Defendant's motion to dismiss negligence claim in lieu of answer, pursuant to CPLR 3211 (a) (2) and (7), on the respective grounds that the Court lacks subject matter jurisdiction over the claim as to non-state defendants and because the claim fails to state a cause of action, is granted.
|Claimant(s):||ATLEE SWANSON, as sister of the deceased Grant Swanson, and SHERENA WILLIAMS, as daughter of the deceased Grant Swanson, each Individually, and, each as Adminitratrix of the Estate of GRANT SWANSON (deceased)|
|Claimant short name:||SWANSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption is amended to state the proper defendant.|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||DRUMMOND & SQUILLACE, PLLC
By: Joann Squillace, Esq.
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
New York State Attorney General
By: Paul F. Cagino, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 11, 2018|
|See also (multicaptioned case)|
Defendant moves, in lieu of answering, to dismiss the claim pursuant to CPLR 3211 (a) (2) and (a) (7) because the Court lacks subject matter jurisdiction over the named defendants, other than the State of New York, and because the claim fails to state a cause of action against the State of New York. Claimants oppose the defendant's motion.
The claim names as defendants: The State of New York and certain of its agencies, a state employee "[i]ndividually and in her official capacity as a New York State Parole Officer," the City of New York and certain of its agencies, and numerous "John Does" and "Jane Does" employees, agents, licensees and independent contractors of the State of New York and the City of New York.
The claim essentially sounds in negligence, medical malpractice and wrongful death and alleges that claimants' decedent died while in the custody of the New York City Department of Corrections (NYCDOC) on January 30, 2018.
The claim alleges that claimants' decedent was incarcerated at NYCDOC from May 2017 to December 28, 2017, when claimant was released from the NYCDOC to the parole supervision of the New York State Department of Corrections and Community Services (NYSDOCCS), for the period from December 28, 2017 through January 25, 2018.
The claim further alleges that claimants' decedent was re-arrested on January 25, 2018 on a parole violation, was returned to the custody of NYCDOC and died at New York Presbyterian Hospital on January 30, 2018 while in the custody of NYCDOC.
The sum and substance of the allegations against the State of New York and its agencies and employees is that between December 28, 2017 and January 25, 2018, while claimants' decedent was subject to parole supervision, defendant "failed to properly, adequate [sic] and timely supervise, monitor, place and/or assist [claimants' decedent] as their parolee despite knowing that he suffered from and needed assistance and/or medical and mental health care for his serious medical and mental health conditions" and "failed to properly and timely place/transfer/escort [claimants' decedent] to a shelter, to a nursing home, to a psychiatric facility and/or to a hospital."
The Court lacks subject matter jurisdiction over the named defendants except for the State of New York. The Court of Claims is a court of limited jurisdiction, charged with "exclusive jurisdiction over actions for money damages against the state," based upon the acts or omissions of its agencies or employees, where the State is the real party in interest (Monreal v New York State Dept. of Health, 38 AD3d 1118, 1119 [3d Dept 2007]; Woodward v State of New York, 23 AD3d 852, 855-856 , lv dismissed 6 NY3d 807 ; Palmer v State of New York, 59 AD2d 976, 977 [3d Dept 1977], appeal denied 43 NY2d 648 ; NY Const., Art. VI, § 9; Court of Claims Act § 9).
Defendant New York State Parole Officer Toya Williams is not a proper defendant in the Court of Claims: "A suit against a State officer will be held to be one which is really asserted against the State when it arises from actions or determinations of the officer made in his or her official role and involves rights asserted, not against the officer individually, but solely against the State" (Morell v Balasubramanian, 70 NY2d 297, 301 ).
The Court lacks subject matter jurisdiction over the claim to the extent it alleges tortious acts by the City of New York and its agencies and employees (Whitmore v State of New York, 55 AD2d 745, 746 [3d Dept 1976], lv denied 42 NY2d 810 ).
Next, in reviewing a motion brought pursuant to CPLR 3211 (a) (7) alleging failure to state a cause of action, the court should determine "whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 ).
The claim fails to state a cause of action against the State of New York because the claim fails to allege facts showing that defendant owed a cognizable legal duty of care to claimants' decedent sufficient to support the claim's negligence-based causes of action.
"To establish a prima facie case of negligence, the [claimant] is required to demonstrate that the defendant owed a duty to him or her, that the defendant breached that duty and that such breach was a proximate cause of the injuries sustained" (Evarts v Pyro Engineering, Inc., 117 AD3d 1148, 1150 [3d Dept 2014]). In Di Ponzio v Riordan (89 NY2d 578, 583 ), the court reminded that "[t]he existence and scope of an alleged tortfeasor's duty is, in the first instance, a legal question for determination by the court."
Valdez v City of New York (18 NY3d 69, 75 ), explains that where a "case involves . . . a classic governmental, rather than proprietary, function . . . [it is a] fundamental obligation of a [claimant] pursuing a negligence cause of action to prove that the putative defendant owed a duty of care."
The defendant's statutory and regulatory mandate to supervise and assist parolees (see Correction Law Article 8; 9 NYCRR 8000.1) is a governmental function for which the state owes no actionable duty of care to any particular person or entity (Lodge-Stewart v State of New York, 45 AD3d 939, 940 [3d Dept 2007]; Davis v State of New York, 257 AD2d 112 [3d Dept 1999]; Ruotolo v State of New York, 157 AD2d 452 [1st Dept 1990]).
The State of New York was under no actionable negligence-based duty to provide, require or insure, that claimants' decedent receive medical or psychiatric care while claimants' decedent was subject to the State of New York's parole supervision, but not incarcerated (see Gress v State of New York, 157 AD2d 479 [1st Dept 1990]).
Lauer v City of New York (95 NY2d 95, 100 ), states this principle succinctly: "To sustain liability against a municipality, the duty breached must be more than that owed the public generally."
In McLean v The City of New York (12 NY3d 194, 203 ), the Court of Appeals recited the law as to the state's duty of care with respect to the negligent performance of a governmental function:
"Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general."
McLean (12 NY3d at 203) mandates that the discretionary decisions of the defendant as to the monitoring and supervision of claimant while on parole "may not be a basis for liability" and the claim fails to state a cause of action in that respect.
Claimant's argument that the alleged failure of NYSDOCCS to "escort the claimants' decedent to a shelter, nursing home, psychiatric facility and/or hospital for placement and/or treatment" states a ministerial negligence cause of action fails. McLean (12 NY3d at 203), and subsequent case law, demand that, in a ministerial negligence cause of action, the claimant plead facts tending to show that the decedent was owed a special duty by defendant (see Applewhite v Accuhealth, Inc., 21 N.Y.3d 420 ; Metz v State of New York, 20 NY3d 175 ; Valdez v City of New York, 18 NY3d 69 ).
A "[special] duty is born of a special relationship between the [claimant] and the governmental entity. When such a relationship is shown--and it is [claimant's] burden to establish it--the government is under a duty to exercise reasonable care toward the [claimant]" (Pelaez v Seide, 2 NY3d 186, 198-199 ). The Pelaez opinion explains that a "special relationship can be formed in three ways: (1) when the [defendant] violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the [defendant] assumes positive direction and control in the face of a known, blatant and dangerous safety violation" (Pelaez, 2 NY3d at 199-200 [2004).
Claimant has not alleged facts to show the existence of "a special relationship" between defendant and the decedent as required by Pelaez.
Claimants' decedent was owed no negligence-based duty or "special duty" by defendant. Because neither the parole officer nor the State of New York owed any actionable negligence-based duty of care to claimants' decedent, the claim states no cause of action sounding in negligent hiring, training or supervision of the parole officer (Cotter v Summit Sec. Servs., Inc., 14 AD3d 475 [2d Dept 2005]).
With respect to claimant's cause of action asserting defendant's alleged federal constitutional violations, the law is settled that "claims for damages against the State based on alleged deprivations of rights under the US Constitution are beyond the jurisdiction of the Court of Claims" (Shelton v New York State Liquor Authority, 61 AD3d 1145, 1151 [3d Dept 2009]; see Flemming v State of New York, 120 AD3d 848, 849 [3d Dept 2014]).
Defendant's motion to dismiss the claim is granted. The claim is dismissed.
December 11, 2018
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Defendant's Notice of Motion to Dismiss in Lieu of Answer, filed September 11, 2018;
2. Affirmation of Paul F. Cagino, dated September 11, 2018, and attached exhibit;
3. Affirmation in Opposition of Joann Squillace, dated October 19, 2018, and attached exhibits.