Doe v. Langer

• Decision Date: 16 June 2022
• Docket Number: 533326
• Parties: Jane DOE, Respondent, v. Bharat B. LANGER et al., Defendants, and Sharon H. Zuckerman et al., Appellants.
• Court: New York Supreme Court — Appellate Division

206 A.D.3d 1325

171 N.Y.S.3d 594

Jane DOE, Respondent,

v.Bharat B. LANGER et al., Defendants,andSharon H. Zuckerman et al., Appellants.

533326

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

Calendar Date: April 25, 2022

Decided and Entered: June 16, 2022

Burke, Scolamiero & Hurd, LLP, Albany (Steven V. DeBraccio of counsel), for appellants.

LaFave, Wein & Frament, PLLC, Albany (Jason A. Frament of counsel), for respondent.

Before: Garry, P.J., Aarons, Pritzker, Reynolds Fitzgerald and Fisher, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J. Appeal from an order of the Supreme Court (O'Connor, J.), entered April 23, 2021 in Albany County, which denied certain defendants’ motion for summary judgment dismissing the complaint.

On January 9, 2016, plaintiff was kidnapped at knifepoint, raped, and sexually assaulted by Jose L. Marlett at his apartment. At the time of the rape and sexual assault, Marlett was an outpatient client of defendant Rehabilitation Support Services, Inc. (hereinafter RSS), a nonprofit corporation providing rehabilitation and recovery-oriented services to individuals who have mental illness and substance abuse issues. The recovery-oriented services program consists of an outpatient clinic with social workers and a psychiatrist who provide counseling in either a group setting or one-on-one, and routine sessions with a psychiatrist or nurse practitioner to discuss medications. RSS also provides a supportive residential apartment program to its clients as part of their personal recovery-oriented services and supplied an apartment for Marlett to lease. The supportive apartment program assists clients in living independently. Staff assist clients – anywhere from once a week to once a day – with daily living skills including cooking, shopping and banking. Plaintiff commenced two actions¹ against RSS and its program director, licensed master social workers, licensed clinical social workers, and licensed mental health counselors (hereinafter collectively referred to as defendants), and various other medical professionals and institutions who treated Marlett. Following joinder of issue and discovery, defendants moved for summary judgment dismissing the complaint against them. Supreme Court denied the motion. Defendants appeal.

Defendants contend that they had no duty to control and supervise Marlett and did not have the requisite special relationship with Marlett to prevent him from causing harm to plaintiff, therefore defendants cannot be liable for negligence and negligent supervision. "It is well established that before ... defendant[s] may be held liable for negligence it must be shown that the defendant[s] owe[ ] a duty to the plaintiff. In the absence of duty, there is no breach and without a breach there is no liability" ( Pulka v. Edelman, 40 N.Y.2d 781, 782, 390 N.Y.S.2d 393, 358 N.E.2d 1019 [1976] [citations omitted]; see He v. Apple, Inc., 189 A.D.3d 1984, 1986, 139 N.Y.S.3d 409 [2020] ). "The question of whether a member or group of society owes a duty of care to reasonably avoid injury to another is ... a question of law for the courts ( Purdy v. Public Adm'r of County of Westchester, 72 N.Y.2d 1, 8, 530 N.Y.S.2d 513, 526 N.E.2d 4 [1988] ). "In general, a defendant has no duty to control the conduct of a person to prevent him [or her] from causing harm to others ... [unless] a special relationship ... exist[s] between the defendant and a third person such that the defendant is required to control the third person to protect others" ( Rivera v. New York City Health & Hosps. Corp., 191 F. Supp. 2d 412, 417 [S.D. N.Y.2002] [citations omitted]; see Purdy v. Public Adm'r of County of Westchester, 72 N.Y.2d at 8, 530 N.Y.S.2d 513, 526 N.E.2d 4 ). Moreover, it is settled law that, "in certain limited circumstances, a mental health provider may be liable for failing to control or commit a voluntary outpatient who later harms a member of the public" ( Rivera v. New York City Health & Hosps. Corp., 191 F. Supp. 2d at 419 ; see Schrempf v. State of New York, 66 N.Y.2d 289, 296, 496 N.Y.S.2d 973, 487 N.E.2d 883 [1985] ).

In support of defendants’ motion, RSS submitted the affidavit of its managing director at the time plaintiff was raped and sexually assaulted. The director averred that Marlett could not be compelled to attend counseling or to take his medication. He further averred that RSS could not mandate Marlett be involuntarily hospitalized but could issue a " ‘pick-up’ order" to have the police pick up Marlett because of his behavior. As to the apartment, the residency agreement contains provisions that are typical of a residential lease, as well as a two-step discharge process to be implemented in the event the resident violated the terms and conditions of the program. The director further alleged that staff could not forcibly restrain or restrict Marlett's movements within the community.

Initially, we reject defendants’ contention that, as Marlett was a voluntary outpatient of RSS's program, defendants de facto owed no duty to plaintiff, and instead look to the facts and circumstances of this particular case to discern whether in fact said duty existed (see Fox v. Marshall, 88 A.D.3d 131, 136, 928 N.Y.S.2d 317 [2011] ; Rivera v. New York City Health & Hosps. Corp., 191 F. Supp. 2d at 422 ).

In this regard, it is undisputed, and the record confirms, that Marlett had been an outpatient client at RSS for approximately one year and had been a resident in its apartment program for approximately one to three months prior to his receipt of personal recovery services. Marlett's application for RSS services included his diagnoses of bipolar disorder

and schizoaffective disorder, and a history of delusions, hallucinations, paranoia, suicidal and homicidal ideations and incarceration. RSS identified Marlett's risks as suicide and violence, and noted that he had a history of physical altercations, threatening and attempting to harm others and was a danger to himself and others. In order to receive RSS services, Marlett was required to forego other psychiatric and mental health treatment and RSS essentially became the exclusive provider of Marlett's medication management, clinical counseling, therapy and psychiatric assessments.²

RSS's psychiatric reports for June 2015 conveyed Marlett's depression, mania, mood irritability and increasing anger outbursts. The September to October 2015 reports noted that Marlett was struggling with class attendance, having conflict with peers, and struggling with increased stress, paranoia and other symptoms. The October to December 2015 reports set forth Marlett's frequent absences from meetings. A December 2015 report discloses that a knife had to be confiscated from Marlett, that he was unable to sit still, that his former paramour was a stressor and trigger for him, and that he was not doing well, did not remain psychiatrically stable and had been flagged with mobile crisis. Based upon Marlett's behaviors, in December 2015 RSS issued a 30–day notice to discharge Marlett from all services, citing his use of alcohol in violation of residency rules, which posed a threat to his and others’ health, safety and well-being. RSS was aware that on January 5, 2016, Marlett was intoxicated and harassed his former girlfriend, necessitating police involvement. On that same day, shortly after strongly encouraging Marlett to stop drinking, RSS staff members observed him purchasing alcohol from a nearby store, which they did not address. On January 7, 2016, RSS staff checked on Marlett and observed alcohol in his apartment. That afternoon, staff issued a pick-up order for Marlett, citing his minimal engagement in treatment, significant paranoia and agitation, excessive alcohol intake, suicidal ideation

, as well as masturbating while on the phone with RSS staff. Marlett was evaluated at Albany Medical Center, transferred to Capital District Psychiatric Center and discharged on January 8, 2016. Later that afternoon, RSS staff contacted Marlett to discuss his postdischarge treatment from Capital District Psychiatric Center and realized that he was once again intoxicated, watching pornography and masturbating while speaking with staff. RSS staff scheduled a meeting with Marlett three days in the future. The next day he raped and sexually assaulted plaintiff.

In determining whether defendants owed plaintiff, a member of the general public, a duty of care in circumstances such as those before us, we are cognizant that "no bright-line rule exists" ( Rivera v. New York City Health & Hosps. Corp. , 191 F. Supp. 2d at 419 ). Rather, courts have examined the issue on a case-by-case basis,³ and look to whether or not defendants have sufficient authority and ability to control Marlett's conduct, so as to exhibit a special relationship with him such that a duty exists (see id. ). Here, defendants were Marlett's sole mental health care providers and had knowledge of his previous criminal record, his mental health diagnosis and that he posed a violent threat to himself and others. Defendants were fully aware of Marlett's rapid decompensation and unstable behavior and were in the best position to control and attempt to stop him from harming himself and others (see Davis v. South Nassau Communities Hosp., 26 N.Y.3d 563, 576, 26 N.Y.S.3d 231, 46 N.E.3d 614 [2015] ; Padula v. County of Tompkins, 303 A.D.2d 804, 805, 756 N.Y.S.2d 664 [2003] ; Rivera v. New York City Health & Hosps. Corp., 191 F. Supp. 2d at 422–423 ). Under these facts, we find that defendants failed to prove a lack of duty to take reasonable steps to prevent Marlett from harming members of the general public. Therefore, Supreme Court properly denied defendants’ summary judgment motion on their negligence and negligent supervision causes of action.

Defendants next contend that plaintiff cannot establish a cause of action for medical malpractice as doctors typically only owe a duty of care to their own patients and no special...