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Supreme Court of New York, Appellate Division, Third Department
June 16, 2022, Decided; June 16, 2022, Entered
[*1326] [**596] Reynolds Fitzgerald, J.
On January 9, 2016, plaintiff was kidnapped at knifepoint, raped, and sexually assaulted by Jose L. Marlett at his apartment. At the time of the rape and sexual assault, Marlett was an outpatient client of defendant Rehabilitation Support Services, Inc. (hereinafter RSS), a nonprofit corporation providing rehabilitation and recovery-oriented services to individuals who have mental illness and substance abuse issues. The recovery-oriented services program consists of an outpatient clinic with social workers and a psychiatrist who provide counseling in either a group setting or one-on-one, and routine sessions with a psychiatrist or nurse practitioner to discuss medications. [***2] RSS also provides a supportive residential apartment program to its clients as part of their personal recovery-oriented services and supplied an apartment for Marlett to lease. The supportive apartment program assists clients in living independently. Staff assist clients — anywhere from once a week to once a day — with daily living skills including cooking, shopping and banking. Plaintiff commenced two actions1 against RSS and its program director, licensed master social workers, licensed clinical social workers, and licensed mental health counselors (hereinafter collectively referred to as defendants), and various other medical professionals and institutions who treated Marlett. Following joinder of issue and discovery, defendants moved for summary judgment dismissing the complaint against them. Supreme Court denied the motion. Defendants appeal.
Defendants contend that they had no duty to control and supervise Marlett and did not have the requisite special relationship with Marlett to prevent him from causing harm to plaintiff, therefore defendants cannot be liable for negligence and negligent supervision. ] "It is well established that before . . . defendant[s] may be held liable for [***3] negligence it must be shown that the defendant[s] owe a duty to the plaintiff. In the absence of duty, there is no breach and without a breach there is no liability" (Pulka v Edelman, 40 NY2d 781, 782, 358 N.E.2d 1019, 390 N.Y.S.2d 393 [*1327]  [citations omitted]; see He v Apple, Inc., 189 AD3d 1984, 1986, 139 N.Y.S.3d 409 ). "The question of whether a member or group of society owes a duty of care to reasonably avoid injury to another is . . . a question of law for the courts (Purdy v Public Adm'r of County of Westchester, 72 NY2d 1, 8, 526 N.E.2d 4, [**597] 530 N.Y.S.2d 513 ). "In general, a defendant has no duty to control the conduct of a person to prevent him [or her] from causing harm to others . . . [unless] a special relationship . . . exist[s] between the defendant and a third person such that the defendant is required to control the third person to protect others" (Rivera v New York City Health & Hosps. Corp., 191 F Supp 2d 412, 417 [SD NY 2002] [citations omitted]; [****2] see Purdy v Public Adm'r of County of Westchester, 72 NY2d at 8). Moreover, it is settled law that, "in certain limited circumstances, a mental health provider may be liable for failing to control or commit a voluntary outpatient who later harms a member of the public" (Rivera v New York City Health & Hosps. Corp., 191 F Supp 2d at 419; see Schrempf v State of New York, 66 NY2d 289, 296, 487 N.E.2d 883, 496 N.Y.S.2d 973 ).
In support of defendants' motion, RSS submitted the affidavit of its managing director at the time plaintiff was raped and sexually assaulted. The director averred that Marlett could not be compelled to attend counseling or to take his medication. He further averred that RSS could not mandate Marlett [***4] be involuntarily hospitalized but could issue a "'pick-up' order" to have the police pick up Marlett because of his behavior. As to the apartment, the residency agreement contains provisions that are typical of a residential lease, as well as a two-step discharge process to be implemented in the event the resident violated the terms and conditions of the program. The director further alleged that staff could not forcibly restrain or restrict Marlett's movements within the community.
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206 A.D.3d 1325 *; 171 N.Y.S.3d 594 **; 2022 N.Y. App. Div. LEXIS 3864 ***; 2022 NY Slip Op 03957 ****; 2022 WL 2162749
[****1] Jane Doe, Respondent, v Bharat B. Langer et al., Defendants, and Sharon H. Zuckerman et al., Appellants.
Notice: THE PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION.
THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
Prior History: [***1] Appeal from an order of the Supreme Court (O'Connor, J.), entered April 23, 2021 in Albany County, which denied certain defendants' motion for summary judgment dismissing the complaint.
cause of action, staff, defendants', apartment, negligent infliction of emotional distress, malpractice, psychiatric, summary judgment motion, sexual assault, circumstances, psychiatrist, outpatient, patients, raped
Public Health & Welfare Law, Mental Health Services, Commitment, Voluntary Commitment of Adults, Torts, Affirmative Duty to Act, Types of Special Relationships, Dangerous People, Healthcare Providers, Civil Procedure, Summary Judgment, Supporting Materials, Affidavits, Standards of Care, Special Care, Highly Skilled Professionals, Healthcare Law, Healthcare Litigation, Actions Against Healthcare Workers, Doctors & Physicians, Types of Negligence Actions, Negligent Infliction of Emotional Distress, Elements, Intentional Torts, Intentional Infliction of Emotional Distress, Remedies, Proof, Violations of Law, Criminal & Penal Legislation, Ordinances, Rules & Regulations, Statutes, Safety Codes