| Citera v County of Suffolk |
| 2012 NY Slip Op 04122 [95 AD3d 1255] |
| May 30, 2012 |
| Appellate Division, Second Department |
| Mark Citera, as Administrator of the Estate of Jennie Etta Citera,Deceased, Respondent, v County of Suffolk et al.,Appellants. |
—[*1] Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (Christopher Simone and RobertM. Ortiz of counsel), for appellant Federation Employment and Guidance Services, Inc. Siben & Siben, LLP, Bay Shore, N.Y. (Alan G. Faber of counsel), for respondent.
In an action to recover damages for personal injuries and wrongful death, the defendantCounty of Suffolk appeals (1) from an order of the Supreme Court, Suffolk County (Costello, J.),dated September 28, 2010, which denied its motion for summary judgment dismissing thecomplaint insofar as asserted against it, and (2) from so much of an order of the same court(Martin, J.), dated June 29, 2011, as denied that branch of its motion which was for leave toreargue its prior motion for summary judgment dismissing the complaint insofar as assertedagainst it, and, in effect, denied that branch of its motion which was for leave to renew its priormotion, and the defendant Federation Employment and Guidance Services, Inc., separatelyappeals from so much of the order dated June 29, 2011, as denied its motion for summaryjudgment dismissing the complaint insofar as asserted against it.
Ordered that the order dated September 28, 2010, is reversed, on the law, and the motion ofthe defendant County of Suffolk for summary judgment dismissing the complaint insofar asasserted against it is granted; and it is further,
Ordered that the appeal by the defendant County of Suffolk from the order dated June 29,2011, is dismissed; and it is further,
Ordered that the order dated June 29, 2011, is reversed insofar as appealed from by thedefendant Federation Employment and Guidance Services, Inc., on the law, and the motion of thedefendant Federation Employment and Guidance Services, Inc., for summary judgmentdismissing the complaint insofar as asserted against it is granted; and it is further,
Ordered that one bill of costs is awarded to the appellants.
The appeal by the defendant County of Suffolk from so much of the order dated June [*2]29, 2011, as denied that branch of its motion which was for leave toreargue must be dismissed, as no appeal lies from an order denying reargument (see Barany v Barany, 71 AD3d613 [2010]). The appeal by the County from so much of that order as, in effect, denied thatbranch of its motion which was for leave to renew must be dismissed as academic in light of ourdetermination on the appeal from the order dated September 28, 2010.
On May 6, 2003, the plaintiff's decedent, Jennie Etta Citera (hereinafter the decedent), wasmurdered in her home by her son, William Sancimo. The plaintiff, Mark Citera, is the son of thedecedent and the half brother of Sancimo. Prior to May 2003, Sancimo had been institutionalizedseveral times for psychiatric problems. In March 2003 Pilgrim Psychiatric Center filed a petitionpursuant to Mental Hygiene Law § 9.60 (commonly known as Kendra's Law) to authorizeassisted outpatient care for Sancimo. The petition was granted and Sancimo received outpatientpsychiatric treatment from the defendant Federation Employment and Guidance Services, Inc.(hereinafter FEGS).
On May 4, 2003, an incident occurred at the plaintiff's home, where the plaintiff's family hadgathered for a birthday party. The plaintiff testified at his deposition that when Sancimo arrivedat his home, Sancimo's eyes were "racey" and his fists were clenched. The plaintiff told Sancimothat he needed to go to the doctor, and offered to take Sancimo to University Hospital in StonyBrook. Sancimo told the plaintiff that he would drive, and, on the way to the hospital, Sancimostarted driving fast. According to the plaintiff, he told Sancimo to slow down before he killedthem both, and Sancimo responded that it did not matter. Sancimo then drove back to theplaintiff's home, and engaged in a confrontation with the plaintiff's brother Joseph. The plaintifftold Sancimo to leave or the police would be called. As Sancimo left, he stated, "you Accardis,are all going to go down." "Accardis" referred to the plaintiff, Joseph, and the decedent, asAccardi was the decedent's maiden name.
At around the time Sancimo left, the Suffolk County police were called, and they arrived inapproximately 30 minutes. The plaintiff gave them an account of Sancimo's psychiatric history,his history of violence, and a description of the events that led to the police being called.According to the plaintiff, the decedent also advised the police that Sancimo posed an imminentdanger to her family, and that police intervention was needed to transport Sancimo to thehospital. The police told the plaintiff that they would pick up Sancimo if they found him in hishome. Later that same evening, after learning that Sancimo had returned home, the plaintiffcalled 911. However, the dispatcher had no record of the earlier incident and said she would senda different unit back to the plaintiff's house. Upon speaking to the plaintiff, these new officersagreed to visit Sancimo at his home the next morning.
On May 5, 2003, John Clive Spiegel, a psychiatrist with FEGS's "ACT Team," who had beeninformed that Sancimo was involved in a verbal and physical altercation with Joseph, visitedSancimo at his home. After speaking to Sancimo, Speigel concluded that Sancimo was stable anddid not need a further evaluation or psychiatric admission. On May 6, 2003, hours before thedecedent was killed, the plaintiff was at his home when he received a telephone call fromSancimo. Afterwards, the plaintiff did not make any other calls prior to being informed thatsomething had happened to the decedent.
The plaintiff commenced this action to recover damages for personal injuries and wrongfuldeath against the County and FEGS. The County moved for summary judgment dismissing thecomplaint insofar as asserted against it. That motion was denied by the Supreme Court in anorder dated September 28, 2010.
Thereafter, the County moved for leave to renew and reargue its prior motion for summaryjudgment dismissing the complaint insofar as asserted against it. Additionally, FEGS moved forsummary judgment dismissing the complaint insofar as asserted against it. In an order dated June29, 2011, the Supreme Court denied that branch of the County's motion which was for leave toreargue its prior motion for summary judgment and, in effect, denied that branch of the County'smotion which was for leave to renew, and denied FEGS's motion for summary judgment.[*3]
The County established its prima facie entitlement tojudgment as a matter of law by demonstrating that a special relationship did not exist between itand the decedent because the decedent did not justifiably rely on assurances from Countyrepresentatives that they would take steps to protect her from Sancimo (see Valdez v City of New York, 18NY3d 69 [2011]; Cuffy v City of New York, 69 NY2d 255, 260 [1987]; Dixon v Village of Spring Val., 50AD3d 943, 944 [2008]). In opposition, the plaintiff failed to raise a triable issue of fact.Accordingly, the Supreme Court should have granted the County's motion for summary judgmentdismissing the complaint insofar as asserted against it.
The Supreme Court also should have granted FEGS's motion for summary judgmentdismissing the complaint insofar as asserted against it. The question of whether a defendant owesa duty of care to another person is a question of law for the courts (see Purdy v Public Adm'rof County of Westchester, 72 NY2d 1, 8 [1988]; Eiseman v State of New York, 70NY2d 175, 187 [1987]). Generally, there is no "duty to control the conduct of third persons toprevent them from causing injury to others," even where, as a practical matter, the defendantcould have exercised such control (Purdy v Public Adm'r of County of Westchester, 72NY2d at 8; see Engelhart v County ofOrange, 16 AD3d 369, 371 [2005]; Edwards v Mercy Home for Children &Adults, 303 AD2d 543, 544 [2003]).
Yet, "there exist special circumstances in which there is sufficient authority and ability tocontrol the conduct of third persons" that a duty to do so will be imposed (Purdy v PublicAdm'r of County of Westchester, 72 NY2d at 8; see Engelhart v County of Orange,16 AD3d at 371). Thus, the Court of Appeals has recognized "a duty to control the conduct ofothers where there is a special relationship: a relationship between defendant and a third personwhose actions expose plaintiff to harm such as would require the defendant to attempt to controlthe third person's conduct; or a relationship between the defendant and plaintiff requiringdefendant to protect the plaintiff from the conduct of others" (Purdy v Public Adm'r ofCounty of Westchester, 72 NY2d at 8; see Schrempf v State of New York, 66 NY2d289, 294-295 [1985]; Eiseman v State of New York, 70 NY2d at 188-189; Fox v Marshall, 88 AD3d 131,135-136 [2011]).
Here, FEGS demonstrated, prima facie, that it owed no duty to the decedent by virtue of therelationship between it and Sancimo or the relationship between it and the decedent. FEGSestablished that it did not have the necessary authority or ability to exercise the requisite controlover Sancimo's conduct so as to give rise to a duty to protect the decedent, a member of thegeneral public (see Purdy v Public Adm'r of County of Westchester, 72 NY2d at 8-9;Engelhart v County of Orange, 16 AD3d at 371; see also Mental Hygiene Law§ 9.60 [n]; cf. Fox v Marshall, 88 AD3d at 137-138). Furthermore, FEGSdemonstrated the absence of any relationship between it and the decedent which would imposeupon it a duty of care on behalf of the decedent (see Eiseman v State of New York, 70NY2d at 188-189; Fox v Marshall, 88 AD3d at 139-140; Edwards v Mercy Home forChildren & Adults, 303 AD2d at 544).
In opposition to FEGS's prima facie showing, the plaintiff failed to raise a triable issue offact as to whether FEGS owed the decedent a duty. Accordingly, the Supreme Court should havegranted FEGS's motion for summary judgment dismissing the complaint insofar as assertedagainst it (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Angiolillo, J.P.,Dickerson, Leventhal and Miller, JJ., concur.