Avins v. Federation Employement & Guidance Service, Inc.Avins v. Federation Employement & Guidance Service, Inc.
McAloon & Friedman, P.C., New York City (Adam R. Goldsmith and Timothy J. O'Shaughnessy of counsel), for appellants.
Ronemus & Vilensky, New York City (Robin Mary Heaney of counsel), for respondent.
OPINION OF THE COURT
Andrias, J.
Because the complaint fails to allege any facts that would give rise to a duty of care on the part of defendants-appellants to control the conduct of a resident in one of their community residence programs or to prevent the resident from causing injury to the general public, we reverse and grant their motion to dismiss the complaint.
According to the complaint and newspaper articles submitted by plaintiff in opposition to the motion, shortly after 5:00 p.m., on Wednesday September 7, 2005, 10-month-old Isabella Avins was seriously injured in an apparently motiveless attack when, as she was being walked home in her stroller by her nanny, a man lurched forward, as if from nowherе, leaned towards the baby stroller and stabbed her in the stomach. Her assailant was 48-year-old Bernard Derr, who lived several blocks away in a supportive housing unit operated by defendant Federation Employment and Guidance Service, Inc. (FEGS), a not-for-profit organization.
FEGS operates a range of programs providing housing and various support services to individuals pursuant to contracts
As pertinent to this appeal, FEGS leases apartments in a building at 270 Fort Washington Avenue in Upper Manhattan, where it provides ISAP services for 36 residents, paying rent to the landlord plus utility and telephone bills. These apartments have kitchens which are equiрped with all of the utensils, including knives, necessary for cooking, and have bathrooms, as well as one bedroom for each resident. Unlike other "supervised residences" operated by FEGS, where its staff is on site at all times, in ISAPs, FEGS's staff members, who are nonprofessionals, make daily site visits and are available by telephone 24 hours a day, 7 days a week.
According to Margaret Moran, FEGS's senior vice-president for behavioral health residential services, who submitted an affidavit in support of defendants-appellants' motion, ISAPs provide a moderate level of supportive services but no treatment services. The supportive services provided by an ISAP include daily visits to residents' apartments to assess whether the apartment is clean, the resident has food in the kitchen and the resident is maintaining personal hygiene and laundering his or her clothes. Periodically, a staff member will ask a resident to count out his or her medication to ensure that there is sufficient medication on hand until the next scheduled refill. FEGS's staff may also inquire as to whether the residents are attending their mental health day programs. According to Ms. Moran, the goal is for residents to learn to do all these things regularly without prompting. Ideally, upon demonstrating that they can reliably do these things without prompting, residents are eventually moved to a different housing program in which the apartment visits are less frequent and the residents have less contact with FEGS's staff.
When a pоtential resident is referred to FEGS, its central intake office, which is headed by a licensed social worker, reviews the potential resident's file. The prospective resident is then interviewed by a mental health professional and the central intake office determines whether a prospective resident is suited for one оf FEGS's programs. Once a person becomes an ISAP resident, Medicaid requires, for billing purposes, that a physician certify once a year that the residential program is appropriate for the resident. FEGS plays no role in this annual certification.
While, in ordinary circumstances, New York common law does not impose a duty to control the conduct of third persons to prevent them from causing injury to others, there are special circumstances in which New York imposes a duty to control the conduct of others. One such circumstance is where there is a special relationship: "a relationship between defendant and a third person whоse actions expose plaintiff to harm such as would require the defendant to attempt to control the third person's conduct; or a relationship between the defendant and plaintiff requiring defendant to protect the plaintiff from the conduct of others" (Purdy v Public Adm'r of County of Westchester, 72 NY2d 1, 8 [1988]).
The complaint alleges two causes of action against FEGS: the first for failure to supervise Mr. Derr, and the second for medical malpractice. Such causes of action are based upon allegations that FEGS was "aware of certain problems within the
In opposition to FEGS's motion to dismiss, counsel for plaintiff stated that, according to newspaper articles published following the attack on Isabella, FEGS's chief operating officer admitted that FEGS's staff members visit the residents "every morning—and sometimes twice a day—to ensure that they take their medication and to help with shopping and other services." (Emphasis in original.) Counsel further stated that, upon investigation by the police and District Attorney's office, it appeared that Mr. Derr had two roommates who described his "increasing erratic and deteriorating behavior," and he "was apparently not getting along with his roommates and had been acting out his frustration with his living situation."
Counsel argued that, if FEGS's staff members visited the apartment and spoke with the residents as they were supposed to, they would have known of Mr. Derr's increasingly psychotiс behavior. Thus, she argued, FEGS failed to properly supervise and properly evaluate Mr. Derr on its daily visits and failed to take appropriate measures to avoid his psychotic deterioration and harming of others. Counsel further argued that there is a cognizable cause of action when a member of the general рublic is injured due to a mental health provider's failure to treat, monitor and/or retain a mentally ill patient and, in certain circumstances, such provider "may be liable for failing to control or commit a voluntary outpatient who later harms a member of the public" (quoting Rivera v New York City Health & Hosps. Corp., 191 F Supp 2d 412, 419 [SD NY 2002]).
Specifically, in seeking to distinguish plaintiff's theory of liability from that espoused in Purdy (72 NY2d 1 [1988], supra), counsel stated that
"plaintiff does not argue that defendant FEGS should not have allowеd defendant DERR to leave the apartment. Rather, plaintiff argues and alleges that defendant DERR was negligently supervised in FEGS' 'Intensive Supportive Apartment Program', that this neglect caused him to deteriorate, and that his deterioration caused him to stab the infant plaintiff."
The dissent would, however, sustain plaintiff's first cause of action for negligent supervision. Giving plaintiff's allegations еvery favorable intendment and relying upon the District Court's decision in Rivera (191 F Supp 2d at 417), the dissent finds that such allegations suffice to show a special relationship between FEGS and Mr. Derr involving its monitoring of his known psychiatric condition. Such special relationship, the dissent would find, imposes a duty of care on FEGS to protect members of the general public in the vicinity of thе ISAP from Mr. Derr's known or reasonably discoverable violent propensities.
Since the motion court summarily denied defendants-appellants' motion to dismiss, with leave to renew after further discovery, we are unable to discern that court's reasons for its decision. Nevertheless, the dissent's reliance upon Rivera is misplaced since it can readily be distinguished on its facts and the applicable law.
In Rivera, plaintiff was pushed off a subway platform into the path of an oncoming subwаy train by a diagnosed paranoid schizophrenic named Perez who showed violent tendencies, had a known history of violence, and did not take his medications. In denying the motion of the relevant health care providers to dismiss plaintiff's claims that they were negligent in the medical and psychiatric treatment of their patient and in fаiling to protect the public from their patient, the court held that under New York law "mental health providers have a duty to their patients, they have a duty to third parties in certain circumstances, and they have mechanisms by which to seek to control patients, including outpatients, who are a threat to themselves or others" (id. at 422-423). It found, however, that the complaint failed to state a claim against two homeless shelters where Perez resided up to and including the date of the accident.
In so ruling, the court found that the complaint merely alleged that Perez was a resident at the facilities, that he exhibited violent propensities while he was there, and that the shеlters failed to control or restrain him or to warn others about him. However, the court found that the complaint failed to allege any
Here, the allegations of the complaint likewise fail, as a matter of law, to demonstrate a special relationship sufficient to state a cause of action against FEGS for negligent failure to supervise or control Mr. Derr or to protect the infant plaintiff from him. Mr. Derr was a voluntary resident in the ISAP. He could come and go as he pleased, and plaintiff points to no statute or rule or regulation of the State Office of Mental Health or any contractual provision that gives FEGS the authority, in nonemergency circumstances, to restrict Mr. Derr from leaving the facility, or to control his conduct while he was away from the facility (see Purdy, 72 NY2d at 9). In Purdy, it was alleged that an elderly resident in a health-related facility, who was involved in an automobile accident, should not have been allowed to drive her car. The Court of Appeals held that even though the facility afforded the resident "lodging, board and physical care including, but not limited to, the recording of health information, dietary supervision and supervised hygienic services" (id. at 6 [internal quotation marks and citations omitted]), as a voluntary resident, with no physical reason impeding her ability to leave the facility, the facility had no authority to prevent her from leaving the premises or to control her conduct while she was off the premises (id. at 9). Moreover, even where a persоn is receiving voluntary outpatient mental care from a mental health facility and the treating physician has reason to believe that the patient is not taking his or her medication as prescribed, the facility's control over the patient, and consequent duty to prevent him or her from harming others, is more limited than in cases involving persons confined to mental institutions (Schrempf v State of New York, 66 NY2d 289, 296 [1985]).
Given the foregoing, plaintiff has failed to allege a cause of action against the FEGS defendants for negligent supervision inasmuch as he does not allege that Mr. Derr had ever shown
Aсcordingly, the order of the Supreme Court, New York County (Milton A. Tingling, J.), entered April 4, 2007, which denied, with leave to renew after further discovery, defendants-appellants' motion pursuant to
Saxe, J. (dissenting in part). I respectfully disagree with the majority insofar as it dismisses the complaint in its entirety as against defendant Federation Employment and Guidance Service, Inc. (FEGS). I would affirm that part of the order denying defendants' dismissal motion as regards plaintiff's cause of action agаinst FEGS based upon a theory of negligent supervision.
Defendant Bernard Derr stabbed 10-month-old Isabella Avins with a knife as her nanny wheeled her down the street in her stroller. Derr had a history of mental illness, and was under the care of the New York State Office of Mental Health. The complaint alleges that Derr been placed in housing operаted by FEGS based on his qualification for outpatient mental health assistance; that FEGS' nonmedical employees undertook to daily monitor Derr's mental condition to ascertain whether he was taking his prescribed medication and attending assigned programs, and whether he needed medical assistance from outside sources; that Derr's behavior had become increasingly erratic; that he was accumulating knives in his apartment; and
Gonzalez and Sweeny, JJ., concur with Andrias, J.; Mazzarelli, J.P., and Saxe, J., dissent in part in an opinion by Saxe, J.
Order, Supreme Court, New York County, entered April 4, 2007, reversed, on the law, without costs, defendants-appellants' motion pursuant to