Weissman, for appellant.
J. Isaac, for respondent.
Pacific Legal Foundation, amicus curiae.
appeal challenging the denial of a motion for summary
judgment, we consider whether the defendant mental health and
substance abuse treatment facility owed a duty of care to
plaintiff, who was assaulted by one of defendant's
discharged residents. Because defendant discharged the
resident from the program, and thus lacked control over him
at the time of the incident, we hold that defendant owed no
duty of care to plaintiff.
Sean Velentzas was arrested for holding a cab driver at
gunpoint and forcing him to withdraw money from an ATM.
Velentzas was given the opportunity to participate in
Treatment Alternatives for Safer Communities (TASC). TASC is
an alternative-to-incarceration service which, with the
consent of the court and the district attorney, works with
organizations like defendant, Queens Village Committee for
Mental Health for Jamaica Community Adolescent Program, Inc.
(JCAP), to provide criminal defendants with substance abuse
and mental health treatment services. Velentzas was admitted
to JCAP and was expected to complete the program within
eighteen months; however, three weeks into his program, he
got into an altercation with another resident and admitted to
having consumed alcohol while at JCAP's facility. As a
result, and pursuant to established guidelines, JCAP
discharged Velentzas from the facility. Shortly after his
expulsion, Velentzas assaulted plaintiff Anthony Oddo - his
mother's boyfriend - by repeatedly punching him in his
face and stabbing him in the shoulder.
commenced this negligence action against JCAP contending that
his injuries were solely the result of JCAP negligently
releasing Velentzas. After answering the complaint and
following discovery, JCAP moved for summary judgment
dismissing the complaint. JCAP argued that it owed no duty to
plaintiff because Velentzas was properly discharged from the
facility for having violated its policies against violence
and alcohol use. In support of its motion, JCAP submitted the
deposition testimony and affidavit of Ricky Cottingham,
JCAP's acting clinical program director. In his
deposition, Cottingham explained that during approved
outings, residents are escorted by JCAP staff and must sign
in and out when they leave and return to the facility.
However, residents can leave the program against medical
advice and, in any event, JCAP staff members are not
authorized to physically prevent a participant from leaving
affidavit, Cottingham stated that he was advised by facility
staff on the day of the incident that Velentzas broke two
cardinal rules of the facility: intoxication and physical
violence. This required his dismissal. He explained that when
TASC participants are dismissed from the program, TASC must
be notified of the participant's rule violation and
discharge from the program, and the participant is directed
to report to TASC on the following business day. Cottingham
stated that because Velentzas was dismissed on a weekend, he
would have to report to TASC the following Monday. Similarly,
because of the weekend dismissal, TASC would also be notified
on that date.
explained that, following the incident, JCAP began filling
out paperwork to transfer Velentzas to an intermediary
facility until Queens TASC could be notified of the
altercation and violation of JCAP's rules. However,
Cottingham stated that as the paperwork was being filled out,
Velentzas became enraged and began acting out of control.
Staff, in accordance with JCAP's policy, called 911. When
the police arrived Velentzas was escorted off the premises.
Cottingham opined that JCAP did not release Velentzas to the
general public and did not intend to do so.
in support of its motion, JCAP submitted a copy of the report
that was created by a JCAP Clinical Counselor following the
incident, which stated:
"Client had pushed another client to the ground. It was
alleged that he was intoxicated. He refused to submit to a
breathalyzer but admitted to drinking. He stated that he was
leaving and left against clinical advice.... Staff informed
him that he had broken a cardinal rule and that there is no
threat of violence or violence on property. Staff called 911
and he was escorted by police officers off the
Court denied JCAP's motion for summary judgment, holding
that JCAP owed a duty of care to plaintiff. The Appellate
Division, with one Justice dissenting, affirmed (135 A.D.3d
211 [1st Dept 2015]). The dissent reasoned that JCAP did not
have a duty to protect the general public from Velentzas
after his proper discharge from the facility. That court
granted JCAP's motion for leave to appeal to this Court,
certifying the following question: "Was the order of
this Court, which affirmed the order of Supreme Court,