The following papers numbered 1-3 were read and considered by the Court on the State’s motion for summary judgment dismissing the claim: Notice of Motion, Attorney’s Supporting Affirmation, Exhibits and Memorandum of Law 1 Attorney’s Affirmation in Opposition, Claimant’s Affidavit Sworn to on January 1, 2023, Memorandum of Law and Exhibits 2 Reply Memorandum and Exhibits 3 DECISION AND ORD This claim arises out of an incident that occurred on August 31, 2015, during the course of the employment of Sherry Classey, hereinafter claimant, by Access: Support for Living (Access).1 Access, a nonprofit voluntary service agency (VA), was certified by the State’s Office of People With Developmental Disabilities (OPWDD) to operate an Individual Residential Alternative (IRA) located at 9 Teal Lane in Pleasant Valley, New York. The IRA was owned and operated by Access. OPWDD certified Access to operate the IRA as a group home to provide a home community, meals, care, Medicaid service coordination and clinical support for behavior management of the developmentally disabled adult residents. Four adult males, with a history of interactions with law enforcement and violence towards others or themselves, resided in the group home (State’s Ex. 2, pp 42-43). Claimant was employed by Access as a direct support professional site supervisor for the group home (id. at 12-13). On the date in issue, D.E. was a resident of the Access group home and was on one-to-one supervision with an Access staff member, based upon the determination of the Access team comprised of claimant, a clinician and a nurse (id. at 14, 24).2 Accordingly, D.E. required the supervision of an Access staff member whenever he went out into the community for services, medical treatment, shopping for clothing or other personal items, and if he had employment in the community, an Access staff member remained with D.E. at his place of employment (id. at 13-14, 23-24, 44-45, 47). When staffing was low at Access, claimant would serve as a supervisor for D.E. (id. at 47-48). Prior to the incident in issue, claimant had worked with D.E. for approximately two and one-half years (id.). Claimant described D.E. as an individual who can be very charming, congenial and a perfect gentleman; however he was also capable of being very manipulative and was often violent (id. at 48-51, 63). Claimant recounted that D.E. had violent episodes with Access staff and the other residents at least every other week, which was reported to OPWDD (id. at 50-59). Days before the incident, claimant reported to OPWDD that D.E.’s behavior was escalating and that he needed a more supportive environment (id. at 57, 66, 68). The claim alleges that D.E. had a history of documented violence against other residents and staff at the group home and that the State had “sufficient authority to exercise control over the operation of the residential group home and its residents” and over the operation of Access (State’s Ex. 1, 9). The claim further alleges that despite the State’s notice of D.E.’s history of violent and assaultive incidents, the State was negligent in its failure to place D.E. in a more structured and secure facility or take reasonable measures to properly supervise, isolate, segregate, control, or observe D.E. to protect claimant and others from the foreseeable risk of harm posed by D.E. (id. at 9-10). According to claimant, on the date in issue, D.E. was “very peaceful” (State’s Ex. 2, p 63). Claimant accompanied D.E. and another resident from the Access group home to an “ARC” facility at 8 Industry Lane, La Grange, New York, where D.E. and the other resident received services (id. at 150; State’s Ex. 1, 3). At the ARC facility, D.E. went to see the psychologist, while claimant remained with the other Access resident she was supervising (State’s Ex. 2, p 150). Claimant heard an outburst and left the other Access resident under the supervision of an ARC employee while she went to investigate (id. at 150-151). Claimant learned that D.E. was attempting to flee (id. at 151). D.E. then lunged at the other Access resident and grabbed him by the neck (id.). Claimant stepped forward to assist, her body twisted, and she fell onto the tile floor sustaining serious injuries (id.). D.E. was restrained and claimant was transported to the hospital by ambulance (id. at 151-152). The claim does not allege that the State owned or operated the ARC facility or the Access group home. The claim alleges that claimant’s injuries occurred because the State “failed to protect her from foreseeable harm, despite her justifiable reliance upon [the State's] duty to take appropriate actions upon learning that a member of the group home had violent tendencies and with knowledge that the State’s inaction could and would lead to harm” (State’s Ex. 1, 17). The claim also alleges that the State failed to promulgate and enforce proper rules and regulations regarding the supervision of residents of a group home for the protection and safety of the residents and the staff (id. at 19). Additionally, the claim alleges that the State owed a duty of care to the general public and to claimant in particular (id. at 8). The claim does not allege a specific statutory violation or cite to a private right of action under the Mental Hygiene Law or any other statutory scheme. Nor does the claim allege a special relationship between claimant and OPWDD as a basis for a special duty owed by the State to claimant. The State moves for summary judgment dismissing the claim on the grounds that there is no basis upon which the State may be held liable for the alleged assault upon claimant. Specifically, the State argues that the group home was neither owned nor operated by the State; rather the group home was owned and operated by Access, which is neither owned nor operated by the State. The State agency, OPWDD, merely certified the group home. Thus, under the doctrine of governmental immunity, the State cannot be held liable for any alleged negligence of OPWDD in its certification of the group home because OPWDD was acting in a governmental capacity and the claim does not allege, nor can it be established, that the State owed claimant a special duty so as to form a basis for liability of the State. The State also argues that the incident occurred at an ARC facility, which is neither owned nor operated by the State. In support of its motion, the State submits, inter alia, a transcript of claimant’s deposition testimony and the affidavit of Joan Volpe sworn to on December 15, 2021 (State’s Exs. 2, 4). Volpe, the Director of the OPWDD Region 3 Developmental Disability Regional Office, oversees operations coordinating services in the region for individuals with developmental disabilities. Services are provided to individuals through OPWDD directly or through a network of nonprofit voluntary service agencies (State’s Ex. 4, 2). Access is a nonprofit voluntary service agency (VA) that was certified by OPWDD to operate as an IRA providing a home community, meals, Medicaid service coordination and clinical support for behavior management of its residents (id. at 4).3 When a VA fails to follow OPWDD policies and regulations, the VA is subject to losing its certification (id.). OPWDD does not make clinical determinations about individuals living in an IRA operated by a VA (id. at 5). A VA has its own clinical staff that makes the determinations regarding the day-to-day care of its residents and this includes the determinations of the levels of supervision and safety planning. VA clinicians draft Risk Management Plans for each of its residents (id.) Claimant opposes the motion arguing that there are material issues of fact which preclude a granting of the State’s motion for summary judgment regarding the degree of supervision OPWDD had over Access and what duty is imposed upon OPWDD when it had actual knowledge of D.E.’s documented history of assaultive behavior towards staff and other residents and whether D.E. required a higher level of supervision and restraint. In support of her opposition, claimant submits: her own affidavit sworn to on January 7, 2023; the affidavit of Mary Newhard, Deputy Director of OPWDD, Region 3 Regional Office, sworn to on August 24, 2018; copies of OPWDD emails from May 27, 2015 through August 31, 2015 involving D.E. when he was a resident at Access; OPWDD Report on Actions Taken in Response to an Incident involving D.E. on May 14, 2015 when he was a resident at Access; a transcript of the deposition testimony of Andrea Petersen, an OPWDD social worker who was a Risk Management Coordinator from 2013 through the fall of 2015; a summary of the Peterson deposition testimony; copies of emails from Access to OPWDD dated August 25, 2015 and July 29, 2015 involving D.E. when he was a resident at Access; a transcript of the deposition testimony of Louis Sakovits, who was employed by OPWDD from August 1985 through July of 2015 in various titles including psychologist and forensic liaison; and the Forensic Risk Management Plan for D.E. dated May 16, 2012 (Claimant’s Exs. A-H). Specifically, claimant points to her email dated August 24, 2015, a week prior to D.E.’s assault upon claimant, to the Access clinical director, Kari Phillips, and others at Access, which states that D.E. was in the Mid-Hudson psychiatric emergency room waiting to be admitted when he told hospital staff that he wanted to attack the group home staff since Saturday, that his preferred target was a female staff member, and that he will not be underestimated (Claimant’s Ex. E, pp 14-16). Claimant notes that on August 25, 2015, Phillips forwarded claimant’s email to Andrea Peterson, the Risk Management Coordinator/Taconic Home Liaison at OPWDD (id.). Claimant argues that her email, which was forwarded to OPWDD, put OPWDD on written notice, six days prior to D.E’s assault upon claimant, that D.E. wanted to attack a female staff member of the group home. Claimant also points to the affidavit of Mary Newhard, Deputy Director of OPWDD, Region 3 Regional Office, sworn to on August 24, 2018, which provides: “I am unaware of any contracts between OPWDD and Access: Supports for Living (“ASFL”) related to the operation of its Teal Lane IRA. However, it should be noted that Teal Lane IRA is subject to investigation and inspection by OPWDD at any time to ensure compliance with applicable laws, rules, and regulations. OPWDD is also available to provide support and guidance to ASFL if needed” (Claimant’s Ex. A, 2). Claimant further argues that the OPWDD Report on Actions Taken in Response to an Incident involving D.E. on May 14, 2015 when he was a resident at Access indicates that the State could have taken immediate corrective and protective actions in the months or even days prior to the assault upon claimant (Claimant’s Ex. C). In reply to claimant’s opposition, the State argues that a factual issue cannot preclude a granting of the State’s motion for summary judgment dismissing the claim because the claim warrants dismissal as a matter of law. The Court finds that the undisputed facts in this matter are analogous to those of T.T. v. State of New York (151 AD3d 1345 [3d Dept 2017]). In T.T., claimant, as the guardian of a developmentally disabled person who resided in a facility for developmentally disabled adults, brought a negligence claim against the State for the injuries sustained by the resident. The facility, Camary Statewide Services (Camary), was owned by a private, nonprofit corporation and was certified by the Office of Mental Retardation and Developmental Disabilities (OMRDD), which is now known as OPWDD, to provide housing, care and treatment to its developmentally disabled adult residents. It was alleged that the State was liable for the Camary resident’s injuries based upon OMRDD’s failure to adequately regulate and oversee the care and treatment provided by Camary, the failure to conduct a sufficient investigation into the reports of the suspected abuse of the Camary resident, and the failure to take appropriate corrective measures including the implementation of internal policy regarding the reporting of abuse in Camary. Camary was required to report any resident injuries to OMRDD and OMRDD conducted annual or biannual reviews of Camary which included a sampling of records and interviews of staff members and residents to determine whether Camary continued to be eligible for an operating certificate from the State. If noncompliance was discovered, OMRDD could require Camary to take corrective measures to address the deficiency. If the noncompliance was severe, OMRDD could revoke, suspend or limit the operating certificate. While OMRDD would provide guidance to Camary, OMRDD would not take affirmative steps to bring Camary into compliance with the applicable regulations. The Court in T.T. (151 AD3d) concluded that OMRDD’s oversight and regulation of Camary was governmental in nature. Thus, the State could only be held liable if OMRDD owed a special duty to the Camary resident and if governmental immunity was not applicable. The Court noted that whether the State owed the Camary resident a special duty depended upon whether there was a special relationship between the Camary resident and OMRDD. The Court in T.T. noted that the Court of Appeals has held that a special relationship can be formed in three ways: (1) when a governmental entity violates a statutory duty enacted for the benefit of a particular class of persons; (2) when a governmental entity voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; (3) when a governmental entity assumes positive direction and control in the face of a known, blatant and dangerous safety violation (see Pelaez v. Seide, 2 NY3d 186, 199-200 [2004]; T.T., 151 AD3d at 1347). In T.T., it was alleged that the State had violated a statutory duty for the benefit of the Camary resident. However, to form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action. The statute in T.T. (151 AD3d) did not contain an express private right of action and the Court held that one could not be fairly implied. Thus, the Court concluded that claimant had failed to demonstrate that the State owed claimant a special duty because claimant could not establish that a special relationship had been formed between OMRDD and the Camary resident. Therefore, tort liability could not be attributed to the State for the alleged failures of OMRDD in its governmental capacity and the Appellate Division affirmed the granting of summary judgment to the State dismissing the claim. So too here, the Court finds that the State has met its burden of establishing entitlement to summary judgment dismissing the claim as a matter of law. Specifically, the State cannot be held liable for the alleged failures of OPWDD because OPWDD’s oversight and regulation of Access was governmental in nature and claimant has failed to articulate a basis for finding that the State owed a special duty to claimant or raise an issue of material fact sufficient to preclude this Court from granting the State’s motion (see Maldovan v. County of Erie, ___ NYS3d ___, 2022 NY Slip Op 06632 [2022] [Affirming Appellate Division's granting of summary judgement to the municipality dismissing the claim based upon the municipality's showing as a matter of law that the government employees took no action that could have induced justifiable reliance and thus a special duty did not attach, and plaintiff failed to raise a triable issue of fact in opposition]; Metz v. State of New York, 20 NY3d 175 [2012] [The State cannot be held liable for the individual passengers who lost their lives on a capsized public vessel based upon the State inspectors' failure to certify safe passenger capacity on the vessel because the State owes no special duty to the claimants who sued on behalf of the deceased passengers]; Kulon v. Liberty Fire Dist., __ NYS3d ___, 2023 NY Slip Op 00351 [2023][Summary judgement was granted to the municipality dismissing the claim based upon the failure to establish a special duty owed by the municipality]; T.T., 151 AD3d [A special duty could not be established because there was no express statutory private right of action and one could not be implied]). Additionally, the claim does not allege any other basis upon which the State may be held liable for the alleged assault (see Kimball Brooklands Corp. v. State of New York, 180 AD3d 1031 [2d Dept 2020]). Accordingly, the State’s motion for summary judgment dismissing the claim is GRANTED. Dated: February 24, 2023
