State's Motion to Dismiss Claim on the basis of governmental function immunity granted.
|Claimant short name:||VONGPHAKDY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Bosman Law Firm, LLC
By: A.J. Bosman, Esq.
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Belinda A. Wagner, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||March 13, 2018|
|See also (multicaptioned case)|
For the reasons set forth below, Defendant's Motion for summary judgment dismissing the Claim pursuant to CPLR 3212 is granted.
The Claim, which was filed in the office of the Clerk of the Court on September 2, 2014, alleges that:
2. … Claimant was subjected to cruel and inhuman treatment while in the custody of the Capital District Secure Juvenile Detention Center where Claimant was placed by the Oneida County Department of Social Services. Inter alia, Claimant was denied access to such things as food and an adequate mattress and mental health services; denied reasonable and timely access to the bathroom … cursed at when seeking assistance; punished for seeking assistance; locked in a room without [his] consent; subjected to numerous acts of fear and intimidation including children being unnecessarily restrained, assaulted and battered by staff …Claimant was made to wash the bathrooms that were urine coated which caused a laceration and infection in a finger.
3. The State of New York was negligent in failing to provide proper oversight of said Detention Center and/or adopt and/or implement appropriate policy to safeguard against abuses. Additionally, The State of New York was negligent in that it knew or should have known of the absence of services and the abuses of said Detention Center against the children confined therein and placed Claimant at said facility and failed to take corrective action.
4. The items of damage and injuries claimed include: humiliation and embarrassment, fear, dread, emotional distress, anxiety, headaches, nausea, etc., and loss of enjoyment of life.
Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 ; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 ; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 ). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., supra at 324; see Winegrad v New York Univ. Med. Center, supra at 853).
In determining whether Claimant may assert a negligence Claim against Defendant, the first issue for the Court to decide is whether Defendant "was engaged in a proprietary function or acted in a governmental capacity at the time [that] the claim arose" (Tara N.P. v Western Suffolk Bd. of Coop. Educ. Servs., 28 NY3d 709, 713 , quoting Applewhite v Accuhealth, Inc., 21 NY3d 420, 425; see Turturro v City of New York, 28 NY3d 469, 477 ; T.T. v State of New York, 151 AD3d 1345, 1346 [3d Dept 2017]). If Defendant was engaged in a proprietary function - that is, activities that "essentially substitute for or supplement 'traditionally private enterprises' " - it is subject to suit under ordinary negligence principles applicable to non-governmental actors (Sebastian v State of New York, 93 NY2d 790, 793 , quoting Riss v City of New York, 22 NY2d 579, 581; T.T. v State of New York, supra at 1346; see Drever v State of New York, 134 AD3d 19, 22 [3d Dept 2015]). However, if Defendant's actions were " 'undertaken for the protection and safety of the public pursuant to the general police powers,' " they are deemed governmental and Defendant may be subject to suit only if it owed a special duty to Claimant and if the governmental function immunity defense does not apply (Applewhite v Accuhealth, Inc., supra at 425, quoting Sebastian v State of New York, supra at 793; Tara N.P. v Western Suffolk Bd. of Coop. Educ. Servs, supra at 713; T.T. v State of New York, supra at 1346).
Claimant's negligence claims focus on the manner in which Defendant oversaw the care and treatment that the Capital District Secure Juvenile Detention Center (hereinafter, "Detention Center") provided to Claimant and the adequacy of Defendant's enforcement of regulatory provisions. Similar issues were at the core of T.T. v State of New York (supra at 1346). Moreover, and just recently, the Court of Appeals reiterated that one example of a governmental function attributed to the general police power is the "oversight of juvenile delinquents" (Connolly v Long Island Power Authority, _ NY3d _ , 2018 WL 942321 [concurring opinion at *5]; see Applewhite v Accuhealth, Inc., supra at 426). Thus, the Court concludes that the actions, or inactions, at issue were governmental in nature (see T.T. v State of New York, supra at 1347).
As the Court has found that Defendant was acting in a governmental capacity in overseeing and/or regulating the Detention Center, the Court's next inquiry, as stated by the Court of Appeals in Tara N.P. v Western Suffolk Bd. of Coop. Educ. Servs. (supra at 714):
"focuses on [whether] the [State] owed a 'special duty' to the injured party" (Applewhite, [supra] at 426; see also Coleson v City of New York, 24 NY3d 476, 481 ) [which is derived from a special relationship between the injured party and the State]. As we have explained, "[t]he core principle is that to 'sustain liability against [the State], the duty breached must be more than that owed the public generally' " (Applewhite, [supra] at 426 [citations omitted]).
"[A] special duty can arise in three situations: (1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the [claimant] beyond what was owed to the public generally; or (3) the [State] took positive control of a known and danger safety condition" (id.).
Of the three ways a claimant could establish that a defendant owed him/her a special duty, only the first - "statutory duty" - is at issue in this case.
In order to satisfy the "statutory duty" prong of the special duty rule, the applicable statute must authorize a private right of action. While an express authorization is to be preferred, one may be fairly implied when: "(1) the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme. If one of these prerequisites is lacking, the claim will fail" (Pelaez v Seide, 2 NY3d 186, 200  [citation omitted]; see Signature Health Ctr., LLC v State of New York, 28 Misc 3d 543, 550 [Ct Cl 2010], affd 92 AD3d 11 [3d Dept 2011], lv denied 19 NY3d 811 ).
In support of its Motion, Defendant asserts that, pursuant to Executive Law § 503(1), the Office of Children and Family Services (also known as the "Division for Youth," [see Executive Law § 500(3)] [hereinafter, "OCFS"]), "shall establish regulations for the operation of secure and non-secure detention facilities … ." Pursuant to Section 503(2) of the Statute, OCFS "may contract for or establish, operate, maintain and certify secure and non-secure detention facilities …" and, pursuant to Section 503(3), "[e]ach social services district may establish, operate and maintain secure and non-secure detention facilities … ." According to Section 503(4), OCFS "shall visit and inspect all facilities used for detention and make periodic reports of the operation and the adequacy of such facilities, and the need for provision for such facilities" to the appropriate County, family court judges in such County, and the Office for Court Administration. Further, the detention facility may only operate with a certificate from OCFS pursuant to Section 503(5) (Affirmation of Belinda A. Wagner, Esq., Assistant Attorney General [hereinafter, "Wagner Affirmation"], ¶ 7).
Ms. Wagner states:
8. Pursuant to §503(5)[a], the "[OCFS] shall promulgate regulations governing procedures for certification of detention facilities and for renewal, suspension, and revocation of such certifications." Regulations are found in 9 NYCRR Part 180 and are known as "juvenile detention facilities regulations" pursuant to Part 180.1.(1) These regulations require among other things certain documentation by the detention facility (180.12), personnel requirements (180.8), and an education requirement (180.9). They also require visitation and inspection by the [OCFS] (180.13).
9. As found in the affidavit of Kevin Mee, a Juvenile Justice Detention Specialist in 2011, [D]efendant's actions were limited to the issuance of the certificate of operation and the renewal of that certificate after [D]efendant's inspection and review done according to its regulations. (Exhibit I). As explained by Mr. Mee and found in Exhibit G, the [Detention Center] met the requirements of [D]efendant and the [Detention] Center was issued a new certificate of operation for 2011.
(Wagner Affirmation, ¶¶ 8, 9)
Defendant asserts that, in this matter, Claimant alleges that the State violated its statutory duty to him. Defendant argues that, in order to meet the special relationship requirement, the governing statute must authorize a private right of action. Defendant further asserts that Article 19-G of the Executive Law (comprising §§ 500-531) does not provide a private right of action, nor do the regulations provide a private right of action (see Litvinov v Hodson, 34 AD3d 1332 [4th Dept 2006]; McWilliams v Catholic Diocese of Rochester, 145 AD2d 904 [4th Dept 1988]) (Wagner Affirmation, ¶ 13).
In opposition to the Motion, Claimant has submitted the affirmation of his counsel, A.J. Bosman, Esq. (hereinafter, "Bosman Affirmation"). Ms. Bosman avers that Defendant has not met its burden in demonstrating entitlement to judgment as a matter of law under the applicable New York summary judgment standard. It is not enough to point out perceived deficiencies in Claimant's case, which is all that Defendant has done, she contends. She asserts that Defendant bears the burden of producing admissible evidence that eliminates all questions of fact (Bosman Affirmation, ¶ 15). She further states that Defendant has not met its summary judgment burden to demonstrate as a matter of law no duty to Claimant existed. Counsel states that, even assuming arguendo, that the actions and omissions at issue here are governmental in nature rather than proprietary, there are issues of fact as to whether a special relationship between Claimant and Defendant existed. Counsel further argues there is a special duty owed to children confined to detention facilities, under Article 19-G of the Executive Law and its corresponding regulations (see Exec. Law § 503; 9 NYCRR §§ 180.1, 180.2, 180.4, 180.12, 180.13, 180.18, 180.19, 180.21) (Bosman Affirmation, ¶ 20).
Attached to Defense counsel's Reply Affirmation are copies of portions of the legislative history of Executive Law Article 19-G, including the bill memorandum contained in the 1976 New York State Legislative Annual, which states, in part:
Confusion abounds since detention specialists and detention local assistance activities were transferred to [OCFS] from the Department of Social Services in1971 without transfer of their authority as was accomplished at the same time for training school staff and programs … Implementation of legislative intent to detain only those children who require removal from home during judicial processing, and then for the shortest period possible, has been stymied by lack of clarity as to the [OCFS'] authority to monitor, control and sanction use of detention facilities. This proposed legislation will establish standard setting, inspection and reporting responsibilities clearly in [OCFS], with implied coordinating and leadership functions. Localities have requested much of what is proposed … This bill also authorizes [OCFS], pursuant to its reimbursement responsibilities to maintain broad supervision to insure the quality of care and treatment offered to children in facilities and homes in compliance with the law.
(Ex. L attached to Reply Affirmation of Belinda A. Wagner, Esq., Assistant Attorney General [hereinafter, "Wagner Reply Affirmation"])
Defendant also attached a copy of the Budget Report on the 1976 legislation with regard to Executive Law Article 19-G (Ex. M attached to Wagner Reply Affirmation). It shows that the Legislature was interested in clarifying the responsibilities of OCFS, Family Court, and social service districts concerning juvenile detentions, and that "[t]his bill provides [OCFS] with greater control over the operation of detention facilities" (Ex. M, p. 3, ¶ 4[a]).
The Court concludes that there is nothing explicit in Executive Law Article 19-G and nothing therein, or in the legislative history, that fairly implies or infers a private right of action. Further, there is no support for the conclusion that the recognition of a private right of action would further the legislative purpose, or that implying such a private right of action would be consistent with the legislative scheme (see T.T. v State of New York, supra at 1348-1349).
Based upon this record, the Court finds that Defendant's submissions in support of its Motion for summary judgment satisfy the prima facie showing required to establish that Defendant did not owe Claimant a special duty and to warrant judgment as a matter of law if not rebutted by Claimant.
Given Defendant's prima facie showing, it was incumbent upon Claimant to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his Claim, or else he must demonstrate an acceptable excuse for his failure to meet the requirement; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Zuckerman v City of New York, 49 NY2d 557, 562 ; Alvord & Swift v Muller Constr. Co., 46 NY2d 276, 281-282 ; Fried v Bower & Gardner, 46 NY2d 765, 767 ; Platzman v American Totalisator Co., 45 NY2d 910, 912 ; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 290 ).
In opposition to the Motion, Claimant asserts that, even assuming, arguendo, that Defendant was acting in a governmental capacity, there are issues of fact as to whether a special relationship between Claimant and Defendant existed. However, he has submitted only the affirmation of counsel, in which she makes legal arguments. Claimant has not submitted any evidence to refute Defendant's submissions. In this regard, the Court finds that Claimant's effort to distinguish T.T. v State of New York (supra) in order to establish a special relationship by reliance upon Rivers v State of New York (142 Misc 2d 563 [Ct Cl 1989], revd 159 AD2d 788 [3d Dept 1990]) to be unavailing (see Bosman Affirmation, ¶¶ 17-19). Rivers concerns a medical malpractice action brought by an inmate. The provision of medical care by the State to inmates, however, has been found to be a proprietary, rather than a governmental, function (see Schrempf v State of New York, 66 NY2d 289, 293-294  [the special relationship made is inapplicable when the State engages in a proprietary function such as providing medical and psychiatric care]; Davy v State of New York, UID No. 2017-040-154 [Ct Cl, McCarthy, J., Dec. 20, 2017]).
Moreover, OCFS is charged with certifying, visiting, inspecting, and reporting upon detention facilities, and can renew, suspend, and revoke such certifications (see Executive Law § 503). OCFS also is responsible for bringing violations of law concerning the detention of juveniles to the attention of the child's attorney, whose remedy is to petition for habeas corpus for such aggrieved child (id., § 503).
As in T.T. v State of New York (supra), the Legislature considered the means by which the statute could best be enforced. It could have and would have provided a private right of action had it believed it prudent to do so. Instead, it provided that the child's attorney could petition for habeas corpus in the event a violation of law occurs. The Court further finds nothing in the statute, regulation, or pertinent legislative history, to support the notion that the recognition of a private right of action in this instance would be consistent with the legislative scheme (see T.T. v State of New York, supra at 1349).
Defendant has shown that the actions or omissions complained of constituted a governmental function, that it owed no duty to Claimant beyond that which it owed to the public generally, and that Article 19-G of the Executive Law neither provides, nor fairly implies, that a private right of action is available to Claimant. The Court concludes that Claimant's submission fails to demonstrate that material questions of fact exist and, thus, is insufficient to overcome Defendant's prima facie showing of entitlement to judgment in its favor. Therefore, based upon the foregoing, the State's Motion for summary judgment dismissing the Claim on the basis that Defendant owed him no special duty, and, thus, tort liability cannot be attributed to Defendant for the alleged failures of Defendant in its governmental capacity is granted and the Claim is dismissed (see T.T. v State of New York, supra at 1349).
March 13, 2018
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Defendant's Motion for summary judgment:
Notice of Motion, Affirmation
and Exhibits Attached 1
Affirmation in Opposition 2
Reply Affirmation and Exhibits Attached 3
Filed Papers: Claim, Answer, Amended Answer
1. Part 180.1 was renumbered as Section 180-1.1 by emergency ruling making effective December 7, 2017, expiring March 6, 2018. Other provisions of Part 180 were renumbered similarly.