision by police department of civilian crossing guard services at designated locations; parent justifiably relied upon their presence in allowing 6 ½ year old child to walk from school unsupervised; crossing guard who called in sick was not timely replaced as required by regulations.
[4]. With regard to Counsel’s reference to her inability to review Alexander Pasley’s parole records, this discovery issue was the subject of a prior Decision and Order of this Court and is not discussed further here. Bishop v State of New York, UID# 2005-030-918, Claim No. 107484, Motion No. M-69873 (Scuccimarra, J., June 1, 2005).