Opinion
# 2015-038-542 Claim No. 105847 Motion No. M-86250 Cross-Motion No. CM-86365
07-02-2015
S.S. and T.T., Guardians of the Person and Property of R.R., a Mentally Retarded Person v. THE STATE OF NEW YORK
DELLA RATTA LAW OFFICE By: John A. Della Ratta, Esq. ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Glenn C. King, Assistant Attorney General
Synopsis
On a claim arising from alleged physical and sexual abuse at a group home certified by defendant, claimants' motion for summary judgment denied on the grounds that it sought judgment on cause of action not stated in the claim and that claimants did not bear their initial burden of demonstrating that defendant disseminated a policy requiring non-reporting of incidents of abuse of clients. Defendant's cross motion for summary judgment granted because there is not a private right of action for violations of the Mental Hygiene Law and its related regulations, and claimants did not demonstrate a special relationship giving rise to a special duty owed to claimants.
Case information
| UID: | 2015-038-542 |
| Claimant(s): | S.S. and T.T., Guardians of the Person and Property of R.R., a Mentally Retarded Person |
| Claimant short name: | S.S. and T.T. |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 105847 |
| Motion number(s): | M-86250 |
| Cross-motion number(s): | CM-86365 |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | DELLA RATTA LAW OFFICE By: John A. Della Ratta, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Glenn C. King, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 2, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This claim seeks compensation for physical injuries allegedly sustained by R.R. while she was a resident at a group home that was operated by Camary Statewide Services Corp. (Camary), a not-for-profit corporation. The claim was filed in 2002, and the litigation of this claim has been besieged by complicated and protracted discovery. Following the filing of the note of issue, both parties have moved for summary judgment, and each party opposes the motion of the other. Due to a number of factors, including the length of time since its commencement and the manner in which discovery has been conducted, the scope of the matter has become somewhat unclear. Thus, this decision on the parties' motions for summary judgment will begin with a review of the claim to clarify the theories of liability that are being asserted against defendant.
Defendant's assertion that claimants' motion should not be considered because it is not supported by a copy of the pleadings as required by CPLR 3212 (b) is unavailing, inasmuch as the pleadings have been submitted in support of defendant's cross motion, and thus, the record is sufficiently complete for consideration of the merits of the parties' motions (see Crossett v Wing Farm, Inc., 79 AD3d 1334, 1335 [3d Dept 2010]; cf. Senor v State of New York, 23 AD3d 851 [3d Dept 2005]).
R.R. was 39 years old at the time this claim was commenced in 2002, had been diagnosed with autism as a child, and had an adult mental age of approximately three years and nine months (see Claim, ¶ 4). R.R. became a resident of a group home at 890 Madison Avenue in Albany, New York in March 1986 and she remained a resident of 890 Madison Avenue through July 1993 (see id., ¶ 6). The claim alleges that Camary had placed approximately 13 aggressive sexually active male clients at 890 Madison Avenue with R.R. and one other female client (id., ¶ 8), and that R.R. was physically assaulted by an employee on one occasion, that she was physically and sexually assaulted by other residents, and that she sustained injuries from other unknown causes during the entire period of her residency at 890 Madison Avenue (see id., ¶¶ 9 [a] through 9 [t]). The claim alleges that claimants - R.R.'s natural parents and duly appointed guardians - became aware of R.R.'s injuries and concerned about the quality of her care by August 1987. The claim asserts three causes of action against defendant State of New York: First ; that defendant implemented an internal policy that incidents of client-to-client abuse were not to be reported to Office of Mental Retardation and Developmental Disabilities (OMRDD), and that this policy was contrary to 14 NYCRR § 624.4 (b) and resulted in the deprivation of R.R.'s civil rights (see Claim, ¶¶ 15 through 20). Second ; that claimants repeatedly notified OMRDD of R.R.'s injuries, that OMRDD did not put corrective procedures into place, and that an investigation that was conducted by the State of New York Commission on Quality of Care for the Mentally Disabled (CQC) in 1992 into the cause of the injuries sustained by R.R. was negligently performed (see id., ¶¶ 22 through 25), and that "this malfeasance by the [CQC] caused the continuation and exacerbation of claimants [sic] near daily physical and sexual abuse" (id., ¶ 26). Third ; that defendant breached its "duty to properly regulate, oversee, promote, establish and develop policies and procedures that ensure the safety and humane treatment of patients at the Camary Statewide Services Corporation" (id., ¶ 28).
The affidavit of claimant S.S. (R.R.'s mother) that is submitted in support of her motion for summary judgement informs the Court at ¶ 53 that T.T. (R.R.'s father) is deceased since 2010.
OMRDD has since had its name changed to the Office for People with Developmental Disabilities (OPWDD). As the claim predates the name change, this decision will refer to the agency by its former name.
In support of their motion for summary judgment, claimants seek judgment as a matter of law for: 1. The negligent placement of [R.R.] into a State certified residential group home that contained the State's most aggressive, violent, sexually active, disabled men
2. Creating a dangerous and abusive environment by enacting a policy in direct contradiction to Part 14 NYCRR §624, including but not limited to: §624.4(b); (b)(1); (b)(10); 624.5(a); (e); (g); (h) and (i)
3. Failing to properly license and regulate the State certified residential group home in question.
(Della Ratta Affirmation, ¶ 2). Defendant argues that it cannot be liable for negligent placement of R.R. because that was a medical decision for which liability cannot attach (see King Affirmation, ¶¶ 4 through 9). However, because the allegedly negligent placement of R.R. at 890 Madison Avenue is not a cause of action or basis for liability asserted in the claim, summary judgment will not be granted thereon. Similarly, while the third cause of action in the claim asserts that defendant did not "properly regulate, oversee, promote, establish and develop policies and procedures" (Della Ratta Affirmation, ¶ 2.2 [emphasis added]), the third claim to summary judgment rests in part upon a cause of action not asserted in the claim - the failure to properly license Camary. Thus, coordinating claimants' motion with its pleading, the only bases for liability that are properly before the Court on claimants' motion are defendant's alleged implementation of a policy of non-reporting contrary to 14 NYCRR § 624.4 (b), and failing to properly regulate and otherwise oversee Camary.
It is well established that a movant for summary judgment must establish the right to judgment as a matter of law by tendering evidence in admissible form to sufficiently eliminate material issues of fact (see Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). If the movant establishes prima facie entitlement to summary judgment, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). However, when a movant fails to demonstrate its entitlement to summary judgment as a matter of law in the first instance, the motion must be denied (see Ayotte v Gervasio, 81 NY2d 1062, 1062 [1993], quoting Alvarez v Prospect Hosp., supra; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Tiano v Lane, 260 AD2d 908 [3d Dept 1999]). The submissions made in connection with a motion for summary judgment must be examined in a light most favorable to the party opposing the motion (Iwaszkiewicz v Callanan Indus., 258 AD2d 776 [3d Dept 1999]), and summary judgment should not be granted where there is any doubt as to the existence of triable issues of fact (see S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341 [1974]).
Claimants' counsel asserts that they are entitled to summary judgment because "OMRDD implemented an internal policy contrary to §624.4(a) and §624.4(b) of [part 14 of] the NYCRR, directing employees to not report all suspected abusive injuries to OMRDD" (Della Ratta Affirmation, ¶ 57). The cited provisions of the Mental Hygiene regulations in effect at the time relevant to this claim provide the following definitions of reportable incidents and serious reportable incidents:
As noted above, the claim specifically alleges only violation of 14 NYCRR § 624.4 (b), which addresses the reporting of incidents of abuse, but not NYCRR § 624.4 (a), which addresses, inter alia, the reporting of incidents of injury.
"Significant events or situations endangering a client's well-being, as specified below, which are required to be recorded on a standardized form . . . subject to approval by OMRDD; reviewed, investigated and reported to designated parties according to established procedures of the provider agency/program; reviewed by a standing committee; and acted upon in an appropriate manner by the program administrator . . . to bring the matter to closure. A serious reportable incident is a reportable incident which, because of the severity or sensitivity of the situation, must also be immediately reported to OMRDD and followed up in writing on form OMR 147(I), Reportable Incident Reporting Form"
(Della Ratta Affirmation, Exhibit W [14 NYCRR § 624.4 [a] [11-30-85]). The program administrator for a certified facility such as 890 Madison Avenue would have been "[t]he person designated by [Camary] to be responsible and accountable for the daily operation of an OMRDD-certified or -operated program; or his or her designee" (id., 14 NYCRR § 624.20 [t]). The "standardized form" referred to in 14 NYCRR § 624.4 (a) is a document that is:
"designed or designated at the agency/program level for the purpose of recording reports of incidents (as defined herein and by agency/program policy) and alleged client abuse for use within that agency/ program in such a manner that there will be consistency of information to facilitate the investigation, review and monitoring of these events or situations and the corrective actions taken"
(id., 14 NYCRR § 624.20 [w]). A "reportable incident" is "[a]ny suspected or confirmed injury or harm to a client, whether or not the cause can by identified, which results in a client requiring medical or dental treatment . . . by a physician, dentist, physician's assistant or nurse practitioner, and such treatment is more than first aid" (id., 14 NYCRR § 624.4 [a] [1]). A "serious reportable incident" is "[a]ny injury which results in the admission of the client to a hospital or 24-hour infirmary for treatment or observation because of the incident" (id.).
Thus, 14 NYCRR § 624.4 (a) created a three-tiered construct for reporting incidents of client injury at state-certified facilities such as 890 Madison Avenue: (1) if an injury required only first aid, it was not a reportable incident; (2) if an injury required treatment that was more than first aid which was provided by a medical professional not including a nurse, the incident was to be reported to parties designated by Camary (using a form created by Camary and approved by OMRDD), reviewed by a standing committee, and acted upon through closure by the program administrator at 890 Madison Avenue; or (3) if an injury resulted in the client's admission to or observation at a hospital or 24-hour infirmary, it was required to be reported and reviewed at the agency/program level in the same manner as a reportable incident and be immediately reported to OMRDD and followed up in writing on form OMR 147(I). Notably, the different reporting requirements of subdivision (a) of 14 NYCRR § 624.4 are triggered by the severity of a client's injury and the level of medical care at which it is addressed, and not by how or by whom the injury was inflicted.
Subdivision (b) of 14 NYCRR § 624.4 requires that all allegations of "abuse" be reported in the same manner as "serious reportable incidents" - i.e. reported and reviewed and acted upon by the program administrator and "immediately reported to OMRDD and followed up in writing on form OMR 147(A), Allegation of Client Abuse" (14 NYCRR § 624.4 [b]). As relevant here, abuse is defined as "[t]he maltreatment or mishandling of a client which would endanger the physical or emotional well-being of the client through the action or inaction on the part of any individual, including an employee, volunteer, consultant, contractor, visitor or other persons, whether or not the client is or appears to be injured or harmed" (id.). Two distinct categories of abuse as defined in 14 NYCRR § 624.4 (b) are pertinent to this claim:
"(1) Physical abuse. Physical contact which may include, but is not limited to, such obvious physical actions as hitting, slapping, pinching, kicking, hurling, strangling, shoving, or otherwise mishandling a client. Physical contact which is not necessary for the safety of the client and causes discomfort to the client may also be considered to be physical abuse, as may the handling of a client with more force than is reasonably necessary.
"(2) Sexual abuse. Any sexual activity between employees, consultants, contractors or volunteers and clients. Any sexual activity between clients and others or among clients is considered to be sexual abuse, unless the involved client(s) is a consenting adult."
(id. [emphasis added]).
Claimants seek summary judgment upon the theory that the "State created an abusive and dangerous environment by enacting policy and in violation of State Law by directing and training it's [sic] employees specifically [not to] report patient to patient abuse, both physical and sexual, contrary to 14 NYCRR §624.4" (Della Ratta Affirmation, ¶ 46; ¶¶ 46-113), and that "[d]efendant directed employees to allow and to tolerate the physical and sexual abuse of claimant" (id., ¶ 51). Claimants, however, have not demonstrated their entitlement to judgment as a matter of law because there is no evidence submitted in support of the motion that defendant - the State of New York, i.e. OMRDD - instituted, enacted, disseminated a policy or otherwise directed that client-to-client abuse not be reported. Claimants rely almost exclusively on excerpts from the deposition testimony of Colette Robinson, which, when viewed in the light most favorable to defendant, does not include evidence that defendant affirmatively instructed caretakers not to report client-to-client abuse, but rather, that their training did not include instruction that they should report such abuse (see id., Exhibit C, 2000 EBT at 61-64, 125-128; 2011 EBT, at 12-13, 31, 43-48, 53; 58-61). At the very most, Robinson's deposition testimony creates a triable issue of fact as to whether OMRDD had directed that such abuse should not be reported.
There is a distinction to be drawn between 14 NYCRR §624.4 (a), which creates different levels of incident reporting of injuries based upon the level of medical intervention required to treat a client's injury without regard to who caused the client's injury (see e.g. Della Ratta Affirmation, Exhibit S, at 58, [reporting of injury, "irrespective of origin"]; Exhibit V [Affidavit of Colette Robinson, ¶ 4]), and 14 NYCRR §624.4 (b), which requires reporting of abuse, and which makes reference to by whom the abuse was inflicted. Much of the deposition testimony that is submitted in support of claimants' motion demonstrates a blurring of this distinction between an incident of injury and an allegation of abuse. A further relevant distinction appears between the categories of abuse that are reportable in accordance with 14 NYCRR §624.4 (b): although subdivision (b) requires the reporting of abuse of a client by "any individual, including an employee, volunteer, consultant, contractor, visitor or other persons" (emphasis added), "physical abuse" as further defined in subdivision (1) speaks of "mishandling a client . . . safety of the client . . . discomfort to the client . . . [and] the handling of a client" whereas subdivision (2) specifically and expressly includes "sexual activity between clients and others or among clients" (emphasis added). The references in subdivision (1) to the mishandling or handling of the client suggests physical abuse that is inflicted by individuals who care for or otherwise "handle" a client, along with the specific reference to client-to-client interaction in the definition of sexual abuse suggests that client-to-client physical abuse is not required to be reported, notwithstanding the use of the phrase "any individual" in 14 NYCRR §624.4 (b) (see King Affirmation, ¶ 11; see e.g. Della Ratta Affirmation, Exhibit T, at 92-95). In other words, it appears that during the time period relevant to this claim, client-to-client "abuse" was required to be reported only if it involved non-consensual sexual activity between clients, and claimants have not demonstrated otherwise (cf. Della Ratta Affirmation, Exhibit U, at 11-14, 100). Claimants' motion for summary judgment is not based upon an allegation that sexual abuse of R.R. went unreported (cf. id., ¶ 61; Exhibit P), and claimants have not demonstrated that defendant implemented a policy of non-reporting that was contrary to 14 NYCRR § 624.4 (a) or (b). Thus, that part of their motion for summary judgment based upon defendant's alleged dissemination of a policy regarding the reporting or non-reporting of abuse will not be granted.
Events that are considered reportable "incidents" are reported on a form entitled 147(I), and allegations of "abuse" are reported on a form entitled 147(A) (see 14 NYCRR § 624.4 [a]; [b]).
For example, although claimants rely upon the testimony of Raymond Paglieri to support their contention that client-to-client abuse is reportable pursuant to 14 NYCRR § 624.4, he was giving testimony about injuries that were reportable pursuant to § 624.4 (a), and he consistently qualified his responses to questions about whether an injury should be reported on a 147-I by stating that "he" thought so (see Della Ratta Affirmation, Exhibit T, at 67).
Turning to the remaining basis for liability that is properly before the Court on claimants' motion for summary judgment - that defendant failed to properly regulate and oversee 890 Madison Avenue - claimants recite a plethora of provisions of the Mental Hygiene Law and 14 NYCRR part 624, which they assert imposed certain duties upon OMRDD (see Della Ratta Affirmation, ¶¶ 94-112). However, claimants offer no facts that would demonstrate that OMRDD, as opposed to Camary, engaged in any conduct violative of the cited provisions, and, as discussed below, claimants do not have a private right of action based upon OMRDD's alleged violation of the Mental Hygiene Law and related regulations.
To the extent that claimants argue that someone employed by OMRDD notified Camary staff in advance of inspections to be conducted at 890 Madison Avenue, thereby allowing Camary to "cook the books" by correcting known deficiencies prior to the arrival of the inspectors (see Della Ratta Reply Affirmation, ¶ 25), they have not recited any requirement that inspections of facility were to be unannounced (cf. id., Exhibit C [Robinson 2011 EBT], at 69). Indeed, the exhibits submitted by claimants demonstrate that the inspections conducted by OMRDD were not for punitive purposes, but to identify deficiencies that a facility would be required to correct. Claimants have not shown that pre-announcing an inspection, which allowed deficiencies to be corrected before, rather than after, the inspection violated any statutory or regulatory mandate.
Claimants' assertion at ¶ 127 of the Della Ratta Affirmation that Quality Assurance visits were unannounced does not state such was required. Further, the citation to page 12 of the deposition of Ann Sartoris (id., Exhibit T) lacks record support inasmuch as that page of the deposition transcript is not among the selected pages of deposition transcripts that were submitted in support of claimants' motion.
Turning to the cross motion, all of the causes of action asserted in the claim seek to impose liability based upon alleged negligence or misfeasance by OMRDD and/or the CQC in their performance of regulatory, oversight, and investigatory functions relevant to 890 Madison Avenue and Camary, all of which are obligations that arise from the Mental Hygiene Law (see Mental Hygiene Law, Articles 7, 13, 16, and 45). Defendant asserts, and claimants do not dispute, that no private cause of action is authorized for violations of the Mental Hygiene Law because an implied private cause of action would be inconsistent with the legislative scheme (see McWilliams v Catholic Diocese of Rochester, 145 AD2d 904, 904-905 [4th Dept 1988]). Thus, defendant has met its initial burden of demonstrating its right to judgment as a matter of law.
Claimants' argument that liability should attach because R.R. is a member of the class of people for whose benefit the statute was enacted is unavailing (see McWilliams v Catholic Diocese of Rochester, at 904-905 [no private right of action even though plaintiff was an intended beneficiary of the Mental Hygiene Law]). Claimants' further argument that a private right of action may be implied from 14 NYCRR §§ 633.4 and 633.12 is without force because those regulations are authorized by and adopted pursuant to the Mental Hygiene Law for the purpose of implementing "any matter under [the Commissioner's] jurisdiction" (Mental Hygiene Law § 13.09 [b]); they do not stand apart from the Mental Hygiene Law as a source of authority for a private right of action (cf. Litvinov v Hodson, 34 AD3d 1332, 1333 [4th Dept 2006] [cause of action premised on regulation dismissed where statute under which it was promulgated did not give rise to private right of action]). Moreover, even if regulatory provisions that are enacted pursuant to a statutory scheme that lacks a private right of action may, on their own, give rise to a private right of action, the provisions cited by claimants do not do so. Section 633.4 (7) of 14 NYCRR simply states that none of the rights and responsibilities of clients shall be limited for purposes of discipline or punishment, retribution, or for the convenience of staff. And while 14 NYCRR § 633.12 authorizes a client to seek judicial review when a client objects to a non-medical decision about his or her placement or care, judicial proceedings are limited to review pursuant to a petition brought in Supreme Court under CPLR Article 78, not a private cause of action for money damages. Thus, claimants' citation of those two provisions in support of recognition of a private right of action is unpersuasive, and defendant is entitled to summary judgment.
Summary judgment dismissing the claim as a matter of law is further warranted because of the absence of a special duty on the part of defendant to R.R. Negligence claims against governmental entities are subject to the threshold analysis of whether the defendant was engaged in a proprietary function or was acting in a governmental capacity with respect to the acts or omissions alleged in the claim (see Applewhite v Accuhealth, Inc., 21 NY3d 420, 425 [2013]). Claimants appear to assert that defendant is subject to ordinary tort principles as it was charged with responsibilities that pertain to such private actors as landlords or health services providers inasmuch as it was performing a proprietary function with regard to 890 Madison Avenue (see Della Ratta Affirmation, ¶¶ 114-121; see Miller v State of New York, 62 NY2d 506 [1984] [State was operating as a landlord vis-a-vis locking of college dormitory entrance]). However,
"[w]hen the liability of a governmental entity is at issue, '[i]t is 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 which governs liability, 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])"
(Miller v State of New York, 62 NY2d, at 513). Here, the causes of action asserted in the claim are predicated upon defendant's alleged failures to perform functions manifestly related to its governmental capacity - its interpretation and implementation of its regulations regarding reporting of injuries and abuse, the alleged failure of CQC to investigate claimants' complaints about the quality of R.R.'s care, and the alleged failure to properly regulate and otherwise oversee 890 Madison Avenue and Camary. That defendant was acting in its governmental capacity as relevant to this claim is recognized by claimants (see Della Ratta Affirmation, ¶ 92), notwithstanding their contentions to the contrary.
Inasmuch as defendant was acting in its governmental capacity, the next analytical question is whether defendant owed R.R. a "special duty" (see Applewhite, at 425). This is so because: "an agency of government is not liable for the negligent performance of a governmental function unless there existed 'a special duty to the injured person, in contrast to a general duty owed to the public' (Garrett v Holiday Inns, 58 NY2d 253, 261 [1983]; see also e.g. Kircher v City of Jamestown, 74 NY2d 251 [1989]; Lauer v City of New York, 95 NY2d 95 [2000]; Pelaez v Seide, 2 NY3d 186 [2004]; Laratro v City of New York, 8 NY3d 79 [2006]). Such a duty, we have explained -- 'a duty to exercise reasonable care toward the plaintiff'-- is 'born of a special relationship between the plaintiff and the governmental entity' (Pelaez, 2 NY3d at 198-199)"
(McLean v City of New York, 12 NY3d 194, 199 [2009]; see Valdez v City of New York, 18 NY3d 69, 75 [2011]). A special relationship giving rise to a special duty can be formed in one of three ways: "(1) when [a governmental agency] violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the [governmental agency] assumes positive direction and control in the face of a known, blatant and dangerous safety violation."
(Pelaez v Seide, 2 NY3d 186, 199-200 [2004]). "To form a special relationship through a breach of a statutory duty, the governing statute must authorize a private right of action" (Pelaez v Seide, 2 NY3d at 200). Where a private right of action is not expressly authorized, as it is not in the Mental Hygiene Law, courts may determine that one is implied if the claimant is a member of the class for whose benefit the statute was enacted, and also if recognition of a private right of action would further the purposes of the statute, and if doing so would be consistent with the legislative scheme (id.). As discussed above, it has been held that it would be inconsistent with the legislative scheme to find an implied right of action for violations of the Mental Hygiene Law (see McWilliams v Catholic Diocese of Rochester, 145 AD2d, at 905). Claimants have not cited any authority for the general proposition that a private right of action may be implied from regulatory provisions nor have they persuasively demonstrated that the regulations at issue give rise to a private right of action. Thus, they have not defeated defendant's right to summary judgment with their contention that a special relationship exists merely because R.R. belongs to the class of developmentally disabled individuals for whose benefit the statutory scheme was enacted (see Della Ratta Reply Affirmation, ¶¶ 35, 36, 38). Further, claimants do not assert that a special relationship arose from its justifiable reliance on a duty that was a voluntarily assumed by defendant, or that defendant assumed positive direction and control in the face of a known, blatant and dangerous safety violation, and the record holds no evidence that would support a finding that a special relationship was formed in either fashion. Thus, claimants have not demonstrated that defendant owed them a special duty that arose from a special relationship, and thus, defendant cannot be found liable to them for allegedly negligent performance of its governmental functions.
In sum, claimants have not demonstrated prima facie that defendant implemented a policy that conflicted with its regulations, and the argument for summary judgment that they advance based upon defendant's allegedly negligent placement of R.R. at 890 Madison Avenue is unavailing because the claim does not assert such a cause of action. Defendant has demonstrated that, as a matter of law, no private cause of action arises from defendant's alleged violation of relevant provisions of the Mental Hygiene Law and the Commissioner's regulations, and that it cannot be held liable for any alleged negligence because it was performing governmental functions and it owes no special duty to R.R. or claimants. To the extent that any arguments by claimants' have not been specifically addressed in this decision, they have been considered and found insufficient to overcome the absence of a private right of action or a special duty. Accordingly, it is
ORDERED, that claimants' motion for summary judgment, M-86250, is DENIED, and it is further
ORDERED, that defendant's cross motion for summary judgment, CM-86365, is GRANTED, and claim number 105847 is DISMISSED.
July 2, 2015
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Notice of Motion for Summary Judgment, dated January 26, 2015; (2) Attorney Affirmation of John Della Ratta, Esq. in Support of Motion for Summary Judgment, dated January 26, 2015, with Exhibits A-Y, including: Affidavit of Colette A. Robinson, sworn to April 19, 2006; (3) Affidavit of Guardian "S.S.," sworn to January 25, 2015; (4) Notice of Cross-Motion for Summary Judgment, dated February 25, 2015; (5) Affirmation of Glenn C. King, AAG, in Opposition to Claimants' Motion for Summary Judgment and in Support of Defendant's Cross-Motion for Summary Judgment, dated February 25, 2015, with Exhibits A-D; (6) Correspondence of Glenn C. King, AAG, dated February 27, 2015; (7) Reply Affirmation of John Della Ratta, Esq. in Support of Motion for Summary Judgment and Opposition to Cross-Motion, dated March 3, 2015, with Exhibit A; (8) Correspondence of John Della Ratta, Esq., dated March 4, 2014 [sic].