Opinion
# 2019-032-043 Claim No. 127630 Motion No. M-93070
07-15-2019
DEAN W. WEBB, as Administrator of the Estate of KYLE D. WEBB, deceased, and DEAN W. WEBB and JULIE A. WEBB, Individually v. THE STATE OF NEW YORK
Phillips & Paolicelli, LLP By: Ari L. Taub, Esq. Hon. Letitia James, Attorney General By: Douglas R. Kemp, AAG
Synopsis
Defendant's motion for summary judgment is denied. The Court rejects the parties' arguments as to governmental immunity and finds that the actions of SUNY Albany's Office of Residential Life employees were proprietary in nature. Issues of fact remain precluding summary judgment.
Case information
| UID: | 2019-032-043 |
| Claimant(s): | DEAN W. WEBB, as Administrator of the Estate of KYLE D. WEBB, deceased, and DEAN W. WEBB and JULIE A. WEBB, Individually |
| Claimant short name: | WEBB |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127630 |
| Motion number(s): | M-93070 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Phillips & Paolicelli, LLP By: Ari L. Taub, Esq. |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Douglas R. Kemp, AAG |
| Third-party defendant's attorney: | |
| Signature date: | July 15, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Dean W. Webb brings the instant action as the administrator of the estate of his son, Kyle D. Webb, and individually with his wife, Kyle's mother, Julie A. Webb. Kyle passed away on April 9, 2014 while a resident on the campus of the State University of New York at Albany (SUNY Albany) as the result of a heroin overdose. The claim specifies three separate causes of action: (1) negligence arising from defendant's employees breach of a duty owed to Kyle; (2) negligent hiring and supervision for defendant's failure to adequately hire and train its employees; and (3) wrongful death. Defendant now moves for summary judgment, asserting five separate arguments. First, defendant argues that SUNY Albany does not stand in loco parentis and thus has no duty to shield its students from their own dangerous activity. Second, defendant argues that it had no duty to supervise Kyle's healthcare. Third, defendant asserts that it is entitled to governmental function immunity. Fourth, defendant argues that even if it owed a duty to Kyle, defendant did not breach said duty. Lastly, defendant argues that even if it breached a duty owed to Kyle, said breach did not proximately cause Kyle's death. Claimant opposes the motion.
FACTS
During the early morning hours of Wednesday, April 9, 2014, Kyle was found blue and unresponsive by his friends in his apartment on the campus of SUNY Albany. He was pronounced dead at approximately 10:10 a.m. at St. Peter's Hospital in Albany, New York. The cause of death was later determined to be heroin toxicity (Affirmation of Ari L. Taub, Esq. [Taub Aff.], Exhibit 2). The previous day a flurry of activity occurred among Kyle's roommates and other friends, Kyle's parents, and SUNY Albany employees concerning Kyle's possible suicidal ideation. The actions of two SUNY Albany employees, Kristyn Muller and Leandra Harris, are at the forefront of this litigation.
Claimants Dean and Julie Webb, Kyle's parents, were deposed in this action. They asserted that Kyle had no problems either socially or academically during his elementary, middle, and high school years, but that he struggled both socially and academically in college.
During Kyle's junior year, Dean testified that Kyle was upset about his poor grades, his roommates, and a recent break-up with his girlfriend. Kyle was placed on terminal academic probation that year. Kyle was depressed when he came home from college during the winter and spring breaks of his junior year. During that winter break, his parents took him to a physician for his depression, and the physician prescribed Kyle an antidepressant. When his father suggested that he should not return to SUNY Albany, Kyle said that he would kill himself if he did not return. His father did not believe he was serious at that time. Kyle appealed his placement on terminal academic probation and submitted his medical evaluation and a note from his physician to SUNY Albany. In that appeal, Kyle wrote that he was diagnosed with depression, had difficulty concentrating, sleeping and coping with life.
Prior to April 8, 2014, Dean had no contact with SUNY Albany regarding his son's mental health. After Kyle passed away, Dean learned that Kyle used heroin by reviewing Kyle's cell phone messages wherein a person asked if Kyle wanted to split a "bund" which is slang for heroin. He first learned that there was a significant problem with Kyle on April 8, 2014, when Kyle's roommate, Conner, called him about Kyle skipping classes, his drug use and his talk of suicide. Following Conner's call, Dean made several unsuccessful attempts to reach Kyle by telephone. He then called SUNY Albany and was referred to the Resident Director of Freedom Apartments. A Student Assistant answered the phone. Dean told her that his son was not answering his phone, was doing poorly in school, was recently diagnosed with depression and was having suicidal thoughts (Taub Aff., Exhibit 8). The Student Assistant said that she was going to talk with Kyle. Julie also called and she was told that someone would get back to her. Dean had no other communication with SUNY Albany on April 8, 2014. When asked why he did not drive to Albany at that point, Dean stated that "[w]e felt that with our lack of experience in these types of situations that we needed a professional" (Affirmation of Douglas R. Kemp, AAG [Kemp Aff.], Exhibit H, p. 34).
Dean spoke to Kyle at 2:00 p.m., 5:00 p.m. and 7:00 p.m. on April 8, 2014. During the first conversation, Kyle was angry at Dean for calling the school. At 5:00 p.m., Kyle was still angry but he understood why his father called SUNY Albany. They talked about Kyle's problems with his schoolwork and also discussed his roommates, his ex-girlfriend Sasha, and his relationship with Dean and Julie. At 7:00 p.m., Kyle was in a much better mood and told his father that he loved him. During the 7:00 p.m. call, they also discussed Kyle moving to a new apartment with his friend Jenny for his senior year.
Kyle was with Jenny on the night of April 8, 2014. Jenny later told Dean that Kyle was drinking and smoking marijuana, and then left his apartment sometime between 11:00 p.m. and 1:00 a.m. She was unaware of what time he returned, but eventually found him passed out on the couch. She took his pulse and listened to his breathing, but assumed that he was "just wasted on something" (Kemp Aff., Exhibit H, p. 43).
Dean called SUNY Albany in the morning of April 9, 2014, and was told that someone would get back to him. Soon thereafter, the Suffolk County Police Department came to his house to inform him that his son had passed away.
Kyle's roommate, Conner, was deposed in this action. He testified that during the spring semester of 2014 Kyle was depressed over a break-up, was taking an anti-depressant, and was regularly skipping classes. Kyle also drank beer several times a week, smoked marijuana everyday, used Nyquil to sleep, and took Xanax frequently. Conner had no knowledge of Kyle using heroin prior to his death.
On April 8, 2014, Conner texted with Kyle regarding his drug use (Taub Aff., Exhibit 4). Initially, Conner told him that he knew that Kyle was contemplating buying heroin, to which Kyle responded at 1:50 a.m. on April 8, 2014: "I wanna kill myself dude" (Taub Aff., Exhibit 4). When Conner confronted him about destroying a room in their on-campus apartment, Kyle responded at 12:01 p.m. on April 8, 2014: "I'm just dropping out of school . . . Everyone hates me the girl I love hates me my family hates me" (Taub Aff., Exhibit 4). Kyle's other texts to Conner around noon that day included: "I wanna get out of this world . . . I'm crying . . . I literally can't take this anymore" (Taub Aff., Exhibit 4). Conner told Kyle not to think about suicide, and that he will feel better in time. Kyle responded: "Doesn't matter dude . . . My life is meaningless" (Taub Aff., Exhibit 4). Conner then reached out to Kyle's dad, Dean, to voice his concerns about Kyle. Conner was present when Kristyn Muller, the Apartment Coordinator for the Residential Life Office, came to check on Kyle on April 8, 2014. Conner believed that Kristyn said to Kyle, "if you say you are suicidal then we will need to potentially call the police or have you evaluated . . ." (Kemp Aff., Exhibit O, pp.78-79).
Nicholas was Kyle's other roommate during his junior year. He wrote a voluntary statement for the University Police Department and was deposed in this action. In his voluntary statement, Nicholas wrote that Kyle had been self destructive, depressed in the months leading up to his death, hardly left the apartment or went to class. Nicholas acknowledged that Kyle took an anti-depressant, Xanax and Nyquil.
Nicholas testified that he and Conner were so concerned about Kyle that they called Dean two weeks prior to Kyle's death to voice their concerns. He last saw Kyle conscious at 6:30 p.m. on April 8, 2014 when he returned to their apartment. They argued about Kyle's drug use and Nicholas left the apartment, returning at 5:00 a.m. the next morning. Jenny was awake and sitting in the kitchen, and Kyle was lying on the couch snoring and breathing. However, Nicholas could not awaken Kyle. Nicholas went to bed but was then awakened by Jenny at approximately 9:00 a.m. They found Kyle on the couch with a blue face and lips. Nicholas checked for a pulse but found none. Nicholas wrote in his voluntary statement that Kyle had threatened to kill himself multiple times. He also wrote that he believed that Kyle previously had tried heroin, but he had never seen Kyle do so.
Jenny, self-described as Kyle's best friend, also wrote a voluntary statement to the University Police on April 9, 2014 and was deposed in this action. During her deposition, she stated that Kyle did not attend classes regularly that spring semester and he was very depressed.
In Jenny's voluntary statement, she reported that Kyle called her around noon on April 8, 2014 saying that he was suicidal and wanted to go home. She arrived at his apartment at approximately 12:30 p.m. that day. Kyle was very upset that his roommates had called his parents because they believed that Kyle was suicidal. She spent the day with him and observed him arguing with his parents and roommates. During the afternoon, friends came over to the apartment. In the evening, Kyle started to drink alcohol. He also took Nyquil, Xanax, and his prescribed medications. At some point that evening, he went out to get marijuana and returned to smoke it. At her examination before trial, Jenny said she fell asleep and woke up early in the morning, but in her voluntary statement she said she kept checking on Kyle who was asleep on the sofa, throughout the night, but eventually she fell asleep in Conner's bed. She further indicated in the voluntary statement that she was awakened at 2:00 a.m. by a resident who lived across the hall, who heard Kyle snoring. They tried to wake Kyle but he just rolled over and groaned. The resident across the hall, who had EMS training, took Kyle's pulse and believed he was fine. They placed a bucket by his head in case he vomited. Jenny fell asleep again and when she awoke Kyle was not breathing. She called 911.
Jenny stated that although Kyle had started to hang out with heroin users, she was not aware of Kyle using heroin. He was usually open to taking any drugs, including MDMA--a drug similar to Molly and ecstasy--cocaine, Oxycontin, Xanax, Nyquil and a prescribed anti-depressant.
Sasha was Kyle's girlfriend during the summer that preceded his death. She broke off the relationship sometime in November or December of 2013. She stated that Kyle was "very emotional" and "very easily upset" (Kemp Aff., Exhibit K, pp. 10-11). She recalled a time during Kyle's junior year where Kyle attempted suicide by cutting himself. Sasha thought the act was not serious, and that Kyle only harmed himself for attention. She was aware that Kyle had taken Molly, cocaine, ecstasy, painkillers, MDMA and ketamine in the past, but to her knowledge he had never used heroin (id. at 22-24). She also stated that Kyle smoked marijuana on a regular basis, and took Xanax frequently. Sasha further stated that Jenny used heroin, and that Sasha and others believed that Jenny gave Kyle heroin the night that he died, although she had no evidence to prove said conclusion. She was surprised when she learned that Kyle died of a heroin overdose because he "was always so against heroin" (id. at 58). Conner called Sasha the morning of April 8, 2014 to express his concerns about Kyle, and Sasha provided Conner with Dean's telephone number. That night, Kyle left Sasha a voicemail in which he sounded very sad. Sasha stated that he was crying in the voicemail, and that he was extremely upset when she called him that night.
There was no objection to the submission of this examination before trial or to the substance of Sasha's testimony regarding where he obtained the fatal dose of heroin he consumed on April 8, 2014. Sasha's credibility, as a fact witness, can be determined at trial.
Kristyn Muller graduated from SUNY New Paltz with a degree in psychology and communication in 2010. She then graduated from SUNY Albany in 2012 with a Master's degree in educational administration and policy studies. At the time of her examination before trial on August 8, 2017, she was pursuing a doctorate from SUNY Albany.
After graduation from SUNY New Paltz, Muller worked primarily at SUNY Albany in the following capacities: Graduate Assistant for Student Life (2010); Apartment Coordinator (2011-2014); and Assistant Director of Residential Life (2015). At the time Kyle passed away, she was an Apartment Coordinator in the Residential Life Office at SUNY Albany.
As an undergraduate, Kristyn participated in a Peer Crisis Hotline group, which is a crisis intervention class. She also completed two Save-a-Life training programs given by the Counseling Center (Taub Aff., Exhibit 3). As part of the Save-a-Life training, participants learned how to assess whether a student is at risk for suicide. Kristyn testified that, if a student is in imminent danger of killing themself, the University Police would be called. If a student expressed warning signs but had not explicitly stated that they were suicidal, and they did not appear to be in imminent danger, then the student would be referred to the CARE Net Program. In the CARE Net program, a student would meet with the Residential Life Director or Associate Director to discuss the situation. Kristyn received other trainings, including: "Behind Closed Doors," an exercise where senior staff at Residential Life act out scenarios and have the employees respond. The University's Counseling Center also provides a three-hour seminar termed "Students in Crisis" (Kemp Aff., Exhibit J).
On April 8, 2014, after being briefed about Kyle's situation, Kristyn headed over to Kyle's apartment at approximately 2:00 p.m. By the time she arrived, Conner and Jenny were standing outside the apartment. Conner was on the phone with Julie when Kristyn arrived and handed the phone to Kristyn. Julie informed her that Kyle suffered from depression and was doing poorly in school. Kristyn told Julie that she would call her back if she needed further information, and that she would talk with Kyle and refer him to any resources that SUNY Albany had available. After hanging up with Julie, Kristyn spoke with Conner about the text messages he earlier received from Kyle. Conner and Jenny left, and she proceeded to speak with Kyle. They discussed the text messages he sent to Conner. Kyle stated that the text messages were misconstrued as suicidal ideation, and that he was only upset about seeing his ex-girlfriend at a party, and that is why he texted Conner that he did not want to be there. He clarified that he did not mean that he wanted to kill himself. Although Kristyn's incident report from that day (Taub Aff. Exhibit 9), states that Kyle sent the text messages while he was drunk, some of the text messages that Kristyn reviewed were sent only two hours prior to her meeting with Kyle, whom she observed as sober. She acknowledged that his text statements could indicate that Kyle was considering suicide.
Kristyn spoke with Kyle about his drinking, his relationship with his parents, and his academics. He admitted that he was doing poorly academically and he also stated that his relationship with his parents was not good. He told Kristyn that he was diagnosed with depression and was taking medication to treat it. He also admitted that he had suicidal thoughts in the past, but that he went to a psychiatrist and a medical doctor, who "took care of it" (Kemp Aff., Exhibit J, p. 65). She did not ask Kyle about illicit drug use. Kristyn testified that she asked Kyle several times throughout the conversation if he planned on killing himself or had thoughts about harming himself, and that he denied it many times (Kemp Aff. Exhibit J, p. 52). She testified that he seemed upset about the recent break-up with his ex-girlfriend and also upset that Conner called his parents. After speaking to Kyle for 40 minutes, Kristyn made the determination that Kyle was not suicidal. She explained to him that she could call the University Police Department for a further investigation but that did not seem necessary. She further explained that he would have to make an appointment with the Director or Associate Director of Residential Life to follow-up, but Kyle stated that the offices, which were located in another Quad, were too far away. She then asked him if he was willing to go to the Counseling Center, but Kyle did not think it was necessary. Kyle stated that he did not want to speak to new people but he would stay in contact with Kristyn. Kristyn told Kyle that she needed to speak with her supervisor and she would get back to him by email. Kristyn went back to her supervisor, Leandra Harris, who agreed with Kristyn that the University Police need not be called. Kristyn did not follow up with Julie because she did not need any additional information. Leandra said that she would ask Charles Rogers, the Associate Director of Residential Life, if he would meet with Kyle on Freedom Quad, where Kyle's apartment was located.
Kristyn interacted with Kyle twice in passing during the evening of April 8, 2014 after her initial interaction with him. First, while fire drills were being conducted, their paths crossed and Kyle stated that he had received a test grade and was doing better. He also asked Kristyn whether she found out if Charles Rogers could meet with Kyle on Freedom Quad. A short time later, their paths crossed again during a fire drill and Kyle asked her what the policies were regarding barbecuing at the apartment complex.
Leandra Harris graduated from SUNY Albany in 1999 with a Bachelor's degree in human biology. She also holds two Master's degrees from SUNY Albany in public health and educational administration and policy studies. At the time of her examination before trial, she was enrolled in a doctorate program at SUNY Albany. She has worked at SUNY Albany for her entire career and completed the same suicide prevention programs as Kristyn.
In April 2014, Leandra was Assistant Director for University Apartments and the direct supervisor of Kristyn. Leandra spoke to Kristyn after Kristyn's conversation with Kyle on April 8, 2014. Kristyn told her that she did not believe that Kyle was a danger to himself, and that Kyle's situation did not require an immediate response from anyone. She did not recall Kristyn speaking about text messages from Kyle, and she had no knowledge about Julie calling the office. She attempted to reach Charles Rogers on the afternoon of April 8, 2014 to see if he would meet with Kyle closer to his apartment, but Rogers was not in the office at that time. As of the date of her examination before trial, Leandra had never overruled a staff member's conclusion regarding a student.
Leandra testified that if a staff member knew that a resident made an untrue statement about not being suicidal, the University Police would be called. If a staff member believed that a person was not suicidal, then a CARE Net appointment would be scheduled. She admitted that if a resident indicated that he was suicidal two hours before a meeting with staff, such information would have been important to know as to whether the resident was at imminent risk of self harm. Leandra was also unaware that Kyle had submitted an academic dismissal appeal, wherein he stated that he suffered from depression. While all these factors would be an indicator that a person was more at risk for suicide, Leandra claimed that she would not have known them unless she had been informed by Kyle.
Leandra was also questioned extensively about the "Save-a-Life" guidelines (Taub Aff., Exhibit 5). This document has two sections on the first page. One section is entitled "When to Refer" and the other section is entitled "When to Seek Immediate Assistance". This latter section lists three bullet points, the second of which reads: "A student has threatened suicide, either verbally or in writing . . . ." The "When to Refer" section lists the risk factors that may precede a suicide attempt. The risk factors include: deteriorating academic function; loss of a close personal relationship; thinking, talking or writing about suicide; and using alcohol or drugs to cope.
In 2014, Charles Rogers was the Associate Director of Residential Life at SUNY Albany. In his position, he has taken training courses in suicide prevention, including the Save-a-Life course. He testified that if a student conveyed a suicidal ideation by text, in person, or to a parent or friend, he would have called the University Police, so that they could determine if the Capital District Psychiatric Center (CDPC) should be called. These protocols are contained within the University Apartments Staff Manual (Affidavit of Kristyn Muller, Exhibit A). The Staff Manual instructs that if a student is attempting suicide, University Police should be called immediately. Charles conceded that if a student verbalizes suicide, the University Police is better equipped to deal with the situation than the professional staff at SUNY Albany. If he had been informed about Kyle's text messages referring to harming himself, he would have called the University Police. He claimed that no one called him on April 8, 2014 regarding scheduling a CARE Net appointment with Kyle.
Laurie Garafola was the Director of Residential Life at SUNY Albany in April 2014. In that capacity, she has also participated in several suicide prevention courses. She stated that, in April 2014, a student displaying suicidal behavior would likely have been referred to meet with Charles Rogers and/or refer the student to the Counseling Center.
Defendant submitted an expert affidavit from Dr. Zvi Klopott, M.D., a duly licensed physician in New York, who specializes in psychiatry. Dr. Klopott reviewed the pleadings, the examinations before trial, and discovery material exchanged between the parties regarding how to handle situations when a student is in crisis. He concluded, within a reasonable degree of medical certainty, that Kyle's death was accidental due to his predilection to use multiple drugs. His conclusion was supported by three premises. First, Kyle did not suffer from depression until his junior year in college. Second, Kristyn Muller conducted an appropriate and thorough interview of Kyle consistent with her training and the guidelines established by SUNY Albany and it was not unreasonable for her to conclude that Kyle was not a danger to himself. Lastly, Kyle's friends testified that his behavior on April 8, 2014 was consistent with his prior behavior of polydrug use. Dr. Klopott further stated that a diagnosis of depression does not necessarily mean that a person is suicidal or inclined to become suicidal, and that student deaths due to accidental drug overdoses are not uncommon on college campuses. He opined, to a medical degree of certainty, that Kyle's death was due to an accidental drug overdose.
Claimant's expert, Dr. Alan L. Berman, Ph.D., was the Executive Director of the American Association of Suicidology for 20 years before retiring in June 2014. He is now an adjunct professor of psychiatry and behavioral sciences at the Johns Hopkins University School of Medicine. He has 47 years of experience in the study of suicide and has extensive experience conducting retrospective death investigations, including serving as a suicidology expert in the Office of Independent Counsel's investigation of the death of White House Deputy Counsel Vincent Foster, Jr. He also maintained a private outpatient practice of psychotherapy from 1970 to 2010. Dr. Berman averred that he spent 31.5 hours reviewing this case for claimants. He offered several conclusions in liability and causation.
First, Dr. Berman opined, within a reasonable degree of scientific, psychological and professional certainty, that the cause of Kyle's death was not an "accident" as listed on his death certificate and that Kyle's cause of death should have been deemed undetermined. Dr. Berman further avers that Kyle's death was proximately caused by the negligence of defendant and its employees. Berman further reasoned that although Kyle used multiple drugs, he was not a prior user of heroin, and thus Kyle exhibited a reckless disregard for his life by deviating that day from his normal drug use. This action, along with his multiple statements regarding suicidal intent, create a strong causal connection between his intent to commit suicide and his death.
Dr. Berman opined, within a reasonable degree of scientific, psychological and professional certainty, that Kristyn breached a duty owed to Kyle in four ways. First, Kristyn did not follow SUNY Albany's policies and procedures relevant to a student in crisis. Second, Kristyn failed to adequately assess Kyle's risk for suicide. Third, Kristyn failed to interview collateral sources, namely Jenny, Conner, and Kyle's parents, about Kyle's substance abuse and risk for suicide. Fourth, Kristyn failed to have the requisite skill, training and knowledge to adequately assess Kyle's mental health and suicide risk.
Further, Dr. Berman opined, within a reasonable degree of scientific certainty, that Leandra Harris lacked the requisite skill, training and knowledge to adequately supervise Kristyn according to SUNY Albany's policies and procedures, and to adequately assess Kristyn's formulation of Kyle's risk for suicide. Dr. Berman found that the brief phone call that Leandra had with Kristyn on April 8, 2014, was insufficient time to properly analyze Kyle's situation. According to Dr. Berman, Leandra did not make a reflective and independent judgment call and simply affirmed Kristyn's assessment, which was inadequate in the first instance.
Finally, Dr. Berman opined that SUNY Albany breached its duty of care owed to Kyle by inadequately ensuring that its staff achieved the requisite skill, training and knowledge to adequately and reasonably assess Kyle's risk for suicide.
LAW AND DISCUSSION
Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The Court's function on a motion for summary judgment is not to resolve issues of fact, but to determine whether issues of fact exist (see Barr v County of Albany, 50 NY2d 247, 254 [1980]). The proponent of a motion for summary judgment must establish a prima facie entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the proponent of a motion for summary judgment has set forth such a prima facie entitlement to judgment as a matter of law, the burden shifts to the opponent of the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (id.; Winegrad New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In determining a motion for summary judgment, the Court must examine the proof in the light most favorable to the party opposing the motion, here the claimants (Robinson v Strong Mem. Hosp., 98 AD2d 976, 976 [4th Dept. 1983]). A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions (CPLR 3212 [b]). Once the proponent of a motion for summary judgment has set forth such a prima facie entitlement to judgment as a matter of law, the burden shifts to the opponent of the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 NY2d at 324). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853). The Court's burden is not to resolve issues of fact or determine matters of credibility but merely to determine whether an issue of fact exists (Daliendo v Johnson, 147 AD2d 312, 317 [2d Dept. 1989]). In determining a motion for summary judgment, the Court must examine the proof in the light most favorable to the party opposing the motion (Robinson v Strong Mem. Hosp., 98 AD2d 976, 976 [4th Dept. 1983]). While an expert's affidavit may be submitted in a summary judgment motion, the opinion may be disregarded where the opinion lacks foundation or is purely conclusory (Cummo v Children's Hosp. of N.Y., 113 AD3d 405 [1st Dept. 2014]).
Governmental Immunity
Before the Court reaches the question of whether material issues of fact exist as to claimants' negligence cause of action, the Court must determine whether defendant " 'was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose' " (Tara N.P. v Western Suffolk Bd. of Coop. Educ. Servs., 28 NY3d 709, 713 [2017], quoting Applewhite v Accuhealth, Inc., 21 NY3d 420, 425 [2013]). In that regard, the Court of Appeals has recognized that "[a] governmental entity's conduct may fall along a continuum of responsibility to individuals and society deriving from its government and proprietary functions" (Miller v State of New York, 62 NY2d 506, 511-512 [1984]). At one end of the continuum are purely governmental functions, which are " 'undertaken for the protection and safety of the public pursuant to the general police powers' " (Sebastian v State of New York, 93 NY2d 790, 793 [1999], quoting Balsam v Delma Eng'g Corp., 90 NY2d 966, 968 [1997] [additional citations omitted]). On the other end of the continuum are "proprietary functions in which governmental activities essentially substitute for or supplement 'traditionally private enterprises' " (id., quoting Riss v City of New York, 22 NY2d 579, 581 [1968]; see also Drever v State of New York, 134 AD3d 19, 22 [2015]). The State is generally immune from negligence claims arising from activities that are purely governmental functions, absent a special relationship between the State and the injured party (see Drever v State of New York, supra at 21). In contrast, the State is subject to suit under ordinary negligence principles applicable to non-governmental entities where the conduct at issue constitutes a proprietary function (id. at 22).
"The varying nature of civic activities engaged in by the State may sometimes partake of both proprietary and governmental aspects" (Sebastian v State of New York, supra at 793). Thus, to categorize an act along the aforesaid continuum, the Court must carefully "examine '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' " (id. at 794, quoting Miller v State of New York, 62 NY2d at 513 [internal quotation marks and additional citations omitted]). In Applewhite v Accuhealth, Inc., 21 NY3d 420, 428 [2010], the Court of Appeals advised that "the test cannot be whether the same thing is done by private entities, but rather whether, in providing such services, the governmental entity is exercising the powers and duties of government conferred by law for the general well-being of its citizens" (Applewhite, supra, quoting Edwards v City of Portsmouth, 237 Va 167, 171-172 [1989]).
Here, the Court is presented with acts committed by SUNY Albany's Office of Residential Life employees. Guided by the principles set forth above, the Court looks to the specific alleged acts by Kristyn and Leandra regarding their responsibilities to Kyle from which this action arises.
Both claimant and defendant do not present arguments as to whether the allegedly negligent acts that are the subject of this claim are governmental or proprietary. Both parties analogize Kristyn and Leandra's actions to municipalities exercising police powers, which are purely governmental functions (Sebastian v State of New York, 93 NY2d at 793). The Court disagrees with both parties' positions and finds that a more careful analysis is needed as to where these acts fall on SUNY Albany's "continuum of responsibility" (Miller v State of New York, 62 NY2d at 511-512).
While it is well-settled that the performance of duties as a police officer or an emergency medical technician are governmental functions (see Applewhite v Accuhealth, Inc., 21 NY3d at 134), the provision of "psychiatric care and attendant services" by the State, a genre similar to counseling, has been held to be proprietary (Sebastian v New York, 93 NY2d at 795, citing Schrempf v State of New York, 66 NY2d 289, 294 [1985]). Both Kristyn and Leandra's function and the function of the entire Office of Residential Life, were not part of the powers and duties of a government for the general well-being of all New York citizens, like the EMT unit in Applewhite, but rather a typical private function for its students, a closed group. In both Kristyn and Leandra's capacities as employees of the Office of Residential Life, they were acting for an even smaller subset of students--only those who reside on campus (see Gani v State of New York, 44 Misc 3d 740, 754 [Ct Cl 2014] [finding SUNY Albany's acts proprietary where employees assisted a student in completing immigration paperwork, noting that defendant's acts "were [not] any different from those of comparable employees at non-public universities"]). And once they undertook a duty to help Kyle, they were administering care to an individual and evaluating him for counseling services, which the Court finds is comparable to psychiatric treatment (see Kowal v Deer Park Fire Dist., 13 AD3d 489, 491 [2d Dept. 2004] [finding that the treatment of a patient was proprietary in nature]).
The cases cited by defendant in support of its argument that it is entitled to governmental immunity are clearly distinguishable. Defendant characterizes the actions of Kristyn as a "welfare check" and states that such act is clearly within defendant's police power. The case cited in support of defendant's position, People v Ormanian, 55 Misc 3d 566, 572 (City Ct, City of Gloversville, Fulton County 2016) holds that the welfare check of a young girl who is the subject of a mental health complaint is an "official function" of police. However, the University Police were not called upon to assess Kyle and Kristyn is not a police officer, nor was she trained as one. The other cases cited in support of defendant's argument, Matter of Erica II. v Jorge JJ., 165 AD3d 1390 (3d Dept. 2018) and Riordan v State of New York, UID No. 2017-015-275 (Ct Cl, Collins, J., Nov. 15, 2017), involve welfare checks conducted by police but do not engage in any substantive analysis as to what a welfare check is or whether a welfare check is presumptively governmental. Therefore, the Court cannot conclude, as defendant argues, that the acts in the cases mentioned are comparable to the alleged acts that are the subject of this claim. The Court finds that the acts complained of are proprietary in nature.
Having found that defendant's actions were proprietary in nature, the Court does not need to determine whether defendant had a special relationship with Kyle or his parents. Rather, ordinary negligence principles apply (see Drever v State of New York, supra at 21).
Duty and Breach
A critical question in determining duty is whether defendant's relationship with Kyle or his parents placed defendant "in the best position to protect against the risk of harm" (Fitzsimons v Brennan, 169 AD3d 873, 874 [2d Dept. 2019], citing Davis v South Nassau Communities Hosp., 26 NY3d 563, 572 [2015]). To that end, " 'one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully' " (Fitzsimons, supra, quoting Moch Co. v Rensselaer Water Co., 242 NY 160, 167 [1928] [internal quotation marks omitted]). Here, through the actions of its employees, defendant assumed to act when it undertook the responsibility to respond to Dean Webb's call regarding Kyle's behavior. Defendant received the call and dispatched an employee, Kristyn, to check on Kyle. Kristyn then assessed Kyle's situation and made a determination that he should be referred to a CARE Net appointment. Kristyn then relayed her determination to Leandra, who approved Kristyn's assessment of her situation. By undertaking this responsibility, defendant's employees assumed a duty to act with due care in counseling Kyle.
Defendant's reliance upon Pasquaretto v Long Is. Univ., 106 AD3d 794 [2d Dept. 2013] for the proposition that in loco parentis does not apply here is misplaced. While that case notes that " 'New York has affirmatively rejected the doctrine of in loco parentis at the college level and colleges in general have no legal duty to shield their students from the dangerous activities of other students' " (Pasquaretto, supra at 795, quoting Luina v Katharine Gibbs School N.Y., Inc., 37 AD3d 555, 556 [2d Dept. 2007] [internal quotation marks and additional citation omitted]), the Pasquaretto court noted that a duty may be imposed upon a college where it has encouraged students to participate in an activity and taken affirmative steps to supervise and control the activity (Pasquaretto, supra at 796, citing Hores v Sargent, 230 AD2d 712, 712 [2d Dept. 1996]). In the instant action, SUNY Albany through its employees, encouraged Kyle to go to counseling and represented to him that an appointment for said service would be made. Wells v Bard Coll., 184 AD2d 304 (1st Dept. 1992) also does not support defendant's position. In Wells, plaintiffs' decedent died in his dorm room after a brief illness, but plaintiffs did not produce any evidence that the college had notice of the seriousness of the decedent's illness (Wells, supra at 304). Here, defendant received notice of Kyle's situation from the call from Dean Webb, and from Kyle himself when Kristyn assessed him.
The next question the Court must answer is whether material issues of fact remain as to defendant's breach of the duty owed to Kyle and his parents. Here, the Court finds that material issues of fact remain. Although defendant argues that said duty was not breached and that Kristyn acted reasonable under the circumstances, claimant has set forth sufficient proof to raise an issue of fact as to defendant's breach. Kristyn admitted in her testimony that she did not carefully verify Kyle's text messages to Conner and the timing thereof, and therefore may not have obtained all the information necessary to make a determination as to what help Kyle needed. Moreover, the affidavit of Dr. Berman suggests that both Kristyn and Leandra's assessments of Kyle were flawed. Additionally, questions of fact remain as whether the "Save-A-Life" training was properly followed.
Proximate Causation
Defendant proffered the affirmation of Dr. Zvi Klopott, a licensed psychiatrist in New York, for the opinion that defendant's actions did not cause Kyle's death. Without much explanation, Dr. Klopott concluded that Kyle's death was accidental. In support of this conclusion and without discussion, he opined that Kristyn conducted an appropriate interview with Kyle. Dr. Klopott does not explain why he believes both Kristyn's and Leandra's training was sufficient or why Kristyn's assessment of Kyle was sufficient. Moreover, he does not explain why someone newly depressed is less likely to commit suicide than a person who is depressed for a longer period of time. The Court considers this affirmation conclusory and insufficient to support summary judgment. Moreover, claimant proffered the affidavit of Dr. Berman, which directly contradicts Dr. Klopott's assessment of the true cause of Kyle's death.
The Court recognizes that proximate cause will be a difficult burden in this case. Thorough examinations of the expert witnesses would be instructive to the Court on this issue. There are also outstanding factual issues to be resolved regarding proximate cause with regard to Kyle's prior heroin use, where he obtained the fatal dose and for what purpose, in addition to differing versions of what transpired the night that Kyle died. For these reasons, the Court must deny defendant's motion.
Based on the foregoing, it is hereby
ORDERED that defendant's motion for summary judgment (M-93070) is DENIED. The parties are directed to appear for a telephone conference to set a trial date on Monday, September 30, 2019 at 10:00 a.m.
July 15, 2019
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion for Summary Judgment, dated November 2, 2018; Affirmation in Support of Motion for Summary Judgment, affirmed by Douglas R. Kemp, AAG on November 2, 2018, with Exhibits A through P annexed thereto; and Memorandum of Law in Support of Motion for Summary Judgment, dated November 2, 2018. 2. Affirmation in Support of Motion for Summary Judgment, affirmed by Zvi Klopott, M.D. on October 24, 2018, with Exhibit 1 annexed thereto. 3. Affidavit in Support, sworn to by Kristyn Muller on October 25, 2018, with Exhibits A through B annexed thereto. 4. Affidavit in Support, sworn to by Leandra Harris on October 23, 2018. 5. Affirmation in Opposition to Defendant's Motion for Summary Judgment, affirmed by Ari L. Taub, Esq. on December 12, 2018, with Exhibits 1 through 13 annexed thereto; and Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, dated December 12, 2018. 6. Affidavit of Alan L. Berman, Ph.D., sworn to on November 16, 2018, with Exhibit A annexed thereto.