Opinion
# 2015-051-039 Claim No. 122627 Motion No. M-86810
12-17-2015
WILLIE ALEXANDER, ABDALLAH ADBUL-LATIF, REGINALD ANDERSON, MIGUEL ANDRADE, JONATHAN ANJUDAR, SCOTT BARHYDT, LAWRENCE BARTLEY, JEROME BENN, WESLEY BISHOP, KENTWAN BLOUNT, PEDRO BORRERO, TONY BROWN, DWAYNE BUCKERY, WALTER BUSH, JIMMY BYRD, SAMUEL COLESON, EMMANUEL COOPER, ROLANDO CORONADO, ELLEGUA ELUFE, LENNY EMILIANO, PAUL ESCALANTE, JUAN ESTRELLA, ORVILLE ETORIA, FELIX FERNANDEZ, FELIX GARCIA, WAYNE GARDINE, TIMOTHY GARRETT, FREDDY GONZALEZ-PENA, ERCREY GRANGER, JOHN HAMMOND, LEVAR HENRY, GEORGE HILL, BRANDON HOLMES, CARLO HUSTON, REMI ILLIS, JUAN IRAZZARY, ANGEL IRIZARRY, JAMES JAMESON, JOSE JIMENEZ, JOELL JOHNSON, LAMONTE JOHNSON, MICHAEL JOHNSON, ROBERT JOHNSON, LEROY LEWIS, DERWIN LINDSAY, BRUCE LORICK, MICHAEL D. MALONE, GUY MATTIA, ROBERT MCINTYRE, GILBERTO MCKENZIE, MICHELE MCLAWRENCE, ANTHONY MORGAN, NAKWAN NELSON, WAYNE NORRIS, RUBEN ORTEGA, ELMER ORTIZ, DONALD PERRY, RUBEN RAMIREZ, WILLIAM RIVERA, CHARLES SANTANA, BENJAMIN SANTIAGO, LEROY SCOTT, RAMON SEJO, DEVENDRA SINGH, OTIS SMITH, ANTHONY SOTO, TARIK SQUIRE, DALONE STALLINGS, MALE SUNTER, ROBERT HOMAS, PAUL THOMPSON, MIGUEL TIRADO, DEREK TROUTMAN, EDWARD URENA, NIKO WILLER, OMAR WILLIAMS, THOMAS WILLIAMS, JEROME WIZA, GARY WORTHY and JOHN ZAPULLA, v. STATE OF NEW YORK
ALAN D. LEVINE ATTORNEY AT LAW BY: ALAN D. LEVINE, ESQ. HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: DIAN KERR MCCULLOUGH, ESQ. Assistant Attorney General
Synopsis
Defendant's motion to dismiss Claim No. 122627 based on claimants' failure to serve the amended claim by certified mail on the Attorney General's Office is denied. The defendant's motion to dismiss based on a governmental immunity defense is granted in part, but denied with respect to the allegations of failure to maintain the electrical system.
Case information
| UID: | 2015-051-039 |
| Claimant(s): | WILLIE ALEXANDER, ABDALLAH ADBUL-LATIF, REGINALD ANDERSON, MIGUEL ANDRADE, JONATHAN ANJUDAR, SCOTT BARHYDT, LAWRENCE BARTLEY, JEROME BENN, WESLEY BISHOP, KENTWAN BLOUNT, PEDRO BORRERO, TONY BROWN, DWAYNE BUCKERY, WALTER BUSH, JIMMY BYRD, SAMUEL COLESON, EMMANUEL COOPER, ROLANDO CORONADO, ELLEGUA ELUFE, LENNY EMILIANO, PAUL ESCALANTE, JUAN ESTRELLA, ORVILLE ETORIA, FELIX FERNANDEZ, FELIX GARCIA, WAYNE GARDINE, TIMOTHY GARRETT, FREDDY GONZALEZ-PENA, ERCREY GRANGER, JOHN HAMMOND, LEVAR HENRY, GEORGE HILL, BRANDON HOLMES, CARLO HUSTON, REMI ILLIS, JUAN IRAZZARY, ANGEL IRIZARRY, JAMES JAMESON, JOSE JIMENEZ, JOELL JOHNSON, LAMONTE JOHNSON, MICHAEL JOHNSON, ROBERT JOHNSON, LEROY LEWIS, DERWIN LINDSAY, BRUCE LORICK, MICHAEL D. MALONE, GUY MATTIA, ROBERT MCINTYRE, GILBERTO MCKENZIE, MICHELE MCLAWRENCE, ANTHONY MORGAN, NAKWAN NELSON, WAYNE NORRIS, RUBEN ORTEGA, ELMER ORTIZ, DONALD PERRY, RUBEN RAMIREZ, WILLIAM RIVERA, CHARLES SANTANA, BENJAMIN SANTIAGO, LEROY SCOTT, RAMON SEJO, DEVENDRA SINGH, OTIS SMITH, ANTHONY SOTO, TARIK SQUIRE, DALONE STALLINGS, MALE SUNTER, ROBERT HOMAS, PAUL THOMPSON, MIGUEL TIRADO, DEREK TROUTMAN, EDWARD URENA, NIKO WILLER, OMAR WILLIAMS, THOMAS WILLIAMS, JEROME WIZA, GARY WORTHY and JOHN ZAPULLA, |
| Claimant short name: | ALEXANDER |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122627 |
| Motion number(s): | M-86810 |
| Cross-motion number(s): | |
| Judge: | DEBRA A. MARTIN |
| Claimant's attorney: | ALAN D. LEVINE ATTORNEY AT LAW BY: ALAN D. LEVINE, ESQ. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: DIAN KERR MCCULLOUGH, ESQ. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 17, 2015 |
| City: | Rochester |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read on defendant's motion to dismiss the claim:
1. Defendant's Notice of Motion to Dismiss, along with the Affirmation of Dian Kerr McCullough, AAG, filed May 29, 2015, along with attached exhibits;
2. Claimants' Affirmation in Opposition, dated October 1, 2015, with attached exhibits;
3. Claimants' Memorandum of Law, dated October 1, 2015;
4. Defendant's Reply, dated October 30, 2015, with attached exhibits;
5. Filed papers: Decision and Order of the Hon. Terry Jane Ruderman, filed October 25, 2013.
Before the court is defendant's motion to dismiss the amended claim on two grounds: (1) claimants failed to serve their amended claim upon the Office of the Attorney General by personal service or certified mail, return receipt requested, as required by Court of Claims Act §§ 10 and 11; (2) the amended claim is barred by governmental immunity. Claimants opposed the motion. For the reasons set forth below, defendant's motion based on failure to properly serve the amended claim is denied but the motion to dismiss based on governmental immunity is partially granted.
The underlying facts are as follows: on April 18, 2011, an early morning electrical fire occurred at Sing Sing Correctional Facility, causing smoke to fill housing Block A where the claimants resided. The original claim, filed and personally served on the Office of the Attorney General on April 16, 2013, was brought as a class action by Willie Alexander on behalf of himself and 83 other persons constituting a class of inmates allegedly injured in the fire. Defendant moved to dismiss this claim as a class action and argued that the claim did not name the individual 83 claims or specify the facts surrounding their claims. Claimants cross moved to amend the claim to delete the class action designation and to add only the 78 claimants who had timely and properly served defendant with notices of intention.
In a Decision and Order dated September 30, 2013, the court granted the defendant's motion with respect to the class action designation and granted claimants' cross motion to amend the claim to add the 78 claimants who had timely and properly served a notice of intention, and to include further explanation for one who sustained a finger injury. The Decision and Order concluded that, "claimants shall, within 30 days of the filed-stamped date of this Decision and Order, serve and file a copy of a further amended claim in accordance with the mandates of the Court of Claims Act." The Decision and Order was filed-stamped on October 25, 2013.
On November 25, 2013 (the first business day following the 30-day deadline), the claimants filed the amended verified claim with the Court of Claims and served the defendant by regular mail. The mail receipt stamp from the Westchester Attorney General's Office on the amended claim indicates receipt on November 25, 2013, as well.
On January 2, 2014, defendant filed and served a verified answer asserting 11 affirmative defenses including lack of jurisdiction over the defendant because the claim was served by regular mail, in violation of Court of Claims Act §§ 10 and 11 (affirmative defenses eighth and ninth) and immunity from liability (affirmative defense third). On May 29, 2015, the defendant filed the motion to dismiss now before this court.
Claimants argue in counsel's affirmation in opposition that service of the amended claim by regular mail was proper pursuant to Rohany v State of New York (144 Misc 2d 940, 942-943 [Ct Cl, 1989]) and that defendant was not prejudiced by the regular mail service. The court agrees and denies defendant's motion on that ground.
The Court of Claims Act §§ 10 and 11 specifically address service and filing of "claims." The Act does not provide procedures for amended claims but the Uniform Rules for the Court of Claims (22 NYCRR) § 206.7 (b) states that "[p]leadings may be amended in the manner provided by CPLR 3025." Since both the Act and the Uniform Rules are silent on the method of service of an amended claim, § 206.1 of the Uniform Rules (22 NYCRR) directs that the CPLR shall govern. CPLR Rule 2103 (b) provides that "[e]xcept where otherwise prescribed by law or order of court, papers to be served upon a party in a pending action shall be served upon the party's attorney" by regular mail, in addition to other options.
The argument raised by the defendant is the Decision and Order that allowed the filing and service of the amended claim required service by certified mail. Although the Decision and Order directed service in accordance with the "mandates" of the Court of Claims Act, reference to the Act would not provide guidance to claimants because of the absence of specific provisions for an amended claim. On this issue, Rohany v State of New York (144 Misc 2d at 942-943), is persuasive. The cases cited by defendant all pertain to service of a claim following a motion to late file which would be governed by §§ 10 and 11 of the Court of Claims Act. Therefore, service of the amended claim by regular mail does not violate the court's order, the Act or the Uniform Rules and should be permitted.
In so ruling, the court is aware of orders in several other cases involving service of amended claims that either specifically allow service by regular mail (Nelson v The State of New York, UID No. 2013-048-112 [Ct Cl, Bruening, J., Sept. 17, 2013]; Rodriguez v State of New York, 153 Misc 2d 363 [Ct Cl 1992]) or give more specific direction to the claimant to serve by certified mail (Nicholson v The State of New York, UID No. 2013-010-009 [Ct Cl, Ruderman, J., Mar. 25, 2013]) ("serve and file the Amended Claim in accordance with the procedures for service and filing of a claim as set forth in the Court of Claims Act").
Turning to the second basis for dismissal raised by the defendant, the analysis must begin with the allegations in the amended claim. It is alleged that the 80 named claimants were confined to their cells in the smoke-filled A Block during the "emergency" caused by an electrical fire in the prison. Their confinement varied from 47 minutes to approximately 4 hours. Once removed from their cells, they were confined to the unlit and unsupervised A Block gymnasium, in keeplock recreation pens or the keeplock bullpen for several hours. As a result, they allegedly suffered a variety of physical injuries from the smoke inhalation. In addition, it is alleged Ortiz suffered physical injuries when assaulted in the gymnasium, Singh and Zappulla were injured when they tripped and fell in the unlit gymnasium, and Thomas Williams injured his hand when he tripped and fell while evacuating his cell in the dark. Claimants allege negligence of the defendant for: (1) improper and delayed evacuation; (2) confinement of claimants in the cells, gymnasium, recreation pens and bullpen; (3) failing to have a fire safety plan in effect and failing to implement it; (4) failing to promptly summon outside assistance; (5) failing to properly safeguard the inmates; and (6) failing to properly maintain electrical equipment. Defendant argues that all of the allegations fall under the umbrella of governmental functions which cannot form the basis for liability unless the claimant can prove a "special duty" owed to them. In the absence of that duty, separate and apart from that owed to the general prison population, the claim is barred by the governmental immunity. Claimants' affirmation in opposition fails to address the governmental immunity issue, although some arguments are set forth in the memorandum of law.
Although the Order and Decision dated September 30, 2013 references 78 claimants, the filed amended claim names 80 in the caption. This difference was neither explained by claimants nor raised by defendant. For purposes of consideration of the governmental immunity defense, this discrepancy is not relevant.
Any analysis of liability for injuries that occur within a prison must start with the premise that, as with any property owner, the State is not an insurer of the safety of inmates for every injury but must provide reasonable protections against foreseeable risks. (Sanchez v State of New York, 99 NY2d 247, 253 [2002].) In the case now before the court, even the claimants concede that the electrical fire created an "emergency . . . with smoke coursing through A Block" (Amended Verified Claim ¶ 3) and no lights (Amended Verified Claim ¶¶ 8-11), which certainly created a serious safety and security situation. At this stage of the litigation, claimants' amended claim adequately pleads a basis for negligence against the State. However, the governmental immunity defense creates a significant obstacle for claimants.
The Court of Appeals has discussed the governmental immunity defense at length in a variety of circumstances. The first consideration when a negligence claim is asserted against a municipality is whether it was acting in its governmental or proprietary capacity at the time of the injury. Proprietary functions are those typically conducted by a private party, such as a landlord. Governmental functions are undertaken for the protection and safety of the public pursuant to the general police powers. In performing purely proprietary functions, the State remains liable for its negligence as any private entity, including building maintenance (Miller v State of New York, 62 NY2d 506, 511 [1984]). In the pending case, defendant argues that all of the allegations in this case fall under governmental functions because the underlying scenario involves incarceration and fire protection, both of which are clearly governmental functions.
However, sometimes, the State is acting in both governmental and proprietary capacities; for example, the State may act in a proprietary way when it functions as a landlord in its ownership and control of a public building while, concurrently, providing police protection to maintain law and order in that same facility. (Sebastian v State of New York, 93 NY2d 790, 793-94 [1999].) The difficulty in reviewing a fact pattern involving both functions is in allocating the injury to the activity, a task that has to be performed in every case that involves the dual roles of a municipality. Initially, the court must look at
"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 . . . not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred"
(Weiner v Metropolitan Transp. Auth., 55 NY2d 175, 182 [1982] [internal citations omitted]). If the act is generally one related to the maintenance of a building, such as failure to lock the outside doors of a dormitory, it arises out of a proprietary activity because maintenance of buildings is a landlord function, even in a governmental building. However, further security measures may fall under actions undertaken in its police protection capacity. (Miller v State of New York, 62 NY2d 506, 513-514 [1984].)
The allegations of (1) improper and delayed evacuation; (2) confinement of claimants in the cells, gymnasium, recreation pens and bullpen; (3) failing to have a fire safety plan in effect and failing to implement it; and (4) failing to promptly summon outside assistance all fall under the governmental function of the operation and control of a prison. No private landlord would ever have to deal with issues of evacuating hundreds of potentially dangerous inmates, who are not only at risk due to the emergency situation but also due to their own propensity for violence, and to house them without risk of escape. These actions certainly involve the reasonableness of a response given limited resources, including the size and age of the prison, and staffing for unexpected events (see e.g. Balsam v Delma Eng'g Corp., 90 NY2d 966, 967-68 [1997]).
The analysis does not end here, however, because if a municipality is performing a governmental function, liability may still attach if the municipality owed a special duty to the claimants. The analysis for this issue is clearly laid out in Applewhite v Accuhealth, Inc., (21 NY3d 420, 426 [2013]):
"We have recognized that 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 plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition (see e.g. Metz, 20 NY3d at 180). It is the plaintiff's obligation to prove that the government defendant owed a special duty of care to the injured party because duty is an essential element of the negligence claim itself (see Lauer, 95 NY2d at 100; see also Valdez, 18 NY3d at 75). In situations where the plaintiff fails to meet this burden, the analysis ends and liability may not be imputed to the municipality that acted in a governmental capacity."
Therefore, once determined to be a governmental function, each of the four activities enumerated above must be reviewed to see if it falls into one of these three special duty situations. Since the second and third prongs of the "special duty" test clearly do not apply in this case, the only question is whether the claimants "belonged to a class for whose benefit a statute was enacted"? This court finds that they do not. Although one may consider that inmates are entitled to a "special duty" relationship because of Corrections Law § 137 (2) and § 142 regarding the duty to maintain facilities with due regard to the safety and security of the inmates, those statutes do not clearly provide a private cause of action upon which to base a duty. (Flagstar Bank, FSB v State of New York, 114 AD3d 138, 143-144 [2d Dept 2013]). Furthermore, claimants do not allege in the amended claim any basis for such a relationship.
Even if the court were to conclude that the defendant owed a special duty to the claimants, the final step is to decide whether the governmental actions were "ministerial" or "discretionary". "[D]iscretionary . . . acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result." (Tango v Tulevech, 61 NY2d 34, 41 [1983].) Here, the countless decisions made by staff during this emergency-- in following or deviating from an evacuation plan, deciding when and how to move the inmates to the gymnasium or bullpens, whether to rely on other municipal resources, and whether the risks of staying in the cell block outweighed the risk of movement-- were all discretionary and the State cannot be liable for decisions that, in hindsight, may have been incorrect.
Therefore, the defendant's motion to dismiss the following allegations based on governmental immunity is granted: (1) improper and delayed evacuation; (2) confinement of claimants in the cells, gymnasium, recreation pens and bullpen; (3) failing to have a fire safety plan in effect and failing to implement it; and (4) failing to promptly summon outside assistance. The allegation of failing to properly safeguard the inmates also warrants dismissal since it is "too general, conclusory and factually unsupported to establish a meritorious claim" (Matter of Sandlin v State of New York, 294 AD2d 723, 725 [3d Dept 2002]).
However, defendant's motion to dismiss the allegation that the State was negligent in failing to properly maintain electrical equipment is denied. That function is clearly proprietary because the State, as any landlord, has a duty to use reasonable care in maintaining its electrical system to prevent foreseeable injury to inhabitants of the building. Claimants' pleading sufficiently states a cause of action for negligence on this sole ground, although they will have hurdles in proving the other elements of this cause of action (see Appleby v Webb, 186 AD2d 1078, 1078 [4th Dept 1992]).
This decision is consistent with the Court of Claims decisions in three other claims arising out of fires at Sing Sing. In Sanchez v State of New York, Claim No. 124714, Motion No. M-85591, unreported (Ct Cl, Ruderman, J., Dec. 26, 2014), an inmate claimed injury caused by smoke inhalation during a fire at Sing Sing on September 2, 2013. The claim was based on the alleged failures in the evacuation process. Defendant moved to dismiss the claim based on governmental immunity and the claimant opposed the motion based on a "special duty". The motion to dismiss was granted based on the governmental immunity attaching to evacuating inmates during a fire at a prison and also on the claimant's failure to sufficiently allege a special duty.
Small v The State of New York (UID No. 2015-030-009 [Ct Cl, Scuccimarra, J., June 25, 2015]) involved the same fire at Sing Sing as claimants experienced in the instant case. Mr. Small was also evacuated from A Block and housed in the gymnasium, where he was then allegedly assaulted by other inmates. Following a trial, the court issued a decision that recited the operative facts and applicable law, noting that the scenario "touches on the immunity enjoyed by officials for their governmental functions." The court held that there was no proof of negligence and that no "special duty" was either alleged or established.
Finally, the court in Asbery v The State of New York, (UID No. 2015-029-061 [Ct Cl, Mignano, J., Sept. 8, 2015]) also dealt with the April 18, 2011 fire. The claim alleged very specific acts of negligence and the defendant moved to dismiss based on governmental immunity. The court granted dismissal of the allegations regarding lack of an emergency plan, training and preparedness under the governmental immunity defense, but denied the motion to dismiss on the remaining allegations: failure to have keys to open the electronically-inoperable doors, the refusal of a lieutenant to break the cell windows to vent the smoke, as allegedly requested by the fire marshal (a fact that appears to be negated by the testimony of the Ossining Fire Chief in the Small trial), and the denial of staff to close the cell windows after the fire in order to keep out the fumes from the power generating equipment. The court also pointed out that the defendant did not discuss the guidelines for evacuation and whether discretionary decisions were made pursuant to them (note that the Small decision recited that Sergeant Moss testified to the policies and procedures in the trial).
Although this court has the benefit of these related decisions, it is clear that the facts alleged and the legal theories pursued in each claim were quite different. Sanchez appears to be based solely on the manner and method of the evacuation process, which fits squarely into the governmental immunity defense. In Small, the claimant argued that the confinement in a dark, crowded gymnasium was negligent, but the court narrowed its analysis on the lack of foreseeability of inmate-on-inmate assault and the reasonable process the staff followed in the face of a true emergency. Since the court found no negligence, the immunity defense was not required. The court in Asbery was presented with facts that are not alleged in the instant claim, many of which could fall under the proprietary activities analysis. Most importantly, the case now before the court is the only one of the group that challenges the foreseeability of the cause of the fire, which could be a basis for the State's liability.
In summary, the defendant's motion to dismiss the claim based on service by regular mail is denied. The defendant's motion to dismiss the allegations based on the governmental immunity defense is partially granted with the exception that the motion to dismiss the allegation that the defendant was negligent in failing to properly maintain electrical equipment is denied. Finally, since a portion of this claim will proceed, it is necessary to confirm the identity of the named claimants. Upon review of the papers filed in this proceeding, the court notes conflicting information regarding: the number of claimants, the spelling of claimants' names, and which claimants complied with Court of Claims Act §§ 10 and 11 by properly signing, verifying and serving a notice of intention to file a claim upon the Attorney General. Accordingly, within 30 days of the filing of this decision and order, the parties are hereby ordered to confer and file with the Clerk of the Court a stipulation as to the identity of the claimants and a correct caption. If the parties are unable to reach agreement, the claimants are directed to file a motion to settle the identity of the claimants and caption, pursuant to CPLR 3025 (b), which should be filed within 60 days of the filing of this decision and order.
December 17, 2015
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims