New York State Court of Claims

New York State Court of Claims
BOJARSKI v. STATE OF NEW YORK, # 2018-053-526, Claim No. 130252, Motion No. M-91677


The State brings a pre-answer motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7). Claimant, a nurse practitioner, alleges in the claim that she was struck by a resident of a group home while providing medical care. Accepting claimant's allegations as true for purposes of this motion, the Court cannot conclude that the claim fails to state a cause of action and the motion is denied.

Case information

UID: 2018-053-526
Claimant short name: BOJARSKI
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130252
Motion number(s): M-91677
Cross-motion number(s):
Claimant's attorney: BROWN CHIARI, LLP
BY: Timothy M. Hudson, Esq.
Defendant's attorney: HON. BARBARA D. UNDERWOOD
Acting Attorney General
BY: Michael T. Feeley, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: May 18, 2018
City: Buffalo
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant Hollie Bojarski, a nurse practitioner employed by Aspire of Western New York, Inc. (Aspire), seeks damages for personal injuries sustained on June 21, 2016, when she was struck by a resident of a group home run by the Western New York Developmental Disability Services Office (WNYDDSO) while she was providing medical care to the resident. Defendant moves to dismiss the claim for failing to state a cause of action pursuant to CPLR 3211 (a) (7). Claimant opposes the motion.

In assessing a motion to dismiss pursuant to CPLR 3211 (a) (7), the Court must accept claimant's allegations in the claim as true, afford claimant the benefit of every favorable inference, and determine only whether claimant has a cause of action (Leon v Martinez, 84 NY2d 83 [1994]). Defendant bears the burden of establishing that the claim fails to state a viable cause of action (Id. at 88).

The first issue to decide is whether the defendant, a government entity, was engaged in a proprietary function or acted in a governmental capacity when the claim arose (Applewhite v Accuhealth, Inc., 21 NY3d 420 [2013]). If the action is governmental, acts undertaken for the protection and safety of the public, then the claimant must prove the existence of a special duty (Id. at 426). Claimant need not prove the existence of a special duty, however, if the government entity is acting in a proprietary function. A government entity engages in a proprietary function when its activities substitute for or supplement "traditionally private enterprises" (Riss v City of New York, 22 NY2d 579, 581 [1968]). In hospital-type settings, the government has usually been found to be acting in a proprietary manner as the government is providing the services traditionally performed by private enterprises. In this event, the government is subject to ordinary tort liability (see Applewhite v Accuhealth, Inc., supra at 426). Here, defendant's counsel, Assistant Attorney General Michael T. Feeley, implies in paragraphs 11 and 12 of his March 23, 2018 affidavit that the State was performing a proprietary function as he states that "ordinary tort liability principles . . . govern the disposition of this case . . . ".

The elements of common law negligence include a duty owed by the defendant to the claimant, a breach of that duty, and a showing that the breach of that duty was a proximate cause of the injury (Ruiz v Griffin, 71 AD3d 1112 [2d Dept 2010]). Here, defendant argues that the State is a "co-treater" and that a "co-treater" has no duty to inform, protect or defend another treatment provider against an assault by a mutual patient. In the claim (Defendant's Exhibit A), it is alleged that claimant was working as a nurse practitioner for Aspire at the time of the incident, that the State and/or WNYDDSO failed to provide Aspire and its employees accurate and complete information relating to the resident's medical history, diagnosis, tendencies, and safety. In addition, it is alleged that the resident was a resident of the State's group home who was in the care, custody and/or control of the defendant, and that defendant's employees failed to remain at a safe and acceptable distance, failed to act when necessary per their training, and failed to provide a safe environment for the patient and for claimant.

Defendant provided an affidavit from Stacey Michalowski, the supervisor of the group home, who accompanied the resident to Aspire (Defendant's Exhibit B). While Ms. Michalowski's affidavit was submitted in support of defendant's motion to dismiss, it actually helps claimant elucidate the claim. According to Ms. Michalowski, a consult sheet was provided to Aspire's intake staff prior to the resident seeing the claimant. This consult sheet (Exhibit 1 to Ms. Michalowski's affidavit), indicates that the resident had a history of "maladaptive behaviors," which, according to Ms. Michalowski, is a well-known term used to describe disruptive behaviors in a disabled person. It is therefore apparent that the State felt it necessary to provide Aspire with some information about the resident. Whether the information given was sufficient and/or understood by Aspire and the claimant are questions of fact. The limited information provided in the claim and in Ms. Michalowski's affidavit raise many more questions. For example, what kind of disabilities did the resident have, how frequent were the resident's "disruptive behaviors" and what did they entail. There are further questions regarding the information supplied to Aspire and whether this information was given to the claimant, and if so, was the claimant aware of what was meant by the term "maladaptive behavior".

Considering the limited information provided in this pre-answer, pre-discovery CPLR 3211 (a) (7) motion, the Court cannot conclude on the record before it that the claim fails to state a cause of action (see Connolly v Long Is. Power Auth., 30 NY3d 719 [2018]). Accordingly, defendant's motion no. M-91677 to dismiss the claim is denied. Defendant shall have forty-five (45) days from the filing of this decision and order within which to serve and file an answer to the claim.

May 18, 2018

Buffalo, New York


Judge of the Court of Claims

The following were read and considered by the Court:

1. Notice of motion and affidavit of Assistant Attorney General Michael T. Feeley sworn to October 13, 2017, with annexed Exhibits A-B;

2. Opposing affirmation of Timothy M. Hudson, Esq. and memorandum of law dated March 6, 2018; and

3. Further supporting affidavit of Assistant Attorney General Michael T. Feeley sworn to March 23, 2018.