Aiello v. Burns Int'l Sec. Servs. Corp.

• Decision Date: 03 September 2013
• Citation: 110 A.D.3d 234,2013 N.Y. Slip Op. 05767,973 N.Y.S.2d 88
• Parties: Rachel AIELLO, etc., Plaintiff–Appellant, v. BURNS INTERNATIONAL SECURITY SERVICES CORPORATION, Defendant–Respondent, Command Security Services, Inc., Defendant, Saint Vincents Catholic Medical Center s of New York, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

110 A.D.3d 234

973 N.Y.S.2d 88

2013 N.Y. Slip Op. 05767

Rachel AIELLO, etc., Plaintiff–Appellant,

v. BURNS INTERNATIONAL SECURITY SERVICES CORPORATION, Defendant–Respondent,Command Security Services, Inc., Defendant,Saint Vincents Catholic Medical Center s of New York, et al., Defendants–Appellants.

Supreme Court, Appellate Division, First Department, New York.

Sept. 3, 2013.

Law Offices of William Cafaro, New York (Steven M. Pivovar of counsel), for Rachel Aiello, appellant.

Bartlett, McDonough & Monaghan, LLP, Mineola (Robert G. Vizza and Patricia D'Alvia of counsel), for Saint Vincents Catholic Medical Centers of New York, Richmond University Medical Center, RUMC–Bayley Seton, Bayley Seton Hospital, Archna Sarwal, M.D., and Adriana Boiangiu, M.D., appellants.

Marin Goodman, LLP, Harrison (Russell S. Jamison of counsel), for respondent.

PETER TOM, J.P., ROLANDO T. ACOSTA, DIANNE T. RENWICK, LELAND G. DeGRASSE, and ROSALYN H. RICHTER, JJ.

RENWICK, J.

Plaintiff commenced this wrongful death action as administratrix of the estate of her deceased husband, Jason Aiello. Plaintiff alleges that defendants were negligent in allowing her husband to escape from the emergency room of a psychiatric care unit. At the time, Aiello, a retired NYPD Sergeant, had been admitted to the unit but was waiting for an in-patient bed to become available. After the hospital elopement, Aiello was shot and killed in front of his home during an armed confrontation with the police. Plaintiff sued, among others, the hospital and the security agency retained by the hospital to provide security at the psychiatric care unit. Supreme Court, however, dismissed the claims asserted against the agency on the ground that, as a matter of law, the agency did not owe plaintiff a duty of care in the performance of its contract with the hospital.A threshold issue addressed in this appeal is whether the security service agreement, which disavows any third-party beneficiaries, was rendered unenforceable by the contracting parties' failure to set forth, in writing, the security agency's duties.

Factual and Procedural Background

The psychiatric care unit where the elopement took place is part of defendant Richmond University Medical Center (RUMC), a hospital located in Staten Island. The hospital occupies buildings that were formerly St. Vincent Catholic Medical Centers of New York. RUMC has adjunct facilities at the Bayley Seton Hospital, where it operates several clinics, including the psychiatric care unit at issue here.

Security Agreement

Pursuant to several renewed contracts starting in August 2007, defendant Burns International Security Services Corporation (Burns) was retained to supply security guards to the psychiatric care unit at Bayley Seton. Specifically, on August 27, 2007, RUMC and Burns executed a “security services agreement,” which provided that “security services will commence on TBD and will continue until terminated.” With regard to compensation, the agreement delineates four different rates of hourly compensation for four different positions: “Officer I,” “Officer II,” “Officer III,” and “Supervisor.”

Paragraph 1, under “terms and conditions,” defines the “scope of services,” and provides as follows: “[Burns] will provide services pursuant to this Agreement in accordance with mutually-acceptable, written security officer, patrol officer or alarm response orders (which are incorporated into this Agreement by this reference). [Burns] will not be obligated to perform any duties or services (and will bear no responsibility for duties or services) other than expressly specified in such orders or this Agreement.”

Paragraph 4 provides that RUMC must give Burns notice of any claim “arising out of or relating to this Agreement” within 30 days of the occurrence, and that “[n]o action to recover for any Claim will be instituted or maintained against [Burns] unless said action is instituted no later than 12 months following the date of the occurrence.”

Paragraph 5(b) provides as follows: “[Burns] agrees to and will indemnify, defend and hold [RUMC] harmless from and against any Claims arising from [Burns's] performance of the services under this Agreement, but only to the extent the Claim is caused by the negligence of [Burns].”

Paragraph 5(h) provides as follows: “The services provided under this Agreement are solely for the benefit of [RUMC], and neither this Agreement nor any services rendered hereunder confer any rights on any other party, as a third-party beneficiary or otherwise.”

Paragraph 17 is a merger clause, and provides, in relevant part, that “[n]o representations, inducements, promises or agreements of [Burns] not embodied herein will be of any force or effect,” and “[n]o changes to this Agreement will be binding on [Burns] unless approved in writing.”

Testimony Regarding Burns's Security Duties

Michael Esposito was the director of security and public safety at RUMC. He delegated to his assistant, Vincent Forgione, the negotiation of the security service contract with Burns for Bayley Seton. Forgione entered into the aforementioned contract with Burns after consulting with Linda Paradiso, who was the director of nursing and in-patient services at Bayley Seton. Paradiso told Forgione that she needed security guards to be posted at, at least, three different locations in the psychiatric care unit: Intake (on the third floor); the Comprehensive Psychiatric Emergency Program (C–PEP on the first floor) and a supervisory post (on the third floor, down the hall from Intake). Paradiso also recommended that the supervisor should “roam” all areas of the psychiatric unit and provide relief to the guards serving permanent posts so that no post remained unoccupied at any time.

The C–PEP unit was on a portion of the ground floor of the psychiatric care unit. It was next to the Extended Observation Beds (EOB), a separate wing that had individual patient rooms used for short term observation of patients. Although separated by a locked door, the EOB was considered part of the C–PEP. C–PEP also contained a waiting room located immediately adjacent to the locked entrance door; this was the “Control Room” from which the RUMC staff would operate the unit. The C–PEP also contained private rooms where patients would be interviewed during triage. Outside of the entrance door to the waiting room was an ambulance bay. RUMC also provided the security officer a small desk inside the C–PEP waiting room that was located against a wall at the opposite end of the room from the entrance door.

According to both Esposito and Forgione, Paradiso directed Burns's security staff. On several occasions she terminated Burns' security officers who were not following “rules.” The security officers were required to be licensed by the state. RUMC also provided in-house training for medical staff and security guards for “non-violent” crisis intervention. The guards were also given written materials on “non-violent” crisis intervention and methods for restraining patients.

At the time of Aiello's incident, there were no written post orders provided to security guards; instead, post orders were communicated verbally to the officers. Each guard was required to be at his post, except the guard at the C–PEP post, who was required to make rounds every 15 minutes, from the C–PEP post to the EOB room and back. Each guard was also required to address “crisis and emergencies,” at the behest of the “clinical staff,” including the nurses and doctors. Guards were not allowed to restrain patients, but they assisted the medical staff in such endeavor.

The Patient's Elopement Incident

On the evening of July 21, 2008, Aiello was brought by his family to Bayley Seton for psychiatric concerns. Around 8:45 p.m., a C–PEP nurse triaged Aiello and directed him to go back to the waiting room. Around 4:15 a.m., Aiello was interviewed by RUMC's psychiatric resident, Dr. Boiangiu, who also attempted to examine him, but he refused. Around 4:20 a.m., Dr. Boiangiu issued an order admitting Aiello and prescribing various anti-psychotic medications for him that were not immediately available. Instead, Aiello was directed to wait in the C–PEP waiting room for an in-patient bed to become available.

Around 6:30 a.m., emergency medical technicians (EMTs) arrived at C–PEP to transport a patient to a different facility. Allison Rozenkier–Larson, a mental health technician at RUMC, unlocked the door of the waiting room to allow the EMTs to transport the other patient. One of the EMTs reported that Rozenkier was the only staff member present and there was no security in the waiting room. When Rozenkier unlocked the door, Aiello ran past her and the EMTs, and fled the hospital. Charles Brown, Burns's security guard, was stationed at the C–PEP desk that night, but he was not there when Aiello fled. Brown claimed that, at the time, he had been ordered to remain at the EOB unit to cover for Lisa Hernandez, a mental health technician. Hernandez denied making that request. In addition, Rozenkier stated that only mental health technicians relieve each other.

After fleeing the hospital, Aiello walked to his family's home and retrieved two handguns. Two NYPD officers arrived at the home, and when Aiello came outside, they directed him to submit to arrest. While they were walking Aiello from the house towards the police vehicle, one of the officers removed a gun from the back of Aiello's pants, at which time Aiello broke free and pulled out a second gun from the front of his pants. The officers took cover and repeatedly told Aiello to put the gun down, but Aiello fired at them; the officers returned fire and fatally shot Aiello.

Pleadings and Burns's Motion for Summary Judgment

In December 2008, plaintiff commenced this action against RUMC and Burns, among others. In January 2009, RUMC interposed an answer that did not assert any cross claims. In May 2011, RUMC interposed an amended answer generally denying the...