P.R.B. v. State

201 A.D.3d 1237

162 N.Y.S.3d 196

P.R.B., Respondent,

v.STATE of New York et al., Appellants.

532933

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: November 19, 2021

Decided and Entered: January 20, 2022

FitzGerald Morris Baker Firth PC, Glens Falls (John D. Aspland Jr. of counsel), for appellants.

O'Connell and Aronowitz, Albany (Michael Y. Hawrylchak of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Clark, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J. Appeal from an order of the Court of Claims (Hard, J.), entered January 29, 2021, which denied defendants’ motion for summary judgment dismissing the complaint.

During the early morning hours of October 23, 2016, claimant, then a sophomore at the State University of New York at Albany (hereinafter SUNY Albany), was sexually assaulted in her dormitory room located within a suite on an upper floor of Stuyvesant Tower. She was assaulted by a recent parolee who had no authority to be in the dormitory.¹ In July 2017, claimant filed the instant claim alleging that defendants (1) created a dangerous and unsafe environment for her as a resident in an on-campus dormitory, (2) failed to install proper security devices, including a lock, (3) failed to otherwise provide appropriate security measures in Stuyvesant Tower, and (4) failed to provide an adequate amount of security to students in order to prevent individuals from gaining unauthorized access to dormitory rooms. Following joinder of issue, completion of discovery and the filing of a note of issue, defendants moved for summary judgment dismissing the claim on several grounds, including that governmental immunity bars the claim. Claimant opposed the motion. The Court of Claims denied the motion, finding that defendants’ non-police negligent acts were undertaken in a proprietary and not a governmental capacity and defendants were not immune from liability. Further, the court found that claimant presented issues of fact as to whether the rape was reasonably foreseeable, whether defendants discharged their duty to provide reasonable security measures and whether defendants’ negligence was the proximate cause of claimant's injuries.² Defendants appeal, and we affirm.

Defendants initially contend that the Court of Claims erred in determining that their allegedly negligent acts were undertaken in a proprietary rather than a governmental capacity and are therefore not protected by governmental immunity. We disagree. "Where, as here, a negligence claim is asserted against a governmental agency, the threshold issue to be determined by the court is whether the [governmental agency] was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose" ( Scozzafava v. State of New York, 174 A.D.3d 1109, 1110, 105 N.Y.S.3d 170 [2019] [internal quotation marks and citations omitted]; see T.T. v. State of New York, 151 A.D.3d 1345, 1345–1346, 58 N.Y.S.3d 187 [2017] ). "[T]o determine whether a governmental agency is acting in a proprietary function or a governmental capacity requires an examination of ‘the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred’ " ( Scozzafava v. State of New York, 174 A.D.3d at 1110, 105 N.Y.S.3d 170, quoting Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d 428, 447, 933 N.Y.S.2d 164, 957 N.E.2d 733 [2011], cert denied 568 U.S. 817, 133 S.Ct. 133, 184 L.Ed.2d 28 [2012] ; see Drever v. State of New York, 134 A.D.3d 19, 22, 18 N.Y.S.3d 207 [2015] ).

As the Court of Appeals has recognized, "[a] governmental entity's conduct may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions" and "any issue relating to the safety or security of an individual claimant must be carefully scrutinized to determine the point along the continuum that the [governmental entity's] alleged negligent action falls into, either a proprietary or governmental capacity" ( Miller v. State of New York, 62 N.Y.2d 506, 511–512, 478 N.Y.S.2d 829, 467 N.E.2d 493 [1984] ). In Miller , a student at a state university was raped by an intruder in the laundry room in her dormitory. The Court of Appeals permitted the claim of negligence – stemming from the defendant's failure to lock the entrance doors to the dormitory – to go forward in the defendant's proprietary capacity as a landlord. As in Miller , claimant's allegations that defendants failed to, among other things, install proper security devices, including locks, clearly implicate defendants’ proprietary function as a landlord, and the Court of Claims therefore correctly rejected defendants’ claim of governmental immunity.

Defendants next argue that the sexual assault of claimant was not foreseeable, based upon, among other things, the deposition testimony of Aran Mull, SUNY Albany's assistant chief of police. "Landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person" ( Mason v. U.E.S.S. Leasing Corp., 96 N.Y.2d 875, 878, 730 N.Y.S.2d 770, 756 N.E.2d 58 [2001] [citations omitted]; see Haire v. Bonelli, 107 A.D.3d 1204, 1204–1205, 967 N.Y.S.2d 475 [2013], lv denied 22 N.Y.3d 852, 2013 WL 5614389 [2013] ). Criminal conduct is foreseeable if it is "reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location" ( Six Anonymous Plaintiffs v. Gehres, 68 A.D.3d 1177, 1178, 890 N.Y.S.2d 675 [2009] [internal quotation marks and citations omitted], lv denied 14 N.Y.3d 710, 2010 WL 1796327 [2010] ; see Jacqueline S. v. City of New York, 81 N.Y.2d 288, 294–295, 598 N.Y.S.2d 160, 614 N.E.2d 723 [1993] ; Milton v. I.B.P.O.E. of the World Forest City Lodge, #180, 121 A.D.3d 1391, 1392, 995 N.Y.S.2d 360 [2014] ).

Mull testified that he was unaware of any other instance of stranger rape on campus in his 20 years of service as a member of the SUNY Albany police. However, Mull also testified that he was provided notice of all reported crime on campus and that, in 2016, 26 rapes were reported as having occurred on campus and in residence halls. In opposition to defendants’ motion, claimant submitted, among other affidavits, the expert affidavit of and chart compiled by security expert Norman D. Bates, following his review of, among other things, the deposition testimony of Mull, John Giarrusso, the Associate Vice–President for Facilities at SUNY Albany, and Carol Perrin, the Director of Residential Life at SUNY Albany, as well as SUNY Albany's crime data/incident reports and Clery reports.³ The chart contained statistical data of criminal incidents reported to the SUNY Albany police during the three-year period preceding claimant's rape, showing 26 incidents of assaults, sexual assaults and unauthorized entries into dormitory rooms. Of these incidents, five involved a sexual offense and an intruder who came into the room. In one incident, which occurred in claimant's dormitory on August 29, 2014, students reported that another student entered their suite without authorization and "they felt something was wrong with the suite door lock as it was not locking properly." Bates opined, within a reasonable degree of professional certainty, that the crime data published by defendants evidences an increase in sex offenses, both on campus and in student housing, and that defendants were aware that students would be followed into the buildings, a pattern known as "tailgating," which Mull testified occurs on campus every day – day and night. Bates recounted Mull's testimony that SUNY Albany "did not want unauthorized people in the building[s] because it is a potential safety issue" and Perrin's testimony that sex crimes increased on campus from 2014 to 2016 and that students did not always lock the doors. Bates opined that, "[g]iven the history of sexual assaults, the inherent risk of sexual assaults in a campus setting and [d]efendants’ acknowledgment of the risk of sexual assault/rape, the sexual assault of [claimant] was a foreseeable event."

In finding that claimant's evidence presented an issue of fact as to whether the rape was foreseeable, the Court of Claims did not determine, in the first instance, whether defendants, as the moving parties, established "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of a material issue of fact" ( Timmany v. Benko, 195 A.D.3d 1212, 1213, 150 N.Y.S.3d 142 [2021] [internal quotation marks omitted]; see Voss v. Netherlands Ins. Co., 22 N.Y.3d 728, 734, 985 N.Y.S.2d 448...