Opinion
Claim No. M-99434
10-16-2023
G.P., Claimant, v. The State of New York, Defendant.
For Claimant LAW OFFICES OF NORA CONSTANCE MARINO By: Nora Constance Marino, Esq. and Joseph W. Murray, Esq. For Defendant HON. LETITIA JAMES, By: Felice V. Torres, Esq., Assistant Attorney General
For Claimant LAW OFFICES OF NORA CONSTANCE MARINO By: Nora Constance Marino, Esq. and Joseph W. Murray, Esq.
For Defendant HON. LETITIA JAMES, By: Felice V. Torres, Esq., Assistant Attorney General
Ruth Shillingford, J.
In this action relating to an alleged attempted bribe and an alleged sexual assault upon Claimant by an employee of Defendant, Defendant has moved, and Claimant has cross-moved for summary judgment on the issue of liability pursuant to CPLR 3212. Further, the parties previously submitted a stipulation to the Court wherein they agreed to stipulate to the testimony of the Claimant during her Examination Before Trial, while maintaining their ability to challenge the admissibility and relevance of certain evidence. Nonetheless, they agree that a trial on the issue of liability is unnecessary as only questions of law remain in dispute. Upon reviewing the arguments and merits of each parties' submissions, Defendant's Motion for Summary Judgment on liability is denied and Claimant's Cross-Motion for Summary Judgment on liability is granted.
BACKGROUND
Previously in this matter, Claimant was given permission to file her claim late. By Decision and Order entered February 25, 2019, the Court (Rivera, W., J.) limited the permission given as follows:
Accordingly, movant's application is GRANTED as follows: 1) movant shall serve and file a claim in accordance with the mandates for the service and filing set forth in the Court of Claims Act, within 45 days of the filed-stamped date of this Decision and Order; 2) the claim served and filed shall be limited to the allegations that: 1) the State was negligent in its failure to monitor the road test conditions and to monitor and supervise its DMV employee, John Doe, by preventing him from directing movant to a remote area and engaging in inappropriate conduct and 2) the State was negligent in retaining John Doe because DMV knew or should have known of his propensity for inappropriate conduct.(Defendant's Exhibit B: 2/5/19 Decision and Order at 7)(emphasis added).
Preliminarily, the parties dispute the nature of the negligence action permitted by Judge Rivera in his original Decision and Order permitting Claimant to file a late claim. Although Claimant argues that a general cause of action for negligence was permitted, a review of this Decision and Order reveals to the contrary.
Shortly thereafter, Claimant filed her Claim in which she asserted, in relevant part:
31. That at all times hereinafter mentioned, the defendants owed a duty to plaintiff to engage in proper security measures to protect the plaintiff and other examinees of the subject driver's license examination and failed to do same.
32. owed a duty to plaintiff to see that its employees, agents, servants, representatives, or other, use reasonable care to protect the plaintiff and others at the subject facility, to prevent an unreasonable risk of harm to plaintiff, and others similarly situated.
33. That the aforementioned occurrence and the results thereof including the injuries sustained by the plaintiff were caused by and due to the negligence, carelessness and recklessness of the aforementioned defendants by failing to properly control their conduct, failing to monitor their conduct and in otherwise being negligent, reckless and careless under the circumstances.
34. That the state was negligent in tis (sic) failure to monitor the road test conditions and to monitor and supervise its DMV employee, John Doe, by preventing him from directing movant to a remote area and engaging in inappropriate conduct.
35. That the state was negligent in retaining John Doe because the State, via DMV, knew, or should have known of his propensity for inappropriate conduct.(Defendant's Exhibit A - 2/28/19 Verified Claim: ¶¶31-35). Defendant filed its Answer dated April 18, 2019 on April 19, 2019 (Defendant's Exhibit D - Answer).
STIPULATED FACTS AND EVIDENTIARY ISSUES
The April 28, 2023, stipulation of the parties demonstrates that there is no dispute regarding Claimant's testimony at her deposition, which is summarized below.
Claimant's EBT Testimony Relative to Liability
Claimant's testimony at her EBT, through a Spanish interpreter, established that on March 14, 2018, at 12: 00 p.m., her driving instructor, Jorge, drove Claimant to her scheduled road test in Astoria, Queens. Upon their arrival, Jorge disembarked from the car and within five minutes, the tester entered the vehicle. Claimant described him as a 30-35-year-old White male with black hair, "bald from the top of his head" with "clear" dark green eyes (Exhibit E - Claimant's 9/9/20 EBT: 25-26). She had taken the exam unsuccessfully on prior occasions at different locations but had never seen this tester previously. She could not recall the location where she first met the tester, but there were other individuals waiting to be tested (id. at 29).
In response to his inquiry about the number of times she had failed the exam, Claimant told him five times. He then asked about her employment status, and she told him that she was a hairdresser. He next asked "if [she] was married, for how long [she] had been here in the country and if [she] ha[d] any children [She] told him that [she] was married, that [she had] been here for years and that [she] had a daughter. [She] asked him if he had family and he told [her] he had a four-month baby and that she cried a lot, mostly at night" (id. at 30-31; 47).
According to Claimant, she had been driving for about five minutes when "he asked me if I had any money. Then I said, 'No, I don't have any money.' 'You're the one that have the money,' I told him. And then he asked me again if I have any money. So I thought if he was trying just to - kind of understood that he was joking with me and trying to tell me that maybe he had a lot of money and I didn't" (id. at 31). He continued to demand money from her. Then he grabbed the steering wheel (the car had one steering wheel but two brakes) and turned the wheel to park on the side of the road. There was no one else in the area. He then told her that she would need to pay him $100.00 in order to pass the test. When Claimant grabbed her cell phone from the console to call her husband, the tester took it and threw it to the back seat of the car. Meanwhile, he continued to demand money, asking for $20, $5 or any money. When Claimant said she had no money, he asked about a wallet in the back seat, but she told him it did not belong to her.
The tester started to rub from the bottom to the top of Claimant's knee as she continued to drive. He told her to drive one more block, where other cars were parked. As he continued to talk in English, she "didn't understand anything because [she] was very nervous." He continued to rub her leg while she said, "No" and he touched her face as she drove. He admonished her that she would cause an accident if she kept driving fast, but he kept stopping the car utilizing the brakes. He then took over the steering wheel and parked the vehicle again. This time, he asked her to unzip her vest, which she misunderstood to mean to unlock her seatbelt, which she did. She then grabbed her "jacket and [she] told him 'This'?" She then unzipped her "zipper a little bit. He put his hand inside and he grabbed [her] breast and [her] bra. So, [she] got really scared and [she] immediately zipped [her] vest" (Exhibit E - Claimant's EBT: 48-49). He touched her breast once and her bra about three times. He then told her "Okay. Let's go" while continuing to rub her leg. He asked her, "why are you so nervous?" "Why are you shaking?" and, with her face red, he asked "Why is your face so red?" and continued to touch her face (id. at 49). She asked him many times to stop; and on multiple occasions took his hands off her right cheek and leg. This incident lasted approximately fifteen minutes. The tester never asked her to perform any U-turns or K-turns, although she stopped for a stop sign and a stoplight. She did not know how many blocks they drove and while it could be five, as suggested by the attorney, she believed they "were just going around on the same block" (id. at 52).
At the end, although she wanted to park, she "was so nervous that he took, again, the steering wheel and he parked the car" (id. at 54). He told her not to return to this location; that she should not tell anyone what happened; and put his finger to his lips in a "shush" motion (id. at 54-55). He then gave her a paper, which Jorge told her meant that she had passed the exam. Jorge then drove her back to the driving school; she did not tell him what had happened to her.
That night, she told her husband. She filed a report with the police two months later, in May, and spoke with a Detective David Mossif (she was not sure of his last name) and there was another woman there as well. She told Detective David everything that happened to her, and he wrote down her statement, but she did not recall if she had signed it. She met with him twice. The Claimant was not aware of any other complaints involving this tester. During the second interview with Detective Dave and another detective in June or July, Detective David had her view photographs in a book; she identified the tester. She was never told that the tester had been arrested; she never appeared in court; and she has never seen him since the incident on March 14, 2018.
Other Uncontested Facts
The parties also agree that Claimant's road test was administered by Ian Cioffi, who worked for the DMV as a Motor Vehicle License Examiner (MVLE). His employee work file is absent of any negative references (Defendant Exhibit J). There were investigations conducted by both the Queens County District Attorney and the Office of the Inspector General. Mr. Cioffi was not disciplined after Defendant became aware in February 2018, that a complaint had been made accusing him of trying to bribe another female test taker and bribing a second female test taker.
Contested Emails
Ann Scott, the Director of Field Operations for New York state-run DMV offices, testified that they run all of the New York City DMV offices (Exhibit H - Scott 4/28/21 EBT: 7-8). She had worked in various capacities at DMV for over thirty-seven (37) years. Email threads commencing on February 12, 2018, reveal that Peter Bucci, who was responsible for monitoring DMV social media, learned that there was a Twitter post stating "Road test officer received a lot of money from Chinese people to pass the road test. Please let me know the phone number to report this. I went to the police station but they asked me to contact DMV" (Claimant's Cross-Motion, Exhibit 1 - 2/12/18 Email @ 9:55 a.m.; Scott EBT: 12-15). That same day, Defendant sought information about the location in question, and the identification and contact information of the person who had written the post. That person gave their telephone number and indicated that it was in Kissena Park, New York (Exhibit 1 - 2/12/18 Email @ 10:01 a.m.; Exhibit 1: photos 1-4; Scott EBT: 18-19).
The next morning, Ms. Scott contacted Tim O'Brien and stated, "If you have a copy of the twitter post, I'll pass it along to the IGs office. We have someone, perhaps the same guy, who has written many times with this same complaint but never offers his name, never offers insight or examples. We forward them to the IG as its potential employee malfeasance" (Exhibit 1 - 2/13/18 & commat; 8:59 a.m Scott Email).
Ms. Scott then contacted the person, Menghang Wu, who stated as follows:
Ms. Wu arrived to take a road test at the Kissena Park post in Queens on Friday February 9, 2018 in a vehicle owned by Gold Medal Driving School (40-42 Main St. No.3B Flushing NY) with herself and one other female applicant along with the driving school instructor Mr. Wong She took her test first and during such examiner #895 (Ian Cioffi) asked her multiple times "Do you have coffee?". She stated she did not have coffee and the test proceeded to the end, upon which she was informed she failed. She provided the attached receipt to confirm her failure and the examiner # that administered the test. She stated the 2nd applicant then took her test and at its conclusion that applicant shared that she too was asked "do you have coffee?" and per Ms. Wu the applicants wallet (unclear how this occurred) was opened and $400 was given to the examiner. Per Ms. Wu the applicant stated she never had to do a parallel park or a three point turn, but she passed the test. During the discussion in driving school vehicle after the tests, Ms. Wu claims Mr. Wong indicated that this examiner takes money from Chinese applicants all the time to pass road tests.
Ms. Wu expressed multiple times she did not want to get in trouble or get the applicant that paid the money to get in trouble.(Exhibit 1 - 2/13/18 Scott Email & commat; 10:11 a.m.).
In this email, Ms. Scott sought "assistance in investigating this complaint" from individuals, including the Commissioner of Operations; the Director of Operations, who is her Supervisor; the Director of Field Operations, which department essentially serve as the police for DMV; and the Director of Labor Relations, who was in charge of employment discipline (id.; Scott: 19-25). The matter was referred to the IG's Office that same morning (id. - 2/13/18 Owen McSchane Email @ 10:27 a.m.).
To the extent that there are emails referencing any complaints made in April 2018, which occurred after the incident in question, they are not admissible or relevant to resolution of the issue of liability and notice.
Steps Taken Regarding February 2018 Complaint
According to Ms. Scott, once the matter was referred to the IG's Office on February 13, 2018, Mr. Cioffi continued to give road tests up until his resignation on April 10, 2018. She was not aware if the IG's Office had taken any action against him (Scott: 33-35). Ms. Scott did not know if anyone else at DMV had followed up with the IG's Office about the Wu complaint that they had forwarded to them; she did not recall following up herself (id. at 35-37). She "certainly was gravely concerned about the allegation and if it were found to be true, [she] would not want that gentleman giving road tests at all" (id. at 37).
The Inspector General has the power to arrest but they are not the employer of a DMV Road Test Examiner (id. at 42-43). If there was a potentially dangerous situation with an examiner, the Division of Labor Relations, in consultation with Ms. Scott would decide whether to place that person elsewhere within the DMV.
Ms. Scott did not recall ever having a conversation with the head of Labor Relations about Mr. Cioffi. While they "would love them to be gone," DMV "followed the proper procedure and having an investigation commence or asking for an investigation to commence" (id. at 50-51).
The Investigation
Upon receiving the complaint via email from DMV on February 13, 2018, Senior Investigator Anne Peters of the Inspector General's Office began the investigation into Mr. Cioffi (Exhibit I - 4/6/2022 Anne Peters' EBT: 13-17). She first interviewed the complainant and contacted DMV to obtain "supporting documentation" regarding the two test takers; the one who failed and the one who reported that she had paid money to Mr. Cioffi and received a passing grade (id. at 17-18). The first complainant was the one who posted on twitter. Investigator Peters thought there was someone who wrote a letter but was "not sure about the person that posted on Twitter; [s]he believed that was an anonymous complaint" and did not believe "that person was ever tracked down" (id. at 18). Nonetheless, she was "first made aware that there was a potential problem with Ian Cioffi on February 13, 2018" (id. at 18-19).
She believed that DMV submits a complaint to the IG's Office for an independent investigation, but DMV retains the authority to suspend or move them pending the outcome of the investigation. The IG's Office has no authority over an employee in this regard (id. at 19-20).
In June 2018, the IG's Office was notified by the Queens DA's Office about Claimant's complaint, and Investigator Peters advised them about their two complaints. The Queens DA then took over the investigation and prosecution of the case; the IG's Office made no recommendation to DMV. While Investigator Peters' experience in prior cases, unlike that related to Claimant, is that DMV would normally await the outcome of the IG's investigation prior to taking any disciplinary action, she had never encountered a case such as G.P.. In the case of danger, she hoped that some action would be taken immediately and conceded that she "can't speak to what DMV does" (id. 24-25). Overall, DMV is primarily responsible for disciplining its employees and the IG's Office is not a law enforcement agency (id. at 25-26).
Employment History
Tammy Paupaw-Harris, a Principal Motor Vehicle License Examiner, whose duties include all road testing in Queens, including overseeing MVLEs and their field supervisors, had worked for DMV for thirty (30) years. Once she approves someone for a position, their paperwork is sent to DMV in Albany for fingerprinting. In March 2018, she would have reported any complaint of sexual inappropriateness by an MVLE to Jean Flanagan. Although Ms. Paupaw-Harris believed that she had received a complaint directly about Mr. Cioffi from Ying Wang sometime at the end of 2017 or the beginning of 2018 and "sent it up the chain" (Exhibit F - Paupau-Harris 11/2/20 EBT: 21-22), it was actually a letter dated April 6, 2018 (id. at 25-26).
The DMV never received any complaints about Mr. Cioffi when he worked in Brooklyn prior to transferring to Queens (id. at 65). Ms. Paupau-Harris was not aware of any inappropriate touching or bribing complaints about Mr. Cioffi other than the one in April 2018. On May 4, 2018, Mr. Cioffi told her that he wanted to resign because he had been in a "near accident" and was afraid of getting into an accident so he did not want to conduct road tests; on a prior occasion when he sought but withdrew his resignation, he indicated it was for child care issues (id. at 56-57).
Mr. Cioffi resigned effective May 7, 2018 (Exhibit J: "Leave or Work Status Change"; Exhibit G - 2/12/21 Jean Flanagan EBT: 24).
DISCUSSION
Evidentiary Issues
The Court notes that the stipulation did not resolve the evidentiary disputes between the parties relating to the admissibility of certain documents. Defendant's submissions focus considerably on the admissibility of the investigation reports of the Inspector General and Queens County District Attorney. Defendant's arguments in this regard demonstrate that the contents of both reports contain information both unknown to Defendant and acquired after the date of the Claimant's incident on March 14, 2018. Accordingly, they are not admissible evidence of notice to Defendant of Mr. Cioffi's dangerous propensities prior to the incident in question.
Claimant, however, argues that these documents are not necessary for the Court to make its decision, as DMV's own internal emails (Exhibit 1), mentioned above, clearly demonstrate the requisite notice to Defendant of Mr. Cioffi's propensity for predatory and criminal behavior, and Defendant's failure to take action to address the threat Mr. Cioffi presented to other test takers, including Claimant, was negligent.
Although Defendant concedes that the internal emails (Exhibit 1) are admissible as business records, it argues that Ms. Wu's complaint, and several other emails that refer to a complaint by an anonymous person contain inadmissible hearsay. Defendant avers that "[i]t is clear that the only use for the statements made in the emails by Ms. Wu and the other anonymous complainant is to prove that Cioffi bribed other people prior to the claimant's incident" (7/26/23 Torres Affirmation: ¶7). Defendant is mistaken. The emails are not being offered to prove that Mr. Cioffi bribed other people. They are being offered to prove that Defendant was aware of the allegations that Mr. Cioffi had bribed or attempted to bribe other test takers. As the Court stated in Smalley v Harley-Davidson Motor Co. Group LLC, 134 A.D.3d 1490, 1493 (4th Dept 2015):
Contrary to Defendants' contention, those customer complaints are not impermissible hearsay. They are not being offered for the truth of the factual assertions therein, but rather they are being offered as evidence that the statements in those complaints were in fact made, and that defendants had notice of them (see, generally Stern v. Waldbaum, Inc., 234 A.D.2d 534, 535 [1996]).
Here, as in Smalley, the emails are being offered to demonstrate that Defendant was aware of the assertions they contain. They are not being offered to demonstrate that the assertions are true. Accordingly, they are admissible.
Summary Judgment
Both parties seek summary judgment on the issue of liability in this matter. Defendant with Motion M-99434, and Claimant with Cross Motion CM-99618.
Defendant argues that there are several reasons that summary judgment should be granted in its favor. First, Defendant contends that it cannot be held liable under a theory of negligent retention or supervision because, although it was aware of the February 2018 complaint against Mr. Cioffi, that incident did not involve a sexual assault, and accordingly, Defendant cannot be held liable for failing to foresee Mr. Cioffi's sexual assault upon Claimant.
Meanwhile, Claimant requests summary judgment in her favor, arguing that the DMV's own internal emails from February of 2018 (Exhibit 1) demonstrate that Defendant had actual notice of Ms. Wu's complaint and therefore, of Mr. Cioffi's dangerous propensities. Nonetheless, Defendant negligently failed to take appropriate action to prevent Mr. Cioffi from victimizing other members of the public, including Claimant, and Claimant sustained injury because of this failure.
Summary judgment is a "drastic remedy" and may be granted only when no triable issues of fact exist (Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]; see CPLR 3212). A movant bears the initial burden of establishing the right to judgment as a matter of law by tendering sufficient evidence, in admissible form, demonstrating the absence of material issues of fact from the case (see Matter of Eighth Jud. Dist. Asbestos Litig., 33 N.Y.3d 488, 496 [2019], citing Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). In this regard, conclusory assertions are insufficient to demonstrate the absence of any material issues of fact (see Ayotte v Gervasio, 81 N.Y.2d 1062 [1993]). The failure to make the initial prima facie showing requires denial of the motion, "'regardless of the sufficiency of the opposing papers'" (Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012], quoting Alvarez, 68 N.Y.2d at 324).
As the criminal activities of Mr. Cioffi were not done within the scope of his employment, Mr. Cioffi's actions in first soliciting a bribe and then sexually assaulting Claimant were clearly not taken for the benefit of the DMV but were based solely on personal motives.
An employer is vicariously liable for the torts of its employee, even when the employee's actions are intentional, if the actions were done while the employee was acting within the scope of his or her employment (see, Riviello v Waldron, 47 N.Y.2d 297, 302). However, there is no vicarious liability on the part of the employer for torts committed by the employee solely for personal motives unrelated to the furtherance of the employers' business.(Kirkman v. Astoria Gen. Hosp., 204 A.D.2d 401, 402 [2d Dept. 1994]).
However, even when an employer cannot be held vicariously liable for its employee's torts, liability may still be found under theories of negligent hiring, negligent retention, and negligent supervision (Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159 [2d Dept 1997]; Oliva v. City of New York, 297 A.D.2d 789 [2d Dept 2002]). Accordingly, the related causes of action of negligent retention and negligent supervision of Mr. Cioffi are the only causes of action that were permitted by Judge Rivera, and which will be addressed by this Court.
As the Court of Appeals recently held, albeit in the context of a motion to dismiss,
It is well-settled that to establish a claim of negligence, a plaintiff must prove: a duty owed to the plaintiff by the defendant, a breach of that duty, and injury proximately resulting therefrom (citations omitted). Where the negligence claim relates to an employer's retention and supervision of an employee, the complaint must include allegations that: (1) the employer had actual or constructive knowledge of the employee's propensity for the sort of behavior which caused the injured party's harm; (2) the employer knew or should have known that it had the ability to control the employee and of the necessity and opportunity for exercising such control; and (3) the employee engaged in tortious conduct on the employer's premises or using property or resources available to the employee only through their status as an employee, including intellectual property and confidential information (see e.g. Restatement [Second] of Torts § 317, Comment b; Restatement [Second] of Agency § 219[2][d] [stating an employer is liable for the torts of employees acting outside the scope of their employment if, inter alia, the employee was "aided in accomplishing the tort by the existence of the agency relation"]; Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 161, [2d Dept. 1997] [citing, inter alia, Hall v. Smathers (240 NY 486[1925]), Park v. New York Cent. & Hudson Riv. R.R. Co. (155 NY 215[1898]), and Detone v. Bullit Courier Serv. (140 A.D.2d 278, 279 [1st Dept. 1988])(Moore Charitable Found. v. PJT Partners, Inc., 40 N.Y.3d 150, 157 [2023]).
Importantly, the Court in Moore went on to address the defendant's contention that the underlying acts known to the defendant were not sufficient to put the defendant on notice of the propensity which caused that claimant's injury.
In this case, defendants argue that the only circumstance in which an employer "should know" of an employee's propensity for tortious conduct is when the employer has actual knowledge of multiple past acts by the employee similar to those alleged in the complaint. Because the complaint here does not contain such allegations, defendants argue that dismissal was proper.
We disagree. Certainly, allegations that a defendant had actual knowledge of prior acts by an employee similar to those alleged in the complaint satisfy the notice element (see Hogle v Franklin Mfg. Co., 199 NY 388, 392 [1910] [knowledge of propensity established by evidence that employees threw objects out of factory windows onto plaintiff's property for more than a year "with the knowledge of the defendant"]). However, an employer cannot avoid liability for negligent supervision and retention by shutting its eyes to the tortious practices and propensities of its employees-that is, by being doubly negligent. An employer "should know" of an employee's dangerous propensity if it has reason to know of the facts or events evidencing that propensity, and may be liable if it nonetheless "place[s] the employee in a position to cause foreseeable harm" (see Detone, 140 A.D.2d at 279; see e.g. Hall, 240 NY at 490 [notice of superintendent's violent tendencies was shown by "repeated complaints" made to defendants by tenants and visitors]; Park, 155 NY at 219 [constructive knowledge of railroad employee's propensity for negligence "may be shown by evidence tending to establish that such incompetency was generally known in the community"]).(Moore Charitable Found. v. PJT Partners, Inc., supra, at 158).
In order to hold an employer liable for negligent retention or supervision it is necessary to demonstrate that "the employer knew or should have known of the employee's propensity for the conduct which caused the injury" (Kenneth R, supra, at 160). Here, Defendant argues that although Mr. Cioffi may have also tried to solicit a bribe from Claimant, her injuries are related to the sexual assault, and because Defendant had no notice of Mr. Cioffi's propensity to commit a sexual assault, Defendant cannot be held liable for Claimant's injuries. To that end, Defendant urges that because soliciting a bribe from someone is different in nature from sexually assaulting them, Defendant cannot be found liable since it was not on notice of Mr. Cioffi's "propensity for the conduct which caused the injury" (5/17/23 Torres Affirmation: ¶ 9).
Claimant counters that the notice to Defendant that Mr. Cioffi had tried to bribe the two test takers in February was sufficient notice that Mr. Cioffi was a danger to the public and unfit to be left alone and unsupervised with clients of the DMV.
While it is true that an employer must be on notice of the employee's propensity that caused the claimant harm to be held liable, Defendant ignores the linkage between the nature of a potential bribe in the circumstances of this particular case. Defendant was on notice of a dangerous propensity sufficient to demonstrate to a reasonable employer that Mr. Cioffi should have been prevented from having further unsupervised contact with members of the public until it could be determined that such exposure was not dangerous (Moore Charitable Found. v PJT Partners, Inc., 40 N.Y.3d 150 (2023); Gupta v YM Pro Corp., 220 A.D.3d 442 [1st Dept 2023]).
Here, the attempt to bribe was inextricably interwoven with the sexual abuse in this case. Mr. Cioffi's questioning of the Claimant about the number of times she had failed to pass previously, her family dynamic, her immigration background and employment status, was clearly indicative of his plan to obtain money from someone he perceived to be vulnerable and desperate, but with an ability to pay. This governmental agency was aware in February 2018 that its employee, who was entrusted to protect the public from unqualified drivers, was potentially willing to do just that by allowing drivers who had not been properly examined to obtain a license and expose the general public to danger. Moreover, Defendant knew that the only circumstance under which another female test taker would have to pass any examination with Mr. Cioffi would be alone, in a car, while driving. Defendant's own employee, Ms. Scott, confirmed that she "certainly was gravely concerned about the allegation and if it were found to be true, [she] would not want that gentleman giving road tests at all" (Scott EBT: 37).
Claimant's testimony demonstrated further, that when Mr. Cioffi failed to get the $100 that he sought, or even $5, he immediately resorted to payment in a form he believed to be equivalent to his demand. Having obtained it, he then allowed the Claimant, who had not been properly tested, to be granted a license and expose the public to danger. Accordingly, under the specific facts of this case, Defendant's receipt of notice on February 12, 2018, that Mr. Cioffi was potentially abusing his position as an MVLE by extorting DMV clients and exposing the rest of the public to danger, created a duty to prevent his further unsupervised contact with clients. Defendant was negligent in failing to take action to ensure that Mr. Cioffi could not criminally victimize other applicants.
A finding of negligence, however, does not end the analysis, as Defendant argues further that, even if negligent, Defendant is nonetheless, immune from liability in this matter because it was performing a governmental function when it made the discretionary decision to take no action to prevent Mr. Cioffi from victimizing other applicants. In support of its position, Defendant first cites the unreported decision in Turner v. State of New York, 57 Misc.3d 1208 (A) (Ct Cl 2017) for the blanket proposition that "it is well-settled that the state is afforded immunity for discretionary acts, such as decisions regarding hiring, training, and supervision" (id. at 5). Defendant points out, however, that in McLean v. City of New York, 12 N.Y.3d 194 (2009), the Court of Appeals stated that "[g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general" (id. at 203). Finally, Defendant argues that based on this decisional law and the fact that there was no special relationship established that would overcome the governmental function immunity defense, summary judgment must be granted in its favor and the claim dismissed.
However, Defendant's argument fails to adequately address a threshold issue:
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'" (Turturro v City of New York, 28 N.Y.3d 469, 477 [2016], quoting Applewhite v Accuhealth, Inc., 21 N.Y.3d 420 425 [2013]). If a governmental agency's actions constitute a proprietary function, it is subject to liability under ordinary rules of negligence (see Wittorf v City of New York, 23 N.Y.3d 473, 479 [2014]). In contrast, where "a claim arises out of performance of acts undertaken for the protection and safety of the public pursuant to the general police powers, which is a quintessential governmental function, the governmental actors involved are immune from a negligence claim unless the injured person establishes a special relationship with the governmental [agency](Scozzafava v. State of New York, 174 A.D.3d 1109, 1110 [3d Dept. 2019]).
Apart from baldly stating that the "DMV is afforded immunity regarding its decision on how to supervise Mr. Cioffi" (5/17/23 Torres Affirmation: ¶14), Defendant fails to address this issue or provide any evidence upon which it could be concluded that the DMV's decisions relating to Mr. Cioffi were governmental as opposed to proprietary functions. The Court was provided with nothing that would distinguish any employment decision made by the DMV concerning Mr. Cioffi from a decision that a private company would have to make when faced with the same information. It is noteworthy that the governmental immunity defense is an affirmative defense that must be both pleaded and proven by Defendant (Valdez v City of New York, 18 N.Y.3d 69,75 [2011]; Turturro v City of New York, 28 N.Y.3d 469, 478-79 [2016]). Accordingly, Defendant has failed to meet its burden of demonstrating that the employment decisions the DMV made concerning Mr. Cioffi were made in a governmental as opposed to a proprietary capacity.
This in turn means that no special relationship between Claimant and defendant is necessary:
As we have explained previously, a court must first decide "whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose" (Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 425 [2013]; see Tara N.P. v. Western Suffolk Bd. of Coop. Educ. Servs., 28 N.Y.3d 709, 713 [2017]). "This is so because, if the action challenged in the litigation is governmental, the existence of a special duty is an element of the plaintiff's negligence cause of action" (Connolly, 30 N.Y.3d at 727, citing Lauer, 95 N.Y.2d 95). A municipality's "varied functions" may be "interspersed with both governmental and proprietary elements" and, therefore, "the determination of the primary capacity under which a governmental agency was acting turns solely on the acts or omissions claimed to have caused the injury" (Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d 428, 447 [2011], cert denied 568 U.S. 817 [2012])(Ferreira v. City of Binghamton, 38 N.Y.3d 298, 308 [2022]).
Finally, the Court notes that even if Defendant had succeeded in demonstrating that any employment decisions it made relating to Mr. Cioffi did relate to a governmental function, Defendant would still not be entitled to immunity as there was no evidence presented that discretion was exercised or that any decision was actually made. A similar claim to immunity was made in Haddock v City of New York, 75 N.Y.2d 478 (1990). In that case, the City claimed immunity for its decision to retain a City Parks Department employee, Johnson, who subsequently raped a patron at a city playground. The Court found that, although the Defendant may have been entitled to immunity for any decisions that it made regarding the employee:
[t]he difficulty with the City's contention that it is entitled to a cloak of immunity for the discretionary decision to retain [the perpetrator] in his status is that there is no evidence that, prior to the rape, the City in fact made any such decision or exercised any such discretion. This is not a case of mere error of judgment of City officials in choosing to retain a WREP participant in his work assignment after learning of his criminal record. There is no indication that, before the attack on plaintiff, the City made any effort to comply with its own personnel procedures for employees with criminal records, and no indication that it made a judgment of any sort when it learned that Johnson both had a criminal record and lied egregiously about it(Haddock at 485).
Similarly, in this matter, there is no evidence that anyone from the DMV made any decision or exercised any discretion relating to keeping Mr. Cioffi in his work assignment. Indeed, all of Defendant's DMV witnesses confirmed that although DMW was Mr. Cioffi's employer and only they, and not the IG's Office, could discipline him, they were awaiting a decision from the IG's Office before taking any action in this case, which never came to pass. In addition, Ms. Scott confirmed that in a case where they believed an employee was a danger to the public, she and the Director of Labor Relations would make a determination about moving that employee. They did not do so with respect to Mr. Cioffi. Having learned that Mr. Cioffi was a potential danger to the public when put on notice that he allegedly solicited and obtained bribes, Defendant should not be heard now to complain with respect to liability for failing to take any action in the matter.
The immunity afforded a municipality presupposes an exercise of discretion in compliance with its own procedures. Indeed, the very basis for the value judgment supporting immunity and denying individual recovery for injury becomes irrelevant where the municipality violates its own internal rules and policies and exercises no judgment or discretion. Given the scope of the immunity - which frees municipal defendants of liability where others in similar circumstances might have to respond in damages - that critical omission cannot be cured by later supposition that, had a review been made the employee's placement would have remained unchanged. Whether or not that is so, for purposes of this discussion the key fact is that no City employee in the relevant time frame weighed the impact of [the perpetrator's] record on his work assignment or made a judgment that he should be retained at the Parkside Playground.(Id.).
Accordingly, Defendant has failed to demonstrate either that the DMV's actions at the time the claim accrued were part of a governmental function, or that it made any decision or exercised any discretion with respect to Mr. Cioffi's continued employment status. Accordingly, Defendant is not shielded by governmental function immunity and is liable to Claimant for the injuries she incurred as a result of her encounter with Mr. Cioffi.
CONCLUSION
For the reasons set forth above, it is hereby:
ORDERED, that Defendant's Motion for Summary Judgment on liability (M-99434) is DENIED; and it is further
ORDERED, that Claimant's Cross-Motion for summary judgment on liability (CM-99618) is GRANTED, with liability apportioned at one hundred percent (100%) against Defendant; and it is further
ORDERED, that a trial on the issue of damages shall be scheduled as soon as reasonably practicable.
Papers Considered:
Defendant's Notice of Motion (M-99434) filed May 17, 2023;
Affirmation of Felice V. Torres, Esq. (AAG), dated May 17, 2023, with exhibits;
Claimant's Notice of Cross Motion (CM-99618) filed June 26, 2023;
Affirmation of Nora Constance Marino, Esq., dated June 26, 2023, with exhibits;
Affirmation of Felice V. Torres, Esq. (AAG), dated July 26, 2023;
Affirmation of Nora Constance Marino, Esq., dated August 10, 2023, with exhibits; and
Filed Documents: Claim, Answer and April 28, 2023 Stipulation