New York State Court of Claims

New York State Court of Claims
CANDELARIA v. THE STATE OF NEW YORK, # 2010-015-180, Claim No. 115671, Motion No. M-78575


Summary judgment dismissing claim alleging negligent security at SUNY New Paltz was granted. Claimant's assailant was not an intruder and defendant breached no duty to supervise students in a private dorm room

Case information

UID: 2010-015-180
Claimant short name: CANDELARIA
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 115671
Motion number(s): M-78575
Cross-motion number(s):
Claimant's attorney: Kossover Law Offices
By: Andrew Kossover, Esquire
Defendant's attorney: Hiscock & Barclay, LLP
By: David M. Cost, Esquire and Linda J. Clark, Esquire
Third-party defendant's attorney:
Signature date: October 25, 2010
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Defendant moves for summary judgment pursuant to CPLR 3212.

The claim seeks damages for injuries allegedly sustained at approximately 3:00 a.m. on October 22, 2006 when the claimant was assaulted in a dormitory room on the campus of the State University of New York (SUNY) at New Paltz (defendant's Exhibit B, Claim, 6).(1) Claimant alleges the defendant was negligent in that it "failed and omitted to provide for the proper security, management, control and operation of the aforesaid premises, and further permitted individuals who were not enrolled at SUNY New Paltz to trespass and remain inside of Bevier Hall . . ." (defendant's Exhibit B, Claim, 10). Claimant further alleges that defendant failed to provide for "proper . . . supervision and control over individuals' conduct within the institution . . ." (defendant's Exhibit B, Claim, 11).

Claimant testified at an examination before trial (defendant's Exhibit G) that he and several friends returned to his suite in Dubois Hall from a party in the early morning hours of October 22, 2006. After returning to his suite, claimant and his friend Raphael Pena agreed to accompany Elizabeth Rodriguez and an individual identified only as Yolanda, who wished to visit friends at Bevier Hall. Upon their arrival at Bevier Hall, one of the girls called a friend in the suite they were visiting who came down and let them into the building through the side door (defendant's Exhibit G, claimant's Examination Before Trial Transcript, p. 34). They entered the common area of a suite on the third floor where there were several students claimant recognized and four or five unfamiliar males. He was later informed that one of the unfamiliar males was David Antiga (defendant's Exhibit G, claimant's Examination Before Trial Transcript, p. 37). Claimant, his friends and the other individuals were socializing in the suite's common room for approximately 15 minutes when the individual later identified as David Antiga cursed at Yolanda after she rejected his advances. Her friend Elizabeth then "stepped in and came to her defense and got in his face telling him not to call my friend those names . . . At that point he got irritated and pushed - - pushed Elizabeth violently in which she fell to the floor" (defendant's Exhibit G, claimant's Examination Before Trial Transcript, p. 40). Everyone in the room, including the claimant, was telling Antiga to relax. Antiga then turned to the claimant and said "shut up before I smack you, too" (id.). Claimant stood up and told him to calm down. One of Antiga's friends held him back and claimant's friend "Ralphie" held the claimant back. As the claimant attempted to reach toward Antiga he was struck in the head from behind, fell to the floor and "blacked out" (defendant's Exhibit G, claimant's Examination Before Trial Transcript, p. 43). Claimant testified that he never struck anyone. When he opened his eyes he observed glass and blood on the floor and the group of unidentified males running from the room (defendant's Exhibit G, claimant's Examination Before Trial Transcript, p. 45). Following the altercation, the claimant left the suite and exited Bevier Hall using the same side door he had used to enter the building earlier. As he was walking back to his suite in Dubois Hall claimant observed police vehicles arriving at Bevier Hall. Claimant turned and approached the police officers, and briefly described to them the incident (defendant's Exhibit G, claimant's Examination Before Trial Transcript, p. 49-51). An ambulance was called and the claimant was taken to St. Francis Hospital where he was admitted and underwent surgery for a depressed skull fracture.

An investigation into the incident by campus police revealed that the unidentified assailants were guests of Jose Real Mohr, a resident of Bevier Hall where the incident occurred (defendant's Exhibit L, police investigation). In a signed statement containing a notice stating "[f]alse statements made herein are punishable as a Class A misdemeanor pursuant to Section 210.45 of the Penal Law (defendant's Exhibit N), Mr. Mohr states that he, his brother, his suitemates and "four guys from my neighborhood that came up with my brother" attended a party in the early hours of October 22, 2006. They left the party at approximately 3:45 a.m. and returned to campus. The group then entered Bevier Hall and went to Mr. Mohr's suite. Mohr states that there were too many people in the suite so he and two friends left to stay with friends at Dubois Hall. His brother and two others also left "to stay at a girl's room that he knew", leaving the four neighborhood friends at Mr. Mohrs' suite with his suitemates. Approximately one-half hour later, Mr. Mohr received a call from one of his suitemates telling him "to come back to the suite, that my boys were bugging out" (defendant's Exhibit N, statement of Jose Real Mohr). Upon his return to Bevier Hall he observed people running away and the claimant near the stairs bleeding and being held up by another student (defendant's Exhibit N, statement of Jose Real Mohr).

There is no dispute regarding the security measures employed at the premises. Corinna Caracci, the Director of Residence Life, indicated in both an examination before trial and an affidavit submitted in support of the motion that the SUNY New Paltz housing policy in 2006 required that all residence hall doors remain locked 24 hours per day. Each student was issued a security card which allowed them entry to their respective dormitories. Bevier Hall has a front entrance and two side entrances. Students could exit the side doors any time of day and the doors were self-locking. Ms. Caracci states that "[t]o the best of my knowledge, the locks on the doors of Bevier Hall were all functioning and in proper working order on October 22, 2006" (Caracci Affidavit, 14).

Dormitory residents were required to escort their guests into the building. Between the hours of 11:00 p.m. and 4:00 a.m. a night host was on duty who was required to sign in each guest and check their identification. After 4:00 a.m., there was no way to gain access to the building unless a guest was permitted entry by a resident. There was also a policy in place which prohibited students from permitting guests to enter dormitories through the side doors. While Ms. Caracci acknowledged during her examination before trial testimony that it was not uncommon for students to prop the side doors open, she also made clear in both her EBT and affidavit that such action was prohibited and, if discovered by a Resident Assistant (RA) or Resident Director (RD), would be reported to the Department of Resident Life "who would take the appropriate action" (Caracci affidavit, 17). Signs to this effect were posted throughout the campus. Although SUNY New Paltz considered the feasibility of utilizing alarms on the side doors of residence halls in 2006, Ms. Caracci states that "the University's Department of Environmental Health and Fire Safety would not permit it because doors are a natural egress for students. In the event of a fire emergency, students must be allowed to freely exit the building and there was no viable option at that time to alarm doors while at the same time permitting them to be an accessible exit" (Caracci Affidavit, 19). Ms. Caracci also testified that, for financial reasons, security cameras were not considered prior to 2006 (defendant's Exhibit H, Caracci examination before trial transcript, p. 43)

Resident Assistants (RAs) are employees of SUNY New Paltz and reside on each floor of the dorm. Their duties include "fostering and developing relationships among their assigned residents, planning and implementing educational, social and/or community programs for their residents, counseling, mentoring and advising their assigned residents on academic and personal questions or concerns, educating residents regarding the campus conduct system, residence hall safety and the rules . . ." (Caracci affidavit, 9). RAs are also required to make hourly rounds of residence halls to check for doors which are propped open (Caracci Affidavit, 18).

Resident Directors (RDs) are employees of SUNY New Paltz hired to manage a particular residence hall. According to Ms. Caracci, "RAs and RDs have neither the duty, nor the authority, to supervise, control or direct the day-to-day personal conduct and behavior of the students residing in their assigned residence halls" (Caracci Affidavit, 11).

In support of its motion for summary judgment, defendant argues that it has no duty to supervise students at the collegiate level and that the claimant's cause of action for negligent provision of security lacks merit. Defendant also contends that the conduct of the assailants was a superceding, intervening cause of claimant's injuries. Claimant opposes the motion, arguing that a question of fact exists regarding the adequacy of SUNY New Paltz security measures at the time of the incident.

The law is settled that "[l]andlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person" (Mason v U.E.S.S. Leasing Corp., 96 NY2d 875, 878 [2001]; see also Burgos v Aqueduct Realty Corp., 92 NY2d 544 [1998]). It is equally well-settled that "when the State acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord [citations omitted]" (Miller v State of New York , 62 NY2d 506, 511 [1984]; McEnaney v State of New York, 267 AD2d 748 [1999]). Where, as here, the State acts in both a proprietary capacity as landlord and also a governmental capacity as the provider of campus security, Miller instructs that "[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 . . . " (id. at 513, quoting Weiner v Metropolitan Transp. Auth., 55 NY2d 175, 182 [1982]). Thus, in Miller, the Court of Appeals held that "a student who is injured in a criminal assault in a State-operated college dormitory may recover damages against the State in its capacity as a landlord upon a showing that there was a reasonably foreseeable likelihood of criminal intrusion into the building, that the State negligently failed to keep the outer doors locked, and that the failure was a proximate cause of the injury" (Miller, 62 NY2d 508-509; Weitz v State of New York, 182 Misc 2d 320 [Ct Cl 1999]; cf. Price v New York City Hous. Auth., 92 NY2d 553 [1998]; Clinger v New York City Tr. Auth., 85 NY2d 957 [1995]; Bonner v City of New York, 73 NY2d 930 [1989]; McEnaney v State of New York, 267 AD2d 748 [1999]). Whether prior criminal conduct renders criminal intrusion reasonably foreseeable depends upon "the location, nature and extent of those previous criminal activities and their similarity, proximity or other relationship to the crime in question" (Jacqueline S. v City of New York, 81 NY2d 288, 295 [1993]; see also Six Anonymous Plaintiffs v Gehres, 68 AD3d 1177 [2009], lv denied 14 NY3d 710 [2010]; Jarosz v 3135 Johnson Tenant Owners Corp., 246 AD2d 488 [1998]; Barksdale v Henry, 228 AD2d 947 [1996]). Here, defendant argues not only that the assault on the claimant was nothing more than an unforeseeable, spontaneous event, but that the alleged failure to provide adequate security was not a proximate cause of the claimant's injuries.

In Burgos v Aqueduct Realty Corp. (92 NY2d 544 [1998], supra) the Court of Appeals made clear that, as with any negligence action, a plaintiff in a premises security case must establish the defendant's negligence was a proximate cause of his or her injuries. The Court stated the following in this regard:

"In premises security cases particularly, the necessary causal link between a landlord's culpable failure to provide adequate security and a tenant's injuries resulting from a criminal attack in the building can be established only if the assailant gained access to the premises through a negligently maintained entrance. Since even a fully secured entrance would not keep out another tenant, or someone allowed into the building by another tenant, plaintiff can recover only if the assailant was an intruder. Without such a requirement, landlords would be exposed to liability for virtually all criminal activity in their buildings" (Id. at 550-551; see also Venetal v City of New York, 21 AD3d 1087 [2005]; Sobers v Roth Bros. Partnership Co., 284 AD2d 324 [2001]; Weitz v State of New York, supra).

Recognizing that crime victims are often unable to identify their assailants, the Burgos Court held that an assailant's intruder status may be shown circumstantially, through the submission of proof which "renders it more likely or more reasonable than not that the assailant was an intruder who gained access to the premises through a negligently maintained entrance" (Id. at 551).

Here, the defendant established that claimant's assailants were not intruders but guests of Jose Real Mohr who lived in the suite where the assault occurred. In a statement to police, in which he acknowledged that false statements may be punishable as a Class A misdemeanor pursuant to Penal Law 210.45, Mr. Mohr indicated that the four non-student males in his suite that night came to the campus with his brother and that he permitted them to enter and remain in his suite while he visited a friend at another dormitory (defendant's Exhibit N). Rafael Pena also gave a statement to police in which he indicated, subject to Penal Law 210.45, that the unidentified males in the suite were visiting Jose Real Mohr (defendant's Exhibit O). Others present that night gave similar statements to the police confirming the fact that the unknown assailants were guests of Mr. Mohr's (defendants Exhibits O, L). Officer Mary Ritayik, an Investigator for the University Police, testified based upon her investigation that the assailants were invited guests of Mr. Mohr (defendant's Exhibit I, p. 15). While claimant correctly points out that Officer Ritayik's testimony on this point is hearsay (claimant's memorandum of law, pp. 8-9), no such objection is made to the police investigation report (defendant's Exhibit L) or the written statements of Mr. Mohr or Jose Pena which were given to police with notice that false statements were punishable as a crime pursuant to Penal Law 210.45 (see People v Sullivan, 56 NY2d 378 [1982]; Danton v Van Valkenburg, 13 AD3d 931 [2004]; Sam v Town of Rotterdam, 248 AD2d 850 [1998], lv denied 92 NY2d 804 [1998]). Defendant therefore established that the claimant's assailants were not intruders but invited guests of Mr. Mohr. Under these circumstances, it cannot be concluded that the defendant's failure to implement additional security measures was a proximate cause of the claimant's injuries. Accordingly, defendant met its burden of establishing its entitlement to judgment as a matter of law (Zuckerman v City of New York, 49 NY2d 557). In opposition to the motion, claimant failed to raise a triable issue of fact regarding whether defendant's conduct proximately caused claimant's injuries (Burgos v Aqueduct Realty Corp., 92 NY2d at 550). Claimant's counsel's assertion that "the record fails to establish with any certainty that the assailants were, in fact, guests of Jose Real Mohr" is meritless (claimant's counsel's memorandum of law, p. 8). The police investigation, which includes the statement of Mr. Mohr, sufficiently establishes the fact that the assailants were indeed guests of Mr. Mohr and nothing in the testimony of the claimant or the statements taken from his friends raises a triable issue of fact.

To the extent claimant alleges negligent supervision as a theory of recovery, New York has rejected the doctrine of in loco parentis at the college level and it is well settled that colleges have no legal duty to protect students from the dangerous proclivities of others (Eiseman v State of New York, 70 NY2d 175 [1987]; Luina v Katharine Gibbs School N.Y., Inc., 37 AD3d 555 [2007]; Ellis v Mildred Elley School, 245 AD2d 994 [1997]; Talbot v New York Inst. of Tech., 225 AD2d 611 [1996]). Moreover, "a defendant owes no duty to prevent a third party from causing harm to another unless that defendant has the authority, as well as the ability, to control that party's actions . . ." (Fay v Assignment Am., 245 AD2d 783, 784 [1997]; see also Hanna v St. Lawrence County, 34 AD3d 1146 [2006]). Insofar as claimant was assaulted behind the closed doors of a private dorm suite, the defendant breached no duty to protect him from foreseeable harm (see Camp v Loughran, 285 AD2d 483 [2001]).

Based on the foregoing, the defendant's motion for summary judgment is granted, and the claim is dismissed.

October 25, 2010

Saratoga Springs, New York


Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated July 23, 2010;
  2. Affidavit of David M. Cost sworn to July 23, 2010 with exhibits;
  3. Memorandum of Law of David M. Cost and Linda J. Clark dated July 23, 2010;
  4. Affidavit of R. Bruce McBride sworn to July 21, 2010 with exhibits;
  5. Affidavit of Corinna Caracci sworn to July 22, 2010 with exhibits;
  6. Memorandum of Law of Andrew Kossover dated August 17, 2010.
  7. Reply affidavit of David M. Cost sworn to August 18, 2010.

1. According to the claimant's examination before trial testimony, it appears the alleged assault actually occurred at approximately 4:30 a.m.