WILLIAMS v. THE STATE OF NEW YORK, #2009-016-019, Claim No. 94695
JILL WILLIAMS and LEROY WILLIAMS
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Alan C. Marin
McGarry & Simon, Esqs.by: William A. Simon, Esq. of Counsel
Andrew M. Cuomo, Attorney
Generalby: Ralph Bavaro, AAG
May 4, 2009
See also (multicaptioned
This is the decision following the trial of the claim of Jill
On the morning of July 7, 1995, Ms.
Williams, having gone out for coffee, was walking along Riverside Drive near her
home in upper Manhattan when she was struck in the leg by a bottle thrown by
Tony Joseph, a former patient at the Manhattan Psychiatric Center (MPC). Mr.
Joseph had left MPC, without authorization, nearly two years before on July 25,
MPC occupies part of Ward’s Island, which is situated in the East River
between Manhattan and Queens. Ward’s Island, besides any vehicular
access, is connected to Manhattan by a footbridge. As of July of 1993, Joseph
had been allowed outside Manhattan Psychiatric’s buildings, but required
escort by staff, i.e., he had “escorted grounds privileges.” The
grounds or yard contained a clinic, a chapel and a courtroom.
On the morning of July 25, 1993, Joseph was escorted to the chapel by therapy
aide Lydia Allen. Ms. Allen’s description of what happened is contained in
her entry to the progress notes in Joseph’s file (cl exh
Pt. was escorted to church this A.M. [with this] writer. Where he sneaked out
after he asked to use the bathroom. Safety was notified (s/o Mercado). Staff
searched the Island [with] no luck.
Pt. should be placed on L.W.O.C. at 10 pm if he does not return by then.
“L.W.O.C.” stands for leave without consent, and a patient who left
MPC without permission would be classified as either having left without consent
or escaped. When a patient escaped, the police had to be notified. Taking the
stand at trial was Dr. Joel Silbert, a clinical psychologist at Manhattan
Psychiatric from 1975 until his retirement in May of 2007, and its Director of
Quality Assurance from 1988 until 2007. Dr. Silbert stated that he did not
believe that there was a policy that required the hospital to notify the police
in the event a patient went LWOC, “but I believe that it was practiced at
the time.” He added that, “there’s no obligation for that
hospital to make . . . the notification regarding an LWOC, but occasionally
police were helpful in locating missing persons . . .”
Dr. Silbert noted that Manhattan Psychiatric, which is under the aegis of the
Office of Mental Health (OMH), is a civil psychiatric hospital, not a forensic
one. Forensic hospitals are also referred to as secure facilities, and Silbert
indicated that they are staffed differently, with security hospital treatment
aides, rather than the mental hygiene therapy aides that work at civil
hospitals. Dr. Silbert explained that:
Forensic facilities house patients who are committed under Criminal Procedure
Law [CPL] by and large. There’s some exception to that, but patients in
forensic facilities are there because either they’ve been found not guilty
by reason of insanity or mental defect of serious crimes or have been charged
with serious offenses, generally violent offenses, and have been found to lack
capacity to assist in their defense at trial and are at that facility to be
restored to capacity. Those are two criminal orders of retention. There are
also a small number of patients transferred to forensic facilities because of
their violence in the civil facility which couldn’t be managed in the
Civil hospitals have patients who are there under the Mental Hygiene Law, and
those are patients who are there voluntarily, under civil court retention, or
under a two physicians certificate. There’s a small number of patients,
who I mentioned earlier, who are retained on CPL orders of observation, but for
those patients the crimes that they’re accused of are minor crimes,
misdemeanors, and charges are dropped, and they are generally committed to civil
The two-physician certificate refers to the procedure for an involuntary
admission to a civil psychiatric facility. Mental Hygiene Law
Patients can be classified as
either on involuntary or voluntary status. Dr. Alan Tuckman, claimant’s
expert forensic psychiatrist testified that:
A voluntary patient is someone who has either signed themselves in or have been
converted subsequently to a status where they have the same obligations and
rights of an involuntary patient except, if they wish to leave the facility,
they can give a time, I believe it’s forty-eight or seventy-two hours
notice, and it is then up to the hospital to either allow them to leave or
convert them to involuntary status, and they have those days in order to do
Joseph had been admitted to MPC on a court retention order pursuant to Mental
Hygiene Law §9.33. Subsequently, Joseph was converted from involuntary to
voluntary status; claimant does not dispute the appropriateness of such
classification. In April of 1993, Joseph was granted
Ms. Williams does not dispute the determination that allowed Tony Joseph
escorted grounds privileges. But she alleges that such supervision was
negligently carried out, and that given Joseph’s history, his leaving the
Manhattan Psychiatric Center on July 25, 1993 should have been classified as an
escape, rather than a leave without consent.
The testimony at trial indicated that there were no written standards for how
to escort a patient; there was a general practice testified to by Dr. Silbert.
As for when a patient needed to use the bathroom, Silbert noted,
“Regrettably, at that period of time, I do not think that there was
specific attention on that.” Dr. Silbert added that people were sensitive
to invading a patient’s privacy, and were “very cautious about
observing a patient in the bathroom, especially when there’s a gender
difference.” But Silbert agreed that standing outside the bathroom door
was recommended policy. Dr. Tuckman testified that the therapy aide should
check the bathroom to make sure that there was not another means of egress, and
that whatever actually occurred, Ms. Allen “broke the rule” in the
way she escorted Joseph.
Ms. Allen, the therapy aide, died some time before trial; no deposition of her
was taken by claimant. Dr. Tuckman testified that Joseph had left OMH
facilities numerous times prior to July 25, 1993, but agreed that he often
returned within a day or two and that sometimes he went to his parents’
Testimony was elicited that it was relatively easy for a patient to simply walk
out of MPC and cross the bridge to Manhattan. Dr. Silbert testified as to
MPC’s lack of perimeter security, although responsibility therefor was not
developed at trial:
The footbridge is within the confines of the city park, and there was a chain
link fence separating the hospital’s campus from the city park which could
prevent people from going to the footbridge, but that fence was frequently in
Silbert indicated that no personnel were stationed at the Ward’s Island
entrance to the footbridge to keep patients from leaving the island. The
following exchange was not disputed:
Q. Would it be fair to say that in 1993 and the years, one or more, on either
side of that, patients going missing from the facility was a common
A. Yes, it was.
Joseph had a history of violence prior to the incident with Jill Williams,
– He was convicted of Attempted Assault in the Second Degree in
connection with a September 26, 1982 attack on a mother and her 16-month old
child (within a few blocks of where he attacked claimant), for which he was
sentenced to five years probation (see cl exhs 6 and 7).
– He was convicted of Assault in the Second Degree in connection with an
April 8, 1986 attack on a nurse at MPC, for which he was sentenced to two to
four years imprisonment (cl exhs 8 and
His records as a patient in OMH facilities contain a number of instances of
threatening and assaultive behavior against patients and staff. For example,
see pp. 416 & 423 (tab 1) and 759 (tab 2) of cl exh 14 for incidents in the
facility. He is consistently described in OMH records as having a history of
assaultive behavior. See, e.g., pp. 30, 39, 41 and 44 (tab 1); 681 and 690 (tab
2); and 150 (tab 4), of cl exh 14.
The classification of a missing patient is governed by §QA-520 of
OMH’s Official Policy Manual (def exh A). Page 2 of this section defines
a “Missing Patient - Escape” as “a patient who is missing and
meets one of the following criteria”:
(i) S/he is considered likely to be dangerous to self or others.
(ii) S/he is judged to be unable to care for self and is endangered.
(iii) S/he is currently committed under a court order pursuant to Criminal
Procedure Law, Correction Law, or Family Court Act; or was transferred from the
Division for Youth in accordance with Executive Law Section 517.
(iv) S/he has criminal charges pending in court and there is a warrant for
his/her arrest upon his/her release from the facility.
A patient who is missing and does not meet any of the above criteria is
classified as on “Leave Without Consent (LWOC).” With regard to the
escape criteria, Tony Joseph is not comprehended by (iii) or (iv), and no
information was submitted that he was unable to care for himself (item (ii)).
Given the evidence, there is some difficulty grasping why Joseph is not
“considered likely to be dangerous to . . . others” per item (i).
Defendant maintains that a treatment team, which included a psychiatrist, made
an evaluation that Joseph did not satisfy item (i) and is thus insulated from
second-guessing by a trier of fact.
Such conclusion, defendant argues, is based on the fact that a missing
patient cannot be classified as an escape or an LWOC without such an evaluation,
and inasmuch as Joseph’s record contains the LWOC classification, he must
have undergone a (sufficient) evaluation. However, no direct proof is supplied:
there is no documentation that he was evaluated by the treatment team, nor do we
have any testimony from a member of the treatment team to that effect. Further,
the entry by therapy aide Lydia Allen may well suggest that Joseph’s
classification was done in a pro forma manner (“Pt. should be placed on
L.W.O.C. at 10 pm if he does not return by then.”).
Assuming the LWOC classification was erroneous and/or was not made pursuant to
an evaluation, would the police have apprehended and returned him? If he had
returned even as an involuntary admission, that status readily converts to
voluntary. Claimant has a difficult hurdle to surmount because it must prove
proximate cause to implicate liability on the part of the State. Dr. Tuckman did
testify as follows:
[S]omebody like this patient, numerous psychotic episodes leading to
hospitalizations, numerous episodes of absconding from the hospital and numerous
episodes of assaults on strangers and staff, the likelihood of this man being
violent again is almost a hundred percent . . . [especially] without
supervision, without monitoring, without medication and without a support system
. . .
With that said, the failure to prevent Joseph from sneaking out of MPC on July
25, 1993 or the failure to classify such elopement as an escape does not support
a legal nexus to his assault on Ms. Williams nearly two years later. The Court
is aware of no precedent which would offer support for a finding of proximate
cause under the subject fact pattern. Compare Dunn v State of New York
29 NY2d 313, 327 NYS2d 622 (1971); Boland v State of New York
AD2d 801, 693 NYS2d 748 (3d Dept 1999); Williams v State of New York
NY 548 (1955); Haddock v City of New York
, 75 NY2d 478, 554 NYS2d 439
(1990); Steel v State of New York
, 11 AD3d 673, 782 NYS2d 924 (2d Dept
What happened to Jill Williams was dreadful and frightening. However, without
a showing of proximate cause, claimant is unable to prevail. Therefore, the
claim of Jill Williams and Leroy Williams (no. 94695) is dismissed, and the
Clerk of the Court is directed to enter judgment accordingly.
May 4, 2009
New York, New
HON. ALAN C. MARIN
Judge of the Court of Claims
. Inasmuch as her husband’s claim is
derivative, references to “claimant” or to “Williams”
denote Jill Williams.
. On the document, Tony Joseph is referred to
as “Joseph Benony,” another of several names he used at various
. “S/os” presumably means safety
. See for example, New York City Health and
Hospitals Corp. v Brian H.
, 51 AD3d 412, 857 NYS2d 530 (1st Dept
. See his entire DCJS record (“Rap
Sheet”), which is claimant’s exhibit 5.
. See also exh 14, Tab 1, pp 27 &
. Schrempf v State of New York
, 66 NY2d
289, 496 NYS2d 973 (1985); Amadon v State of New York
, 182 AD2d 955, 582
NYS2d 539 (3d Dept 1992), lv denied
81 NY2d 701, 594 NYS2d 715 (1992).
. For the Steel
facts see, Steel v
State of New York
, 6 Misc 3d 1030(A), 800 NYS2d 357 (Ct Cl 2005).