Opinion
114085
10-19-2011
Anna O. Claimant(s) v. The State of New York, Defendant(s).
Claimant's attorney: Kindlon Shanks & Associates BY: TERENCE L. KINDLON, ESQ. Defendant's attorney: HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: THOMAS G. RAMSAY, ESQ. Assistant Attorney General
Claimant's attorney:
Kindlon Shanks & Associates
BY: TERENCE L. KINDLON, ESQ.
Defendant's attorney:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.
Assistant Attorney General
, J.
On September 21, 2011, the following papers were read on Claimant's motion for an order granting summary judgment and Defendant's cross motion for a sealing order:
Claimant's Notice of Motion (M-80202) and Supporting Affirmation with Exhibits Annexed
Supporting Affidavit of Anna O.
Claimant's Memorandum of Law
Defendant's Notice of Cross Motion (CM-80395) and Affirmation in Opposition to Claimant's Motion and in Support of Defendant's Cross Motion
Affidavit in Opposition to Claimant's Motion of Robert I. Adams
Affidavit in Opposition to Claimant's Motion of John Shipley
Affirmation in Reply to Defendant's Response and in Response to Defendant's Cross Motion with Exhibits Annexed
Defendant's "Reply Affirmation" to Claimant's Motion
Claimant, an individual previously incarcerated at Albion Correctional Facility (Albion) from November 2006 until June 2007, commenced the instant claim seeking damages for Defendant's alleged negligence, which resulted in her being raped and assaulted by Correction Officer Donald Lasker. Claimant now brings this motion for an order granting summary judgment in the claim. Defendant opposes the motion and further cross-moves to have the record sealed pursuant to Section 50-b of the Civil Rights Law and the Law Enforcement Privilege. Claimant does not oppose the cross motion for a sealing order. For the reasons set forth below, both Claimant's motion and Defendant's cross motion are granted.
MOTION NO. M-80202
In reviewing the motion papers, the Court notes that while Claimant supports its motion with a recitation of the alleged facts in this claim, Defendant's response offers no contrary set of alleged facts. It is well established that "[f]acts appearing in the movant's papers which the opposing party does not controvert, may be deemed to be admitted" (Kuehne & Nagel v Baiden, 36 NY2d 539, 544; Firth v State of New York, 287 AD2d 771 affd 98 NY2d 365). As Defendant has not offered any evidentiary facts to controvert the facts as set forth by Claimant, those facts are deemed admitted.
On or about February 9, 2007, Lasker reported to Sergeant (Sgt.) Patrick Schiffer that his fiancee received a telephone call at their home the previous day from an unidentified female, who told Lasker's fiancee that Lasker was having a sexual affair with inmate J.R. Both Sgt. Schiffer and Captain (Capt.) Dale Scalise received reports from individuals within Albion regarding an alleged sexual relationship between J.R. and Lasker. Subsequently, the property in J.R.'s cell was frisked, although no evidence of any unauthorized relationship was found. On February 14, 2007, Albion Superintendent William M. Powers reported to Ken McLaughlin, Director of Operations at the Department of Correctional Services (DOCS) Office of the Inspector General (OIG) that the initial investigation did not reveal an urgent need to respond to the allegations regarding J.R. and Lasker, but that he believed the matter was worth "a little deeper review" (Claimant's Exhibit I). A formal investigation was opened by OIG, with OIG Investigator (Inv.) Janet Roberson assigned to the matter.
For purposes of publication, the inmate's name has been edited to protect her privacy.
Now known as the Department of Corrections and Community Supervision (DOCCS).
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Inv. Roberson interviewed J.R. on March 14, 2007. In that interview, J.R. alleged that she had been involved in a sexual relationship with Lasker from August 2006 until on or about January 27 or 28, 2007. J.R. told Inv. Roberson that, during the course of her relationship with Lasker, they engaged in sexual intercourse five or six times. In each of these encounters, J.R. and Lasker would go into the storeroom on Housing Unit L-1, where Lasker was the regular 7:00 a.m. to 3:00 p.m. officer. J.R. told Inv. Roberson that they always used a condom, and that they would remain in the storeroom for 30 minutes to an hour on each occasion. J.R. also alleged that Lasker had to write several to-froms to explain his failure to answer, or take too long to answer, the telephone on the housing unit during these encounters, although Capt. Scalise later told Inv. Roberson that he did not recall Lasker having to write any to-froms regarding failure to answer the telephone on any housing unit. Additionally, J.R. gave Inv. Roberson the names of six inmates who she claimed were aware of her sexual relationship with Lasker, although Inv. Roberson noted in her report that none of her interviews with those inmates provided any evidence to corroborate the sexual relationship.
J.R. provided additional details to Inv. Roberson during her interview, such as the fact that Lasker had custody of his son, that Lasker's fiancee was pregnant with their child, and Lasker's home address, which he used in correspondence with her. J.R. claimed that, in January 2007, Lasker sent her letters marked "Legal Mail" that contained the return address of his attorney. She also claimed that Lasker provided her with a phone number where he could be reached at his second job. J.R. told Inv. Roberson that Lasker had spoken with her mother over the phone, a fact that was later corroborated to the extent that Lasker's phone records revealed that he made contact with J.R.'s mother on January 31 and March 12, 2007. J.R. alleged that Lasker warned her to keep her mouth shut about their relationship, or that he would harm her mother. J.R. denied knowledge with respect to the female caller that spoke with Lasker's fiancee on February 8, 2007.
J.R. was transferred out of Albion during the course of the investigation into the alleged sexual relationship between her and Lasker.
Inv. Roberson's investigation into Lasker's alleged relationship with J.R. was still ongoing on June 9, 2007 when, at approximately 1:15 p.m., Sgt. Craig Frost began a security round in E-Block. At approximately 1:45 p.m., Sgt. Frost directed Lasker to unlock a door that led to the rear of E-Block. After Lasker opened the door, Sgt. Frost saw Claimant "hiding" behind it. Sgt. Frost inquired of Claimant what she was doing there, and her response was that she was going through something with her children and she wanted to be alone. Sgt. Frost then asked Lasker what Claimant was doing in that area, and Lasker responded that he "must have locked her in as he didn't see her in the hallway" (Claimant's Exhibit J, at 2). Lasker further explained to Sgt. Frost that he needed a volunteer to clean up the area, and he wanted Claimant and a porter to clean it up. Sgt. Frost did not see the E-Block porter in the building at that time.
After exiting E-Block, Sgt. Frost informed Lieutenant (Lt.) Robert Schroeder that he wished to interview Claimant about why she was in the hallway, and at approximately 5:00 p.m. Sgt. Frost and Sgt. Schiffer met with Claimant to interview her. Claimant first told them that Lasker forced her behind the locked door as Sgt. Frost entered E-Block because Lasker did not want her seen there, but she denied that any sexual relations took place. Claimant was then escorted to the administrative building at Albion for a second interview. In that second interview, Claimant stated that Lasker made advances on her and tried to hug and touch her. Upon further questioning by Sgt. Frost, Claimant admitted that Lasker forced himself upon her on either June 4th or 5th, 2007. Claimant alleged that, at that time, Lasker took her into Room #4 in E-Block and had unprotected sex with her on a table in the back of the room. After hearing this, Lt. Schroeder contacted Inv. Mike Notto of the New York State Police Bureau of Criminal Investigation (BCI), who then came over to Albion with other investigators from BCI to investigate Claimant's allegations of rape. Claimant was taken to Medina Hospital for a rape kit.
Inv. Notto then proceeded to Lasker's residence to interview him about Claimant's allegations. Lasker agreed to talk with Inv. Notto, but neither admitted nor denied the allegations of sexual contact with Claimant. On the following day, June 10, 2007, Lasker was interviewed again, at which time he admitted to engaging in sexual contact with Claimant, including kissing, fondling, oral sex, and vaginal intercourse. Lasker was then placed under arrest on the charges of rape in the third degree (Penal Law § 130.25 [1]) and Official Misconduct (Penal Law § 195.00 [1]). Inv. Notto's report from July 4, 2007 indicated that Orleans County District Attorney Joseph Cardone advised against placing any additional charges against Lasker at that time, pending a conference with his attorney on a plea deal, although there was evidence that Lasker had sexual relationships with both Claimant and J.R. (Claimant's Exhibit M, at 7-8). Inv. Notto was advised that all the evidence would be submitted to the grand jury if the plea deal was rejected.
On October 15, 2007, Lasker was charged with and pleaded guilty to both offenses before the Orleans County Court. His employment with DOCS was terminated that same day. On January 10, 2008, Lasker was sentenced to two months of intermittent incarceration, to be served on weekends, as well as 10 years probation. He was also assessed several surcharges and fees, and an order of protection was issued in Claimant's behalf. A Risk Level Assessment Hearing was also held on that day, and Lasker was determined to be a Level 1 Sex Offender.
In her February 22, 2008 final report of her investigation into both allegations, and in the wake of Lasker's guilty plea, Inv. Roberson found that the original allegation of a sexual relationship between Lasker and J.R. should be classified as "unsubstantiated," but noted that there was sufficient evidence to substantiate that Lasker engaged in an Unauthorized Relationship with J.R. The allegation made by Claimant, however, was substantiated. It should be noted, however, that Inv. Notto's report indicated that the investigation revealed sexual relationships between Lasker and both J.R. and Claimant.
As noted earlier, the above facts are not in dispute. The crux of Claimant's motion for summary judgment is that, in the wake of the Lasker's alleged sexual relationship with J.R., Defendant both negligently retained and supervised Lasker in a position where he could continue to engage in sexual misconduct with the inmate population at Albion despite his propensity, of which Defendant knew or should have known, to engage in sexual misconduct with female inmates. This, Claimant alleges, was the proximate and substantial cause of her alleged injuries.
Defendant responds that the motion for summary judgment should be denied because: (1) its agents and employees at DOCS acted reasonably under the circumstances and in accordance with the applicable State protocols; (2) to the extent that the matter involved official actions exercising discretion and judgment, Defendant cannot be held liable; and (3) Lasker acted outside the scope of his employment. Defendant also offered two affidavits in opposition to the instant motion. The first affidavit is from Robert I. Adams, the Acting Deputy Inspector General responsible for the DOCS OIG Sex Crimes Unit and one of Inv. Roberson's supervisors during the investigation of Lasker. Adams avers that, where allegations are made against a C.O. like in the situation involving J.R. and Lasker, the alleged victim must be "appropriately safeguarded by transfer or other means," which in J.R.'s case meant transfer to a different correctional facility, and the accused employee must be allowed to continue working "in order to permit the full and complete investigation of the allegations." In Lasker's case, "it was necessary to leave the employee at work for a short period of time in furtherance of the criminal investigation" (emphasis added). Adams states that, "[r]egrettably, the Sex Crimes Unit was unable to develop sufficient evidence" to charge Lasker with any criminal acts prior to his first encounter with Claimant on June 5, 2007, and it was eventually determined that there was not sufficient evidence to conclude that Lasker engaged in sexual conduct or contact with J.R.
The second affidavit is from John Shipley, Deputy Director of Labor Relations for DOCS. Shipley avers that the suspension of employees and placement of employees on administrative leave is within the purview of the Bureau of Labor Relations, and that cases involving allegations of sexual misconduct or unauthorized relationships are typically referred to the Bureau of Labor Relations by DOCS OIG. In his affidavit, Shipley recites Section 8.4 of the Collective Bargaining Agreement (CBA) between the State of New York and New York State Correctional Officers & Police Benevolent Association that was in effect from April 1, 2007 through March 31, 2009, which sets forth the process for the suspension of a covered employee such as Lasker. In essence, an employee may be suspended if it is determined that "there is probable cause that such employee's continued presence on the job represents a potential danger to persons or property or would severely interfere with its operations." Alternatively, an employee may be placed on administrative leave if there is "reasonable cause or reasonable suspicion to believe that the employee's continued presence on the job represents a potential danger to persons or property or would severely interfere with operations."
Shipley further avers that there were both legal and policy reasons for not suspending an employee, or placing them on administrative leave, on the basis of an allegation of misconduct without first finding probable or reasonable cause to do so. Legally, under both the Civil Service Law and the aforementioned CBA, any such action against an employee is limited without sufficient evidence of probable or reasonable cause. As a policy matter, while some allegations of misconduct result in the discovery of sufficient evidence to act against an employee, other allegations are false and made by inmates for a variety of reasons, such as manipulating a transfer, embarrassing an employee, or to get retribution against an employee. Shipley concludes that taking adverse action against an employee without corroborative evidence of probable or reasonable cause to do so would violate the CBA, law and DOCS policy, and also "cause significant hardship on our ability to manage the correctional system."
In her reply to Defendant's response papers, Claimant asserts that the Court should not consider the affidavit submitted by Adams because he is a relevant witness who went undisclosed by Defendant until the instant motion. Claimant alleges that she is prejudiced by this lack of disclosure in that discovery is complete and she has had no opportunity to examine Adams. Defendant, in its sur-reply affirmation that is stylized as a "Reply Affirmation" to Claimant's motion for summary judgment, avers that Adams is a witness with limited first hand knowledge of the events underlying this claim whose affidavit addresses the discretion used in the course of investigating Lasker, and that Claimant is not prejudiced because the Note of Issue has not yet been filed and Claimant still has an opportunity to depose Adams prior to trial.
Preclusion is a drastic remedy and should generally be denied absent any demonstration that a party's conduct was willful and contumacious (see Hanson v City of New York, 227 AD2d 217). Here, although Defendant fails to set forth any reason why Adams was not previously disclosed as a witness, there is also no demonstration by Claimant that Defendant's conduct in failing to disclose Adams was willful and contumacious. Additionally, I see no great prejudice to Claimant in allowing Adams affidavit to be considered on this motion. Claimant previously had the opportunity to depose Inv. Janet Roberson, who directly handled the investigation into Lasker's conduct with both J.R. and Claimant. While Adams was Inv. Roberson's supervisor during that time period and, upon my reading of Adams' affidavit, he does appear to have some first-hand knowledge of the investigation into the allegations of Lasker's misconduct with both J.R. and Claimant, the affidavit also appears to address generally the procedures that take place when allegations of sexual misconduct arise within DOCS facilities.
Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (see Andre v Pomeroy, 35 NY2d 361, 364). The Court's function in a motion for summary judgment is not to resolve issues of fact, but to determine whether issues of fact exist (see Barr v County of Albany, 50 NY2d 247). The proponent of a motion for summary judgment must make a showing of prima facie entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320). Failure to make such a showing requires denial of a summary judgment motion, regardless of the sufficiency of the opposing party's papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). Once this showing has been made, the burden shifts to the opponent of the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (see Alvarez, 68 NY2d at 324; Winegrad, 64 NY2d at 853; Zuckerman v City of New York, 49 NY2d 557, 562). The evidence must be viewed in the light most favorable to the opponent of the motion, and that party should be given every favorable inference (see McKinnon v Bell Sec., 268 AD2d 220).
It is well settled that the State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risk of harm (see Flaherty v State of New York, 296 NY 342; Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112 AD2d 562). That duty, however, does not render the State an insurer of inmate safety (see Sanchez v State of New York, 99 NY2d 247) and, rather, the State has a duty to exercise reasonable care in light of what the State actually knew, and "what the State reasonably should have known" (Id. at 254 [emphasis in original]). The State, as an employer, will generally not be found liable for the intentional act of an employee, like Lasker, who perpetrates an act for his own purposes and outside the course of his employment (see Johnson v State of New York, UID #2008-030-025, Claim No. 110711 [Scuccimarra, J., Nov. 25, 2008]). The State may still be held liable in such cases, however, under theories of negligent supervision and/or negligent retention.
Negligent supervision requires a claimant to show that an employer knew or should have known — had the supervision been adequate — of the employee's propensity for the type of conduct that injured her (see Shantelle S. v State of New York, 11 Misc 3d 1088 [A] [Ct Cl, Feb. 22, 2006]; Johnson v State of New York, supra; Prentice v State of New York, UID #2004-009-01, Claim No. 91731, Motion Nos. M-65785, M-65786 [Midey, J., March 30, 2004]). Negligent retention requires a claimant to establish that the employer knew or should have known of the employee's propensity for the sort of conduct that caused the injury (see Shantelle S., 11 Misc 3d at *4; Johnson v State of New York, supra). In a negligent retention cause of action, the employer's negligence arises from its ". . . having placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the . . . retention of his employees" (Detone v Bullit Courier Service, Inc., 140 AD2d 278, 279, lv denied 73 NY2d 702).
Accepting all of the uncontroverted facts alleged by Claimant as true, as I am required to do, it is clear that Lasker's supervisors were well aware of his propensity to engage in unauthorized relationships with at least one other inmate prior to the two incidents of sexual misconduct with Claimant in June 2007. An investigation was launched into the alleged sexual relationship with J.R. at the behest of the Superintendent of Albion, and that investigation was still ongoing nearly four months later when Lasker raped Claimant. Despite the subject matter of this apparently lengthy investigation, which appeared to grind to a halt between March and June 2007, Lasker continued to work in a capacity that allowed him access to the inmate population at Albion with little, if any, additional supervision. Sgt. Schiffer may have indicated to Inv. Roberson that Lasker was placed under additional supervision after the allegation by J.R. and complaints from other inmates about J.R. and Lasker's relationship (Claimant's Exhibit G), but Lasker was still able to call out Claimant to act as a porter on E-Block on June 9, 2007 even though he did not have the authority to do so (Claimant's Exhibit K, at 1), and she was not trained as a porter (Claimant's Exhibit L).
Moreover, even though there was no corroborative evidence to support J.R.'s allegations of multiple sexual encounters with Lasker between August 2006 and January 2007, there was evidence enough to demonstrate that Lasker and J.R. had an unauthorized relationship only months prior to Lasker's sexual misconduct with Claimant. It is not required that Defendant have notice of the propensity of the employee to behave in the exact manner in which he behaved with Claimant but, rather, "it is sufficient that the defendant had notice of the employee's propensity to engage in the sort of behavior' " (Doe v State of New York, UID # 2010-042-503, Claim No. 111417, Motion No. M-77111 [Siegel, J., Jan. 15, 2010], quoting Kirkman v Astoria Gen. Hosp., 204 AD2d 401, lv denied 84 NY2d 811). The evidence here clearly shows that Defendant knew or should have known of Lasker's propensity to pursue unauthorized relationships with inmates prior to his rape of Claimant. By at least March 2007, Defendant knew that Lasker made phone calls to J.R.'s mother on multiple occasions, and that an unknown female placed a phone call to Lasker's home to inform his fiancee about the alleged sexual relationship. Additionally, in her interview, J.R. supplied Inv. Roberson with assorted details of Lasker's personal life, including his address, a phone number where she could contact him, the fact that he had custody of his son, and the fact that his fiancee was pregnant with his child. Despite this information, Lasker was left in a position where he could continue to pursue unauthorized relationships with the inmates at Albion. Given the information that was uncovered during the investigation into Lasker's unauthorized relationship with J.R., Defendant clearly knew or should have known that Lasker could possibly pursue another unauthorized relationship, consensual or not, with one of the inmates at Albion.
I find that the affidavits submitted by Defendant in opposition to the motion do not raise any issues of material fact that require trial. Adams' affidavit addresses the fact that it was necessary to leave Lasker on the job "for a short period of time" in furtherance of the investigation, and that, unfortunately, no evidence sufficient to charge Lasker with any sexual crimes related to his unauthorized relationship with J.R. was ever discovered. Initially, as noted above, Defendant did not have to have notice of Lasker's propensity to behave in the exact manner in which he behaved with Claimant, only notice of his propensity for that "sort of behavior." There is no dispute that Defendant had notice of Lasker's propensity to pursue unauthorized relationships with inmates, which he later did with Claimant. Moreover, he was not kept at work for a "short period" of time but, rather, Lasker remained in his regular job for a period of nearly four months while his relationship with J.R. was investigated, with no apparent additional supervision.
Shipley's affidavit raises issues related to the CBA and State law, which provide that Lasker could not have been suspended or placed on administrative leave without at least reasonable cause or reasonable suspicion to believe that his continued presence on the job represented a potential danger to persons or property or would severely interfere with operations. This ignores completely Claimant's contention that Lasker could have or should have been moved to a different area within the facility, where he would have had little or no access to the inmates as he did throughout the investigation and up to the occasions when he raped Claimant, or at least placed under more stringent supervision if he were to remain at his regular post. Shipley fails to even contemplate the possibility of some action short of suspension or administrative leave as a temporary remedy to remove an employee from an area while an investigation occurs. Even if there was not sufficient evidence to demonstrate reasonable suspicion that Lasker's continued presence could interfere with operations at Albion, Defendant, through Shipley's affidavit, makes no suggestion that Lasker could simply have been assigned a different task within the facility during the investigation. Claimant never suggests that Lasker needed to be suspended or placed on administrative leave. Rather, Claimant suggests only that Lasker should have been moved away from the area where he presented a potential harm to the inmates at Albion, a harm that was later visited upon Claimant. I cannot disagree with this logic, and Defendant fails to even dispute it.
Finally, with respect to Defendant's brief assertion that it cannot be liable to the extent that there was a discretionary determination involved in keeping Lasker on the job, I note that this argument is belied by the very affidavits submitted by Defendant in opposition to the motion. Both Adams and Shipley aver that Lasker could not have been taken off the job, due to investigatory, contractual and statutory obligations. Defendant will not be permitted to both have its cake and eat it on this occasion.
In sum, Defendant had notice of Lasker's propensity to pursue unauthorized relationships with inmates and yet left him in the position to continue to pursue the same, which was the proximate cause of the later rape of Claimant by Lasker. Claimant's motion for summary judgment on the issue of liability must be granted. A trial on the issue of damages will be scheduled in due course.
CROSS MOTION NO. CM-80395
Defendant cross-moves to have the record sealed pursuant to Section 50-b of the Civil Rights Law and the Law Enforcement Privilege, due to the fact that the names of Lasker's victims are revealed, and also because there is information in the record pertaining to DOCS OIG investigative techniques that should not be revealed to the public. Claimant does not oppose the cross motion for a sealing order. Due to the sensitive and confidential nature of the matters at issue in this claim, and Claimant's lack of opposition to the cross motion, I hereby direct the Clerk of the Court of Claims to seal the record in Claim No. 114085.
Accordingly, Claimant's motion for an order granting summary judgment (M-80202) is GRANTED, and Defendant's cross motion to seal the record (CM-80395) is GRANTED.
Appendices: