| Marilyn S. v Independent Group Home Living Program, Inc. |
| 2010 NY Slip Op 04169 [73 AD3d 892] |
| May 11, 2010 |
| Appellate Division, Second Department |
| Marilyn S. et al., Appellants, v Independent Group HomeLiving Program, Inc., et al., Respondents. |
—[*1] Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (John Doody and Brian P. Graffeoof counsel), for respondents.
In an action, inter alia, to recover damages for intentional infliction of emotional distress andassault, and for a judgment declaring that the defendant Independent Group Home LivingProgram, Inc., violated Mental Hygiene Law § 33.02, the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Nassau County (Feinman, J.), datedJanuary 15, 2009, as granted those branches of the defendants' motion which were for summaryjudgment dismissing the cause of action for declaratory relief, the cause of action to recoverdamages for intentional infliction of emotional distress insofar as asserted against the defendantIndependent Group Home Living Program, Inc., and the causes of action to recover damages forassault and negligent hiring and supervision.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof grantingthat branch of the defendants' motion which was for summary judgment dismissing the plaintiffs'cause of action for declaratory relief and substituting therefor a provision denying that branch ofthe motion, and (2) by deleting the provision thereof granting that branch of the defendants'motion which was for summary judgment dismissing the assault cause of action asserted onbehalf of the plaintiff Paul Sybalski and substituting therefor a provision denying that branch ofthe motion; as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements.
The plaintiffs' adult son, who is mentally challenged, resided at a group home operated bythe defendant Independent Group Home Living Program, Inc. (hereinafter IGHL), in Centereach.Beginning in July 2004, the plaintiffs, in particular Marilyn S., made numerous complaints toIGHL regarding the care their son received at the group home. Thereafter, a contentiousrelationship developed between the plaintiffs and IGHL. By letters dated August 31, 2004, andMarch 1, 2006, respectively, IGHL restricted the plaintiffs' visitation rights with their son byrequiring them to provide advance notice before any visit and limiting each visit to three hours,due to IGHL's belief that the plaintiffs' visits interrupted the operation of the group home.
The plaintiffs commenced an action in the United States District Court, Eastern District ofNew York, against IGHL, among others, seeking to have the visitation restrictions lifted(hereinafter the [*2]federal action). During the pendency of thefederal action, IGHL informed the plaintiffs that their son made allegations during dinner at thegroup home on November 28, 2006, that Marilyn had sexually abused him. IGHL further limitedMarilyn's visitation rights with her son by restricting her from being alone with him pending theresults of the investigation, which ultimately resulted in a finding that the allegations of sexualabuse were inconclusive. The federal action subsequently was dismissed. Thereafter, theplaintiffs commenced this action, inter alia, seeking a declaratory judgment that IGHL violatedMental Hygiene Law § 33.02 by restricting their visitation rights with their son, based onthe letters dated August 31, 2004, and March 1, 2006. The plaintiffs also sought to recoverdamages for intentional infliction of emotional distress based on the manner in which IGHLimplemented and enforced the visitation restrictions. The plaintiffs further sought to recoverdamages, inter alia, for assault and negligent hiring and supervision based on an incident thatoccurred on April 21, 2007, involving a verbal altercation between the plaintiffs and thedefendants Michael Pitts, Roy Golden, and Vincent Spitiri, who were IGHL employees.Thereafter, the defendants moved for summary judgment dismissing the complaint.
The Supreme Court erred in granting that branch of the defendants' motion which was forsummary judgment dismissing the plaintiffs' cause of action for declaratory relief. Contrary tothe defendants' contention, IGHL's restriction of the plaintiffs' visitation rights with their son wasnot imposed in response to allegations made by their son that Marilyn sexually abused him.Therefore, IGHL could not rely upon Mental Hygiene Law § 13.21 (b) or Social ServicesLaw § 473-b to justify the visitation restrictions it imposed upon the plaintiffs in the lettersdated August 31, 2004, and March 1, 2006. Since the defendants failed to offer evidence that thevisitation restrictions that IGHL imposed upon the plaintiffs were reasonable in light of the rightsprovided to the mentally challenged pursuant to Mental Hygiene Law § 33.02, that branchof the defendants' motion for summary judgment should not have been granted.
"To sustain a cause of action to recover damages for assault, there must be proof of physicalconduct placing the plaintiff in imminent apprehension of harmful contact" (Fugazy v Corbetta, 34 AD3d 728,729 [2006], quoting Cotter v SummitSec. Servs., Inc., 14 AD3d 475, 475 [2005] [internal quotation marks omitted]). Withregard to the cause of action alleging assault asserted by Marilyn against Pitts, the defendantsmet their prima facie burden by showing that Pitts did not exhibit any physical conduct towardsMarilyn, and that she was not in imminent apprehension of harmful conduct. In opposition, theplaintiffs failed to raise a triable issue of fact (see Zuckerman v City of New York, 49NY2d 557 [1980]). Accordingly, the Supreme Court properly granted that branch of thedefendants' motion.
However, as for the assault cause of action asserted by the plaintiff Paul S. against Pitts, thedefendants failed to meet their prima facie burden of eliminating all triable issues of fact as towhether Pitts engaged in physical conduct that placed Paul in imminent apprehension of harmfulconduct (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Therefore, thatbranch of the motion should not have been granted.
The Supreme Court improperly awarded summary judgment dismissing the plaintiffs' causeof action alleging intentional infliction of emotional distress insofar as asserted against IGHL onthe ground that IGHL was immune from liability under Social Services Law § 473-b, sincethis statute was inapplicable to the facts. However, IGHL established its entitlement to judgmentas a matter of law by demonstrating that its conduct in implementing and enforcing the visitationrestrictions was not " 'so outrageous in character, and so extreme in degree, as to go beyond allpossible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilizedcommunity' " (Murphy v American Home Prods. Corp., 58 NY2d 293, 303 [1983],quoting Restatement [Second] of Torts § 46 [1], Comment d). In opposition, theplaintiffs failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d320, 324 [1986]).
"To establish a cause of action based on negligent hiring and supervision, it must be shownthat 'the employer knew or should have known of the employee's propensity for the conductwhich caused the injury' " (Jackson vNew York Univ. Downtown Hosp., 69 AD3d 801, 801 [2010], quoting Kenneth R.v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 161 [1997]). Here, IGHLestablished its prima facie entitlement to judgment as a matter of law. In opposition, theplaintiffs failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d320, 324-325 [1986]). Accordingly, the Supreme Court properly granted that branch of thedefendants' motion which was for summary judgment dismissing the cause of action allegingnegligent hiring and supervision.[*3]
The plaintiffs' remaining contentions are without merit.Rivera, J.P., Angiolillo, Balkin and Leventhal, JJ., concur.