Opinion
# 2019-040-005 Claim No. 128099 Motion No. M-92030
01-24-2019
MARK RAYMOND KINNALLY, by the co-guardians of his Person and Property, MARK KINNALLY and LISA KINNALLY and MARK KINNALLY AND LISA KINNALLY, Individually v. THE STATE OF NEW YORK
DE CARO & KAPLEN, LLP By: Shana De Caro, Esq. LETITIA JAMES Attorney General of the State of New York By: Anthony Rotondi, Esq., AAG
Synopsis
State's Motion for Summary Judgment denied. Case involved SUNY basketball player/student injured in auto accident on way to off-campus team practice.
Case information
| UID: | 2019-040-005 |
| Claimant(s): | MARK RAYMOND KINNALLY, by the co-guardians of his Person and Property, MARK KINNALLY and LISA KINNALLY and MARK KINNALLY AND LISA KINNALLY, Individually |
| Claimant short name: | KINNALLY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | Caption amended to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128099 |
| Motion number(s): | M-92030 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | DE CARO & KAPLEN, LLP By: Shana De Caro, Esq. |
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Anthony Rotondi, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | January 24, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's Motion for summary judgment dismissing the Claim pursuant to CPLR 3212 and pursuant to CPLR 3211(a)(7) on the basis that the Claim fails to state a cause of action is denied.
The Claim was filed with the office of the Clerk of the Court on June 20, 2016. The pertinent underlying facts of the case are not in dispute. A motor vehicle accident occurred on December 29, 2015, on State Route 32 (hereinafter, "Rt. 32"), in the Town of New Paltz, when Claimant, a passenger in a vehicle driven by Alexander Perlman collided with a vehicle driven by Susan Lamoreaux. On the date of the accident, Claimant was a second-year student at the State University of New York at New Paltz (hereinafter, "SUNY New Paltz") and was also a member of the school's men's basketball team (Ex. M attached to Affirmation of Shana De Caro, Esq. [hereinafter, "De Caro Affirmation"]).
As the claim of Mark Kinnally and Lisa Kinnally is derivative in nature, all references to Claimant will be to Mark Raymond Kinnally unless otherwise indicated.
Claimants commenced an action in Supreme Court, Westchester County, against Alexander Perlman, Richard Perlman, Susan Lamoreaux, and two Iron Mountain entities that employed Ms. Lamoreaux and owned the vehicle driven by Ms. Lamoreaux (Ex. B attached to Affidavit of Anthony Rotondi, Esq., Assistant Attorney General [hereinafter, "Rotondi Affidavit"]).
Alexander Perlman was a SUNY New Paltz senior, and a member of the school's men's basketball team (Ex. M attached to De Caro Affirmation). Mr. Perlman lived in an off-campus apartment (Ex. E attached to Rotondi Affidavit [Transcript of Examination Before Trial of Alexander H. Perlman conducted on March 16, 2017 (hereinafter, "Perlman EBT")], p. 11; also Ex. H attached to De Caro Affirmation).
According to Mr. Perlman, students who lived on campus had to be off campus by a certain date when winter recess started. In addition, since SUNY New Paltz was on "energy save mode" over winter recess, many buildings, including the gymnasium, where the basketball team practiced, were closed (Perlman EBT, p. 20).
Claimant returned to New Paltz on December 28, 2015 (Ex. D attached to Rotondi Affidavit [Transcript of Examination Before Trial of Mark Raymond Kinnally conducted on March 2, 2017 (hereinafter, "Kinnally EBT")], pp. 98-99; also Ex. G attached to De Caro Affirmation). The first practice following Christmas was scheduled for December 29, 2015 (Perlman EBT, p. 30). Practice was scheduled for 10:00 a.m. at Ulster County Community College (Perlman EBT, p. 49; see Kinnally EBT, pp. 135, 271). Claimant was going to stay with Mr. Perlman until the dorms opened (Perlman EBT, p. 36; Kinnally EBT, pp. 271-273). On December 28, 2015, Claimant was driven to Mr. Perlman's New Paltz apartment by his parents (Kinnally EBT, pp. 98-99, 105, 225-226). That evening, Coach Mike Rejniak (SUNY New Paltz' head basketball coach) hosted a team Christmas party at his home (id., pp. 108, 112-115, 123). Mr. Perlman had the use of his father's car while at school (Perlman EBT, p. 11). Mr. Perlman drove himself, Claimant, and Brandon Tolliver, another basketball player, to the party on the night of December 28, 2015 (Perlman EBT, p. 44).
Following the team party, Mr. Perlman, Claimant, and Mr. Tolliver went to a teammate's party (Perlman EBT, pp. 50-52). They left that party at 1:00 a.m. on the morning of December 29, 2015 (id., p. 53). Mr. Perlman stated that perhaps two inches of snow had fallen that evening (id., p. 56). Mr. Perlman's vehicle did experience some difficulty stopping. Mr. Perlman described his vehicle as slightly sliding and/or skidding when he went to break. The roads had not been plowed when he drove back to his apartment from the teammate's party (id., pp. 58-59).
Once back at his apartment, Mr. Perlman sent a text message to Coach Rejniak. That text read: "Hey coach, we drove back from R.J.'s about an hour and a half ago and my car really struggled. If this keeps up all night I really doubt my car is going to make [it]. Hopefully the roads get plowed but we'll see. Mark and BT are with me. Just wanted to give you a heads up" (Perlman EBT, pp. 66-67). Mr. Perlman did not receive a reply to this text (id., p. 69).
On the morning of December 29, 2015, Mr. Perlman, Claimant, and Mr. Tolliver left Mr. Perlman's apartment in Mr. Perlman's car at approximately 9:15 a.m. to go to practice (Perlman EBT, pp. 72, 87-88). There was snow on the ground and there were plow trucks on the road (id., p. 73). Mr. Perlman did not believe it was snowing, raining, or sleeting as he left his apartment (id., pp. 76-77). He had to brush snow off his car, but not ice (id., p. 78). His driveway was not shoveled or plowed and his car almost made it out of the driveway. His vehicle could not get over a lip at the bottom of the driveway, however, and he had to shovel snow in order to leave his apartment's parking lot (id., pp. 78-79). He stated that the road had been plowed but was slushy and wet (id., p. 82). He described the traffic conditions as normal, although people were driving slower than usual (id.) He did not need to use his windshield wipers as he was driving and the vehicle's lights were on (id., p. 87). Mr. Perlman did not consider delaying his departure (id., p. 88). Once on the road, he did not consider returning to his apartment, or pulling over to the side of the road, because he did not experience any difficulties while driving to practice (id., pp. 88-90). He was in complete control of his car (id., p. 90).
Mr. Perlman also testified that, even if practice was not mandatory, he would have gone to practice (Perlman EBT, p. 90). Mr. Perlman believes he hit a patch of ice, and then lost control of his vehicle. The vehicle crossed into the oncoming lane and collided with the truck driven by Susan Lamoreaux (id., pp. 99-102; Ex. AA, BB attached to De Caro Affirmation).
The Claim asserts causes of action in negligence, including, among other failures: in failing to delay, postpone, and/or cancel the off-campus team basketball practice on the morning of December 29, 2015, despite hazardous weather and road conditions; in failing to abide by the SUNY New Paltz Athletic Department directive for cancellation of all practices when the school was on a delayed opening; in failing to provide transportation for members of the basketball team to attend the off-campus practice; and in failing to conduct coaching activities in accordance with good and accepted practices (De Caro Affirmation, p. 4).
The Claim further asserts that Mr. Perlman was required by Coach Rejniak and SUNY New Paltz to use his motor vehicle on the morning of December 29, 2015, as its agent and/or servant, to drive and transport team members, including Claimant, to the scheduled off-campus practice (De Caro Affirmation, p. 5).
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 [1985]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "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 its Memorandum of Law, Defendant asserts four reasons why the Claim should be dismissed: (1) Defendant did not owe a duty to Claimant to delay or cancel practice; (2) the decision to hold practice was a governmental, discretionary determination, for which the State cannot be held liable (citing McLean v State of New York, 12 NY3d 194, 203 [2009]); (3) the Court should not expand the duty owed to adult students of colleges and universities; and (4) Defendant is not vicariously liable for Mr. Perlman's alleged negligence.
The Court will first address the issue of governmental function immunity. 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 [2017], quoting Applewhite v Accuhealth, Inc., 21 NY3d 420, 425[2013]; see Turturro v City of New York, 28 NY3d 469, 477 [2016]; 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 [1999], quoting Riss v City of New York, 22 NY2d 579, 581[1968]; 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's employees ran and supervised the SUNY New Paltz basketball program. The Court concludes that these acts constitute a proprietary function - that is, activities that essentially substitute for or supplement traditionally private enterprises and Defendant is subject to suit under ordinary negligence principles applicable to non-governmental actors (Sebastian v State of New York, supra, quoting Riss v City of New York, supra; T.T. v State of New York, supra; see Drever v State of New York, supra). Therefore, Defendant's argument that the Claim should be dismissed on the basis of governmental function immunity is denied.
Defendant next argues that it did not owe a duty to Claimant to delay or cancel practice. A college does not guarantee the safety of students on its campus and Claimant may not recover on a theory that the college is in loco parentis. As asserted by Defendant, colleges generally have no legal duty to protect their students from the dangerous activities of themselves or other students (Eiseman v State of New York, 70 NY2d 175, 190 [1987]; Pasquaretto v Long Is. Univ., 106 AD3d 794, 795 [2d Dept 2013]; Luina v Katharine Gibbs School N.Y., Inc., 37 AD3d 555, 556 [2d Dept 2007]; Ellis v Mildred Elley School, 245 AD2d 994, 995 [3d Dept 1997]; Rothbard v Colgate Univ., 235 AD2d 675, 676 [3d Dept 1997]; Talbot v New York Inst. of Tech., 225 AD2d 611, 612 [2d Dept 1996]). However, a duty "may be imposed upon a college where it has encouraged its students to participate in an activity and taken affirmative steps to supervise and control the activity" (Pasquaretto v Long Is. Univ., supra at 796; see Lloyd v Alpha Phi Alpha Fraternity, 1999 WL 47153 [NDNY 1999]; Hores v Sargent, 230 AD2d 712 [2d Dept 1996]).
In assessing whether a claimant has failed to state a cause of action, pursuant to CPLR 3211(a)(7), the court must "accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see also Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Dee v Rakower, 112 AD3d 204, 208 [2d Dept 2013]). Thus, the determination is made by reference to whether "the proponent of the pleading has a cause of action, not whether he [or she] has stated one" (id. at 88 [quotation marks and citations omitted]).
As succinctly stated in Lee v State of New York (UID No. 2008-029-091 [Ct Cl, Ferreira, J., Sept. 15, 2008]):
"As the party seeking summary judgment, defendant ha[s] the initial burden of establishing its defense sufficiently to warrant an award of judgment in its favor as a matter of law" (Antonucci v Emeco Indus., 223 AD2d 913, 914 [3d Dept 1996]). "The burden is not met by … pointing to gaps in [claimants'] proof" (id.) … "Rather, a defendant must affirmatively demonstrate the merit of its defense '… by tender of evidentiary proof in admissible form' " (id., quoting Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "[T]he issue on summary judgment is not what the [Claimant] will be able to prima facie establish at trial but whether the movant has prima facie established his entitlement to summary judgment by eliminating all material issues raised by the pleadings" (S.S. v New York City Health & Hosps. Corp. [Harlem Hosp.], 11 Misc 3d 1071(A), *3 [2006]).
Here, as in Lee (supra), Defendant has failed to tender evidentiary proof in admissible form that it did not have control or supervision over the activities of the basketball team. The Court finds that Defendant has not offered any prima facie proof to meet its burden. In addition, Defendant cannot rely upon alleged gaps in Claimant's proof to meet its burden (see Rotondi Affidavit, ¶¶ 26-31). Thus, the portion of the State's Motion to dismiss on the basis that the Claim fails to state a cause of action on the basis that Defendant did not owe a duty to Claimant is denied.
Defendant also seeks dismissal on the basis that Defendant is not vicariously liable for Mr. Perlman's alleged negligence in operating his motor vehicle. Defendant asserts it was not the titled or registered owner of the vehicle Mr. Perlman was driving. Defendant further states that there is no allegation in the Claim that Defendant paid or agreed to pay Mr. Perlman for mileage, and no testimony was adduced at the deposition of the various witnesses that Defendant directed Mr. Perlman to drive a certain route to practice (Defendant's Memorandum of Law, pp. 14-15).
It is clear from the testimony adduced at the depositions that the SUNY New Paltz basketball team could not practice on campus on December 29, 2015 (Perlman EBT, p. 20) Coach Rejniak testified at his deposition that he asked the athletic department secretary in November 2015 if the two vans available to the athletic department could be used to transport the members of the team to practice at Ulster County Community College on December 29, 2015 and was told they were not available as they were being serviced (Ex. F attached to Rotondi Affidavit [Transcript of Examination Before Trial of Michael Rejniak conducted on April 13, 2017 (hereinafter, "Rejniak EBT")], pp. 36-38, 75; also Ex. I attached to De Caro Affirmation). He also stated that he told the team that those who lived on campus should make arrangements to stay with those team members who lived off campus for the period of December 29, 2015 to January 2, 2016 (id., pp. 54-56). He expected all team members to be at practice during that period (id., p. 45). He stated that, the prior season (December 2014), he held off-campus practices for the team and the students traveled to practice by driving their own cars (id.). The coach agreed that, on December 29, 2015, there had to be a means to get all the team members to the off-campus practice and that some players had cars and some did not (id., p. 132). He further agreed that SUNY New Paltz was utilizing Mr. Perlman's car to provide transportation both for the student driver, as well as the other students who were staying overnight at that student's house, as the means for the players to get to practice (id., p. 133).
In Robinson v Downs (39 AD3d 1250 [4th Dept 2007]), the plaintiff sought damages for injuries sustained by her daughter when she was struck by an automobile owned by William Brown and operated by Sylvester Downs. At the time of the accident, Brown was the coach of a basketball team for high-school age players, and Downs was a high school senior who was Brown's assistant coach. Brown allowed Downs to drive Brown's car for the purpose of taking players to practice. Plaintiff alleged, inter alia, that the Diocese of Rochester, a defendant, was negligent in training, supervising and instructing Brown and that it was vicariously liable under the doctrine of respondeat superior for the alleged negligence of Brown in entrusting his automobile to Downs.
The Appellate Division, Fourth Department, reversed the portion of Supreme Court's order that granted that part of Defendant's summary judgment motion to dismiss with respect to the vicarious liability for the alleged negligence of Brown in entrusting his car to Downs. The Appellate Court found that the "moving defendants failed to establish as a matter of law that Brown … may not be considered their servant for purposes of respondeat superior… or that Brown was not acting within the scope of his duties as a coach when he permitted Downs" to use his vehicle (Robinson v Downs, supra at 1252).
In the instant Claim, the SUNY New Paltz basketball team was conducting practice off campus, the school did not provide transportation to the practice, and the coach expected all his players to be at practice. The coach also was aware that some of his players did not have cars so that the only way they could get to practice was if a teammate with a vehicle drove them.
Under the doctrine of respondeat superior, a principal is liable for the negligent acts committed by its agents within the scope of the agency (Rozmus v Wesleyan Church of Hamburg, 161 AD3d 1538, 1539 [4th Dept 2018]; Fils-Aime v Ryder TRS, Inc., 40 AD3d 917, 917-918 [2d Dept 2007]). Principal-agent relationships can include volunteers when the requisite conditions, including control and acting on another's behalf are shown (Rozmus v Wesleyan Church of Hamburg, supra; Fils-Aime v Ryder TRS, Inc., supra; Robinson v Downs, supra; Lee v State, supra).
Given the questions of fact noted above, the Court need not address, at this time, Defendant's argument about expanding the duty owed to adult students of colleges and universities.
Based upon the foregoing, the Court finds that Defendant has failed to establish as a matter of law it is entitled to summary judgment. Therefore, Defendant's Motion: (1) for summary judgment dismissing the Claim pursuant to CPLR 3212; and (2) to dismiss the Claim for failure to state a cause of action pursuant to CPLR 3211(a)(7), is denied.
January 24, 2019
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: Papers Numbered Notice of Motion, Affidavit in Support, Exhibits Attached, and Memorandum of Law 1 Affirmation in Opposition, Exhibits Attached, and Memorandum of Law 2 Reply Affirmation 3 Filed Papers: Claim, Answer