Defendant moved for dismissal on the ground the time limitations period for intentional conduct barred the claim and, in addition, the State was immune from liability. The motion was denied as the claim was one for negligent selection of a contractor, not intentional conduct, and the State was not immune from liability in the selection of housing for its college students.
|Claimant short name:||TARCHER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Max D. Leifer, Esquire
Law Offices of Max D. Leifer, P.C.
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Joan Matalavage, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 13, 2010|
|See also (multicaptioned case)|
Defendant moves for dismissal of the claim pursuant to CPLR 3211 (a) (2), (5) and (7) and for summary judgment pursuant to CPLR 3212.
Claimant allegedly suffered personal injuries on August 6, 2007 when she was pushed down stairs by the owner or manager of a premises located in Montpellier, France. According to the claim served and filed on August 5, 2009, at the time of the incident claimant was allegedly "a registered participant in a program conducted by SUNY and/or SUNY ALBANY for certain of its students
. . . in or about Montpellier, France" (defendant's Exhibit B, Claim, ¶ 5). The claim further alleges that the State University of New York (SUNY) and/or SUNY Albany "retained a business entity IML to operate the program" (defendant's Exhibit B, Claim, ¶ 6) and that "[i]n participating in said program, Claimant was assigned by SUNY and /or SUNY Albany and/or IML or its agents and employees, to reside at premises located at 17 Rue des Seychelles, Montpellier, France, 34080 (the 'PREMISES')" (defendant's Exhibit B, Claim, ¶ 7). The claim alleges the defendant, its agents and employees, were negligent in "failing to properly monitor and manage the program attended by Claimant, failing to properly investigate and retain a company to correctly manage said program, allowing the Claimant to be placed in an unsafe residence and failing to investigate the owner and/or manager of the residence where Claimant was pushed down the stairs" (defendant's Exhibit B, Claim, ¶ 11).
In its answer to the claim, defendant admitted a notice of intention to file a claim was served personally on November 2, 2007. It argues initially, however, that the failure to serve and file the claim within one year of its accrual mandates dismissal. Defendant contends in this regard that claimant's cause of action is one for assault, which is controlled by the one-year statute of limitations set forth in CPLR 215 and the limitations period applicable to intentional torts set forth in Court of Claims Act § 10 (3-b). However, this argument mischaracterizes the allegations in the claim, which allege only negligence in the operation and management of the SUNY study abroad program. Negligence claims are controlled by Court of Claims Act § 10 (3) and the three-year statute of limitations set forth in CPLR 214. Court of Claims Act § 10 (3) permits the filing and service of a claim within two years following the date of its accrual upon timely service of a notice of intention to file a claim. A notice of intention having admittedly been served on November 2, 2007, the claim filed and served on August 5, 2009 is timely under both CPLR 214 and Court of Claims Act § 10 .(1)
Defendant next argues that to the extent claimant alleges a negligence cause of action, it owed the claimant "no duty under the fact pattern alleged", citing, inter alia, Eiseman v State of New York (70 NY2d 175 ) (affidavit of Joan Matalavage sworn to August 19, 2010, ¶ 6). In Eiseman, the Court of Appeals rejected the notion that colleges stand in loco parentis relative to their adult students and, therefore, concluded that colleges have no duty to shield students from the dangerous activity of other students (see also Ellis v Mildred Elley School, 245 AD2d 994 ). Here, claimant does not allege the defendant was negligent in the supervision of its students, but in the investigation and provision of safe housing for its students enrolled in the studies abroad program. The law is 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" (Miller v State of New York, 62 NY2d 506, 511 ; see also Preston v State of New York, 59 NY2d 997, 998 ). Although claimant does not allege the defendant owned the premises where this incident allegedly occurred, she does allege that defendant or a company on its behalf selected the premises where she was to reside and was negligent "in allowing the Claimant to be placed in an unsafe residence and failing to investigate the owner and/or manager of the residence where Claimant was pushed down the stairs" (defendant's Exhibit B, Claim, ¶ 11). Affording the claimant as the non-moving party the benefit of every favorable inference (Beneke v Town of Santa Clara, 28 AD3d 998, 999 ), the claim states a cause of action for the negligent selection and supervision of an independent contractor to provide housing for its students in the study abroad program.
While it is the general rule that "a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor's negligent acts", the many exceptions to this rule include the "negligence of the employer in selecting, instructing or supervising the contractor" (Kleeman v Rheingold, 81 NY2d 270, 274 ; Chainani v Board of Educ. of City of N.Y., 87 NY2d 370 ; Chuchuca v Chuchuca, 67 AD3d 948 ; Liberty Mut. Fire Ins. Co. v Akindele, 65 AD3d 673 ). To hold a party liable on a theory of negligent selection, it must be shown that " 'the party knew or should have known of the contractor's propensity for the conduct which caused the injury' " (Schiffer v Sunrise Removal, Inc., 62 AD3d 776, 779 , quoting Bellere v Gerics, 304 AD2d 687, 688 ; Sato v Correa, 272 AD2d 389, 389 ). The proof submitted in support of the defendant's motion, consisting of only an attorney's affidavit and the pleadings, failed to refute or even address the claimant's allegations of negligent selection and investigation (cf. Ernest L. v Charlton School, 30 AD3d 649 ; Travis v United Health Servs. Hosps., Inc., 23 AD3d 884 ; Honohan v Martin's Food of S. Burlington, 255 AD2d 627 ).
Claimant's affidavit submitted in opposition to the motion indicates that the "study abroad program is offered directly through the State University of New York . . . by publication in the annual catalogue of courses" and that "the location where [she] was caused to fall was a home selected directly through the SUNY program" (affidavit of Alessandra Tarcher sworn to September 12, 2010, ¶ 4). Defendant's submission of the affidavit of James Pasquill in reply, indicating that claimant was a student at Montpellier University and that "[t]he University at Albany did not choose Claimant Tarcher's home stay provider . . . in France" serves only to raise disputed issues of fact for trial.
To the extent defendant contends that it is immune from liability for the performance of a governmental function, as set forth above, it has long been held that in providing housing for its students, State universities or colleges act in a proprietary, not a governmental capacity (see Miller v State of New York, supra). In determining whether conduct is proprietary or governmental, Courts must examine " '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' " (Id. at 513, quoting Weiner v Metropolitan Transp. Auth., 55 NY2d 175, 182 ). Here, unlike the facts in McEnaney v State of New York (267 AD2d 748 ) relied upon by the defendant, claimant does not allege the failure to provide adequate police protection, a quintessential governmental function, but the failure to properly investigate and provide appropriate housing for its students in the travel abroad program. The State, acting in its proprietary capacity as landlord or purveyor of housing for its students abroad, is subject to the same principles of tort law as a private individual. Accepting the facts as alleged in the claim as true, and according claimant the benefit of every possible favorable inference, the claim states a cause of action for which the State may be found liable (Leon v Martinez, 84 NY2d 83, 87-88 ; see also Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 ).
In summary, defendant failed to meet its burden of establishing its prima facie entitlement to summary judgment (Alvarez v Prospect Hosp., 68 NY2d 320 ), or any other basis for dismissal of the claim. The characterization of the claim as one for intentional assault is misplaced in light of the allegations in the claim, which assert only a negligence cause of action. Defendant's additional contention that it does not stand in loco parentis to its adult students and therefore owed no duty to the claimant similarly overlooks the nature of the claim, which alleges the defendant was negligent in failing to properly investigate and select housing accommodations for its students in the study abroad program. Lastly, defendant's argument that the provision of safe housing for its students is a governmental function for which it remains immune from tort liability is simply incorrect based on well-settled case law which holds otherwise (see Miller v State of New York, supra).
Accordingly, defendant's motion for dismissal of the claim is denied.
December 13, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. In any event, no defense was raised in the defendant's answer to the claim regarding the time limitations set forth in Court of Claims Act § 10, resulting in waiver of this defense (Court of Claims Act § 11 [c]).