T.T. v. State

• Decision Date: 15 June 2017
• Citation: 58 N.Y.S.3d 187,151 A.D.3d 1345
• Parties: T.T., as Guardian of the Person and Property of R.R., a Developmentally Disabled Person, Appellant, v. STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

151 A.D.3d 1345
58 N.Y.S.3d 187

T.T., as Guardian of the Person and Property of R.R., a Developmentally Disabled Person, Appellant,
v.
STATE of New York, Respondent.

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

June 15, 2017.

58 N.Y.S.3d 188

Della Ratta Law Office, Schenectady (Michael J. Hutter of Powers & Santola, LLP, Albany, of counsel), for appellant.

Eric T. Schneiderman, Attorney General, Albany (Jonathan D. Hitsous of counsel), for respondent.

Before: McCARTHY, J.P., LYNCH, DEVINE and CLARK, JJ.

CLARK, J.

Appeal from an order of the Court of Claims (DeBow, J.), entered November 30, 2015, which, among other things, granted

58 N.Y.S.3d 189

defendant's cross motion for summary judgment dismissing the claim.

From March 1986 through June 1993, R.R. (hereinafter the resident), a developmentally disabled woman with moderate to severe autism, resided in a facility owned and operated by Camary Statewide Services, a private, nonprofit corporation that was, at that time, certified by the Office of Mental Retardation and Developmental Disabilities (hereinafter OMRDD)¹ to provide care and treatment to persons with developmental disabilities. During this four-year period, claimant, the resident's mother and legal guardian, regularly observed abrasions, bruises, bite marks and other injuries to the resident's body, including her rectum, and brought such injuries to the attention of the staff at Camary, as well as OMRDD and the State Commission on Quality Care for the Mentally Disabled (hereinafter the Commission).²

In 2002, claimant commenced this negligence action against defendant for its alleged failure to adequately regulate and oversee the care and treatment provided by Camary to the resident, conduct a sufficient investigation into claimant's reports of the suspected abuse of the resident and take appropriate corrective measures, as well as its alleged implementation of an internal policy that discouraged the reporting of incidents of resident-to-resident abuse. In 2015, following years of discovery, claimant moved for summary judgment on the issue of liability, and defendant cross-moved for summary judgment dismissing the claim. The Court of Claims denied claimant's motion for summary judgment, but granted defendant's cross motion and dismissed the claim. Claimant now appeals, and we affirm.

In determining whether claimant may assert a negligence claim against defendant, we must first assess whether defendant

"was engaged in a proprietary function or acted in a governmental capacity at the time [that] the claim arose" ( Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 [2013] ; see Turturro v. City of New York, 28 N.Y.3d 469, 478, 45 N.Y.S.3d 874, 68 N.E.3d 693 [2016] ; McEnaney v. State of New York, 267 A.D.2d 748, 749, 700 N.Y.S.2d 258 [1999] ). If defendant was engaged in a proprietary function—that is, activities that "essentially substitute for or supplement ‘traditionally private enterprises' "—it is subject to suit under ordinary negligence principles applicable to nongovernmental actors ( Sebastian v. State of New York, 93 N.Y.2d 790, 793, 698 N.Y.S.2d 601, 720 N.E.2d 878 [1999], quoting Riss v. City of New York, 22 N.Y.2d 579, 581, 293 N.Y.S.2d 897, 240 N.E.2d 860 [1968] ; see Drever v. State of New York, 134 A.D.3d 19, 22, 18 N.Y.S.3d 207 [2015] ). However, if defendant's actions were " ‘undertaken for the protection and safety of the public pursuant to the general police powers,’ " they are deemed governmental and defendant may be subject to suit only if it owed a special duty to the resident and if the governmental function immunity defense does not apply ( Applewhite v. Accuhealth, Inc., 21 N.Y.3d at 425–426, 972 N.Y.S.2d 169, 995 N.E.2d 131, quoting Sebastian v. State of New York, 93 N.Y.2d at 793, 698 N.Y.S.2d 601, 720 N.E.2d 878 ; accord Turturro v. City of New York, 28 N.Y.3d at 478–479, 45 N.Y.S.3d 874, 68 N.E.3d 693 ; see Metz v. State of New York, 20 N.Y.3d 175, 179, 958 N.Y.S.2d 314, 982 N.E.2d 76 [2012] ).

58 N.Y.S.3d 190

At their core, claimant's negligence claims focus on the manner in which defendant oversaw the care and treatment that Camary provided to the resident and the adequacy of its enforcement of regulatory provisions requiring that Camary report to OMRDD injuries sustained by its residents. While the provision of psychiatric care by a governmental actor has been held to be proprietary in nature (see Schrempf v. State of New York, 66 N.Y.2d 289, 294, 496 N.Y.S.2d 973, 487 N.E.2d 883 [1985] ), the care and treatment at issue here was provided by a private corporation, whose operation was certified and regulated by OMRDD (see Mental Hygiene Law §§ 16.03, 16.11 ). Indeed, the record established that, pursuant to its power to investigate the operation of service providers (see Mental Hygiene Law former § 16.11[2][b], as added by L. 1983, ch. 786, § 1), OMRDD conducted annual or biannual reviews, 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 to provide care and treatment to developmentally disabled individuals (see 14 NYCRR former 633.2). Where noncompliance was discovered, OMRDD could require private service providers to take corrective measures to address the deficiency or, where the noncompliance was severe, revoke, suspend or limit the service provider's operating certificate (see Mental Hygiene Law former § 16.17[a], as amended by L. 1985, ch. 856, § 4; L. 1990, ch. 618, §§ 6, 7). In the event of noncompliance,

OMRDD would provide guidance to the service provider, but it would not take affirmative steps to bring the provider into compliance with the applicable regulations. Moreover, OMRDD's oversight over, and regulation of, Camary...