Manny Ramos and Yong Hee Ramos, Plaintiffsv.Waldbaum, Inc., Richard Cox and Developmental Disabilities Institute, Inc., Defendants Upon the following papers numbered 1 to 25 read on this motion for summary Judgment: Notice of Motion/Order to Show Cause and supporting papers 1-15; Notice of Cross Motion and supporting papers; answering Affidavits and supporting papers 16-22; Replying Affidavits and supporting papers 23-25; Other; it is,ORDERED that the motion by defendant Developmental Disabilities Institute, Inc. for an order pursuant to CPLR 3212, granting summary judgment dismissing the complaint against it, is granted.This is an action to recover damages for personal injuries, inter alia, allegedly sustained by plaintiff Manny Ramos (“the plaintiff”) on August 17, 2009 at a Waldbaum’s store located in Smithtown, New York when he was assaulted by Richard Cox, an intellectually and developmentally disabled Waldbaum’s employee. According to the plaintiff, he was retrieving a cart from the parking lot and walking toward the store when Cox, without apparent provocation, began yelling obscenities at him, approached him from behind and, ultimately, struck him near the store entrance.In their complaint and bill of particulars, the plaintiffs assert numerous theories of liability based in negligence, including that Developmental Disabilities Institute, Inc. (“DDI”) was negligent in placing or facilitating Cox’s placement as a Waldbaum’s employee without undertaking an appropriate inquiry concerning his temperament, emotional stability or competence, in failing to properly counsel, treat, train, supervise, and instruct him, in causing and allowing him to be assigned to a job which placed him in regular contact with the public, in ignoring, concealing or otherwise failing to acknowledge prior incidents of antisocial and improper conduct and behavior on his part, and in failing to provide him and his employer with adequate post-hiring support, coaching, and oversight.Now, discovery having been completed, DDI moves for summary judgment, claiming that it did not place Cox at Waldbaum’s, negligently or otherwise, and that it owed no duty of care to the plaintiff. In support of its motion, DDI submits the affidavit of Caitlin McCarthy, who is currently employed by DDI as a Medicaid services coordinator. According to her affidavit, DDI is an organization that provides services to individuals with developmental disabilities, referred to as “consumers.” At the time of the incident, she was working for DDI as an employment specialist, and her duties required her to work with consumers who were seeking employment as well as those who were already employed at various sites, including visiting them at their places of employment and consulting with their supervisors. Consumers were referred to the employment specialists by their Medicaid services coordinators or through the New York State Office of Vocational and Educational Services for Individuals with Disabilities (VESID), currently known as the Adult Career and Continuing Educational Services-Vocational Rehabilitation, a governmental agency that helps disabled individuals achieve and maintain employment through training, education, rehabilitation, and career development. In 2009, DDI’s role was to assist consumers seeking employment with their applications and interviews; it did not make recommendations to prospective employers regarding its consumers, was not involved in the hiring of its consumers for jobs in the community or in determining the positions for which they might be hired, did not direct or supervise its consumers at their places of employment, and did not have the authority to terminate a consumer, change his or her position, or determine any other circumstance of employment. In 2009, she had a caseload of 35-40 consumers, including Richard Cox. When Cox was assigned to her, he was already working at Waldbaum’s. During the time she worked with Cox. She would visit him twice a month at the job site, and each visit would last no longer than 15 or 30 minutes. Based on the DDI records submitted with her affidavit, it was one of Cox’s goals to refrain from yelling and cursing at co-workers and customers when he became anxious; she helped him with calming techniques and, more generally, provided support with daily living skills, socialization, and communication.DDI also submits the affidavit of Americo Spagnuola, who has been employed by DDI as a Medicaid services coordinator since February 2006. His job duties are to advocate for individuals with developmental disabilities and link them to services they may require in the community. He began providing services for Richard Cox in or shortly after 2006 and has done so continually since then. Cox began working at Waldbaum’s in December 2000. Cox’s employment was originally funded by VESID, which determines if a developmentally disabled person is able to work. Once VESID deems a person capable of working, it reaches out to a not-for-profit agency, such as DDI, to provide that person with vocational support services. In 2009, Cox’s job was to retrieve shopping carts from the parking lot. He visited with Cox at Waldbaum’s 13 times between January 8, 2008 and July 7, 2009. During his visits, he occasionally observed Cox curse and talk loudly to himself, although he never observed him act violently with anyone, and did not recall anyone from Waldbaum’s ever alerting him of any outburst of anger, cursing or violence from Cox. While aware that Cox had previously hit his own mother. Spagnuola did not know when this had occurred and was never notified whether Cox had ever hit anyone other than his mother prior to August 17, 2009. According to DDI records, it appears that Cox was living with his mother in a private residence in Bay Shore for approximately two years prior to the incident.The plaintiffs oppose the motion, claiming that DDI did indeed assume a legal duty, not only to Richard Cox, but also to his employer and, by extension, its customers, including the plaintiff. In opposing the motion, the plaintiffs rely on portions of the deposition testimony given by Caitlin McCarthy and Americo Spagnuola. According to McCarthy, she and Richard Cox’s “team” worked with him on coping skills to refrain from yelling and cursing at co-workers and customers, like walking away or taking a minute; she acknowledged, however, that this goal was not achieved prior to August 17, 2009. Spagnuola testified at his deposition that in or about 2008, he observed that Cox was experiencing increased difficulty dealing with anger, arising from his limited ability to communicate and exhibited by his cursing in a louder than usual tone of voice. To address the problem. he assisted Cox with obtaining psychiatric services, took him to some of his psychiatrist appointments, spoke with his mother, and communicated with the vocational department. At some point, Cox was prescribed medication to address his anger issues, but there were times he did not take his medication, at which times he was more prone to outbursts of anger; Spagnuola, however, did not discuss this with anyone at Waldbaum’s, nor did he recommend that Cox be placed in a different employment environment.The plaintiffs also submit the expert affidavit of Michael B. Wolf, who describes himself as “a vocational rehabilitation counselor, a training coordinator for professional staff serving individuals with disabilities and a program services administrator for individuals with developmental disabilities.” Based on his review of DDI’s records, he concludes that DDI failed to follow good and accepted practice and breached its duties and responsibilities by failing to address Cox’s history of profane verbal outbursts and physical violence, to learn all there was to learn about his mental condition, to follow up with the medication prescribed for him to control his anger, to formulate a concrete proposal to modify his behavior, or to work with his employer to have him reassigned to a position that would insulate him from frequent public contact.“It is well established that before a defendant may be held liable for negligence it must be shown that the defendant owes a duty to the plaintiff” (Pulka v. Edelman, 40 NY2d 781, 782, 390 NYS2d 393, 394 [1976]). “To prove a prima facie case of negligence, a plaintiff must demonstrate the existence of a duty, a breach of that duty, and that the breach of such duty was a proximate cause of his or her injuries” (Fox v. Marshall, 88 AD3d 131, 135, 928 NYS2d 317, 320 [2011]). “In the absence of duty, there is no breach and without a breach there is no liability” (Pulka v. Edelman, supra at 782, 390 NYS2d at 395). “Foreseeability of injury does not determine the existence of duty” (Eiseman v. State of New York, 70 NY2d 175, 187, 518 NYS2d 608, 613 [1987]). Unlike foreseeability, which is generally a factual issue, “the duty owed by one member of society to another is a legal issue for the courts” (id. at 187, 518 NYS2d at 613).As a general rule, a defendant “has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control” (D’Amico v. Christie, 71 NY2d 76, 88, 524 NYS2d 1, 6 [1987]); typically, liability for the negligent acts of third persons arises only when the defendant has both the authority and ability to control the actions of such persons (Purdy v. Public Adm’r of County of Westchester, 72 NY2d 1, 530 NYS2d 513 [1988]). It is also recognized, however, thatthere exist special circumstances in which there is sufficient authority and ability to control the conduct of third persons that we have identified a duty to do so. Thus, we have imposed a duty to control the conduct of others where there is a special relationship: a relationship between defendant and a third person whose actions expose plaintiff to harm such as would require the defendant to attempt to control the third person’s conduct; or a relationship between the defendant and plaintiff requiring defendant to protect the plaintiff from the conduct of others.(id. at 8, 530 NYS2d at 516). Such “special” relationships include those between employers and employees, parents and children, and common carriers and their passengers (id.). “A critical consideration in determining whether a duty exists is whether the defendant’s relationship with either the tortfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm” (Davis v. South Nassau Communities Hosp., 26 NY3d 563, 572, 26 NYS3d 231, 235 [2015] [internal quotation marks omitted]).Here, DDI established its prima facie entitlement to summary judgment by demonstrating that it owed the plaintiff no duty to control Richard Cox’s conduct. As Cox was not an employee of DDI, DDI had no authority or ability to control his conduct at his place of employment. Nor do the circumstances give rise to a special relationship between DDI and Cox, or between DDI and the plaintiff, as would otherwise require DDI to protect the plaintiff from Cox’s conduct.The plaintiffs, in opposition, failed to raise a triable issue of fact. Whatever knowledge DDI may have possessed of Cox’s potential for antisocial or even violent conduct, it lacked the requisite control over Cox so as to give rise to a duty to protect the plaintiff. To the extent the plaintiffs rely on the claim that Cox may not have been taking the medications prescribed by his psychiatrist, the court notes that this is not a theory of liability pleaded by the plaintiffs. Even if that theory had been properly advanced, the plaintiffs have not shown that such facts are sufficient to support the existence of a duty owed by DDI to them to warn Cox of the potential adverse effects of a failure to comply his medication regimen; assuming further that Cox was not following the regimen at the time of the incident, there is no evidence as to what the medication was, whether a failure to follow the regimen would result in aggressive behavior, or whether the assault was a result of any such failure on his part. It also bears noting that it was Waldbaum’s, not DDI, who had the authority to change Cox’s work assignment or to terminate his employment if it had been observed that his behavior impaired the safety of Waldbaum’s customers.Accordingly, the motion is granted. The court directs that the claims as to which summary judgment is granted are hereby severed and that all remaining claims shall continue (see CPLR 3212 [e] [1]).____FINAL DISPOSITION x NON-FINAL DISPOSITIONDated: JAN 03 2019
