M. Brown, County Attorney, Hauppauge, NY (Christopher A.
Jeffreys of counsel), for appellants.
& Dean, PLLC (Mischel & Horn, P.C., New York, NY
[Scott T. Horn and Naomi M. Taub], of counsel), for
C. DILLON, J.P. LEONARD B. AUSTIN SYLVIA O. HINDS-RADIX
JOSEPH J. MALTESE, JJ.
DECISION & ORDER
action to recover damages for wrongful death, the defendants
appeal from an order of the Supreme Court, Suffolk County
(Hudson, J.), dated May 26, 2015, which denied their motion
for summary judgment dismissing the complaint.
that the order is reversed, on the law, with costs, and the
defendants' motion for summary judgment dismissing the
complaint is granted.
September 28, 2006, the stepmother of the plaintiff's
decedent (hereinafter the decedent) contacted Adult
Protective Services (hereinafter APS), a division of the
Suffolk County Department of Social Services, and requested
assistance for the decedent, who was then 40 years old.
According to the stepmother, the decedent had lived in a
senior citizen's housing complex with his father until
the father died in April 2006. Upon the father's death,
the decedent was no longer eligible to remain in the complex,
and needed assistance in finding a new apartment. In
addition, the apartment in which the decedent had been living
was "in an unlivable condition due to filth and
clutter." The stepmother further informed APS that the
decedent weighed more than 600 pounds and the family was at a
loss as to how to help him. The plaintiff, the decedent's
half-brother, testified at a hearing pursuant to General
Municipal Law § 50(h) that the decedent was mentally
competent, but lacked motivation to help himself.
advised the stepmother and the decedent that he was eligible
for services from September 28, 2006, through March 28, 2007.
APS's plan was for the decedent to enroll in an in-home
bariatric program. After completing the program, APS would
help him find a new apartment. APS caseworkers made 12 home
visits to the decedent, and 12 telephone calls to him, his
family members, and medical providers. They also followed up
with the decedent about scheduling an evaluation with a nurse
to determine his eligibility to enter the bariatric program.
The decedent never made the appointment for the evaluation,
and declined a caseworker's offer to make the appointment
February 28, 2007, APS closed the decedent's case, as he
was found to no longer meet the criteria for services.
APS's final case note indicated that although the
decedent was obese, he was ambulatory, drove his own car for
shopping and medical appointments, and had friends and family
to assist with an apartment referral and house cleaning.
Moreover, the decedent had been given resource referrals,
which he had chosen not to act upon.
March 8, 2007, the decedent died from congestive heart
failure due to hypertrophic cardiomyopathy and morbid
obesity. In June 2008, the plaintiff commenced this action
against the County of Suffolk and the Suffolk County
Department of Social Services. After discovery, the
defendants moved for summary judgment dismissing the
complaint based upon statutory and governmental immunity. The
Supreme Court denied the motion, and the defendants appeal.
Services Law § 473 requires social services officials to
provide services to individuals who, because of mental or
physical impairments, are unable to manage their own
resources or carry out the activities of daily living. Social
Services Law § 473(3) provides immunity from any civil
liability that might result by reason of providing such
services, provided that the municipal employees were
"acting in the discharge of [their] duties and within
the scope of [their] employment, and that such liability did
not result from the willful act[s] or gross negligence"
of those employees (Social Services Law § 473;
see Shinn v City of New York, 65 A.D.3d 621).
the defendants established their prima facie entitlement to
judgment as a matter of law on the ground that they are
immune from liability pursuant to Social Services Law §
473(3) by demonstrating that the caseworkers assigned to the
plaintiff's decedent acted in the discharge of their
duties and within the scope of their employment (see
Shinn v City of New York, 65 A.D.3d at 622). In
response, the plaintiff failed to raise a triable issue of
fact as to whether the decedent's death was the result of
willful acts or gross negligence of those caseworkers
(see Rivera v City of New York, 82 A.D.3d 647,
648-649; Shinn v City of New York, 65 A.D.3d at 622;
Carossia v City of New York, 39 A.D.3d 429, 430,
Rine v Chase, 309 A.D.2d 796, 798).
parties' remaining contentions are without merit.
the Supreme Court should have granted the defendants'
motion for ...