| Kochanski v City of New York |
| 2010 NY Slip Op 06780 [76 AD3d 1050] |
| September 28, 2010 |
| Appellate Division, Second Department |
| Nanette Kochanski, Respondent, v City of New York et al.,Appellants-Respondents, et al., Defendants. |
—[*1] Conway, Farrell, Curtin & Kelly, P.C., New York, N.Y. (Jonathan T. Uejio of counsel), forappellant-respondent St. Vincent's Services, Inc. Tracy & Stilwell, P.C., Staten Island, N.Y. (Rodney Stilwell of counsel), forrespondent.
In an action, inter alia, to recover damages for wrongful death, the defendants City of NewYork and St. Vincent's Services, Inc., separately appeal from an order of the Supreme Court,Richmond County (Aliotta, J.), dated March 20, 2009, which denied their respective motions forsummary judgment dismissing the complaint and all cross claims insofar as asserted against eachof them.
Ordered that the order is modified, on the law, by deleting the provision thereof denying themotion of the defendant City of New York for summary judgment dismissing the complaint andall cross claims insofar as asserted against it and substituting therefor a provision granting themotion; as so modified, the order is affirmed, with one bill of costs to the defendant City of NewYork payable by the plaintiff, and one bill of costs to the plaintiff payable by the defendant St.Vincent's Services, Inc.
In 1996, pursuant to a contract with the defendant City of New York, the defendant St.Vincent's Services, Inc. (hereinafter SVS), operated a group home on Roe Street in Staten Islandfor youths in need of foster care. On January 22, 1996, three teenaged residents of the grouphome broke into the nearby home of the plaintiff's decedent and beat and stabbed him to death.The three youths were subsequently convicted of murder in the second degree in connection withthe decedent's death. The plaintiff, as limited administratrix of the decedent's estate, commencedthis action against, among others, the City and SVS, alleging that the defendants breached a dutyto the decedent by placing the three youths in the group home despite knowing of their viciouspropensities. After extensive discovery, the City and SVS separately moved for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against them. In theorder appealed from, the Supreme Court denied the motions. We modify the order by grantingthe City's motion for summary [*2]judgment dismissing thecomplaint and all cross claims insofar as asserted against it, and otherwise affirm.
In support of its motion, SVS submitted evidence demonstrating that there was a triable issueof fact as to its knowledge of the propensity of at least one of the three youths to engage in armedviolent conduct against another person. Consequently, the Supreme Court properly found thatSVS failed to meet its initial burden of demonstrating its prima facie entitlement to judgment as amatter of law. Therefore, denial of SVS's motion was required without consideration of thepapers submitted in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d851, 853 [1985]). The Supreme Court erred, however, in denying the City's motion for summaryjudgment on the ground that the City was not immune from liability.
The issue of governmental immunity here turns first on the nature of the precise conduct inwhich the City is alleged to have negligently engaged. If the conduct was proprietary, the Citywould be subject "to the same duty of care as private individuals and institutions engaging in thesame activit[ies]" (Schrempf v State of New York, 66 NY2d 289, 294 [1985]), and maybe held liable for breach of that duty (see Sebastian v State of New York, 93 NY2d 790,793 [1999]). In contrast, if the activity was governmental, the City would be absolutely immuneif the conduct was discretionary; if the conduct was ministerial, the City would still be immuneunless the plaintiff could demonstrate that there existed " 'a special duty to the [decedent], incontrast to a general duty owed to the public' " (McLean v City of New York, 12 NY3d 194, 199 [2009], quotingGarrett v Holiday Inns, 58 NY2d 253, 261 [1983]; see United Servs. Auto. Assn. v Wiley, 73 AD3d 1160, 1163[2010]). Moreover, "[i]t is the specific act or omission out of which the injury is claimed to havearisen and the capacity in which that act or failure to act occurred which governs liability, notwhether the agency involved is engaged generally in proprietary activity or is in control of thelocation in which the injury occurred" (Weiner v Metropolitan Transp. Auth., 55 NY2d175, 182 [1982]; see Sebastian v State of New York, 93 NY2d at 794; Miller v Stateof New York, 62 NY2d 506, 513 [1984]).
"Proprietary functions are those in which governmental activities essentially substitute for orsupplement traditionally private enterprises" (Matter of Karedes v Colella, 100 NY2d 45,50 [2003] [internal quotation marks omitted]). In contrast, whether municipal activity isgovernmental "depends on several considerations, including whether the activity was historicallyperformed by government, whether it is best executed by government and whether it isundertaken for profit or revenue" (id.). As we have recognized, "[f]rom early times in ourlaw the sovereign has been considered to be parens patriae of destitute or abandoned children"(Bartels v County of Westchester, 76 AD2d 517, 520 [1980]; see generally NYConst, art XVII, § 1). Although care of such children was once left to the good will ofcharitable and religious organizations, "the legal classification of a particular municipal activityas governmental or proprietary is, in this transitional age, subject to change with time andcircumstance" (Little Joseph Realty v Town of Babylon, 41 NY2d 738, 742 [1977];see Matter of Karedes v Colella, 100 NY2d at 50). Today, there is little question that, inthe first instance, the City, under State mandate, has fully assumed the responsibility (seeSocial Services Law §§ 62, 398) and performs the function of caring forchildren in need of foster care, often contracting with private entities such as SVS to provideservices like group foster homes. The function of dealing with children in need of foster care isdeemed best executed by government and is undertaken without thought of profit or revenue.Thus, under the circumstances of this case, the precise acts upon which the plaintiff seeks topredicate the City's liability—the placement of or leaving the three youths in SVS's groupfoster home—qualify as the performance of a governmental function (see Sebastian vState of New York, 93 NY2d at 794).
Moreover, as there can be no claim here that, in placing or leaving the youths at SVS, theCity undertook a special duty to the decedent as opposed to a general duty owed to the public(see McLean v City of New York, 12 NY3d at 199), the question whether the conductcomplained of was discretionary or ministerial need not be addressed.
Accordingly, because the complaint alleges that the City was negligent in the performance ofa governmental function, the City's motion for summary judgment dismissing the complaint andall cross claims insofar as asserted against it should have been granted on the ground [*3]that the City is immune from liability. Rivera, J.P., Fisher, Florioand Austin, JJ., concur.