Santangelo v. State

• Decision Date: 12 April 1984
• Docket Number: No. 58943,58943
• Citation: 474 N.Y.S.2d 995,101 A.D.2d 20
• Parties: Ursula SANTANGELO, Appellant, v. The STATE of New York, Respondent. Claim
• Court: New York Supreme Court — Appellate Division

Page 995

474 N.Y.S.2d 995

101 A.D.2d 20

Ursula SANTANGELO, Appellant, v. The STATE of New York, Respondent. Claim No. 58943.

Supreme Court, Appellate Division Fourth Department.

April 12, 1984.

Germain & Germain, Syracuse (Paul Germain, Syracuse, of counsel), for appellant.

Robert Abrams, Atty. Gen., Albany (Vernon Stuart and Peter J. Dooley, Albany, of counsel), for respondent.

Before HANCOCK, J.P., and DENMAN, BOOMER, O'DONNELL and SCHNEPP, JJ.

HANCOCK, Justice:

Claimant was assaulted and raped by Edward Simcoe, a 16-year-old boy, who was free on an unsupervised furlough (see article 26 of the Correction Law) from Camp Georgetown, a minimum security facility where he was serving a sentence for robbery with a dangerous weapon. Her claim against the State is based on the negligence of the Temporary Release Committee and the Superintendent of Camp Georgetown in approving the inmate's furlough request. At trial, the Court of Claims rejected the State's contention that, as a matter of law, it was immune from liability for the alleged errors of its officials in evaluating and approving the request. Nevertheless, the court dismissed the claim finding that "the claimant [had] failed to establish, by a fair proponderance of the evidence, that the temporary release committee knew or should have known that freeing Simcoe would create a foreseeable risk of injury" (Santangelo v. State of New York, 103 Misc.2d 578, 585, 426 N.Y.S.2d 931). On appeal, claimant contends that the court erred in this finding and that the evidence, particularly Simcoe's history of prior assaultive behavior involving women, compels the opposite conclusion. We need not reach the question of whether the court's finding is supported by the evidence, for we hold that the actions of the Temporary Release Committee and the Superintendent were of a discretionary and quasi-judicial nature for which the State enjoys absolute immunity (see Tango v. Tulevech, 61 N.Y.2d 34, 471 N.Y.S.2d 73, 459 N.E.2d 182). We therefore affirm.

I

In 1972 the "Work Release Program for State Correctional Institutions" (Correction Law, article 26, added L.1969, ch. 472) was renamed "Temporary Release Programs for State Correctional Institutions" (Correction Law, article 26, as amd. by L.1972, ch. 339) and expanded to include, inter alia, a "furlough program" under which eligible inmates may leave the premises of an institution for seven days or less for such purposes as seeking employment, maintaining family ties, and attending educational courses (Correction Law, § 851, subd. 4, added L.1972, ch. 339). It was envisioned that the measure would "provide the highest potential for rehabilitating a positively motivated inmate by offering him the genuine hope of bettering himself, of holding his family together, and of achieving a successful return to society" (Memorandum of State Executive Department, McKinney's 1972 Session Laws of N.Y., p. 3299).

The statute (as of the time of Simcoe's release) directs that the Commissioner of Correction promulgate rules and regulations for administration of the release programs and establish a Temporary Release Committee for each appropriate institution (Correction Law, § 852, subd. 1, as amd. by L.1972, ch. 339); and it specifies that any inmate eligible by virtue of his parole status may apply for temporary release (see Correction Law, §§ 851, subd. 2; 853, subd. 2, as amd. by L.1972, ch. 339). If the Temporary Release Committee "determines that a temporary release program for the applicant is consistent with the safety of the community, is in the best interests of rehabilitation of the applicant, and is consistent with rules and regulations of the department, the committee * * * shall develop a suitable program of temporary release for the applicant" (Correction Law, § 853, subd. 4, as amd. by L.1972, ch. 339). The statute provides for approval of a furlough program by the Superintendent and review by the Commissioner if a request is rejected (Correction Law, § 853, subd. 5, as amd. by L.1972, ch. 339).

Administrative Bulletin No. 63 (June 22, 1972) promulgated by the Commissioner states that in reviewing an application the Committee must consider certain criteria including whether the inmate is capable of profiting from the program and is suitable for participation, taking into consideration the potential benefits that he or others may gain as well as the safety of the community, and further that certain types of inmates "shall normally not be granted furlough" including those convicted of violent crimes; the bulletin also specifies that each furlough must have a definite purpose and "shall not normally be granted unless all other means for accomplishing the desired objective have been exhausted", and that as a precondition of each release an investigation must be conducted of the home and family which the applicant proposes to visit.

Simcoe had been sentenced on March 12, 1973, as a youthful offender to an indeterminate sentence of zero to four years for armed robbery of a woman. He was transferred to Camp Georgetown on May 21, 1973. The Temporary Release Committee, consisting of the senior correctional counselor and two assistant supervisors, on the basis of the "Inmate's Classification and Chronological" report, the report of an officer who had spoken with Simcoe's father, and other documents, approved Simcoe's written request for a furlough (to "renew family ties") on July 12, 1973. Upon the Superintendent's approval, Simcoe was granted a four-day furlough to commence on July 14, 1973. He committed the crime involving complainant on July 18, the day he was to return to Camp Georgetown. The record contains conflicting evidence as to whether by the usual standards of negligence the Temporary Release Committee exercised due care in evaluating and approving the furlough request. There is no question that Simcoe was an "eligible inmate" (see Correction Law, § 851, subd. 2) and that the Committee and Superintendent in approving his request acted within the powers vested in them by the Legislature in article 26 of the Correction Law.

II

With the abolition of sovereign immunity upon the enactment of the Court of Claims Act the State lost that immunity which it had hitherto enjoyed solely because of its sovereign character, and it assumed liability for the ordinary or garden variety of negligence under the same rules of law applicable to individuals and corporations (Weiss v. Fote, 7 N.Y.2d 579, 585, 586, 200 N.Y.S.2d 409, 167 N.E.2d 63; Ufnal v. Cattaraugus County, 93 A.D.2d 521, 523, 463 N.Y.S.2d 342, mot. for lv. to app. den. 60 N.Y.2d 554, 467 N.Y.S.2d ----, 454 N.E.2d 1317). It is the general rule, however, as has been often stressed, that the State has retained its immunity when the official action complained of is not ministerial but involves the exercise of discretion (see Tango v. Tulevech, 61 N.Y.2d 34, 40, 471 N.Y.S.2d 73, 459 N.E.2d 182, supra; Weiss v. Fote, supra; Ufnal v. Cattaraugus County, supra, 93 A.D.2d p. 523, 463 N.Y.S.2d 342; Southworth v. State of New York, 62 A.D.2d 731, 740, 405 N.Y.S.2d 548, affd. 47 N.Y.2d 874, 419 N.Y.S.2d 71, 392 N.E.2d 1254). When the action involves the conscious exercise of discretion of a judicial or quasi-judicial nature, the immunity is absolute; and such absolute immunity has been extended to a Judge in the performance of his duties (Lange v. Benedict, 73 N.Y. 12; Word v. City of Mount Vernon, 65 A.D.2d 622, 409 N.Y.S.2d 532, mot. for lv. to app. den. 47 N.Y.2d 706, 417 N.Y.S.2d 1026, 391 N.E.2d 305); a District Attorney in his official actions in investigating and prosecuting crime (Schanbarger v. Kellogg, 35 A.D.2d 902, 315 N.Y.S.2d 1013, app. dsmd. 29 N.Y.2d 649, 324 N.Y.S.2d 1033, 273 N.E.2d 321, cert. den. 405 U.S. 919, 92 S.Ct. 944, 30 L.Ed.2d 789); a State Tax Commissioner in issuing a notice and demand for payment (Abruzzo v. State of New York, 84 A.D.2d 876, 444 N.Y.S.2d 739); a school official in the determination to discharge an employee (Van Buskirk v. Bleiler, 46 A.D.2d 707, 360 N.Y.S.2d 88); a Deputy Attorney-General in the performance of his duties (Cunningham v. State of New York, 71 A.D.2d 181, 422 N.Y.S.2d 497); a building inspector in granting or denying building permits (Rottkamp v. Young, 21 A.D.2d 373, 249 N.Y.S.2d 330, affd 15 N.Y.2d 831, 257 N.Y.S.2d 944, 205 N.E.2d 866); a senior sanitary engineer of the state Department of Environmental Conservation in his determination to deny a burning permit (Desch, Inc. v. State of New York, 60 A.D.2d 678, 400 N.Y.S.2d 28, affd 45 N.Y.2d 882, 410 N.Y.S.2d 811, 383 N.E.2d 113); and employees of the State Health Department in issuing a "mass gathering permit" for a rock music festival (Burgundy Basin Inn v. State of New York, 47 A.D.2d 692, 364 N.Y.S.2d 610, mot. for lv. to app. den. 37 N.Y.2d 706, 374 N.Y.S.2d 1027, 337 N.E.2d 146).

Most recently the Court of Appeals has held that the Supervisor of the In-take Unit of a county Probation Department serving Family Court was fully immune from suit by a father of children in a custody dispute alleging that she illegally delivered custody to his estranged wife (Tango v. Tulevech, supra). In so holding the court per Simons, J. emphasized the absolute nature of the immunity involved stating: "When confronted with the Tango-Childs dispute, defendant Tulevech conferred with the parents and the children, she inspected the documents presented and examined the children for signs of abuse, and she necessarily exercised judgment as to whether the court action was appropriate. Arguably, she was entirely correct in the present circumstances when she recognized the judgment which expressly awarded the mother permanent custody of the girls rather than the equivocal, unnotarized letter of modification. But even if her ultimate determination was incorrect, she is immune from suit because she acted within the scope of her discretionary authority as Supervisor of the In-take...