Sharen Branch,, Appellant,v.County of Sullivan, Respondent.BriefN.Y.May 7, 2015To be argued by: Michael H. Sussman, Esq. Time Requested: 20 minutes Court of Appeals Case No.: APL-2014-00143 ~tate of j}}etu !lork C!Court of ~ppeals SHAREN BRANCH, As Administratrix of the Estate of ROBERT BASTIAN, Deceased, Plaintiff-Appellant, -against- COUNTY OF SULLIVAN, Defendant-Respondent. APPELLANT'S BRIEF Michael H. Sussman, Esq. SUSSMAN AND WATKINS Attorneys for Plaintiff-Appellant P.O. Box 1005 1 Railroad A venue, Ste. 3 Goshen, New York 10924 (845) 294-3991 [Tel.] (845) 294-1623 [Fax] Appellate Division Case No.: 516550 Sullivan County Clerk's Index No.: 0025/09 TABLE OF CONTENTS TABLE OF AUTHORITIES........................................................... 11 PRELIMINARY STATEMENT...................................................... 1 QUESTIONS PRESENTED............................................................ 3 STATEMENT OF JURISDICTION ................................................... 4 STATEMENTOFFACTS .............................................................. 4 PROCEDURAL HISTORY AND DECISIONBELOW ........................... 7 STANDARD OF REVIEW ............................................................ 9 ARGUMENT ............................................................................. 10 POINT I SCCC IS AN INSTRUMENTALITY OF THE COUNTY AND, THUS, AS SCCC'S ALTER EGO, THE COUNTY IS ANSWERABLE FOR CLAIMS OF NEGLIGENCE AT THE COLLEGE............................................. 11 POINT II SCCC'S APPOINTED TRUSTEES ARE "OFFICERS, AGENTS, SERVANTS [OR] EMPLOYEES" OF THE COUNTY FOR PURPOSES OF NEW YORK STATE COUNTY LAW, SUCH THAT THE COUNTY IS DIRECTLY LIABLE FOR SUCH TRUSTEES' NEGLIGENT ACTS.......... 29 POINT III THE COUNTY'S ULTRA VIRES TRANSFER TO THE DORMITORY AUTHORITY OF THE REAL PROPERTY UPON WHICH MR. BASTIAN EXPIRED SITS IS VOID AB INITIO AND THE COUNTY, AS LANDOWNER OF THAT PROPERTY AND THE SURROUNDING CAMPUS, DIRECTLY OWED MR. BASTIAN A DUTY TO KEEP ITS PREMISES IN A REASONABLY SAFE CONDITION........................... 33 CONCLUSION ........................................................................... 45 TABLE OF AUTHORITIES Cases Amato v. State of New York, 131 Misc.2d 1049 (N.Y. Ct.Cl. 1986)..... ........ .. .... .. . . . .. ....... .. . ...... 13 Aurora Loan Services, LLC v. Scheller, No. 2009-22839,2014 WL 2134576 (Sup. Ct. Suffolk Cnty. May 22, 2014).. ....... ........ .. . ... .. . .. . . ..... ... .... 36 Backiel v. Citibank, 299 A.D.2d 504 (2d Dep't. 2002)............................................ ... 37 Belenky v. Nassau Community College, 4 A.D.3d 422 (2d Dep't. 2004).... ... .. ............ ..... ... .. . ........ .. . . ... .... 24 Bernhard v. Dutchess Community CoiL, No. 80-Civ.-4871, 1982 WL 193 (S.D.N.Y. Feb. 19, 1982) .................. 13 Bowen v. City University ofNew York, 294 A.D.2d 322 (2d Dep't. 2002)............................................................... 38 Breen v. Mortgage Commission, 285 N.Y. 425 (1941) ...................................................... 18, 19,21 Brown v. North Country Community Coli., 63 Misc.2d 442 (Sup. Ct. Essex County. Jun. 17, 1970).................... ... 13 Butterfield v. Schenectady County Community College, 131 A.D.2d963 (3dDep't. 1987) ....................................................... 24 Cody v. County of Nassau, 577 F.Supp.2d 623 (E.D.N.Y. 2008)... .. .. . .. .......... ........ ... . .. ..... ...... 24 County of Westchester v. Bd. of Trustees of State Univ. of New York, 9 N.Y.3d 833 (2007)........................................................ ... 27,28 Easley v. New York State Thruway Authority, 1 N.Y.2d 374 (1956).................................................. .... 17, 18, 21 II Feingold v. Hankin, 269 F.Supp.2d 268 (S.D.N.Y. 2003). .... ........... .. . . ... . . . .. . ........ .... 13, 14 Foster Wheeler Broome County Inc. v. County of Broome, 275 A.D.2d 592 (3d Dep't. 2000)............................................ .... 20 Grimm v. County of Rensselaer, 4N.Y.2d416(1958) ........................................................... 26,27 Horacek-Hayden, Inc. v. County of Monroe, 65 Misc.2d 196 (Sup.Ct. Monroe Co. Dec. 14, 1970)........... ...... .. .. 13, 14 Kirsch v. Tozier, 98 Sickels 390 (1894).......................................................... ... 36 Kuznetz v. County of Nassau, 229A.D.2d476(2dDep't.1996) ................................................ 31 Macaluso v. City of New York, 174 Misc.2d 128 (Sup. Ct. Queens Co. Aug. 13, 1997).......... ...... .. .... .. 13 Matter of Estate of Ott, 86 A.D.3d 943 (4th Dep't. 2011).... ..... .. .... ............ ........ ............. 35 Matter of Shields v. Dinga, 222 A.D.2d 816 (3d Dep't. 1995).................................... 19, 20, 21,22 Mead v. Nassau Community College, 126 Misc.2d 823 (Sup.Ct. Nassau Cnty. Jan. 4, 1985) ........................ 38 Meyer v. Weiss, 25 A.D.2d 174 (3dDep't. 1966) ............................................. 17,23 Miglino v. Bally Total Fitness of Greater New York, ---N.E.---, 2013 WL 451410 (2013).... ...... . ............. ... .... . . . ........... 43 Miller v. State of New York, 62 N.Y.2d 506 (1984).... ...... .. .. .. ...... .. .......... ............ ...... 37, 38, 42 Ill Noble v. Pound, 5 A.D.3d 936 (3d Dep't.2004).. .. .......... ... .. ... ... ... . .. ............... ..... 38 People v. Wendel, 116 Misc.2d 91 (Nassau Cnty.Ct. 1982)....................................... 31 Raffone v. Town ofislip, 85 A.D.2d 597, 598 (2d Dep't. 1981).......................................... 20 Rose Ocko Founation, Inc. v. Lebovits, 259 A.D.2d 685 (2d Dep't. 1999)... .. ...... ....... .. ......... ..... ... . . . . .. 35,36 Ryan v. Trustees of Columbia Univ. in City of New York, Inc., 96 A.D.3d 551 (1st Dep't. 2012) ................................................ 37 Santandrea v. Bd. of Trustees of Hudson Valley Community College, 70 A.D.3d 1238 (3d Dep't. 2010).. ... .. . ..... .. . ........... ........ .. ... . ....... 24 Solar Line, Universal Great Brotherhood, Inc. v. Prado, 100 A.D.3d 862 (2d Dep't. 2012) ............................................ 35,36 Stearns v. Mariani, 294 A.D.2d 808 (4th Dep't 2002).. ...... ....... .. . .. .. ... . . . ........... .. . ..... 22 Tiano v. Lane, 260 A.D.2d 908 (3d Dep't 1999)............................................ .... 10 Vega v. Restani Const. Corp., 18 N.Y.3d 499 (2012)...................................................... 9, 10,38 Zuckerman v. City ofNew York, 49 N.Y.2d 557 (1980)........ .. ... .. .. . . ...................................................... 10 Statutes N.Y. CPLR 3212(b) ........................................................................ 9 N.Y. CPLR § 5601 ......................................................................... 4 N.Y. CPLR § 5602(a)(l).. ... . . .. . . ......... ............ ... . . . . . . ................ ......... 4 iv N.Y. County Law§ 53................................................................... 30 N.Y. Crim. P. L. § 2.20(1).. .. . ...... ..... .. . . .. ... . ... . .. .. . . . . . .. .. . .. . . .. . . .... .. ... . .. 32 N.Y. Educ. L. § 917 .................................................................... 6, 39 N.Y. Educ. L. § 6301.................................................................. 16,21 N.Y. Educ. L. § 6301(2) ........................................................ 14, 15, 16 N.Y. Educ. L. § 6301(3) .............................................................. 15, 16 N.Y. Educ. L. § 6302(1)..... ......... .... ...... .. .. ..... ..... ...... .... ... ... . . .. . .. 4, 16 N.Y. Educ. L. § 6302( 4)............................................................. .. . . . 17 N.Y. Educ. L. § 6304(l)(c).......................................................... 16,21 N.Y. Educ. L. § 6305(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. ... 17 N.Y. Educ. L. § 6306(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 5, 16, 17, 22 N.Y. Educ. L. § 6306(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 22 N.Y. Educ. L. § 6306(4)................................................ 4, 17,23,34,37 N.Y. Educ. L. § 6306(3-a)............................................................... 16 N.Y. Educ. L. § 6306(5-a)............................................................... 32 N.Y. Educ. L. § 6306(7)........................................................... ... 17,23 N.Y. Educ. L. § 6308...... .. .. . .. .. . . .......... .. ... ..... ........... .......... .. . .. . ... .. 17 N.Y. Gen. Bus. L. § 627-a........................................................... .. 6, 39 N.Y. Gen. Mun. L. § 52(5).......................................................... ..... 30 N.Y. Not-for-Profit Corp. L. §51 0................................................. .. . . . 36 v N.Y. Not-for-Profit Corp. L. § 511...................................................... 36 N.Y. Pub. Auth. L. § 2047-e[3]... ... .. . .. .. ....... ........... ........ .. . . . . ..... ....... 21 N.Y. Pub. B1dgs. L. § 140......... ... . . ...... ............ ..... .. . ... . ... .. . ...... ....... 41 N.Y. Pub. Health L. § 225(5-b)...... ..... ... . . . . . . . . ..... ....... ..... .. .. . .. . ...... ... . 42 N.Y. Pub. Health L. § 225(5-c)... .... ........... .. .. .......... ..... ..... ........ ....... 42 N.Y. Pub. Health L. § 3000-a......... .. . .. .. . . . .. .. .............. ......... .. . . ..... ..... 41 N.Y. Pub. Health L. § 3000-b....................................................... ... . . 41 N.Y. Pub. Off. L. § 2...................................................................... 32 N.Y. Soil & Water Conservation Dist. L § 9(9)..... ...... .. . . . ......... .. . .. .... .... 21 New York State Constitution N.Y. Canst. ati. VIII§ 2........ .. .. .. ...... .. ..... ... ...... .. .. ... ... .. . . .. .. .. .. .. . ... . . 26 Regulations 8 N.Y.C.R.R. § 602.4(e)(9).. .. . . .. . .. . . .. ..... .. .. .. ...... ......... ... .. ... . .. . ... ....... 44 8 N.Y.C.R.R. § 603.5(d).... ........ .. . . . . .. . ...... ... . . ... . ... . ...... .... .... ..... .. 35,37 9 N.Y.C.R.R. Part 303 .................................................................... 41 Other Authorities 1982 N.Y. Op. Atty. Gen. (Inf.) 107 (Mar. 15, 1982) ............................ 31,32 Sullivan County Administrative Code§ A2-9(A)(2)............................ ..... 25 Sullivan County Administrative Code§ A5-8..... ....... .. ....... ... . ...... ..... .. . . . .. 4 Sullivan County Administrative Code§ A5-9 ................................... 4, 5, 25 VI Sullivan County Administrative Code§ A7-2....... ... ... .. ...... ..... ........ .. .. ... 25 Sullivan County Administrative Code§ A7-2(F). ...... ........ ........ .. . .. . ......... 25 vii PRELIMINARY STATEMENT In this wrongful death action, Plaintiff-Appellant SHAREN BRANCH, as Administratrix of the Estate of ROBERT BASTIAN, claims that Defendant- Respondent COUNTY OF SULLIVAN (the "County"), the local sponsor of Sullivan County Community College ("SCCC" or the "College"), is liable in negligence for the untimely death of her seventeen year old son, Robert Bastian, an SCCC student, due to the absence of an on-site automated external defibrillator ("AED"), AED-trained personnel and an adequate emergency response when, while in his dorm room, Mr. Bastian, suffered a sudden cardiac arrest. Appellate Division, Third Department erred when it affirmed Supreme Court's grant of summary judgment to the County on the grounds that the County could not be held liable for the allegedly negligent acts of the College's Board of Trustees or for alleged unsafe conditions at the dormitory. But the Appellate Division's reasoning was flawed and reversal is wan·anted for at least three independent reasons- i.e., the three critical legal issues presently before this Court upon which this case tums. First, the statutory scheme governing the establishment and administration of community colleges in New York, which does not expressly define the juridical identity of a community college or explicitly vest such institution with the right to sue or be sued, supports the conclusion that SCCC is an instnunentality [or arm] of I the County and has no independent juridical existence and, thus, the County is the real party in interest against whom suit may properly be brought. Second, regardless of the juridical identity of the College, its appointed trustees are "officers, agents, servants [or] employees" of the County for purposes of Section 53 of New York State County Law, such that the County may be held directly liable for their negligent acts. Third, and finally, the County's ultra vires transfer to the Sullivan County Community College Dormitory Authority (the "Dormitory Authority") of the real property upon which the dormitory where Mr. Bastian expired sits is void ab initio and the County, as landowner of that property and the smTounding campus, directly owed Mr. Bastian a duty to keep its premises in a reasonably safe condition. We respectfully submit that Appellate Division incorrectly decided the first of these issues, ignored entirely the second and improperly evaluated and wrongly decided the third. And, since these issues are mutually exclusive, a decision in Ms. Branch's favor on any one of them warrants reversal of Appellate Division's Order. Accordingly, the Orders below granting and affirming summary judgment should be reversed and vacated and the matter remanded for trial. 2 QUESTIONS PRESENTED (!)Whether, under Article 126 ofNew York State Education Law, when a county sponsors a community college, the college has an independent juridical existence or, instead, is a department or instrumentality of the local sponsor- county such that an action involving the community college may be brought against the local sponsor-county directly as the real party in interest. This question is preserved for review by this Court as Ms. Branch raised and argued the same in the Appellate Division. See Brief for Plaintiff-Appellant, filed in Appellate Division, Third Department ("App. Br.") at 7-13. (2) Whether the appointed non-student Trustees of a county-sponsored community college are "officers, agents, servants [or] employees" of the local sponsor-county whose negligent acts may be imputed to the county under Section 53 of New York State County Law such that the local sponsor-county may be held directly liable for such trustees' negligent acts. This question is preserved for review by this Court as Ms. Branch raised and argued the same in the Appellate Division. See App. Br. at 13-15. (3) Whether a local sponsor-county, which is statutorily required to own and hold in trust all real property used for community college purposes, may alienate and convey title to such real property to a third-party, which continues to use such property for community college purposes, thereby absolving it of any liability as legal owner of the premises or, instead, if such transfer is ultra vires and, thus, void, and, in any event, the county's duty as statutory landowner non-delegable. This question is preserved for review by this Court as Ms. Branch raised and argued the same in the Appellate Division. See App. Br. at 15-23. 3 STATEMENT OF JURISDICTION This Honorable Court has jurisdiction to hear this appeal because the matter originated in Supreme Court and Appellate Division's Order affirming summary judgment to the County on the merits, which Order is not appealable as of right under CPLR § 560 I, resulted in a complete dismissal of Ms. Branch's complaint and, thus, constitutes a final determination. See N.Y. CPLR § 5602(a)(l ). By Order dated June 12, 2014, this Com1 granted appellant's petition and agreed to hear this appeal. STATEMENT OF FACTS Pursuant to the provisions of Article 126 of New York State Education Law, the County has "established and operate[s]" the College, which is located within the boundaries of the County. See Sullivan County Administrative Code ("S.C. Code") §§ A5-8 and A5-9; N.Y. Educ. L. § 6302(1 ). In 1965, through a series of transactions, the County acquired real property for purposes of siting the College (R- 149-73). Under New York State Education Law, the County owns all real property acquired for use by the community college "in trust for the uses and purposes of the community college." See N.Y. Educ. L. § 6306(4). The deeds conveying the prope11y to the County explicitly set fm1h this statutory mandate. (R-155; R-161; R- 164; R-172). A ten-member Board of Trustees administers the community college. The County Legislature appoints a majority [five] of the Board's voting members and 4 the Governor appoints four voting members from those residing within the surrounding community. See N.Y. Educ. L. § 6306(1); S.C. Code§ AS-9. The tenth trustee is a non-voting student, elected by the students enrolled in the community college. See N.Y. Educ. L. § 6306(1 ). In 1998, the County purported to transfer to the Dormitory Authority certain parcels of property, originally deeded to it in 1966 as part of the grant of property intended and, in fact, used as the site of the College (R-175-92). These parcels remain upon and within the general College campus (see R-178 [indicating that the property transferred to the Donnitory Authority consisted of "a portion of the premises described in" two of the deeds originally transferring property to the County to be used, and held in trust, for community college purposes]) and are used exclusively to house students of the College. The County has not provided any Resolution from the College Board of Trustees or from the State University Trustees declaring that these parcels are no longer useful or required for community college purposes. In 2007, Robett Bastian was a student at SCCC, residing in one of the College's dormitories (R-342). On November 8, 2007, while in his dormitory room on the SCCC campus, Mr. Bastian, only 17 years old, suffered a sudden cardiac arrest (R-81; R-83-86; R-342). He was overcome at 1 :51 AM and, about one minute later, a bystander began performing CPR; others called 911 and retrieved a security 5 guard (R-343) who arrived at approximately 1:58AM and took over CPR (ld.). Mr. Bastian lost his pulse at approximately 2:03 AM and emergency responders atTived at his side at about 2:14AM (I d.). Paramedics could not successfully resuscitate Mr. Bastian; they transported him to the hospital, where he was pronounced dead at 3:08 AM (Id.). At the time of Mr. Bastian's death, there were no AEDs available at his dormitory or in any other building on SCCC's campus; indeed none was available on campus until February 2008, five months after Mr. Bastian's death (R-329-35). In 2002, five years prior to Mr. Bastian's untimely death, the State enacted Section 917 of the New York State Education Law, requiring all schools districts, BOCES, county vocational education and extension boards, and chat1er schools to maintain in each instructional facility at least one functional AED and to provide at least one staff person trained in the use of AEDs (R-313-16). See N.Y. Educ. L. § 917. Similarly, in 2005, the State enacted Section 627-a of the General Business Law, which imposes an almost identical requirement governing health clubs. See N.Y. Gen. Bus. L. § 627-a. According to Robert J. Myerberg, M.D., who submitted an expert repot1 on behalf of plaintiff-appellant (R-33 8-45), before the development and proliferation of "emergency rescue systems," - i.e., rapid response deployment of CPR and defibrillation in cardiac emergencies - "out-of-hospital cardiac arrest was almost 6 uniformly fatal." (R-341 ). Studies have shown that the availability and rapid deployment of an AED in a cardiac emergency can drastically improve survival rates (Id.). In Dr. Myerberg's expert opinion, based on, inter alia, the response timing and autopsy report in this case, "[h]ad an AED been available on campus ... the probability of [Mr. Bastian's] survival free of neurological damage would have been 90% or greater" and "[h]ad he survived free of neurological damage, his life expectancy ... would have been an additional 40-50 years" (R-344). PROCEDURAL HISTORY AND DECISION BELOW A. Procedural History. Mr. Bastian died in his dorm room at SCCC on November 8, 2007. On December 31, 2007, Ms. Branch timely served a Notice of Claim upon the County, which Notice was received by the County Attorney's office on January 2, 2008 (R- 1 7 -18). Ms. Branch filed her complaint in Supreme Court, Sullivan County on January 5, 2009 and served the same with summons upon the County on January 14, 2009 (R-20-26). The County joined issue by serving its Answer on February 3, 2009 (R-27-31 ). Discovery ensued and, on November 23,2011, the County filed a motion for summary judgment, seeking an Order pursuant to CPLR 3212 dismissing Ms. Branch's complaint (R-32-33). By Decision and Order dated April 16, 2012, Supreme Court, County of Sullivan granted summary judgment to the County and dismissed Ms. Branch's 7 Complaint (R-11-16). On June 8, 2012, Ms. Branch timely filed her Notice of Appeal from Supreme Court's Order (R-9). By Memorandum and Order dated December 12, 2013, Appellate Division, Third Department affirmed Supreme Court's Order granting summary judgment to the County (R-3-8). On January 22, 2014, Ms. Branch timely made a motion in the Appellate Division, Third Department for leave to reargue or, in the alternative, for leave to appeal to the Court of Appeals. On March 6, 2014, Appellate Division issued its Memorandum and Order on Motion denying Ms. Branch's motions. On April 21, 2014, Ms. Branch timely filed a motion with the Court of Appeals for leave to appeal from Appellate Division's December 12, 2013 Memorandum and Order. On June 12, 2014, the Court of Appeals granted Ms. Branch's motion (R-1-2). B. Decision Below Appellate Division, Third Department affirn1ed Supreme Court's grant of summary judgment to the County on the ground that the County did not owe a duty to Mr. Bastian. In so holding, the Court first rejected Ms. Branch's argument that the College is an instrumentality or depatiment of the County such that the County owed Mr. Bastian a duty of care, holding that (1) although the County, as local sponsor has "fiscal oversight of SCCC as its local sponsor ... it is the board of trustees ... that is responsible for the [College's] day-to-day management"; (2) 8 "[B]y statute, the board of trustees has care, custody, control and management of the lands, grounds, buildings, facilities and equipment used for the purposes of the college"; and (3) "beyond its role as sponsor and contributor of a pmiion ofSCCC's operating budget, [the County] does not have input into the board's allocation of resources and has no role in the day-to-day operation and management of the school" (R-4 [quotations and citations omitted]). The Third Department also held that the County could not be held liable on a theory of premises liability because it does not own the building where Mr. Bastian suffered his hem1 attack and died, reasoning that "in the absence of ownership, occupancy, control or special use of the prope11y by defendant, it did not owe decedent a duty" (I d. [quotations and citations omitted]). STANDARD OF REVIEW This matter comes before this court on a decision granting the County summary judgment. Summary judgment is a "drastic remedy," see Vega v. Restani Const. Corp., 18 N.Y.3d 499,503 (2012), which should be granted only if"upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the com1 as a matter of law in directing judgment in favor of any party." N.Y. CPLR 3212(b); see also, Vega, 18 N.Y.3d at 503. In deciding a motion for summary judgment, the court must construe all facts "in the light most favorable to the non-moving party." See Vega, 18 N.Y.3d at 503 (internal quotations 9 and citations omitted). The court's function is to determine whether any genuine issues of material fact exist; it must not resolve such issues by making factual findings or credibility determinations. See Id. at 505. The moving party bears the initial burden of demonstrating the absence of any material issues of fact and its consequent entitlement to judgment as a matter oflaw. See Id. If it fails to do so, "the motion must be denied, regardless of the sufficiency of the opposing papers." See Tiano v. Lane, 260 A.D.2d 908 (3d Dep 't 1999) (quotations and citations omitted). If the moving party meets its burden, the non- moving party may still defeat summary judgment by submitting sufficient evidence establishing an issue of fact requiring trial or that the law does not warrant entry of summary judgment. See Id.; Zuckerman v. City ofNew York, 49 N.Y.2d 557, 562 ( 1980). ARGUMENT The primary issue on this appeal is a legal question: whether the County is a proper party in this negligence action- i.e., whether the County may be held liable in damages for Mr. Bastian's untimely death at SCCC. Since SCCC is an instrumentality of the County- and, thus, the County the real party in interest- and, in any event, SCCC's trustees' negligent acts are imputed to the County under Section 53 of New York State County Law, the County is a proper party in this suit and may be held directly liable for Mr. Bastian's death. Moreover, as owner of the 10 real property constituting the college campus, the County owed Mr. Bastian a duty of reasonable care. Accordingly, Appellate Division's and Supreme Court's decisions, which held to the contrary, should be reversed and vacated and the matter remanded for trial. POINT I SCCC IS AN INSTRUMENTALITY OF THE COUNTY AND, THUS, AS SCCC'S ALTER EGO, THE COUNTY IS ANSWERABLE FOR CLAIMS OF NEGLIGENCE AT THE COLLEGE. When a county acts as local sponsor under Article 126 of New York State Education Law and establishes and operates a community college thereunder, the resulting college should be treated as an instrumentality [or department] of such county and not a separate, independent juridical entity. This follows because the county-sponsor is the real party in interest for purposes of actions nominally brought against the college or its board of trustees. Thus, in the instant case, SCCC has no independent juridical identity apart from the County, its local sponsor, but, instead, is a department or instrumentality of the County, which is the real pmty in interest against whom this suit is properly brought. Appellate Division below erroneously rejected this argument. In doing so, it stated simply: We cannot agree. Although defendant has a role in the fiscal oversight of SCCC as its local sponsor ... , it is the board of trustees, established pursuant to Education Law§ 11 6306( 1 ), that is responsible for its day-to-day management . . . . By statute, the board of trustees has "care, custody, control and management of the lands, grounds, buildings, facilities and equipment used for the purposes of [the] college." Here, defendant established that, beyond its role as sponsor and contributor of a portion of SCCC's operating budget, it does not have input into the board's allocation of resources and has no role in the day-to-day operation and management of the school. (R-4 [citations and internal quotation marks omitted]). But, this scant explanation is woefully insufficient and fails to address the fact that community colleges are not expressly defined by statute as an independent juridical entity. And while the Appellate Division cited two aspects of the relevant statutory scheme - i.e., the County's fiscal oversight of the college and statutory delegation of day-to-day operations to the College's Board of Trustees- it ignored the myriad other statutory factors demonstrating the significant and intrusive involvement by the County in the College's operations and did not apply relevant precedent. The Appellate Division's decision also lacks any analysis ofthe statutory language itself. A proper evaluation of all relevant factors demonstrates that the Third Department's reasoning is flawed and its holding erroneous. Community colleges are sui generis, evading definition, and our research uncovered no Court of Appeals or Appellate Division precedent defining the juridical status of a community college; however, several non-controlling cases 12 directly support Ms. Branch's position. See Horacek-Hayden, Inc. v. County of Monroe, 65 Misc.2d 196, 197 (Sup.Ct. Monroe Co. Dec. 14, 1970) (holding that a community college is an instrumentality of its county sponsor); Feingold v. Hankin, 269 F.Supp.2d 268, 275 (S.D.N.Y. 2003) (holding that Westchester Community College "has no juridical existence other than as a department of Westchester County"); See also Macaluso v. City of New York, 174 Misc.2d 128, 131 (Sup.Ct. Queens Co. Aug. 13, 1997) (holding that City was proper party in negligence action involving Queens Community College as it was the local sponsor and "holds title to the buildings, grounds and equipment provided for the purposes of the college."); Amato v. State of New York, 131 Misc.2d 1049, 1052 (N.Y. Ct.Cl. 1986) (where slip-and-fall occurred at community college, rejecting notion that a community college is an independent legal entity amenable to suit and holding that "either the board of trustees, as the body with the immediate obligation for the running of the college, or the sponsor, as owner of the college grounds and as the entity with certain ultimate responsibilities, may be sued ... "). 1 1 To be sure, two non-controlling cases to the contrary were also found, but the question is ripe for an independent and searching analysis by this court. See Brown v. North Country Community College, 63 Misc.2d 442 (Sup.Ct. Essex Co. June 17 1970) (community college not an instrumentality); Bernhard v. Dutchess Community College, No. 80-Civ.-4871, 1982 WL 193 (S.D.N.Y. Feb. 19, 1982) (not an instrumentality). 13 In the absence, then, of controlling case law, careful examination of the statutory framework is necessary to resolve this issue. Appellate Division below did not conduct the searching analysis required and to which we now tum. Analysis should begin with the statute's definition of"community college": "Community colleges." Colleges established and operated pursuant to the provisions of this atiicle, either individually or jointly, by counties, cities, intermediate school districts, school districts approved by the state university trustees, or individually by community college regions approved by the state university trustees, and providing two-year post secondary programs pursuant to regulations prescribed by the state university trustees and receiving financial assistance from the state therefor. N.Y. Educ. L. § 6301(2). The statute does not define a community college as an educational, municipal or public benefit corporation or any other type of corporate body. See Id.; Cf. Horacek-Hayden, 65 Misc.2d at 197 ("A community college has no corporate existence as it is not an institution incorporated by the Board of Regents or under any other law, but is established upon compliance with Article 126 ofthe Education Law."); Feingold at 275 (Westchester Community College "has no juridical existence other than as a department of Westchester County."). Thus, the definition is facially ambiguous as to the juridical status of a community college and deeper inquiry is necessary. 14 Parsing the words of the definition, a community college is "established and operated . .. by" one [or a combination] of several types of municipal entities acting as a local sponsor2, including, as relevant here, a county. See N.Y. Educ. L. § 6301(2) (emphasis added). This aspect of the definition strongly supports Ms. Branch's position- the language, a community college is "established and operated ... by" its local sponsor strongly suggests that the college is a part of the sponsoring entity, especially as the tenn "operate" is indicative of the high level of control and oversight a local sponsor was intended to exercise over its community college. Parsing the definition further, a local sponsor operates a community college "pursuant to the provisions of this article .... "See Id. Thus, a careful examination of the comprehensive statutory scheme by which a local sponsor operates a community college is necessary, and, as will be seen, this examination further supports Ms. Branch's position. Indeed, under this statutory scheme, the local sponsor possesses and exerts strict and significant financial and operational oversight and control over its community college. Article 126 of New York State Education Law sets forth the comprehensive statutory scheme governing the establishment and administration of community 2 The definition of "local sponsor" includes the same exact municipal entities by which a community college is "established and operated." Compare N.Y. Educ. L. § 6301(2) with !d. § 6301(3) ("'Local Sponsor.' Any city, county intermediate school district, school district approved by the state university trustees, or community college region approved by the state university trustees, sponsoring or participating in the establishment or operation of a community college.") 15 colleges in New York. See N.Y. Educ. L. § 6301 et seq. Under that scheme, as noted, a community college is "established and operated ... by" a local municipal sponsor. See Id. § 6301(2); See also Id. at § 6302(1). The college itself is then administered by a ten-member3 board of trustees, five of whom are appointed by the local sponsor's legislative or other governing body, four of whom are appointed by the Governor from among persons "residing in the sponsoring community," and one of whom is an elected, non-voting student trustee. See I d. § 6306(1 ). Thus, the local sponsor appoints a majority of the college's voting trustees. While the college's board of trustees oversees the academic functions of the college (subject to the general oversight ofthe state university trustees) and manages day-to-day operations, the local sponsor exerts enormous control over the college's finances and operations. Specifically, under the law, the sponsoring county: (1) establishes the college in the first instance, N.Y. Educ. L. §§ 6301(3), 6302( I); (2) provides one-half of the college's capital costs and one-third of its operating expenses, id. § 6304(1)(c); (3) may levy taxes and issue bonds or notes for purposes of funding its community college, id.; (4) appoints a majority (five) of the college's nine voting trustees, id. § 6306(1 ); 3 The statute provides for alternative numbers of board members for specific community colleges in specific circumstances not relevant here. See, e.g., See N.Y. Educ. L. § 6306(3-a). SCCC has ten trustees. 16 (5) reviews and approves the college's annual budget, id.; (6) holds all of the college's real property "in trust for the uses and purposes of the community college," id. § 6306( 4 ); (7) reviews and approves "any contract or agreement deemed necessary or appropriate for the effective operation of the college" sought to be executed by the board of trustees, id. § 6306(7); (8) receives funds from financial assistance provided by the state for community college purposes, id. § 6302(4); (9) collects from non-resident students, or their counties of residence, the share of the sponsor's operating expenses allocable to such student's attendance, id. § 6305(2); and (1 0) defends and indemnifies all college trustees, officers and employees in civil actions arising from such person's acts or omissions occurring within the scope of such person's employment, id. § 6308. The statutory scheme reinforces the local sponsor's pervasive involvement in the affairs the community college; indeed, the college depends upon the support of the local sponsor. Indeed, Appellate Division, Third Department has noted: "[I]t is evident that the board of trustees is of strictly limited authority; and that from the moment of organization the county board . . . is the dominant member of the partnership." Meyer v. Wiess, 25 A.D.2d 174, 176 (1966). Under this Court's precedent, as well as Third Department precedent, such excessive entanglement of governmental authority and oversight of a municipally- established entity suggests that the entity is but an arm or instrumentality of the government that created it. For instance, in Easley v. New York State Thruway 17 Authority, 1 N.Y.2d 374 (1956), this Court recognized: "It cannot be doubted that [the New York State Thruway] Authority is an arm or agency of the State." 1 N.Y.2d at 376, because The closeness of its relationship to the State is illustrated by these situations among others: its members are appointed by the Governor with the approval of the Senate, its statutory purposes are declared to be 'in all respects for the benefit of the people of the state', its functions are statutorily declared to be 'governmental', its real property it held in the name of the State, the State advanced the money for constructing the Thruway, the State's Public Works Department designed and supervised the construction work, the legal services are performed by the Attorney-General, the Authority must annually report to the Governor and Legislature, its funds are held by the State Comptroller, its bonds are guaranteed by the State pursuant to the vote of the People, and, eventually, the Authority's properties will revert to the State itself. Id. (citations omitted). Thus, this Court held that the Thruway Authority was cloaked with the State's sovereign immunity. In creating the Authority, the State could have refused to waive immunity all together and, thus, acted within its authority, and constitutionally, by conferring exclusive jurisdiction upon the Court of Claims to hear all claims against the Thruway Authority. See I d. at 376-79. Likewise, in Breen v. Mortgage Commission, 285 N.Y. 425 (1941 ), this Court held that the Mortgage Commission of the State of New York was "a mere agency of the state .... " 285 N.Y. at 430. In so holding, the Court reasoned: The expenses of the Commission are to be met out of a revolving fund appropriated by the Legislature. The 18 moneys constituting the fund may be paid out by the State Comptroller only for the 'lawful purposes' of the Commission, and only upon duly audited claims. These moneys are used for the benefit of the people of the State and for the purpose of can·ying out the governmental functions of the Commission. The moneys are the property of the State and until expended remain public moneys. The Commission has no property of its own which it holds other than as agent of the State, and to permit a judgment against the Commission to be placed in the hands of the Sherifffor execution would permit him to levy upon and seize the property of the State. It is plain that a judgment obtained against the Commission would be against the State, since the Commission is only an agent of the State, different in no material respect from other commissions, all of which have been identified with the State. Id. (citations omitted). In this light, the Court held that Supreme Court lacked jurisdiction over claims against the Mmtgage Commission, reasoning: "[S]ince the Commission is a State agency, no forum except the Court of Claims might otherwise have been open for actions involving the Commission." Id. at 431. In a similar vein, in Matter of Shields v. Dinga, 222 A.D.2d 816 (3d Dep't. 1995), the Third Department held that a Soil and Water Conservation District was a separate legal entity, not an instrumentality of the county, because, inter alia, New York Soil and Water Conservation Law explicitly grants such districts authority "to sue and be sued, appoint employees, acquire real estate and enter into contracts." See 222 A.D.2d at 818. Further, it distinguished such districts from "improvement districts" and other entities deemed to be govemmental instrumentalities, such as 19 sewer and ambulance districts, because the latter "cannot contract indebtedness or levy taxes as can district corporations ... and they are controlled by Town Boards." See Id.; See also, Raffone v. Town of Islip, 85 A.D.2d 597,598 (2d Dep't. 1981) (holding ambulance district "is not a municipal entity apart from the Town" because, inter alia, it is "constitutionally without power to levy taxes or assessments or to require the levy of taxes or assessments.") For similar reasons, in Foster Wheeler Broome County Inc. v. County of Broome, 275 A.D.2d 592 (3d Dep't. 2000), the Third Department held that that the Broome County Resource Recovery Agency, a public benefit corporation organized under Public Authorities Law, operated as a separate legal entity. See 275 A.D.2d at 595. From Easley, Breen, Shields and Foster Wheeler, the Court may distill a number of factors to consider in determining whether an undefined, statutorily- created governmental or quasi-governmental entity, such as the College here, is an instrumentality or arm of the government that created it or, rather, an independent juridical body. Such factors included whether the entity has legal authority to (1) sue or be sued; (2) appoint employees; (3) acquire and hold real property; (4) enter into contracts; and (5) levy taxes or otherwise raise funds. Also critical to this determination is the degree of autonomy and independence granted to the entity in carrying out its authorized functions. 20 Applying these factors here strongly favors a finding that SCCC is an instrumentality of its sponsoring County [the real party in interest] and not a separate juridical body independently amenable to suit. First, unlike the Soil and Water Conservation District and the public benefit corporation involved in Shields and Foster Wheeler, the community college statutory scheme does not expressly grant community colleges the authority to sue or be sued. Compare N.Y. Soil & Conservation Dist. L § 9(9) and N.Y. Pub. Auth. L. § 2047-e[3] with N.Y. Educ. L. § 6301 et seq. And, even it if it did, Easley and Breen suggest that this factor is not dispositive - in those cases, the fact that the Thruway Authority and Mortgage Commission were vested the right to sue and be sued did not affect this Court's holdings that these two entities were agencies of the State. See Easley, 1 N.Y.2d at 376-79; Breen, 285 N.Y. at 431-32. Second a community college's ability to raise funds is circumscribed- it has no authority to levy taxes for purposes of financing its operations. See N.Y. Educ. L. § 6301 et seq. In fact, such power, as well as the power to issue municipal bonds and notes to fund the college, vests exclusively with the local sponsor, here the County. See Id. § 6304(1)(c). Moreover, the County provides one half the College's capital budget and one-third its operating budget, see id., a significant portion of the College's overall funding. These factors similarly support a finding that the College is an arm of the County. See Easley, 1 N.Y.2d at 376 (State advanced funds for 21 constructing Thruway and bonds guaranteed by the State); Cf. Shields, 222 A.D.2d at 818 (noting improvement districts, which are merely arms of the municipalities that create them "cannot contract indebtedness or levy taxes as can district corporations."). Finally, although community colleges may appoint employees, acquire real estate and enter into contracts, these powers are highly circumscribed by statute and subject to tight oversight and control by the local sponsor. For instance, while the Board of Trustees may appoint a President, who, in tum, may appoint other employees, the presidential appointment is "subject to the approval by the state university trustees." See N.Y. Educ. L. § 6306(2). And the County, as local sponsor, appoints a majority [five] of the Board of Trustees' [nine] voting members, thus providing it significant influence over that Board's presidential appointment, and every other decision of that body for that matter. See Id. § 6306(1 ). Moreover, the Appellate Division, Fourth Department has held that community college positions (e.g., security officer positions) funded by a county budget duly approved by a county legislature may not be unilaterally abolished by the college Board of Trustees, but rather, pursuant to County Law§ 204, the enabling county retains such authority. See Steams v. Mariani, 294 A.D.2d 808 (4th Dep't. 2002). Thus, the County, as local sponsor, exerts significant control over personnel decisions at the College. 22 Likewise, title to real property used by the college must be held by the local sponsor "in trust for the uses and purposes of the community college." See N.Y. Educ. L. § 6306( 4). And while the board of trustees may "enter into any contract or agreement deemed necessary or appropriate for the effective operation of the college," such contracts must be reviewed and approved by the local sponsor. See Id. § 6306(7). Accordingly, the trustees' authority to acquire prope1ty and contract is strictly limited to college purposes and tightly controlled by the local sponsor. These provisions are indicative of a legislative intent to severely circumscribe the autonomy of a community college's Board of Trustees and to subject that body to strict oversight and control by the local sponsor, especially in the realms of financing and contracting. See Meyer 25 A.D.2d at 176 ("[T]he board of trustees is of strictly limited authority; and ... from the moment of organization, the county board ... is the dominant member of the partnership."). A thorough examination of the statutory definition of a community college, as informed by the overarching statutory scheme imported into that definition, and relevant case law, including this Court's precedent, strongly suppmts Ms. Branch's position that a county-sponsored community college, like SCCC here, is an instrumentality or department of the local sponsoring county, not an independent juridical entity, and, that the County is the real party in interest to claims involving the college. 23 Further supporting Ms. Branch's position are the many cases holding that, when a plaintiff commences a tort action against a community college, the county sponsor is a real party in interest such that service of a notice of claim upon the county is a necessary condition precedent to bringing the action. See, e.g., Santandrea v. Bd. of Trustees of Hudson Valley Cmty. Coli., 70 A.D.3d 1238 (3d Dep't. 201 0) ("Unquestionably, a notice of claim had to be served on the County prior to commencement of this action."); Belenky v. Nassau Cmty. Coli., 4 A.D.3d 422 (2d Dep't. 2004) (affirming denial of application for leave to file late notice of claim on county-sponsor); Butterfield v. Schenectady Cnty. Cmty. Coli., 131 A.D.2d 963, 964 (3d Dep't. 1987) (holding local sponsor county "is a real pmty in interest regardless of the fact that it was not named as a defendant in the lawsuit" and, thus, service of notice of claim upon county was necessary.); Cody v. County of Nassau, 577 F.Supp.2d 623, 646-48 (E.D.N.Y. 2008) (holding County Law§ 52's notice of claim provision "covers plaintiff's claims against Nassau County and its entities ... , which includes Nassau Community College, an entity that that is owned and operated by the County and whose employees are considered County employees." (quotations and citations omitted)). Also supporting Ms. Branch's position is the County's actual treatment of the College. Like all other County departments, SCCC is subject to the oversight of a County legislative committee, namely the Government Services Committee. See 24 S.C. Code§ A2-9(A)(2); Id. § AS-9. The County's Treasurer, Ira Cohen, confirmed as much at deposition: "Under the County's administrative code, every department or agency of the County is responsible to a committee, one or more committees. The college and other entities are responsible to the Government Service committee and supposed to meet with them one a month, which is when the Government Service Committee meets" (R-1 05). Also like many other County departments, SCCC falls under the auspices of the County's Division of Management and Budget, and executive branch department headed by the Commissioner of Management and Budget. See Id. § A7-2; ld. § A7-2(F). The record also demonstrates the County's actual influence over the College. For instance, Cohen testified that "the overall college operating budget is impacted by how much we give them, not the other way around. We're not mandated to give them a third of whatever they want" (R-112). Indeed, Ms. Branch submitted several newspaper articles in opposition to the County's motion for summary judgment discussing the ongoing fiscal stmggles at the College due to the County's tight control of the budget (R-318-27). Cohen also testified, with respect to the County's duty to approve contracts, that SCCC's president rarely sought such approval, "taking the position that they were an independent agency and could spend their money as they saw fit independently" (R-123). He then explained that such a position was "contrary to 25 State law certainly on capital expenditures" (ld.). He also explained that he and the County Manager convened a meeting with SCCC's president in 2006 to discuss the College's lack of cooperation with the County with respect to operation expenses and noted that the college did not want to cooperate and the he and the County Manager "are probably equally unhappy about that situation" (R-130). Thus, the record demonstrates the extent of the College's actual oversight and control and desire to rein the College in. Finally, the cases in which this Court has already examined the community college statutory scheme support Ms. Branch's position. For instance, in Grimm v. County of Rensselaer, 4 N.Y.2d 416 (1958), this Comt rejected a challenge to the constitutionality of Article 126 of the Education Law. See Id. Specifically, the statute's challengers contended that the law, which permits a local sponsor county to issue municipal bonds and notes to fund its share of its community college's capital and operating costs and also requires the college to admit out-of-county and out-of-state residents to the college, violates Section 2 of Article VIII of the New York State Constitution, which provides, in pertinent pmt: "No county ... shall contract any indebtedness except for county ... purposes." See Id. at 420 (quoting N.Y. Const. art. VIII§ 2). In rejecting that argument and holding the statute constitutional, this Court explained: 26 Education has long been regarded as serving a public and governmental purpose ... and a proper local municipal function is unquestionably served by higher education institutions authorized by municipal divisions of the state. The ownership and operation of public facilities serving the welfare of a municipality are not deprived of their municipal nature because they may serve a large interest as well. * * * * * It was the county itself which set in motion the plan for the establishment of the [community college] and it was the county which took title to the land purchased and which became owner of the buildings and equipment. The assets of the [community college] belong to the county, its operations and management are by the county and its board of trustees are all residents of the county, the majority of five being appointed by the County Board of Supervisors, the remaining four by the Governor .... Id. at 421-22. Hence, this Comi has previously recognized the substantial municipal nature of a community college and the significance of the county's statutory role as local sponsor. And, most recently, in County of Westchester v. Board of Trustees of State University of New York, 9 N.Y.3d 833 (2007), this Court recognized the significant and pervasive statutorily-imposed oversight and control of a community college by its local sponsor. In that case, this Court upheld the State University Board of Trustees' 2003 amendments to its regulations (1) providing that "a local sponsor shall approve the 'budget total,' rather than the 'total budget"' and (2) "remov[ing] 27 a requirement that transfers of appropriations within the college's operating budget be subject to approval of the sponsor." Id. at 834 (citations omitted). In doing so, the court held that the new regulations were consistent with the statute, as amended in 1988. Id. at 835-36. Notably, the court explained: Despite the 1988 legislation and the 2003 amendments to the regulations, the local sponsor's oversight of the college budget proves remains significant. The sponsor retains the right to increase or decrease the amount ofits contribution, and enjoys substantial representation of the college's ten- member board of trustees, half of whom are appointed by the local sponsor, one of whom may remain a part of the county's legislative body while on the board. In addition, the local sponsor has the authority to require periodic audits and rep01is from the college as it deems appropriate. Id. at 835 (citations omitted). This Court's prior recognition and emphasis of the local sponsor's "significant" oversight lends great weight Ms. Bastian's decision. In sum, the foregoing examination of the statutory language and scheme, as well as the relevant case law and the record herein demonstrates that ( 1) the juridical identity of a community college is not statutorily defined; (2) by definition, a community college is "established and operated ... by" its local sponsor; (3) the comprehensive statutory scheme vests the local sponsor with strict and significant financial and operational oversight of its community college and requires the local sponsor to indemnify the college's officers and employees; ( 4) a community college is not expressly granted the right to sue or be sued; (5) the local sponsor is the real party in interest in actions involving its community college such that service of 28 notice of claim upon the sponsoring county is a necessary condition precedent to such suit; (6) the record in this case demonstrates the significance of the County's actual oversight and control of the College; and (7) this Court has previously acknowledged that a community college serves a proper local municipal function and emphasized the significant oversight and control of the local sponsor over its community college's affairs. This analysis leads to the inexorable conclusion that a community college is an instrumentality or arm of its local sponsor and that Appellate Division, which failed to conduct such a thorough and necessary analysis, erred in holding otherwise. Accordingly, Appellate Division's Order should be reversed and vacated. POINT II SCCC'S APPOINTED TRUSTEES ARE "OFFICERS, AGENTS, SERVANTS [OR] EMPLOYEES" OF THE COUNTY FOR PURPOSES OF SECTION 53 OF NEW YORK STATE COUNTY LAW, SUCH THAT THE COUNTY IS DIRECTLY LIABLE FOR SUCH TRUSTEES' NEGLIGENT ACTS. Even if this Court were to hold that SCCC is not a department or instrumentality of the County and that the College's Board of Trustees is the responsible party as to claims of negligence involving the College, those trustees' negligent acts are imputed to the County under Section 53 ofNew York State County 29 Law. Thus, the County is a proper pm1y in this suit and Ms. Branch may hold it directly liable for the negligence of SCCC's trustees. In holding that the County was not a proper party to this suit, both Appellate Division and Supreme Com1 below emphasized that Article 126 of the Education Law vests the College's Board of Trustees with the "care, custody, control and management of the lands, grounds, buildings, facilities and equipment used for the purposes of [the] college" and otherwise is responsible for the College's day-to-day operation and management (R-4; R-13-14). The com1s below suggest that the Board of Trustees would be a proper pa11y and that it owed Mr. Bastian a duty of care to protect him from reasonably foreseeable harm at the College. But under this theory, the County is still a proper a pm1y because the negligent acts of the College's trustees may be imputed to the County and the County held directly liable therefor under a vicarious liability theory. Under New York State County Law, a county is liable for the torts of its "officers, agents, servants and employees" committed in the scope of their employment. See N.Y. County L. § 53.4 We respectfully submit that the College's trustees [other than its sole elected student member] who are appointed by the 4 Though this statute does not define the terms "officer," "agent," "servant" or "employee," under New York General Municipal Law's provision concerning conflicts of interest among municipal employees and officers, a municipal employee or officer of a county "include[s] any officer or employee paid from county funds." N.Y. Gen. Mun. L. § 800(5). 30 County Legislature and the Governor, should be considered "officers, agents, servants [or] employees" of the County for purposes of this statute. Although this Court has never before addressed this issue, holdings of other courts support Ms. Branch's position. For instance, Appellate Division, Second Department has held that a county is considered an "employer" of a community college professor under the Workers' Compensation Law. See Kuznetz v. County of Nassau, 229 A.D.2d 476, 476-77 (2d Dep't. 1996). And Supreme Court, County of Nassau has held that a Nassau County Community College assistant professor was a county employee because his wages were paid from county funds and "the budget of the college is subject to review and supervision of the Nassau County government." See People v. Wendel, 116 Misc.2d 91,92-93 (Nassau Cnty.Ct. 1982). In addition, in a 1982 informal opinion, the Office of the New York State Attorney General opined that community college trustees (except for the non-voting student trustee) should be considered local "public officers" under New York State Public Officers Law because they are required to take and file an oath of office. See Informal Opinion No. 82-20, 1982 N.Y. Op. Atty. Gen. (Inf.) 107 (Mar. 15, 1982). The opinion explained: "A public officer has the authority under law to exercise some portion of the sovereign functions of government for the benefit of the public during a given period of time." ld. (citations omitted). It then reasoned that community college trustees exercise such sovereign functions- i.e., they appoint 31 members of community college staff and manage the college's land, buildings and facilities5 - and, thus, are public officers. Id. The opinion explains further that such trustees are local, not State, officers. See Id. Indeed, five of the College's trustees are appointed by the County's legislative and, the remaining four trustees, although appointed by the Governor, "are limited in the execution of their powers and duties to a pmtion of the State." Id. (citing N.Y. Pub. Off. L. § 2). Thus, this informal opinion, though not binding, strongly suggests that the College's trustees here are officers of the County and, thus, the County may be held directly liable for their negligent acts under County Law § 53. In sum, even if the College is not a department of the County and the Board of Trustees, not the County, is the party that owed Mr. Bastian a duty of care, the County is still a proper patty in this suit because, under County Law§ 53, it may be held directly liable for the trustees' negligent acts. 5 Though not cited by the Attomey General's opinion, it should also be noted that the statute provides the Board of Trustees the authority to appoint security ofticers and designate the same as peace of1icers, which have all powers as set forth in Section 2.20 of New York State Criminal Procedure Law. See N.Y. Educ. L. § 6306(5-a). This authority to vest an employee with the right to, inter alia, conduct warrantless searches, make warrantless arrests and use physical and deadly physical force in making such arrests and to issue appearance tickets, see N.Y. Crim. P. L. § 2.20(1) is another factor demonstrating the trustees' exercise of traditionally sovereign functions and that the same are public officers. 32 POINT III THE COUNTY'S ULTRA VIRES TRANSFER TO THE DORMITORY AUTHORITY OF THE REAL PROPERTY UPON WHICH THE DORMITORY WHERE MR. BASTIAN EXPIRED SITS IS VOID AB INITIO AND THE COUNTY, AS LANDOWNER OF THAT PROPERTY AND THE SURROUNDING CAMPUS, DIRECTLY OWED MR. BASTIAN A DUTY TO KEEP ITS PREMISES IN A REASONABLY SAFE CONDITION. As owner of the College premises, the County owed Mr. Bastian a non- delegable duty to keep its property in a reasonably safe condition under the circumstances and, by failing to ensure the provision of an on-site AED, AED- trained staff or an adequate emergency response, breached that duty and proximately caused Ms. Bastian's death. In rejecting Ms. Branch's premises liability theory, Appellate Division stated: "[D]efendant established that it did not own the building where defendant suffered his fatal heart attack. Accordingly, in the absence of ownership, occupancy, control or special use of the property by defendant, it did not owe decedent a duty .... " (R-4). But this holding is flawed in several respects. First, to support its holding, Appellate Division summarily accepted the propriety of the County's putative transfer of the dormitory property to the Donnitory Authority. But in doing so, Appellate Division did not address Ms. Branch's argument that the County's putative transfer was ultra vires and, 33 consequently, void, and, therefore, the County remained the rightful owner of that property and, as such, owed Mr. Bastian a duty of care. It is undisputed that the County owned the relevant real property prior to its putative transfer of the same to the Dormitory Authority; this fact is substantiated by the deeds submitted by the County in support of its motion for summary judgment (see R-148-73 [deeds to County]; R-175-92 [deeds to Dormitory Authority]). Thus, the question is whether its putative transfer was valid or void. It was void. The comprehensive statutory scheme set forth in Article 126 of the Education Law mandates that the local sponsor shall hold legal title to all college-appropriated real property in trust for the uses and purposes of the community college. See N.Y. Educ. L. § 6306(4). Under this statute, then, only the local sponsor- here, the County- may hold title to real property used for community college purposes. Since there is no apparent statutory basis for such prope1iy to be held by any other entity, it follows that there is no statutory authority for the local sponsor to transfer such property to a third pmiy. Indeed, the only apparent authority governing the disposition of community college property by a local sponsor is Part 600 of the Rules of the State University of New York, which expressly provides that such property may not be disposed of by the local sponsor unless "the college board of trustees and the State University have passed resolutions declaring that the property is no longer usefitl or required 34 for community college purposes and the minimum rental and the market value at the time of disposal has been determined by an appraisal and approved by the State University trustees." See 8 N.Y.C.R.R. § 603.5(d) (emphasis added). Here, the County has not submitted any such resolutions or appraisal, but only putative deeds. Moreover, the County has yet to explain how use of the property for student housing does not constitute "community college purposes." Indeed, such use is quintessentially for "community college purposes." Accordingly, since the property the County putatively conveyed to the Donnitory Authority is still being used for purposes of the College- i.e., to house the College's students- the County is the only entity pennitted by law to hold title to such property and, thus, its putative transfer of the same to the Dormitory Authority was ultra vires. When a putative transferor ofprope1iy exceeds his, her or its lawful authority or contravenes a legal restraint or condition on alienation, the putative transfer is void ab initio, and no title has been conveyed to the putative transferee. See Solar Line, Universal Great Brotherhood, Inc. v. Prado, 100 A.D.3d 862 (2d Dep't. 20 12) (affirming Supreme Comi's holding that putative sale of real prope1iy by not-for- profit corporation was void because not approved by Supreme Court as required by New York State Not-For-Profit Corporation Law §§ 510 and 511 ); Matter of Estate of Ott, 86 A.D.3d 943, 944 (4th Dep't. 2011) (holding putative conveyance of prope1iy under invalid power of attorney void); Rose Ocko Founation, Inc. v. 35 Lebovits, 259 A.D.2d 685, 687-88 (2d Dep't. 1999) (affirming Supreme Court's holding that not-for-profit corporation's non-approved putative transfer of property constituting substantially all of its assets contravened Not-For-Profit Law §§ 510 and 511 requiring judicial approval prior to sale and, thus, was void ab initio); See also Kirsch v. Tozier, 98 Sickels 390, 395 (1894) (trustee's putative conveyance of satisfaction of mortgage exceeded his authority as trustee and, thus, was void); Aurora Loan Services, LLC v. Scheller, No. 2009-22839, 2014 WL 2134576, at *3 (Sup.Ct. Suffolk Cnty. May 22, 2014) (recognizing established law that "where transfer of a mortgage to a third party is effectuated in a manner that contravenes the express terms of a goveming trust, the transfer is ultra vires and void."). For instance, in a situation analogous to that involved here, Sections 510 and 511 of New York State Not-for-Profit Corporation Law require a not-for-profit corporation, in certain circumstances, to seek and obtain judicial approval before transferring all or substantially all of its assets. See N.Y. Not-for-Profit Corp. L. §§ 510 and 511. Courts have repeatedly held that a putative transfer of such property subject to the statute's judicial approval requirement that has not been so approved is void ab initio and transfers nothing to the putative transferee. See Prado, 100 A.D.3d at 862; Rose Ocko, 259 A.D.2d at 687-88. Similarly, here, the New York State Education Law and applicable regulations provide that only the local sponsor may hold title to property acquired and used for 36 community college purposes and that such sponsor-owned property may be disposed of only if no longer useful or required for such purposes. See N.Y. Educ. L. § 6306(4); 8 N.Y.C.R.R. § 603.5(d). Thus, the County's putative transfer here of property used exclusively to house SCCC students - an undisputedly community college purpose - contravenes the Education Law and applicable regulations and, like the non-approved sales in Prado and Rose Ocko, is void ab initio, transferring nothing to the Dormitory Authority. Consequently, as the lawful owner of the property, the county retained its non- delegable duty to Mr. Bastian. See Ryan v. Trustees of Columbia Univ. in City of New York, Inc., 96 A.D.3d 551, 552 (1st Dep't. 2012) ("As landowner, Columbia owed a non[-]delegable duty of reasonable care to pedestrians."); Backiel v. Citibank, 299 A.D.2d 504, 505 (2d Dep't. 2002) ("Where ... premises are open to the public, the owner has a non[-]delegable duty to provide the public with a reasonably safe premises and a safe means of ingress and egress."). In New York, an owner of land "must act as a reasonable person m maintaining his property in a reasonably safe condition in v1ew of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk." Miller v. State of New York, 62 N.Y.2d 506, 513 (1984) (quotations and citations omitted). This duty applies to a local- sponsor of a community college, as municipal ownership of property for such 37 purpose is deemed a proprietary function subject to the application of ordinary tort principles. See Id.; Bowen v. City University of New York, 294 A.D.2d 322 (2d Dep't. 2002); Mead v. Nassau Community College, 126 Misc.2d 823, 823-24 (Sup.Ct. Nassau Cnty. Jan. 4, 1985). How a "reasonable person" would maintain his property and what constitutes a "reasonably safe condition," see id., are typically factual questions that are inappropriate for resolution on summary judgment. See Noble v. Pound, 5 A.D. 3d 936,938 (3d Dep't.2004); see also, Vega, 18 N.Y.3d at 505. In this case, Ms. Branch has submitted sufficient evidence to create an issue of fact as to whether County's duty of reasonable care encompassed the duty to provide on-campus AEDs and employ staff properly trained to use the same. Specifically, Ms. Branch submits the expert report of Robert J. Myerberg, M.D., which explains the vital role AEDs play in increasing the survival rate of persons who suffer sudden cardiac arrest and the trend in schools and colleges to provide the same (R-341-42). Importantly, Dr. Myerberg also sets forth his expert opinion, based on, inter alia, the response timing and autopsy report in this case: "Had an AED been available on campus ... the probability of [Mr. Bastian's] survival free of neurological damage would have been 90% or greater" and "[h]ad he survived free of neurological damage, his life expectancy ... would have been an additional40-50 years" (R-344). These facts show that, given the seriousness of 38 sudden cardiac arrest and the success that prompt deployment of an AED can have in increasing survival rate, a reasonable owner/operator of an educational facility would have provided the same to keep the high population of students who attend and reside on such premises safe. Ms. Branch also submits the Affidavit of Daniel Reuters-Ward, which demonstrates that, at the time of Mr. Bastian's death in the fall of2007, twenty-four of the state's thirty community colleges had at least one AED on campus (R-329- 35). In addition to the factual submissions contained in the record, the legal and policy justifications for imposing such a common law duty for property owners of all educational facilities, including community colleges where youths attend and reside in great numbers and engage in rigorous mental and physical activities, are evident in New York's clear policy of encouraging wide access and use of AEDs. For instance, the state enacted measures requiring the provision of AEDs in public schools and health clubs in 2002 and 2005 respectively. See N.Y. Educ. L. § 917; N.Y. Gen. Bus. L. § 627-a. Notably, the legislative history of these two statutes highlights the importance of AED access, especially in light of the seriousness of the cardiac emergencies requiring their use, as well as the minimal burdens imposed in providing AEDs and training staff in their proper use. 39 In his letter to the Governor's counsel in support of the bill which became Education Law§ 917, Senate Education Committee John R. Kuhl, Jr. emphasized the vital role AEDs play in saving lives as well as the minimal burdens imposed. See Letter in Support of Legislation to the Office of Counsel to the Governor, Senate Bill S.6122/Assembly Bill A.8779A (Apr. 22, 2002), available at, http://image.iarchives.nysed.gov/images/images/89495.pdf. Specifically, Mr. Kuhl noted: "One of the leading causes of death in the United States is sudden cardiac arrest. Defibrillators are a highly effective means of savings lives." Id. He also explained that "defibrillators can be obtained at a relatively low price considering the immense benefit which is provided." Id. Moreover, he noted that the protections of the "Good Samaritan," N.Y. Pub. Health L. § 3000-a, would limit liability damages allegedly caused by negligent use of an AED, thus also minimizing potential burdens on covered entities. Id. Similarly, in its Memorandum in Support of the bill which became General Business Law§ 627-a, the Assembly set forth its justification for the bill: According to the American Heart Association, 250,000 American[s] die every year due to sudden cardiac arrest. A quarter of these deaths could be avoided [i]f an automated external defibrillator is on hand for immediate use a[t] the time of emergency. Immediate use of an AE[D,] joined with CPR, could save up to 50,000 lives a year. 40 See New York State Assembly, Memorandum in Support of Legislation, Assembly Bill A5084A (Apr. 16, 2004), available at, http://image.iarchives.nysed.gov/images/images/85956.pdf. Moreover, the Memorandum indicates that the fiscal implications are "minimal," as "[t]he cost of an AED ranges from $1500 to $2500" and "a course in the training of CPR and [] operation of AE[D]'s is $50." See Id. These two measures, which predate Mr. Bastian's death by several years, came on the heels of the state's undertaking of a broad-based initiative with respect to AED-access and use in the state. In 1998, almost ten years prior Mr. Bastian's death, the State enacted Public Access Defibrillation ("PAD") legislation, which regulates the possession and operation of AEDs and added use of AEDs to the activity covered under the "Good Samaritan" law. See N.Y. Pub. Health L. §§ 3000- a, 3000-b. The bill stated purpose was to "encourage greater acquisition, deployment, and use of automated external defibrillators (AEDs) in communities around New York State in order to reduce the numbers of deaths associated with sudden cardiac arrests." See Senate Bill S5477C, available at http:/ /image.iarchives.nysed.gov/images/images/112818.pdf. Finally, it should be noted that, in addition to public schools and health clubs, on-site AEDs and trained staff are now also required in public buildings, see N.Y. Pub. Bldgs. L. § 140; 9 N.Y.C.R.R. Part 303, at places of public assembly, see N.Y. 41 Pub. Health L. § 225(5-b ), and at surf beaches and swimming facilities, see Pub. Health L. § 225(5-c). The enactment of these statutory measures, and the legislative histories underlying them, demonstrates that ( 1) the state has, for years, embraced and supported a broad-based policy toward the proliferation of AEDs and the proper training and use of the same in cardiac emergencies; (2) prompt deployment of AEDs is critical to saving lives- indeed, without such use, fatality is almost certain in cases of cardiac arrest; (3) the seriousness and likelihood of severe injury and death is high without the use of an AED and ( 4) the burden of maintaining an AED and training staff to use the same is minimal - unit and training costs have diminished over the years and the Good Samaritan law limits tort liability for those actually employing AEDs in life-saving situations. All of these conclusions support Ms. Branch's position that it is unreasonable under the circumstances for an owner and/or operator of a community college, such as the County here, to fail to provide AEDs, AED-trained staff and an adequate campus-wide emergency response protocol, and that such failures constitute a breach of the non-delegable duty of reasonable care to students and others on the premises. See Miller, 62 N.Y.2d at 513 (property owner "must act as a reasonable person in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the 42 injury, and the burden of avoiding the risk."). And, such a duty may be imposed even if no explicit statutory duty yet exists. See Miglino v. Bally Total Fitness of Greater New York, ---N.E.---, 2013 WL 451410 at *4-*5 (2013) (holding that, although General Business Law§ 627-a does not impose a statutory duty for health club owners to deploy AEDs maintained on premises, courts nevertheless recognize a common law "limited duty of care [of health clubs] to patrons struck down by a heart attack or cardiac anest while engaged in athletic activities on premises."). Finally, even if the County's transfer of the dormitory was proper and, as a result, divested it of any duty as owner of that property, Appellate Division overlooked the fact, argued by Ms. Branch below, that the County still owns the remaining property comprising SCCC's campus and that the dormitory is situated thereupon. Ms. Branch's expert, Dr. Myerberg, emphasized in his expert repmi that, based upon the campus geography, had an AED been located in a campus building other than the dormitory, it could have been effectively deployed in time to save Mr. Bastian. Appellate Division's refusal to permit this fact question- i.e., whether the County's failure to provide an AED on SCCC's campus [which it owns] was unreasonable under the circumstances and, thus, such failure breached its duty- to go to a jury constituted manifest error that has substantially prejudiced Ms. Branch. This is especially so where the County's putative transfer to the Dormitory Authority 43 appears to be a contrivance to facilitate the College's ability to offer on-campus housing to SCCC students. Indeed, Education Department regulations prohibit community colleges from using State aid or student tuition to operate and administer dormitories. See 8 N.Y.C.R.R. § 602.4(e)(9). Thus, the Dormitory Authority is merely a straw-man, employed as a legal fiction to permit the College to make an end-run around this regulation. Such a transparent maneuver should not work to abrogate the County's duty as landowner for events occurring at SCCC's dormitories, but rather serves as persuasive justification for preserving such duty. Thus, even if this Comi were to find that the County's transfer of the dormitory authority was permissible, it should nevertheless reverse to cure the significant eiTor made by Appellate Division. As noted, the evidence in the record is more than sufficient for a reasonable jury to find that the County breached its duty as landowner of the college property, which extended to its business invitee, Mr. Bastian, while he resided in his dormitory, which prope1iy, even if not technically owned by the County, is located within and upon community college grounds that is owed by the County. In sum, the County's putative transfer of the dormitory property to the Dormitory Authority was ultra vires and, thus, void ab initio. Consequently, the County still owns that prope1iy and had a non-delegable duty, as landowner, to keep the premises in a reasonably safe condition. Altematively, the County's duty to keep 44 the remainder of the campus, which it undisputedly owns, in a reasonably safe condition extends to the dormitory where Mr. Bastian died, since the donnitory is situated upon and within the general campus and the County's failure to keep the general campus in a safe condition by failing to provide an on-site AED, AED- trained staff or an adequate emergency response, foreseeably contributed to the unsafe condition at the dormitory. CONCLUSION The statutory definition of "community college," as infom1ed by the comprehensive statutory scheme governing the establishment and administration of community colleges in New York, supports the conclusion that a community college is an arm or instrumentality of its local sponsor and, thus, the County here is the real party interest and proper defendant in this negligence action involving SCCC. And even if that were not the case and the County owed no direct duty of care to Mr. Bastian, it may nevertheless be held directly liable for the negligent acts of the College's trustees under New York State County Law§ 53 and, thus, is still a proper defendant in this action. Finally, the County's putative transfer of the dormitory where Mr. Bastian died to the Dormitory Authority was ultra vires and contrary to law and, thus, void ab initio. Consequently, the County remains the rightful owner of that property and, accordingly, is amenable to suit for breaching its non-delegable duty to Mr. Bastian 45 as the landowner. And, even if, the Dormitory Authority were the rightful owner of the dormitory property, the County may still be held liable under a theory of premises liability because the dormitory is situated upon and within the greater College campus, which the College does own and which it failed to keep in a reasonably safe condition. Its negligence foreseeably jeopardized the safety of students in the dormitory, which, if found to be owned by the Dormitory Authority, presumably, is owned by that entity solely as a straw-man to facilitate the College's ability to offer student housing. If this Court agrees with any one, or more, or the foregoing conclusions, as we respectfully submit it should, reversal and vacation of the Orders below is warranted. Accordingly, the Orders should be reversed and vacated and the matter remanded for trial. Dated: Goshen, New York August 7, 2014 46 Respectfully submitted, SUSSMAN AND WATKINS Attorneys for Plaj!JtiffAppellant Byo ~ Su"mun, E,q, P.O. Box 1005 1 Railroad Avenue, Ste. 3 Goshen, New York 10924 (845) 294-3991 (845) 294-1623 TO: Bryan R. Kaplan, Esq. THE LAW OFFICES OF BRYAN R. KAPLAN Attorneys for Defendant-Respondent P.O. Box 1148 Monticello, New York 12701 (845) 701-1312 47