New York State Court of Claims

New York State Court of Claims
BARNETT v. THE CITY UNIVERSITY OF NEW YORK, # 2021-053-512, Claim No. 132110, Motion Nos. M-95981 M-95983

Synopsis

The State's motion for summary judgment in a claim for personal injuries arising from an assault and battery by an unnamed assailant on the campus of the CUNY College of Staten Island is granted. Claimant's motion to amend the claim to add an additional cause of action and for summary judgment is denied.

Case information

UID: 2021-053-512
Claimant(s): ADAMH BARNETT
Claimant short name: BARNETT
Footnote (claimant name) :
Defendant(s): THE CITY UNIVERSITY OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 132110
Motion number(s): M-95981
M-95983
Cross-motion number(s):
Judge: J. DAVID SAMPSON
Claimant's attorney: LAW OFFICE OF MARK HALBERSTAM
BY: Mark Halberstam, Esq.
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
BY: Cheryl Rameau, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: March 18, 2021
City: Buffalo
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

This is a claim for personal injuries arising out of an assault and battery by an unnamed assailant which occurred on November 15, 2015 near the entrance to the Dolphin Cove dormitory at the College of Staten Island (CSI), a division of the City University of New York (CUNY). Claimant alleges that CUNY negligently failed to provide proper security and failed to hire competent security staff. Defendant has moved for summary judgment (M-95981). Claimant has moved to amend the claim and for summary judgment (M-95983).(1) The parties oppose the other's motion.

Procedural History

By Decision and Order filed on September 25, 2018, this Court granted claimant permission to file and serve a late claim (Claimant's Exhibit B). In so holding, this Court refused to treat claimant's motion as one for summary judgment and simply stated in the Decision and Order that on the record before it, this Court could not "conclude that the proposed claim [was] groundless, frivolous or defective." As a result, claimant was given permission to serve and file a late claim for negligence against CUNY in its proprietary capacity only. Pretrial discovery proceeded and claimant filed a note of issue on August 30, 2019.

Factual History

Claimant was deposed on January 26, 2017 with respect to this claim (Defendant's Exhibit D). Claimant was also deposed on August 1, 2019 with respect to a Supreme Court action against Summit Security, the Security Company which provided security at CSI (Defendant's Exhibit E). Claimant testified that he was a student at CSI at the time of the incident (Defendant's Exhibit D, p. 13). Sometime between 10:30 and 10:45 p.m. on November 15, 2015, a friend drove claimant and his girlfriend off campus for dinner at a McDonalds restaurant. The friend brought claimant and his girlfriend back to the CSI campus after 11:00 p.m. and dropped them off by the sidewalk near the loop, a circular driveway in front of the Dolphin Cove dormitory (Defendant's Exhibit D, pp. 41-49).

According to claimant, vehicles entering campus at the main gate on Victory Boulevard were stopped and checked after 11:00 p.m. and non-students were not permitted on campus after that time. Claimant testified that when they returned from dinner to campus it was after 11:00 p.m., but their car was not stopped and the security bars were not down. Their car proceeded through the entrance without being stopped or checked by the two or three security guards posted at the Victory Boulevard main entrance (Defendant's Exhibit D, pp. 44-47, 113-120).

Claimant saw about 10 people in the loop when he was dropped off on campus. Among the people in the loop were the claimant's brother, his brother's three friends and two CSI students he recognized (Defendant's Exhibit D, pp. 53-57). Claimant heard voices as he got out of his friend's car. He testified that the voices were not loud or angry but were aggressive and he could tell that something was going on (Defendant's Exhibit D, p. 59). Claimant stated that he did not think it was anything serious and did not pay attention to it (Defendant's Exhibit D, p. 82).

One of the men in the loop that claimant did not recognize came over to Tmar, a friend of claimant's brother, in an aggressive manner (Defendant's Exhibit D, pp. 66-68). Claimant and his brother walked over to Tmar and claimant asked the unknown man what was going on. Claimant heard someone call his name, and then everything went black. Claimant was struck about three minutes after getting out of his friend's car. He did not see the person who struck him with what he later learned was a baseball bat (Defendant's Exhibit D, pp. 73-80).

A day or two after the assault, claimant was told by his brother and friends that there was a situation at the loop between Kia and her then boyfriend, Prince.(2) (Defendant's Exhibit D, p.83). Claimant knew Kia and Prince to be students at CSI who lived in the Dolphin Cove dormitory (Defendant's Exhibit D, pp. 54-55, 101). Claimant was told that there had been an argument between Kia and Prince and that Kia brought her brother and his friends to campus to beat up Prince (Defendant's Exhibit D, pp. 83-86). Claimant was told that Kia's brother hit him with the bat (Defendant's Exhibt D, p. 84). According to the claimant, "Kia brought her brother to campus, I guess, to beat up Prince, and what was meant for him, happened to me." (Defendant's Exhibit D, p. 86).

While in the car with his friend returning to campus, claimant testified that he saw a security car driving by (Defendant's Exhibit D, pp. 102-103). He also stated that there were always security guards in the Dolphin Cove building. In addition, there were light blue emergency phones in the area to get in touch with security (Defendant's Exhibit D, pp. 103-105).

A couple of months after the incident, claimant testified that he received a message from Kia via Facebook messenger. According to claimant, Kia said that she was sorry about what happened, that it was not meant for claimant and that she regretted it (Defendant's Exhibit D, p.107).

At his subsequent deposition with respect to the Supreme Court action, claimant testified that the assault occurred a minute or two after he got out of his friend's car upon returning to campus after dinner (Defendant's Exhibit E, p. 64). Claimant did not see anyone holding a weapon or a bat before the assault and did not call the police as he did not think it was a serious situation (Defendant's Exhibit E, p. 60, 66). Claimant did not know what time Kia's brother and his friends arrived on campus (Defendant's Exhibit E, pp. 83-84).

Michael Lederhandler, interim Director of Public Safety for CSI, was deposed on April 6, 2017. A copy of his deposition transcript was annexed to claimant's motion as Exhibit K. Mr. Lederhandler testified that CSI changed from an open to a closed campus at midnight. At midnight, the back entrance to the campus closed and the main campus entrance from Victory Boulevard remained open but was guarded by a long rectangular bar, and was monitored by on-duty security officers and security cameras. Before midnight, no one was stopped from entering the campus. (Claimant's Exhibit K, pp. 17-27).

Inside each of the CSI dormitories was an assigned security officer . Multiple emergency blue light poles capable of contacting emergency assistance were installed across the CSI campus. In addition, two security cars patrolled the campus on a 24 hour basis and at least two on-foot officers patrolled the campus. (Claimant's Exhibit K, pp. 17, 45-48). Three hundred security cameras were installed across campus, although they were not constantly monitored. According to Mr. Lederhandler, an individual CSI security officer monitored 12 screens, while the other cameras were recording. Among his duties, the officer assigned to the safety office had to dispatch officers, keep a patrol log and advise officers when to go on breaks, in addition to monitoring the 12 screens. (Claimant's Exhibit K, pp. 31-37). Mr. Lederhandler did not believe that the CSI security officer assigned to the public safety office would have seen the video of the assault as the incident was not reported that way. (Claimant's Exhibit K, p. 38).

Kevin Erwin, an employee of Summit Security was deposed in the Supreme Court action on February 13, 2020. Summit Security was the private security company hired by the defendant to service CSI (see p. 7 of the supporting affidavit of claimant's counsel, Mark Halberstam, Esq.). A copy of the transcript from Mr. Erwin's deposition was annexed to Claimant's motion as Exhibit L. Mr. Erwin testified that CSI was an open campus until midnight in November of 2015. At midnight, the security gate was lowered and identification had to be shown thereafter to gain access to campus (Claimant's Exhibit L, pp. 22, 30-33, 39). Summit Security guards were stationed inside the dormitory buildings. In addition to Summit, CSI had its own security police (Claimant's Exhibit L, p. 27).

According to Mr. Erwin, there were cameras at the main gate which were monitored by CUNY from the safety control room (Claimant's Exhibit L, p. 42). In addition, Mr. Erwin testified that CUNY employees drove around campus and patrolled the area (Claimant's Exhibit L, p. 63).

A photograph of a sign located by the Forest Hill entrance to CSI was attached to defendant's motion as Exhibit H. This sign indicates that the CSI campus is open from 6:30 a.m. until 12:00 a.m. (midnight). Annexed as defendant's Exhibit I is a Department of Public Health memo outlining procedures for security and access to college facilities, for guests and for emergency phones. In addition, an incident narrative was provided as claimant's Exhibit H, video tape screenshots were provided as claimant's Exhibit F, and a video of the incident was provided as defendant's Exhibit K.

Decision and Law

Summary judgment is a drastic remedy which will only be granted where the moving party establishes that there are no triable issues of fact (Vega v Restani Constr. Corp., 18 NY3d 499 [2012]). The proponent of a summary judgment motion must present facts in evidentiary form sufficient to establish its right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). If the proponent of the motion fails to make a prima facie showing of entitlement to summary judgment, its motion must be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., supra at 324). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a triable issue of fact. (Alvarez v. Prospect Hosp., supra at 324; Zuckerman v City of New York, supra at 562.). In deciding a summary judgment motion, the Court must view the evidence in a light most favorable to the non-moving party (Haymon v Pettit, 9 NY3d 324 [2007]).

In his claim (Claimant's Exhibit A), claimant alleges that the defendant was negligent: (a) in failing to properly safeguard the accident site premises; (b) in failing to secure appropriate security checks for persons entering the accident site premises; (c) in failing to properly screen the entrance to the accident site premises; (d) in failing to place appropriate employees in and about the accident site premises so as to provide protection to the claimant and other persons lawfully at the accident site premises; (e) in failing to prevent the assault to the claimant; (f) in employing incompetent, irresponsible and unskilled personnel and failing to hire such personnel as to provide sufficient protection for persons lawfully at the accident site premises, including the claimant, and for being otherwise negligent. In his bill of particulars, claimant adds that the defendant was otherwise negligent in its security procedures (Claimant's Exhibit E).

Claimant attaches to his motion papers the expert report of Richard T. Bourne, sworn to on August 16, 2017. In this report, Mr. Bourne made the following findings; (1) that CUNY had a duty to properly vet vehicles entering the campus and failed to do so; (2) that CUNY had a duty to reasonably monitor individuals entering the campus; and (3) that CUNY had a duty to train individuals how to reasonably monitor cameras in the area of the loop by the Dolphin Cove dormitory.

A college such as CSI does not guarantee the safety of students on its campus and a claimant may not recover on a theory that the college is in loco parentis. Generally, colleges have no legal duty to protect their students from the dangerous activities of others (Eiseman v State of New York, 70 NY2d 175, 190 [1987]). Thus, insofar as the claim can be read as attempting to allege a cause of action based on the theory of in loco parentis, it has no merit.

The allegations in the claim, in claimant's bill of particulars, and in claimant's expert report all allege that the defendant failed to provide adequate security on the CSI campus. The provision of security, including campus security, against physical attacks by third parties is a governmental function pursuant to the general police powers (Applewhite v Accuhealth, Inc., 21 NY3d 420 [2013]; Bonner v City of New York, 73 NY2d 930 [1989]). In this area, defendant remains immune from negligence claims absent the existence of a special relationship between the injured claimant and the defendant State (Sebastian v State of New York, 93 NY2d 790 [1999]). In the affirmation in opposition to defendant's summary judgment motion, claimant's counsel states that the claimant "is not in any shape, way or form alleging a 'special duty'." (Affirmation of Mark Halberstam, Esq. at p. 6). Thus, insofar as the allegations in the claim assert a lack of or inadequate campus security, these causes of action must be dismissed.

Claimant, however, argues that his position is that the defendant was negligent in its proprietary capacity as dorm/campus landlord and accordingly no special duty between the State and the claimant is necessary. Indeed, in this Court's prior decision, claimant was given permission to file and serve a late claim against CUNY in its proprietary capacity only.

As this Court pointed out in its prior decision, the Court of Appeals has stated that "a student who is injured in a criminal assault . . . may recover against the state in its capacity as a landlord" (Miller v State of New York, 62 NY2d 506 [1984]). Landlords have a common law duty to take minimum precautions to protect their tenants from foreseeable harm, which would include a third party's foreseeable criminal conduct. In order to recover from the State as a landlord, it must be shown that the criminal activity was foreseeable and that the State's negligence was a proximate cause of the injury (Burgos v Aqueduct Realty Corp., 92 NY2d 544 [1998]). In a premises security claim, since even a fully secured entranceway would not keep out another tenant or someone allowed in by another tenant, claimant can only recover where the assailant was an intruder who gained entrance to the premises through a negligently maintained entrance (Id. at 550-551).

The State may not be held liable in every circumstance in which a landlord could be found liable. Claims against the State which arise out of its ownership of land must be scrutinized carefully to determine where the State's conduct falls along the "continuum of responsibility" between its proprietary and governmental responsibilities (Miller, supra at 511). Thus, in Miller, where a State University of New York college student was raped by an intruder who entered her dormitory through an unlocked door, the Court of Appeals held that the State's failure to provide locked dorm doors fell within its proprietary function as a landlord.

In an attempt to bring the facts of this case within the defendant's proprietary responsibilities, claimant appears to argue that the assailant was an intruder who entered the campus through a negligently maintained entrance. This argument was apparently based on claimant's testimony that the campus closed at 11:00 p.m. and that the assailant must have entered campus after it was closed without being stopped or vetted. The facts, however, do not support this argument. Here, there is no evidence that the assailant was an intruder. In fact, while the assailant has not been identified, the only evidence, albeit hearsay, was that the assailant was either a student at CSI or a friend of a student. Moreover, the evidence established that the campus closed at midnight and not at 11:00 p.m. and there is no evidence to establish how the assailant got onto campus or at what time. According to claimant, the incident occurred at around 11:30 or 11:45 p.m., before the campus closed, and so all of the testimony or speculation that the assailant must have been allowed onto campus after it closed without being stopped or checked is not competent. This Court finds that CSI's decision when to close its campus and what procedures to use to check-in students and visitors before or after the campus is closed, together with its decision of how many security personnel to maintain, where to position cameras or emergency phones, and/or how to train its security personnel to view 300 campus cameras simultaneously, all involve the provision of security which is a governmental function involving policymaking and is akin to police protection. As a result, no liability can arise from the performance of such a function absent a special duty, which admittedly does not exist in this claim (see Bonner v City of New York, 73 NY2d 930 [1989]).(3)

Finally, claimant moves for permission to amend the claim to add a new theory of liability. Pursuant to CPLR 3025 (b), a party may amend or supplement a pleading "by setting forth additional or subsequent transactions or occurrences, at any time by leave of court." Leave to amend under CPLR 3025 (b) should be freely given "unless the proposed amendment would unfairly prejudice or surprise the opposing party, or is palpably insufficient or patently devoid of merit" (Maldonado v Newport Gardens, Inc., 91 AD3d 731 [2d Dept 2012]).

The only notable difference between the claim (Claimant's Exhibit A) and the proposed amended claim (Claimant's Exhibit C) is the addition of a new subsection (e) to paragraph 3 of the claim to add the allegation that the defendant was negligent "by seeing or being able to see via video monitors linked to surveillance cameras focused on the location of claimant's assault, said assault upon claimant and injuries resulting therefrom being inflicted and unreasonably failing to summon aid although it could have been done without risk to themselves . . . ".

The additional language in the proposed amended claim is based on the Court of Appeals decision in Crosland v New York City Tr. Auth., 68 NY2d 165 (1986). In Crosland, the Court of Appeals affirmed the lower court's denial of the Transit Authorities' motion for summary judgment on the grounds that the failure of defendant's subway system employees to summon help while watching from a position of safety a passenger being beaten to death, was beyond the boundary of governmental immunity. In footnote 1 of Kircher v City of Jamestown, 74 NY2d 251 (1989), however, the Court of Appeals specifically noted that in Crosland, it was addressing the standard of care owed by a publically owned common carrier to its passengers in Crosland, and concluded that while the transit authority owed no special duty to the passenger, it could be held liable for its employees' negligent failure to summon aid while a passenger was fatally assaulted. The Court of Appeals in Kircher noted that Crosland had no application therein where, like the present case, claimant was attempting to hold defendant liable for the negligent exercise of a governmental function requiring the existence of a special relationship between the injured party and the municipality.

Here, claimant argues that defendant's own security personnel were doing other things rather than monitoring the video screens and were thus not able to come to the rescue of claimant until after he had been beaten. The facts in Crosland, however, are distinguishable from the facts in the present claim. At footnote 2 of the Crosland decision, the Court of Appeals noted that the Transit Authorities' motion for summary judgment was in essence one to dismiss for failure to state a claim as issue had not been joined when the motion was made. By denying the Transit Authorities' motion, the Court of Appeals was giving the plaintiff the opportunity to proceed with discovery to determine if the allegations had merit. Here, discovery is complete as claimant filed his note of issue on August 30, 2019, thereby declaring that no further discovery was needed.

In order to understand the application of the facts in Crosland, it is necessary to review not only the Court of Appeals' decision but the decision of the lower court (see Crosland v New York City Tr. Auth., 110 AD2d 148 [2d Dept 1985]). In Crosland, the Appellate Division noted that claimant and several classmates had walked to a nearby subway station between 8:00 and 11:00 p.m. following a concert in Manhattan. They took the local subway one stop and waited at the next stop for an express train. While waiting for an express train, claimant and his classmates were assaulted by members of a youth gang who were armed with bats, tire irons, chains and other weapons in plain view. The plaintiff died later as a result of the injuries he received during the assault. In Crosland, there were allegations that students in the area were being harassed by area youth gangs; that there were no token booth clerks in their assigned booths as they had abandoned their posts; that there were employees working on the tracks in view of the subway platform who ignored the attack; that another token booth employee in a far-off booth ignored the situation; and that two express trains entered, stopped at and departed from the station before the attack was reported (Id at 149-151).

In essence, the allegations in Crosland were that the claimant was beaten to death by a gang over an extended period of time while the Transit Authorities' employees watched and failed to act. Here, in a matter of seconds, the claimant was approached from behind and immediately struck once with a baseball bat. He was not assaulted by a gang or an intruder. In fact, it appears more likely than not, that claimant's assailant was either a student at CSI or a friend of a student, who had entered campus before midnight when the campus closed. In addition, while the assault was caught on video (Defendant's Exhibit K), there is no evidence that the video of the assault was on one of the 12 monitors in the public safety office or that the CSI security officer in the public safety office was watching the monitors at the exact moment claimant was struck by the bat. According to claimant's deposition testimony, only one to three minutes elapsed between the time he was dropped off at the loop and the assault. In the videotape of the assault (Defendant's Exhibit K), only about 10 seconds elapsed from the time the claimant is first seen on the tape until the assault. Moreover, claimant stated that he never saw a bat or any weapon before the assault and never thought that there was a serious situation. If claimant, who was in the middle of the occurrence did not think it was a serious situation, how would a security guard have viewed it any differently? Even if it is assumed that a security guard viewed these students on a monitor in real time, there is no reasonable basis to conclude that in the one to three minutes after claimant's arrival on campus that a security guard viewing these students should have anticipated that the assault of claimant was about to occur.

Based on a comparison of the facts in Crosland and the facts in the present claim, the Court concludes that an additional cause of action based on Crosland has no merit in the present claim. In addition, defendant would be prejudiced if the claimant were allowed to add this new cause of action as discovery has been completed and a note of issue filed. Finally, the Court of Appeals decision in Crosland was decided in 1986, long before the assault in the present claim occurred. Claimant offers no excuse as to why he waited until after discovery had been completed before surprising defendant with a new cause of action based on Crosland. This Court, therefore, denies claimant's motion to amend its claim to assert a cause of action based on the Crosland decision as alleged in paragraph 3 (e) of the proposed amended claim.

In summary, claimant's motion no. M-95983 to amend the claim and for summary judgment is denied and defendant's motion no. M-95981 for summary judgment is granted and claim no. 132110 is dismissed.

March 18, 2021

Buffalo, New York

J. DAVID SAMPSON

Judge of the Court of Claims

The following were read and considered by the Court:

1. Notice of defendant's motion no. M-95981 and supporting affirmation of Assistant Attorney General Cheryl Rameau dated October 7, 2020, with annexed Exhibits A-L;

2. Notice of claimant's motion no. M-95983 and supporting affirmation of Mark Halberstam, Esq. dated October 7, 2020, with annexed Exhibits A-N;

3. Affidavit of claimant's expert, Richard T. Bourne sworn to August 16, 2017;

4. Claimant's memorandum of law dated October 7, 2020;

5. Affirmation of Assistant Attorney General Cheryl Rameau in opposition to claimant's motion, dated October 21, 2020;

6. Affirmation of Mark Halberstam, Esq. in opposition to defendant's motion for summary judgment dated October 21, 2020; and

7. Affirmation of Mark Halberstam, Esq. in reply to defendant's opposition to claimant's motion for summary judgment, dated October 26, 2020.


1. Normally, claimant's motion, as the second motion filed, would have been designated as a cross motion. However, both motions were received and filed on the same day.

2. In the deposition transcripts from claimant's depositions in this claim and in the Supreme Court action, Kia is spelled Qia, Kia and Kiaa. This Court will refer to her as Kia.

3. The Court questions whether claimant has properly asserted a cause of action for negligent training. Generally, when an employee is acting within the scope of his or her employment, the employer is liable for the employee's negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent training (see Passucci v Home Depot, Inc., 67 AD3d 1470 [4th Dept 2009]). Here, there is no evidence that any particular State employee failed to follow any particular State directive or training or that any such failure was a proximate cause of the assault on claimant.