| Williams v State of New York |
| 2011 NY Slip Op 03654 [84 AD3d 412] |
| May 3, 2011 |
| Appellate Division, First Department |
| Jill Williams et al., Appellants, v State of New York,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York (Julie S. Mereson of counsel), and RaffiMelkonian, New York, for respondent.
Judgment of the Court of Claims of the State of New York (Alan C. Marin, J.), entered June10, 2009, after a nonjury trial, dismissing the claim, reversed, on the law and the facts, withoutcosts, the claim reinstated, liability on the part of the State is found, and the matter remanded fora trial on the issue of damages.
The issue in this case is proximate cause: Where defendant allows a voluntary mental patientto "elope" from its facility, can that defendant be liable for an assault that the patient perpetratestwo years later? Given the extensive history of extreme and consistent violence the patient in thiscase exhibited, we answer that question in the affirmative.
On July 25, 1993, Tony Joseph, a voluntary mental patient at Manhattan Psychiatric Center(MPC), eloped from the facility for the eighth time in a 29-month period. Joseph, who requiredan escort on the facility's grounds, eloped when his escort permitted him to use a bathroom out ofher sight, in violation of proper procedure for an escorted patient. When Joseph did not return,defendant classified him as on "LWOC" (leave without consent) as opposed to an "escape." Inthe case of an escape, the police must receive notification. Police notification is not necessary foran LWOC.
Joseph had a history of assaultive behavior, including convictions for attempted assault in thesecond degree and assault in the second degree. Starting in 1977, Joseph was hospitalized invarious state psychiatric facilities. He was in and out of those facilities and often eloped fromthem. Joseph's extensive history of mental illness in particular included violence against women.On September 26, 1982, he was arrested for assaulting a woman and her infant son. Josephrepeatedly struck the woman in the groin and the child in the face and head. In January 1983,Joseph was admitted as a patient at an Office of Mental Health (OMH) facility. There, he had ahistory of altercations with other patients. A year later, he was discharged, but he returned to adifferent OMH facility the following month (February 1984). In 1984 and 1985, Joseph movedaround among a few different facilities. In connection with his plea in the 1982 assault, Josephwas required to enter an MPC facility and remain there until discharged. But, on December 6,1985, while he was at MPC, two physicians determined that Joseph should be involuntarilycommitted.[*2]
On April 8, 1986, Joseph jumped over a half-door in thenurse's station at MPC and attacked a ward nurse so badly that she sustained a concussion. Areport following the attack noted that Joseph's doctor stated that Joseph was in a psychotic stateof mind at the time of the attack and could not be held accountable for his actions. A clinicalsummary from the same time period stated that Joseph had no control over his aggressivenessand noted that he had been placed in seclusion at times because he was dangerous to otherpatients. On May 29, 1986, Joseph was transferred to a different facility.
On June 30, 1986, Joseph was indicted for assault in the second degree based on his attackon the nurse at MPC. On July 14, 1987, he was convicted of assault in the second degree after atrial, and was sentenced on August 20, 1987 to a term of two to four years. He was initially sentto Fishkill Correctional Facility, but was soon transferred to an OMH facility.
On December 25, 1987, Joseph threatened to kill staff members at the OMH facility. OnJanuary 28, 1988, he was transferred to Clinton Correctional Facility, where he was hostile andthreatening to staff members, especially females.
In 1989, Joseph was admitted to MPC on an involuntary basis. On November 16, 1989, hethreatened female staff members. On November 20, 1989, he reportedly wanted to attack anotherpatient for no apparent reason. Various notes from this time period indicate that Joseph had ahistory of hospitalizations due to "assaultive behavior," primarily directed at women, and that hewas aggressive and threatening. At some point, his doctors formulated a plan for Joseph thatinvolved addressing his assaultive behavior toward females, improving his self-acknowledgmentof his illness, and encouraging him to continue his medications. However, Joseph left MPCwithout consent in September 1990, and the plan for him was abandoned.
On June 5, 1991, police officers brought Joseph to St. Luke's Hospital in Manhattan after hetripped a woman on the street, knocked her pizza out of her hand and punched a store window.He was transferred from St. Luke's to MPC on July 23, 1991. On September 25, 1991, a twophysician certification was prepared to keep him at MPC involuntarily.
Notes dated November 9, 1991 indicate that Joseph was agitated and hit a nurse while sheattempted to give him new medication. A January 8, 1992 note indicates that Joseph wasinvolved in a physical altercation.
Although Joseph's last admission to MPC was via a court retention order pursuant to MentalHygiene Law § 9.33, defendant later converted Joseph from involuntary to voluntarystatus. In April of 1993, defendant granted Joseph escorted grounds privileges. As noted earlier,on July 25, 1993, Joseph escaped from defendant's care when his escort permitted him to use abathroom out of her sight, in violation of proper procedure.
On July 7, 1995, while on the street in Manhattan, Joseph threw a large glass bottle atclaimant Jill Williams's leg, causing multiple fractures of her right tibia and requiring her toundergo two surgeries. The police apprehended Joseph, who was later convicted of assault in thefirst degree. He received a sentence of 4 to 8 years. Aside from an arrest on March 14, 1995, afterwhich he pleaded guilty to criminal trespass, there is no evidence of Joseph's activities during thetime between his 1993 elopement and his 1995 assault on claimant.
It is well settled that "[w]here the State engages in a proprietary function, such as providingmedical and psychiatric care . . . [it] is held to the same duty of care as privateindividuals and institutions engaging in the same activity" (Schrempf v State of NewYork, 66 NY2d 289, 294 [1985] [citations omitted]). "[T]here is both a duty to the inmate toprovide him with reasonable rehabilitational conditions under the circumstances and to the [*3]outside public to restrain the dangerous, or potentially dangerous,so that they may not harm others" (id. at 295 [internal quotation marks omitted]). "TheState has frequently been held liable for the consequences of its breach of duty to protect othersfrom the acts of the mentally ill confined to State institutions" (id. at 294 [internalquotation marks omitted]). While the concept of proximate cause can be difficult to define, ingeneral, "[t]o carry the burden of proving a prima facie case, the plaintiff must . . .show that the defendant's negligence was a substantial cause of the events which produced theinjury" (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]).
Here, there is no doubt that defendant's carelessness in supervising Joseph was the proximatecause of claimant's injuries. Joseph had an extensive and consistent history of assaults,particularly against women, including two physical altercations while institutionalized in the twoyears prior to his escape. Defendant was clearly on notice of Joseph's history and violenttendencies. It was defendant's negligent supervision of Joseph that allowed him to escape.Moreover, at trial, claimants' psychiatric expert testified that, based on his review of Joseph'srecords, it was virtually guaranteed that Joseph would decompensate and become violent after hiselopement. The record amply demonstrates that MPC and OMH were familiar with Joseph'shistory of violence as well as his many elopements from psychiatric facilities. MPC was also wellaware that Joseph had a chronic mental illness, and was aggressive and violent and prone toengage in "assaultive behavior" directed mostly at women. However, despite Joseph's longhistory of violence, defendant not only created the opportunity for Joseph to escape from its care,but also, by classifying him as LWOC, absolved itself of the obligation to notify the police that adangerous, violent and mentally unstable individual was loose somewhere in New York City.Thus, we find that the consequences that resulted in this case from failing to escort Joseph to thebathroom were foreseeable and the element of proximate cause satisfied (see Rattray v Stateof New York, 223 AD2d 356 [1996]).
While defendant speculates that there could be many intervening factors or acts that occurredbetween the time of Joseph's elopement and the assault on claimant, it offered no evidence of anyintervening factors or acts. Further, we note that "a mere lapse of time, no matter how long[,] isnot sufficient to prevent [an actor's conduct] from being the legal cause of the other's harm"(Alvarez v Telemechanics, Inc., 307 AD2d 304, 305 [2003] [internal quotation marksand citation omitted]; see also T.W. v City of New York, 286 AD2d 243, 246 [2001]).Thus, as here, proximate cause may be found long after the negligent act occurs (see Steel vState of New York, Ct Cl, Jan. 15, 2003, Marin, J., UID No. 2003-016-500, affd 11AD3d 673 [2004]).
The dissent correctly notes that Joseph's status was that of a voluntary patient at the time ofhis elopement and that he had escorted grounds privileges. The dissent credits this, and the factthat defendant classified Joseph as an LWOC, to conclude that at the time he escaped, Josephwas not in a decompensated psychiatric condition and was not a danger to himself and others.The dissent also relies on defendant's expert who speculated that Joseph's conversion tovoluntary status was part of a plan eventually to integrate Joseph back into society. The dissentconcludes that it is therefore speculative to assume that he would still have been at MPC in July1995.
However, it is the conclusions the dissent reaches that are speculative. OMH's policy manualparagraph D (3) (a) (i) provides: "[M]issing patients on voluntary admission status who aresubsequently located shall not be returned to a State operated psychiatric facility if they object. . . unless they meet the criteria [*4]for aninvoluntary form of admission. If such criteria are met, involuntary admission shall be pursued."Accordingly, had defendant located Joseph, under this provision he would have returned to thefacility if either he did not object or he met the criteria for an involuntary admission. Thus, as avoluntary patient, Joseph was not simply free to walk away from the facility. Had defendantfound him, it may have conducted a psychiatric evaluation to determine the propriety of releasinghim. It is possible that upon evaluation, Joseph would have been remanded to involuntary status.But we do not know what Joseph's status would have been because he did not remain underdefendant's treatment. Further, a properly discharged patient receives several kinds of supportthat give him or her the greatest chance of avoiding rehospitalization. These include a residence,a medication arrangement, therapy and someone to monitor his or her progress.
Nor do we know what level of sanity Joseph could have achieved from "a well-plannedtreatment plan." The reason we do not know this is because defendant's lack of due care allowedJoseph to abscond from MPC before he could finish any treatment plan. We appreciate thedissent's concern about rendering the State "answerable in perpetuity for [the] criminal andtortious conduct [of Joseph]." However, under Schrempf v State of New York (66 NY2d289 [1985], supra), the State has a duty to protect the public from persons whose mentalillness renders them dangerous. Given Joseph's history, it was a near certainty that he wouldattack someone, most likely a woman. There is nothing in the record to support the possibilitythat an intervening event was the proximate cause. The bottom line is, had defendant not allowedJoseph to abscond, plaintiff would not have been injured. Concur—Moskowitz,Manzanet-Daniels and RomÁn, JJ.
Andrias, J.P., and DeGrasse, J., dissent in a memorandum by Andrias, J.P., as follows: Aftertrial, the Court of Claims found that "the failure to prevent [Tony] Joseph from sneaking out of[the Manhattan Psychiatric Center (MPC)] on July 25, 1993 . . . does not support alegal nexus to his assault on [claimant Jill] Williams nearly two years later." The majoritydisagrees and finds for claimants on the issue of liability. Because I believe that a fairinterpretation of the evidence, including the expert testimony, supports the Court of Claims'determination that Joseph's assault on Ms. Williams was too remote in time to be proximatelycaused by the State's negligence in allowing him to elope almost two years earlier (see Watts v State of New York, 25AD3d 324 [2006]), I respectfully dissent and would affirm the judgment dismissing theclaim.
Joseph was first hospitalized at a psychiatric facility operated by the State through the Officeof Mental Health (OMH) in July 1977. He was subsequently discharged to the custody of hisfather, who resided on Riverside Drive. On September 26, 1982, Joseph assaulted a mother andher infant son in that neighborhood. Found unfit to stand trial, he was committed to OMHfacilities. On September 12, 1985, Joseph pleaded guilty to attempted assault in the seconddegree and was sentenced to five years' probation. As a condition of the plea, Joseph was to enterMPC on Wards Island and remain there until discharged.
On April 8, 1986, Joseph assaulted a female nurse at MPC. A clinical summary preparedafter the event indicates that Joseph had been involved in several unprovoked attacks on other[*5]patients while hospitalized. On July 14, 1987, he wasconvicted, after trial, of assault in the second degree, and sentenced to 2 to 4 years. After goingback and forth between prisons and OMH facilities, where he engaged in threatening behaviortowards staff members, especially females, on April 5, 1989, Joseph applied for a conditionalrelease to parole supervision and was admitted to MPC on a two-physician certification.
Between April 5, 1989 and April 3, 1990, Joseph eloped five times from MPC, sometimesreturning to his father. Each time, Joseph was placed on "leave without consent" (LWOC), andwas returned to MPC, usually within a few days, as follows:
Date of Elopement
Date of Return
August 21, 1989
August 24, 1989
September 21, 1989
September 25, 1989
November 13, 1989
November 14, 1989
February 4, 1989
February 5, 1989
February 24, 1990
April 3, 1990 (readmitted)
At some point, a plan for Joseph was formulated, but it was abandoned after he eloped fromMPC on August 9, 1990 and was again placed on LWOC status. On June 5, 1991, Joseph trippeda woman in the street and was brought to St. Luke's Hospital in Manhattan by police officers. OnJuly 23, 1991, he was transferred back to MPC pursuant to a Mental Hygiene Law § 9.33retention order.
On September 25, 1991, a two-physician certification was prepared for Joseph's involuntaryretention at the MPC. On February 14, 1992, he eloped and was classified LWOC. Due tothreatening behavior towards his father, Joseph was placed in Harlem Hospital. On January 5,1993, he was transferred back to MPC, where he was soon converted from involuntary tovoluntary status. In April of 1993, Joseph was granted escorted grounds privileges.
On July 25, 1993, Joseph was on an escorted visit to the chapel on hospital grounds and"sneaked out" when his escort permitted him to use a bathroom out of her sight. Staff membersand safety officers searched Wards Island for Joseph but did not find him. As in the past, MPCclassified Joseph as LWOC as opposed to placing him on "Escape" status.[FN1]Joseph did not return to OMH custody before injuring Ms. Williams, and MPC administrativelydischarged him on November 1, 1994.
On July 7, 1995, Joseph threw a bottle at Ms. Williams as she was waiting to cross RiversideDrive. A police officer arrested him and took Ms. Williams to the hospital.[FN2]Although [*6]claimants do not challenge the professionaldecision to grant Joseph escorted grounds privileges, they allege that the State was negligent inallowing Joseph, who was known to the State to be violent and dangerous to other persons due tohis mental illness, to elope in violation of proper procedure.
"[W]hen the State acts in a proprietary capacity as a landlord, it is subject to the sameprinciples of tort law as is a private landlord" (Miller v State of New York, 62 NY2d 506,511 [1984]). Accordingly, "a public entity may not escape liability for negligent acts which itperforms in a proprietary capacity and which are a proximate cause of an injury which wassustained as the result of a foreseeable act by a third party" (Marilyn S. v City of NewYork, 134 AD2d 583, 584 [1987], affd 73 NY2d 910 [1989]; see generallyDerdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980] ["Where the acts of a third personintervene between the defendant's conduct and the plaintiff's injury . . . liabilityturns upon whether the intervening act is a normal or foreseeable consequence of the situationcreated by the defendant's negligence"]). "[W]hether an act is foreseeable and the course ofevents normal are questions which are generally subject to varying inferences presenting issuesfor the fact finder to resolve" (Lynch v Bay Ridge Obstetrical & Gynecological Assoc.,72 NY2d 632, 636 [1988]).
Providing psychiatric care is a proprietary function (see Schrempf v State of NewYork, 66 NY2d 289, 294 [1985]), and the State has been held liable for negligentlypermitting a mental patient to escape (see Rattray v State of New York, 223 AD2d 356[1996]). However, even if the State had a duty to claimants and was negligent in allowing Josephto elope, claimants must establish that the State's negligence was a proximate cause of theinjuries Ms. Williams sustained when she was assaulted by Joseph almost two years later(Dunn v State of New York, 29 NY2d 313, 318 [1971]).
In Derdiarian (51 NY2d at 314), the Court of Appeals observed that "[t]he concept ofproximate cause, or more appropriately legal cause, has proven to be an elusive one, incapable ofbeing precisely defined to cover all situations . . . , in part, because [it] stems frompolicy considerations that serve to place manageable limits upon the liability that flows fromnegligent conduct" (citations omitted). To establish a prima facie case of proximate cause, aplaintiff must show "that the defendant's negligence was a substantial cause of the events whichproduced the injury" (51 NY2d at 315). In determining whether a defendant's conduct is asubstantial cause in bringing about injury, "consideration should be given to: the aggregatenumber of factors involved which contribute toward the harm and the effect each had inproducing it; whether the defendant had created a continuous force active up to the time of theharm, or whether the situation was affected by other forces for which the defendant was notresponsible; and the lapse of time" (Baptiste v New York City Tr. Auth., 28 AD3d 385, 386 [2006];see also Restatement [Second] of Torts § 433).
Applying these principles, there is no basis for disturbing the Court of Claims' finding [*7]that Joseph's criminal actions were so attenuated from anynegligence on the part of the State in allowing him to elope almost two years earlier as to relievethe State of liability.
While Joseph had eloped from MPC eight times in a 29-month period, in many instances hereturned in a matter of days. Despite these elopements and his history of assaultive behavior,before his July 25, 1993 elopement, MPC, exercising its professional judgment, converted Josephfrom involuntary to voluntary status and granted him escorted grounds privileges.
Dr. Joel Silbert, a psychologist and Director of Quality Assurance at MPC at the time Josepheloped, testified that a patient was eligible for escorted grounds privileges as long as he was notdangerous or at risk of injuring himself or doing something untoward while out of the hospital,and that the imposition of an escort did not necessarily mean that a patient was dangerous. TheState's expert, Dr. Paul Nassar, a clinical psychiatrist with a subspecialty in forensic psychiatry,testified that, based on the fact that Joseph had been granted escorted grounds privileges severalmonths before he eloped and was classified as LWOC after he eloped, it was a fair assumptionthat at the time of his elopement Joseph was not in a decompensated psychiatric condition andwas not a danger to himself or others.
Dr. Nassar also opined that Joseph's conversion to voluntary status was significant because itwas an important part of the treatment plan, i.e., a "statement of positive reinforcement," and thatgranting Joseph escorted grounds privileges was part of a "well-planned treatment plan" designedto progressively integrate him back into the community. Claimants' expert, Dr. Alan Tuckman, aforensic psychiatrist who consulted at MPC, testified that a psychiatric patient who was in aninstitutional setting could progress to a point where he or she could be discharged into thecommunity. Accordingly, it is speculative to conclude that, but for his 1993 elopement, Josephwould still have been at MPC in July 1995.
Dr. Tuckman also testified: "A voluntary patient is someone who has either signedthemselves in or have been converted subsequently to a status where they have the sameobligations and rights of an involuntary patient except, if they wish to leave the facility, they cangive a time, I believe it's forty-eight or seventy-two hours['] notice, and it is then up to thehospital to either allow them to leave or convert them to involuntary status, and they have thosedays in order to do that."
Thus, even if he had been found after his elopement, Joseph, as a voluntary patient, couldhave refused to stay, and OMH would have had to show clinical grounds to compel his retention.
There is also insufficient evidence that Joseph's condition when he eloped was such that theelopement, without more, would directly result in the assault. Dr. Tuckman testified that he couldnot, with reasonable psychiatric certainty, identify Joseph's mental status at the time he eloped.Dr. Nassar agreed that the available information was insufficient to determine Joseph's mentalstatus at that time. There was no evidence that Joseph was involved in episodes of violence in themonths before he eloped when he was converted to voluntary status and given escorted groundsprivileges. Indeed, the last notation of physical violence cited by the majority is that Joseph hit anurse on November 9, 1991, eight months before he eloped, and was involved in a physicalaltercation on January 8, 1992, six months before he eloped. These incidents predate Joseph'sconversion from involuntary to voluntary status and the grant of escorted grounds [*8]privileges in 1993.
The majority gives great weight to Dr. Tuckman's testimony that the chances of Joseph'sbreaking down and becoming violent again were 100%, especially since he absconded and wasnot monitored, not medicated, and did not have a support system. However, Dr. Tuckmanexplained: "With a patient with a long history of non-compliance with treatment winding themup in trouble, arrests, assaults without arrests, the likelihood of him at some point in the nearfuture breaking down and either assaulting somebody or becoming psychotic is very, veryhigh" (emphasis added).
Here, the assault did not occur in the near future; it occurred almost two years later. In thatregard, Dr. Nassar testified that the fact that Joseph had a chronic mental illness was not on itsown sufficient to support a prediction that he would decompensate some time in the future, andthat one could not predict the likelihood that Joseph would assault someone two years after heeloped, because "there are so many intervening factors that go on within the course of those twoyears from things like, oh, a reemergence of psychiatric symptomatology, a failure of medication,the introduction of substances, alcohol, drugs, the intervention between . . . withintwo years of interactions with people, family provocative events, disturbing events. There are somany possible issues that could provoke a behavior that it would be impossible to predict that anevent two years away from Mr. Joseph's elopement inevitably would have led to this event."
Further, the only evidence introduced concerning Joseph's activities during the time periodbetween his 1993 elopement and his 1995 assault on Ms. Williams was an entry in his criminalhistory that indicated that he was arrested on March 14, 1995, convicted, upon a plea of guilty, ofcriminal trespass in the third degree two days later, and sentenced to time served. Although themajority gives weight to the fact that MPC classified Joseph as LWOC, rather than as an escapee,which would have required MPC to notify the police, this arrest and release was an interveningevent that served to attenuate the State's negligence in allowing Joseph to elope from his assaulton Ms. Williams.
Based on this evidence, the Court of Claims rationally found that the situation was affectedby other forces for which the State was not responsible and that the assault on Ms. Williams inJuly 1995 was too remote in time to be proximately caused by Joseph's decompensationfollowing his removal from treatment and supervision at MPC in July 1993.
Rattray v State of New York (223 AD2d 356 [1996], supra) does not alterthis conclusion. In Rattray, this Court found that the hospital was negligent in allowing avoluntary mental patient unsupervised access to an unguarded window, since it was on notice ofthe patient's escapist and assaultive tendencies. However, in Rattray, the patient assaultedthe claimants within a day or two of his escape, and proximate cause was not at issue.
The majority also relies on T.W. v City of New York (286 AD2d 243 [2001]) andSteel v State of New York (Ct Cl, Jan. 15, 2003, Marin, J., UID No. 2003-016-500,affd 11 AD3d 673[*9][2004]) for the principle that a"mere" lapse of time is not enough to preclude negligent conduct from being the legal cause of aninjury and that proximate cause may be found long after the negligent act occurs. However, as setforth above, the finding that claimants did not establish proximate cause is based not on a "mere"lapse of time, but on an analysis of the trial evidence, including the expert testimony. Further, inT.W., the lapse of time was not enough to sever the causal relationship because thenegligent hiring directly placed the employee, while under the employer's continuous control, inconstant contact with children each day during the two-year period between his hiring and theassault. In Steel, there was only a 10- or 11-month gap between the assailant's prematurerelease from prison and the assaults, and the basis for expecting a continuation by a prematurelyreleased felon of his violent behavior is not the same as the basis for a mental patient to act outafter relapsing without some immediate intervening triggering event.[FN3]
Indeed, under the majority's analysis, no period of time, be it 5, 10 or 15 years, would sufficeto attenuate the State's negligence from a criminal act committed by Joseph. To adopt this viewwould, for all intents and purposes, make the State an insurer of Joseph, answerable in perpetuityfor his criminal and tortious conduct, thereby placing no manageable limit upon the liabilityflowing from the State's alleged negligent conduct in allowing Joseph to elope, in contraventionof the principles set forth in Derdiarian (51 NY2d at 314; see also Devellis vLucci, 266 AD2d 180, 181 [1999] ["One who inadvertently facilitates the theft of a vehicleby neglecting to comply with the statute is not answerable in perpetuity for the criminal andtortious conduct of others who may come into possession of the stolen vehicle in the distantfuture"]). [Prior Case History: 23 Misc 3d 1135(A), 2009 NY Slip Op 51103(U).]
Footnote 1: Under section QA-520 of theOMH Official Policy Manual, in 1993, a patient's leaving was classified as an "Escape" when thepatient was considered dangerous to him or herself or others and as "LWOC" when the patientwas not considered dangerous. The policy required that each missing patient incident bereviewed and classified by a psychiatrist as either "Escape" or "LWOC." In the event of anescape, the police were to be notified.
Footnote 2: Joseph was indicted and chargedwith two counts of assault in the first degree. He later pleaded guilty to one count of assault inthe first degree, and was sentenced, as a second felony offender, to a term of 4 to 8 years.
Footnote 3: It may be noted that JudgeMarin, who was also the judge in Steel, included Steel in the cases he comparedto this action, stating that "[t]he Court is aware of no precedent which would offer support for afinding of proximate cause under the subject fact pattern" (23 Misc 3d 1135[A], 2009 NY SlipOp 51103[U], *5 [2009]).