| Lodge-Stewart v State of New York |
| 2007 NY Slip Op 08151 [45 AD3d 939] |
| November 1, 2007 |
| Appellate Division, Third Department |
| Irene Lodge-Stewart, Individually and as Administrator of theEstate of Nathalie Lodge, Deceased, and as Guardian of Tenae Terell Lodge, an Infant,Appellant, v State of New York, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kate H. Nepveu of counsel), forrespondent.
Rose, J. Appeal from an order of the Court of Claims (Collins, J.), entered April 25, 2006,which, among other things, granted defendant's motion for summary judgment dismissing theclaim.
Following the murder of her daughter by a parolee under defendant's supervision, claimantfiled a claim alleging that, among other things, defendant had failed to adequately supervise theparolee in accordance with the provisions of its Division of Parole Policy and ProceduresManual. In particular, claimant alleged that the Manual required defendant's parole officers tomake home visits and otherwise regularly confirm that the parolee was obeying his hours ofcurfew. Although claimant demanded disclosure of the Manual in May 2005 and defendantrefused to provide anything other than a copy of its table of contents without a court order, shetook no further action to obtain any of the contents until after she had served a trial note of issueand certificate of readiness. When defendant moved for, among other things, summary judgmentdismissing the claim, claimant cross-moved for a continuance on the ground [*2]that the Manual may contain information essential to oppose themotion. The Court of Claims denied claimant's cross motion and granted defendant's motion forsummary judgment.
Claimant now appeals, arguing that she should have been granted a continuance to enable herto obtain disclosure of the Manual, and her claim should not have been summarily dismissedbecause she alleged that defendant's officers had been negligent in the performance of ministerialacts. We cannot agree. Even assuming that the Manual prescribed exclusively ministerial actsand defendant's officers failed to comply with those prescriptions, an essential element ismissing. The threshold issue in any negligence action is whether the defendant owes a legallyrecognized duty of care to the plaintiff (see e.g. Palka v Servicemaster Mgt. Servs. Corp.,83 NY2d 579, 586-587 [1994]). As the Court of Appeals explained in Lauer v City of NewYork (95 NY2d 95, 99 [2000]), if the acts forming the basis of a claim against agovernmental entity are ministerial, they are actionable only if they are otherwise "tortious," andthe injured party must show that the defendant owed not merely a general duty to the public, buta specific duty to him or her. "Without a duty running directly to the injured person there can beno liability in damages, however careless the conduct or foreseeable the harm" (id. at 100[citations omitted]). Here, claimant failed to allege or show that in supervising the subjectparolee, defendant owed her daughter an enforceable duty to comply with its supervisoryprocedures and policies different from that owed to the public generally (see also Joslyn vVillage of Sylvan Beach, 256 AD2d 1166, 1167 [1998]). Nor does she suggest thatdisclosure of the Manual would have revealed a direct duty owed to her daughter (see e.g. George S. May Intl. Co. v ThirstyMoose, Inc., 19 AD3d 721, 722 [2005]).
Crew III, J.P., Mugglin, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed,without costs.