| Metz v State of New York |
| 2011 NY Slip Op 05916 [86 AD3d 748] |
| July 14, 2011 |
| Appellate Division, Third Department |
| Richard M. Metz, as Personal Representative of the Estate of MaryHelen Metz, Deceased, et al., Respondents-Appellants, v State of New York,Appellant-Respondent. (And Six Other Related Claims.) |
—[*1] Hacker & Murphy, L.L.P., Latham (James E. Hacker of counsel), forrespondents-appellants.
Stein, J. Cross appeals from an order of the Court of Claims (Ferreira, J.), entered March 25,2010, which denied claimants' motion to dismiss defendant's affirmative defense of sovereignimmunity and denied defendant's cross motion for summary judgment dismissing the claims.
In 2005, the Ethan Allen, a tour boat and public vessel, capsized and sank on Lake Georgewhile carrying 47 passengers and one crew member. Tragically, 20 passengers died andnumerous others suffered severe personal injuries as a result of the accident. The Ethan Allen hadbeen inspected annually by inspectors appointed by the Commissioner of the New York StateOffice of Parks, Recreation and Historic Preservation (hereinafter OPRHP). A certificate ofinspection was issued after each inspection setting forth, among other things, the maximumnumber of passengers that could be safely transported on the vessel. Since the Ethan Allen wasfirst inspected when it entered New York State in 1979, the maximum number of passengers[*2]permitted was fixed at 48. Following an investigation into the2005 accident, the National Transportation Safety Board (hereinafter NTSB) concluded that theprobable cause was insufficient stability of the vessel due to carrying 48 passengers, rather than14, which the NTSB determined should have been the maximum permitted.
Claimants, individuals who were injured and personal representatives of those who died as aresult of the accident, commenced the instant claims asserting, among other things, thatdefendant was negligent in certifying the Ethan Allen to carry more than 14 passengers. Afterdefendant answered the claims, claimants moved to dismiss defendant's affirmative defense ofsovereign immunity pursuant to CPLR 3211 (b) and defendant cross-moved for summaryjudgment dismissing the claims based on its claimed entitlement to such immunity. The Court ofClaims denied both motions and these cross appeals ensued.
We now modify and grant claimants' motion. As the movant for summary judgment,defendant bore the initial burden of demonstrating its entitlement to sovereign immunity as amatter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). First, defendantwas required to establish that, in inspecting the Ethan Allen, it was acting in a governmental,rather than a purely proprietary, manner; if the latter, defendant would be subject to the same tortliability as any nongovernmental entity (see Lemery v Village of Cambridge, 290 AD2d765, 766 [2002]). A government entity acts in a propriety capacity when the "governmentalactivities essentially substitute for or supplement 'traditionally private enterprises' "(Sebastian v State of New York, 93 NY2d 790, 793 [1999], quoting Riss v City ofNew York, 22 NY2d 579, 581 [1968]). "To determine where in the continuum of activitybetween proprietary and governmental responsibilities the challenged public action falls, we mustexamine the specific act or omission out of which the injury is claimed to have arisen and thecapacity in which that act or failure to act occurred" (Balsam v Delma Eng'g Corp., 90NY2d 966, 967-968 [1997] [internal quotation marks and citation omitted]; accord St. Andrew v O'Brien, 45 AD3d1024, 1027 [2007], lv dismissed and denied 10 NY3d 929 [2008]).
As relevant here, defendant established that the Commissioner of OPRHP is authorized toappoint one or more inspectors to perform safety inspections of public vessels that operate onnavigable waters within the state and issue certificates of inspection to such vessels (seeNavigation Law §§ 12, 13). The duties of such inspectors include an annualinspection to, among other things, fix the number of passengers that may be transported on thevessel (see Navigation Law § 13). In addition, defendant offered the affidavits anddeposition testimony of several of the inspectors responsible for inspecting the Ethan Allen,including the current director of the Marine Services Bureau of OPRHP, which established thatdefendant does not own, operate or maintain the Ethan Allen. In our view, defendant met itsinitial burden of demonstrating that the inspection and certification of public vessels in general,and the Ethan Allen in particular, is a classic governmental function inasmuch as it is aregulatory activity undertaken for the protection of the public at large (see Balsam v DelmaEng'g Corp., 90 NY2d at 968). Thus, the burden shifted to claimants to raise a triable issueof fact (see Alvarez v Prospect Hosp., 68 NY2d at 324).
In opposition to defendant's cross motion, claimants offer no evidence to refute the foregoingassertions. Moreover, we are not persuaded by their argument that defendant's inspection dutieshave displaced or supplemented traditionally private enterprises (see Balsam v Delma Eng'gCorp., 90 NY2d at 968; Miller v State of New York, 62 NY2d 506, 512 [1984]).Thus, having concluded that defendant proved as a matter of law that it was acting in a [*3]governmental capacity in inspecting and fixing the number ofallowable passengers on the Ethan Allen, we must next determine whether defendant hassimilarly established that such actions were discretionary in nature.
Governmental immunity protects defendant from liability for the injurious consequences ofofficial action "when [that] action involves the exercise of discretion or expert judgment in policymatters, and is not exclusively ministerial" (Haddock v City of New York, 75 NY2d 478,484 [1990]). Consequently, "[g]overnment action, if discretionary, may not be a basis forliability, while ministerial actions may be, but only if they violate a special duty owed to [theclaimants], apart from any duty to the public in general" (McLean v City of New York, 12 NY3d 194, 203 [2009]; seeHaddock v City of New York, 75 NY2d at 484). It is well settled that " 'discretionary orquasi-judicial acts involve the exercise of reasoned judgment which could typically producedifferent acceptable results whereas a ministerial act envisions direct adherence to a governingrule or standard with a compulsory result' " (Haddock v City of New York, 75 NY2d at484, quoting Tango v Tulevech, 61 NY2d 34, 41 [1983]; accord Lewis v State of New York, 68AD3d 1513, 1514 [2009]).
Here, the deposition testimony of the inspectors who had inspected the Ethan Allenestablished that they had discretion, during the course of an inspection, to exercise independentjudgment and consider the circumstances of each vessel when determining whether the vesselwas safe to operate. Specifically, the inspectors testified that they could make a capacitydetermination based on the manufacturer's capacity plate or recommendations or on the numberfixed by the United States Coast Guard. Although they were generally trained to rely on the prioryear's capacity determination, they could have required the performance of a stability test,contacted a naval architect or requested relevant information from the manufacturer or owner ifthey deemed it necessary in order to establish capacity, particularly where there had been repairsor modifications to the vessel. In fact, stability tests and/or structural surveys had been directedby inspectors with regard to other vessels in the past. In addition, inspectors had the authority to"pull" a certificate of inspection if deficiencies from prior inspections had not been corrected or ifan owner failed to comply with a directive. This evidence was sufficient to meet defendant'sinitial burden of demonstrating that the duties of inspecting and certifying the number ofpassengers allowed on the Ethan Allen involve discretionary acts.
In opposition, claimants argue that, even if the inspectors theoretically had discretionaryauthority with regard to fixing the number of passengers who could safely travel on the EthanAllen, they did not actually exercise such discretion and, therefore, were not entitled to immunityfor their actions.[FN1]Indeed, it is well settled that, where a government actor is entrusted with discretionary authority,but fails to exercise any discretion in carrying out that authority, defendant will not be entitled togovernmental immunity from liability (see Mon v City of New [*4]York, 78 NY2d 309, 313 [1991]; Haddock v City of NewYork, 75 NY2d at 485). We agree with the determination of the Court of Claims thatdefendant failed to show that it exercised its discretion here.
When the Ethan Allen was initially brought to New York, the certification of inspectionpreviously completed by the United States Coast Guard fixed the maximum number of allowablepassengers who could safely travel simultaneously on the vessel at 48. That same year, defendantalso fixed the passenger capacity at 48.[FN2]The inspectors testified that, in the subsequent years in which they inspected the vessel, althoughthey could have taken various actions to review that determination, they relied—inaccordance with their custom and policy—on the number provided on the previous year'scertificate of inspection as to the maximum passenger capacity. This practice apparentlycontinued notwithstanding a substantial modification to the Ethan Allen in 1989.[FN3]Defendant has not submitted any evidence that its inspectors ever independently verified theappropriate number of passengers who could safely travel on the vessel or engaged in anyexercise of reasoned judgment to determine whether such verification was necessary orappropriate. Accordingly, defendant has not demonstrated its entitlement to judgment in its favoras a matter of law. Such "[f]ailure to make such prima facie showing requires a denial of the[cross] motion, regardless of the sufficiency of the opposing papers" (Alvarez v ProspectHosp., 68 NY2d at 324).
Conversely, on their motion to dismiss defendant's affirmative defense of sovereignimmunity, claimants were required to establish that it is without merit as a matter of law(see CPLR 3211 [b]; Greco vChristoffersen, 70 AD3d 769, 771 [2010]). Based upon the foregoing analysis, it wastherefore incumbent upon claimants to demonstrate that defendant could not prevail upon theargument that its inspectors actually exercised their discretion in determining the passengercapacity of the Ethan Allen. After a careful review of the record, deeming all of defendant'sallegations to be true (see Capital Tel. Co. v Motorola Communications & Elecs., 208AD2d 1150, 1150 [1994]) and giving defendant "the benefit of every reasonable inference"(Greco v Christoffersen, 70 AD3d at 771), we are unable to glean any proof that theinspectors exercised their discretion here. Accordingly, there is no question for a trier of fact todetermine in this regard. Inasmuch as claimants have shown that the defense of sovereignimmunity is without merit and defendant has failed to establish otherwise (see generallyTown of Hempstead v Lizza Indus., 293 AD2d 739, 740 [2002]), the Court of Claims erredin denying claimants' [*5]motion to dismiss that affirmativedefense.
The parties' remaining contentions have been considered and are found to be either academicor without merit.
Rose, J.P., Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that the order ismodified, on the law, without costs, by reversing so much thereof as denied claimants' motion todismiss defendant's affirmative defense of sovereign immunity; motion granted and saidaffirmative defense dismissed; and, as so modified, affirmed. [Prior Case History: 27 Misc3d 1209(A), 2010 NY Slip Op 50635(U).]
Footnote 1: To the extent that claimantscontend that defendant's acts were ministerial, they would not be entitled to proceed againstdefendant on that basis in any event, since they have failed to demonstrate that defendant owedthem any special duty (see McLean v City of New York, 12 NY3d at 199; O'Connor vCity of New York, 58 NY2d 184, 189-191 [1983]; see generally Dinardo v City of New York, 13 NY3d 872, 874[2009]; Johns v Village of Potsdam, 92 AD2d 660, 660 [1983]).
Footnote 2: The deposition testimony of theinspectors who had inspected the Ethan Allen failed to reveal with any certainty how defendantarrived at that number. However, they uniformly testified that it was their custom and practice todetermine the maximum number of passengers based upon the number certified by the CoastGuard or on the manufacturer's capacity plate, unless such information was unavailable orspecific circumstances—such as a significant modification to the vessel—warranteda different determination.
Footnote 3: The inspector who conductedthe first inspection after such modification testified that he did not know if he or anyone evercame to the conclusion that the modification did not negatively affect the stability of the vessel.