Oddo v. Queens Village Committee for Mental Health for Jamaica Community Adolescent Program, Inc.

135 A.D.3d 211, 21 N.Y.S.3d 53

Opinions

OPINION OF THE COURT

Sweeny, J.

The issue before us is whether a residential substance abuse treatment facility owes a duty of care to a third party against whom one of its residents commits a violent act after his termination from its program. Under the facts of this case, we conclude that it does and that there are material questions of fact as to whether defendant properly discharged that duty. At approximately 10:00 p.m. on July 17, 2010, plaintiff was stabbed in the right shoulder by nonparty Sean Velentzas. Shortly before the incident, Velentzas had been a patient living in a drug treatment facility operated by Queens Village Committee for Mental Health for Jamaica Community Adolescent Program, Inc. (JCAP or Queens Village). He had been sent to the facility under the TASC

Footnotes

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* program as an alternative to incarceration for charges stemming from allegations that he had robbed a cab driver at gunpoint.

After the completion of discovery, defendant moved for summary judgment dismissing plaintiff’s complaint on the ground that it owed plaintiff no duty since Velentzas was properly discharged from its facility for violations of its policy against violence and alcohol use.

Ricky Cottingham, the Acting Clinical Program Director of Queens Village, testified at his deposition that he never worked with Velentzas directly, and did not know when Velentzas began treating at the facility or whether he had been referred by a criminal court. He acknowledged that Queens Village accepts referrals from the criminal courts. Cottingham explained that the program is considered as an alternative to incarceration and that a resident’s sentencing does not take place until he or she actually completes the program. He also testified that participants at Queens Village are not free to leave the facility at any time but must obtain staff approval to do so. Residents are allowed to leave the facility to attend medical and court appointments or to go on nature walks or trips, but, on those occasions, the resident is escorted by a facility employee. However, Cottingham also testified that “no one can physically control anyone entering or leaving the building” and that a resident can leave the program against clinical advice. When a resident is discharged from the program for violating a rule, or leaves against clinical advice, the entity that referred him or her to Queens Village is contacted. If the agency is a probation or parole agency, someone from the agency comes to pick up the discharged resident. If it was a TASC referral, the typical procedure is for the resident to report to TASC the next business day following his or her dismissal from the program.

Defendant also submitted an affidavit by Cottingham in support of its motion. In the affidavit, Cottingham stated that he was not working on July 17, 2010, the date of the incident, but was informed by his employees as to what occurred on that date. He was advised that at approximately 9:30 p.m., Velentzas was told by Queens Village staff that he was being dismissed from the program because he had violated a “cardinal rule” by pushing another resident to the ground. Velentzas was also questioned about having consumed alcohol and, although he refused to take a breathalyzer test, he admitted drinking alcohol. Since these incidents occurred during a weekend, defendant’s employees began to fill out the necessary paperwork to transfer Velentzas to Faith Mission Crisis Center, an intermediary facility, where, according to Cottingham, he would “be held until he could report to TASC.” However, during this process, Velentzas “became enraged and was acting out of control.” Queens Village employees followed facility protocol and called 911. When the police arrived, Velentzas was, in Cottingham’s words, “escorted ... off the premises.” The incident report prepared by Queens Village staff and submitted in support of its motion for summary judgment also stated that Va lentzas “was escorted by police officers off the property.” There is no indication in the record on appeal that Velentzas was ever taken into custody by the police, or that Queens Village staff advised the police that he needed to be held or taken to Faith Mission pending notification to TASC. Velentzas was released by the police shortly after his removal from Queens Village property. His attack on plaintiff took place approximately a half hour after he was escorted off the premises.

Significantly, in his affidavit, Cottingham stated that Queens Village “was under the impression that Mr. Velentzas would be taken to the police station until such time as his probation officer and TASC officer were notified of the situation.” He further stated that “[a]t no time did [Queens Village] release Mr. Velentzas into the general public, nor did [it] have intention of same.” In its motion, Queens Village took the position that it owed no duty of care to plaintiff and that, while its employees did not advise the police that Velentzas should be taken to Faith Mission or held until TASC could be advised of his dismissal from the program, in light of the fact that it is “a treatment facility where individuals reside in lieu of going to prison, there is no doubt that the New York City Police Department is aware of the potential behavior of such residents.” Finally, Queens Village maintained that it did not release Velentzas into the general public but rather released him into police custody.

The motion court denied defendant’s motion. It found that defendant did not present “a scintilla of evidence that Velentzas was ever in police custody,” and that “[n]o one with personal knowledge of the facts proffered any sworn testimony” or any documentary evidence such as a police report in support of defendant’s contention that Velentzas was taken into custody by the police. Finally, the court concluded that, from all the facts presented, defendant “had the necessary authority, or ability, to exercise such control over Valentzas’ [sic] conduct so as to give rise to the duty on their part to protect a member of the general public.”

The dissent posits that, in this case, since the facility had the right to discharge its residents for rule violations, it had no duty to protect the general public from a discharged resident’s subsequent violent acts. In the alternative, to the extent such a duty existed, the dissent contends that it was properly discharged when Velentzas was turned over to the police. For the following reasons, we do not agree.

For a party to prevail on a cause of action for common-law negligence, “it must be shown that the defendant owes a duty to the plaintiff” (Pulka v Edelman, 40 NY2d 781, 782 [1976]). The question of whether someone owes a duty of care to reasonably avoid injury to another is a question of law (see Purdy v Public Adm’r of County of Westchester, 72 NY2d 1, 8 [1988]). Generally, the common law does not impose a duty to control the conduct of third persons to prevent them from causing injury to others; rather, liability for the negligent acts of third persons arises “when the defendant has authority to control the actions of such third persons” (Ramsammy v City of New York, 216 AD2d 234, 236 [1st Dept 1995], lv dismissed in part, denied in part 87 NY2d 894 [1995], quoting Purdy, 72 NY2d at 8).

With respect to mental health care providers, New York has “no bright-line rule” regarding whether those individuals or facilities “treating a patient on a voluntary basis owe[ ] a duty of care to the general public. Instead, the courts have examined the issue on a case-by-case basis” and the existence of such a duty turns on the facts of a particular case (Fox v Marshall, 88 AD3d 131, 136 [2d Dept 2011] [internal citation omitted]; Rivera v New York City Health & Hosps. Corp., 191 F Supp 2d 412, 419 [SD NY 2002]).

Applying these principles to the facts of this case, we find that the motion court correctly denied Queens Village’s motion, because Queens Village failed to meet its initial burden of establishing, as a matter of law, that it owed no duty of care to plaintiff (Fox v Marshall, 88 AD3d at 135).

The key factor in determining whether a defendant will be liable for the negligent acts of third persons is whether the defendant has sufficient authority to control the actions of such third persons (Purdy, 72 NY2d at 8). Such authority, at a minimum, requires “an existing relationship between the defendant and the third person over whom ‘charge’ is asserted” (D'Amico v Christie, 71 NY2d 76, 89 [1987]).

There is no question that Queens Village had “an existing relationship” and sufficient authority to control Velentzas’s actions. The dissent correctly observes that residents of this facility “are not prisoners.” However, that degree of authority or control is not required to meet the standard of authority set forth in the case law on this issue (see D'Amico v Christie, 71 NY2d 76 [1987]). Cottingham testified unequivocally that residents were not free to leave the facility without permission and without an escort. While a resident could leave against clinical advice, the result would be a termination of the program, notification to the referring agency and criminal court that sent the resident to Queens Village, and the resident’s return to the criminal justice system. Notably, before the police were called, Queens Village employees were preparing paperwork to have Velentzas transferred to an interim facility where he was, in Cottingham’s words, to be “held until TASC could be notified.” This certainly indicates the type of control Queens Village had over him by virtue of his referral from a criminal court and is sufficient to meet the requirement of authority or control with respect to establishing a duty of care on the part of defendant.

More importantly, in his affidavit Cottingham tacitly, if not explicitly, recognized Queens Village’s duty of care by acknowledging that there was no intention on the part of Queens Village to release Velentzas into the general public. Cottingham asserted, rather, that Velentzas was released into police “custody.” The dissent mischaracterizes our reference to this “statement of intent.” This acknowledgment does not, as the dissent contends, “create [ ]” a duty of care; it merely indicates that defendant was aware that it had such a duty.

In its motion, defendant submitted no affidavits or depositions from anyone with direct knowledge as to what transpired when Velentzas was advised that he was terminated from the program, or what information was communicated to the police concerning his status vis-á-vis his pending criminal case. No documentary or other evidence was submitted to support defendant’s allegations that Velentzas was, in fact, taken into custody, or that the police had any obligation to either hold Velentzas “[at] the police station,” as Cottingham stated, or transport him to Faith Mission, other than a passing, unsupported reference in defendant’s counsel’s reply affirmation that, since defendant’s facility houses individuals for treatment in lieu of prison, “there is no doubt that the New York City Police Department is aware of the potential behavior of such residents.” Even assuming that statement is correct, Queens Village submitted nothing in support of its contention that the police could have, and should have, held Velentzas until TASC was notified. As noted, Cottingham testified and the incident report completed by Queens Village employees state specifically that Velentzas was “escorted” off the facility property, a far different situation than being taken into police “custody.”

It is axiomatic that “the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). “Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers” (id.). Contrary to the conclusion of our dissenting colleague, we find that Queens Village did not meet its burden of demonstrating that it had no duty of care.

The dissent argues that cases such as Purdy, Eiseman, Pulka, D’Amico, and Ramsammy fail to support our conclusion that in this case, Queens Village owed a duty of care to plaintiff or to members of the general public. While it is true that in those cases the courts found no duty existed on the part of the defendants for the actions of the third parties, the principles as to when and under what circumstances such liability may arise are certainly applicable here. Indeed, in each of those cases, the court utilized the same legal principles as we cite herein and applied them to the particular facts of the case. In this case, our analysis turns, as did the analysis in those cases, on the specific facts on the record before the court.

For example, the critical element of control of the third party by the defendant, clearly present in this case, is notably absent in each of the above-cited cases. We note that in Fox (88 AD3d at 137), the element of control was established because the third party therein “appeared to need a facility-issued pass” to leave the facility, not unlike the situation here. While it is true that Fox was decided in the context of a CPLR 3211 (a) (7) motion rather than a summary judgment motion, that fact does not negate the well established principle of law concerning the need to demonstrate control by the defendant over the third party to establish a duty to others.

Moreover, unlike the dissent, we cannot say, on this record, that even if there were a duty owed by Queens Village, it was extinguished when Velentzas was turned over to the police. The dissent conflates our observations on this issue with defendant’s argument on appeal that it discharged any duty it may have had by turning Velentzas over to police “custody.” We take no issue with the dissent’s observation that “[a] private drug treatment facility simply cannot control what the police do.” We make no suggestion that it had any obligation, as the dissent posits, to ensure that the police kept Velentzas in custody. We simply observe that, based on the evidence submitted, there is no proof, documentary or otherwise, from anyone present at the time of the incident that the police ever took Velentzas into “custody,” thereby extinguishing any further duty on defendant’s part. At this stage of the proceedings, the record presents a material question of fact on this issue.

Since defendant failed to meet its initial burden to show that it owed plaintiff no duty of care (see Fox v Marshall, 88 AD3d at 135), we need not reach the issue of the sufficiency of plaintiff’s opposition papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The motion for summary judgment was therefore correctly denied.

Accordingly, the order of the Supreme Court, Bronx County (Norma Ruiz, J.), entered February 25, 2014, which denied defendant’s motion for summary judgment dismissing the complaint, should be affirmed, without costs.

TASC (Treatment Alternatives for Safer Communities) is an alternative-to-incarceration program which, with the consent of the District Attorney and the court, contracts with agencies such as JCAP to provide substance abuse and mental health treatment services to criminal defendants in lieu of going to prison.