Tara N.P. (Anonymous), Appellant,
Western Suffolk Board of Cooperative Educational Services, & c., Defendant, County of Suffolk, et al., Respondents, et al., Defendants.
Ellen O'Brien, for appellant.
Christopher A. Jeffreys, for respondents.
DiFIORE, Chief Judge.
appeal, we are asked to determine whether Suffolk County can
be held liable for damages resulting from the sexual assault
of plaintiff by a worker at a County-owned facility where
plaintiff took adult education classes. The worker, defendant
Larry Smith, had been referred for a potential position with
the lessee of the facility through the County's
"welfare to work" program. We hold that where, as
here, the County's referral of defendant Smith was within
the County's governmental capacity and the County did not
assume a special duty to plaintiff, summary judgment was
properly granted to the County. We therefore affirm.
Tara N.P. was sexually assaulted while attending classes
conducted by Western Suffolk Board of Cooperative Educational
Services (BOCES) at a facility operated by North Amityville
Community Economic Council (NACEC). NACEC leased the facility
where classes were held from Suffolk County for a nominal
amount. Additionally, NACEC agreed that the facility would be
a work site for the Suffolk Works Employment Program (SWEP),
a "welfare to work" program operated by Suffolk
County Department of Labor (DOL). NACEC agreed to accept
referrals of individuals who did not have criminal records.
The DOL referred defendant Smith to NACEC for a potential
position as a maintenance worker notwithstanding that it knew
Smith was a level three sex offender. NACEC accepted the
referral of Smith and months later, while working at
NACEC's facility, Smith sexually assaulted plaintiff in
an empty classroom.
brought this action to recover damages for personal injuries
against Suffolk County, the Suffolk County Department of
Social Services, and the DOL (hereinafter, collectively the
County), as well as Smith, NACEC, BOCES, and others. In
addition to other relief, the County moved for summary
judgment dismissing the complaint insofar as asserted against
it on the grounds that it did not owe plaintiff a duty of
care and, in any event, was entitled to absolute governmental
immunity for discretionary acts. Supreme Court, among other
things, denied the County's motion for summary judgment.
The Appellate Division, as relevant here, reversed that
portion of Supreme Court's order and granted the
County's motion for summary judgment on the ground of
governmental immunity, holding that the County was acting in
a governmental capacity and did not voluntarily assume a
special duty to plaintiff. As to plaintiff's argument
that the County should be liable because it acted in a
proprietary capacity as a landlord, the Appellate Division
held that the "essential act complained of... that the
County negligently referred Smith to NACEC, was a
governmental act" and, therefore, plaintiff could not
"avoid the attachment of governmental immunity"
(131 A.D.3d 517, 520 [2d Dept 2015]). We granted plaintiff
leave to appeal (26 N.Y.3d 914');">26 N.Y.3d 914 ).
argues that the County's negligence arose out of its
proprietary function as a landlord, and that the County's
failure to provide minimal security or a warning to protect
those on the premises against foreseeable harm raises issues
of fact that preclude summary judgment. In the alternative,
plaintiff argues that, assuming the County is found to have
acted in a governmental capacity, the County had a special
duty to plaintiff and the act of referring Smith to NACEC was
our well-established case law, plaintiff's arguments are
without merit. As we have previously explained, "[w]hen
a negligence claim is asserted against a municipality, the
first issue for a court to decide is whether the municipal
entity was engaged in a proprietary function or acted in a
governmental capacity at the time the claim arose"
(Applewhite v Accuhealth, Inc., 21 N.Y.3d 420, 425
). "A government entity performs a purely
proprietary role when its 'activities essentially
substitute for or supplement traditionally private
enterprises'" (id., quoting Sebastian v
State of New York, 93 N.Y.2d 790, 793 ). In that
instance, the government entity is subject to suit under the
ordinary rules of negligence. In contrast, acts
"'undertaken for the protection and safety of the
public pursuant to the general police powers'" are
governmental in nature (id., quoting
Sebastian, 93 N.Y.2d at 793). "Because this
dichotomy is easier to state than to apply in some factual
scenarios, the determination categorizing the conduct of a
municipality may present a close question"
(id.). For that reason, courts must "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 '"
(Matter of World Trade Ctr. Bombing Litig., 17
N.Y.3d 428, 447  [citations omitted] [emphasis added]).
case, the specific act or omission that caused
plaintiff's injury was the County's referral of Smith
to NACEC through the County's SWEP program, a referral
made in spite of NACEC's caveat that it would not accept
candidates with a criminal record. The administration of SWEP
by the DOL was quintessentially a governmental role. The
County's conduct in referring Smith was undertaken solely
in connection with its administration of that program and was
part of the County's fundamental governmental activity.
Therefore, we hold that the County was acting in its
governmental capacity when it referred Smith to NACEC.
claim that the County was acting in its proprietary capacity
as a landlord is unpersuasive. Again, the specific act or
omission out of which the injury arose was the County's
referral of Smith to NACEC. This case is distinguishable from
Miller v State of New York (62 N.Y.2d 506');">62 N.Y.2d 506 ),
where we held that the State could be liable for damages in
its proprietary capacity as a landlord for failing to keep
outer doors locked in a State-operated college dormitory
where "there was a reasonably foreseeable likelihood of
criminal intrusion into the building" (Miller,
62 N.Y.2d at 508-509). Here, it is not the County's duty
as a landlord to maintain basic security that is implicated;
rather, it is the County's failure to properly adhere to
the terms that NACEC requested when the County referred Smith
for a potential position at NACEC's work site.
that the County was exercising a governmental function in
referring Smith to NACEC, "the next inquiry focuses on
[whether] the municipality owed a 'special duty' to
the injured party" (Applewhite, 21 N.Y.3d at
426; see also Coleson v City of New York, 24 N.Y.3d
476, 481 ). As we have explained, "[t]he core
principle is that to 'sustain liability against a
municipality, the duty breached must be more than that owed
the public generally'" (Applewhite, 21
N.Y.3d at 426 [citations omitted]). "[A] special duty
can arise in three situations: (1) the plaintiff belonged to
a class for whose benefit a statute was enacted; (2) the
government entity voluntarily assumed a duty to the plaintiff
beyond what was owed to the public generally; or (3) the
municipality took positive control of a known and dangerous
safety condition" (id.). The burden of
demonstrating such a special duty lies with the plaintiff. If
the "plaintiff fails to meet this burden, the analysis
ends and liability may not be imputed to the municipality
that acted in a governmental capacity" (id.).
three ways a plaintiff may show the existence of a special
duty, situations one and three have no relevance to this case
and only the second is at issue here - namely, whether the
County "voluntarily assumed a duty to the plaintiff
beyond what was owed to the public generally"
Cuffy v City of New York (69 N.Y.2d 255');">69 N.Y.2d 255 ), we
articulated four elements of this special relationship:
"(1) an assumption by the municipality, through promises
or actions, of an affirmative duty to act on behalf of the
party who was injured; (2) knowledge on the part of the
municipality's agents that inaction could lead to harm;
(3) some form of direct contact between the
municipality's agents and the injured party; and (4) that
party's justifiable reliance on ...