T.T. v. State

Appeal from an order of the Court of Claims (DeBow, J.), entered November 30, 2015, which, among other things, granted defendant’s cross motion for summary judgment dismissing the claim.

From March 1986 through June 1993, R.R. (hereinafter the resident), a developmentally disabled woman with moderate to severe autism, resided in a facility owned and operated by Camary Statewide Services, a private, nonprofit corporation that was, at that time, certified by the Office of Mental Retardation and Developmental Disabilities (hereinafter OMRDD)^[1] to provide care and treatment to persons with developmental disabilities. During this four-year period, claimant, the resident’s mother and legal guardian, regularly observed abrasions, bruises, bite marks and other injuries to the resident’s body, including her rectum, and brought such injuries to the attention of the staff at Camary, as well as OMRDD and the State Commission on Quality Care for the Mentally Disabled (hereinafter the Commission).^[2]

In 2002, claimant commenced this negligence action against defendant for its alleged failure to adequately regulate and oversee the care and treatment provided by Camary to the resident, conduct a sufficient investigation into claimant’s reports of the suspected abuse of the resident and take appropriate corrective measures, as well as its alleged implementation of an internal policy that discouraged the reporting of incidents of resident-to-resident abuse. In 2015, following years of discovery, claimant moved for summary judgment on the issue of liability, and defendant cross-moved for summary judgment dismissing the claim. The Court of Claims denied claimant’s motion for summary judgment, but granted defendant’s cross motion and dismissed the claim. Claimant now appeals, and we affirm.

In determining whether claimant may assert a negligence claim against defendant, we must first assess whether defend

Having determined that defendant acted in a governmental capacity at the time that the claim arose, we must proceed to the question of whether defendant owed the resident a special duty, which arises out of a special relationship between an injured party and the governmental entity (see Valdez v City of New York, 18 NY3d 69 , 75 [2011]; McLean v City of New York, 12 NY3d 194 , 199 [2009]; Pelaez v Seide, 2 NY3d 186 , 198-199 [2004]). “A special relationship can be formed in three ways: (1) when the [governmental entity] violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the [governmental entity] assumes positive direction and control in the face of a known, blatant and dangerous safety violation” (Pelaez v Seide, 2 NY3d at 199-200 ; accord Coleson v City of New York, 24 NY3d 476 , 481 [2014]; McLean v City of New York, 12 NY3d at 199 ). Here, of the three ways in which claimant can establish that defendant owed the resident a special duty, only the first is in issue.^[3] To that end, “[t]o form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action” (Pelaez v Seide, 2 NY3d at 200 ; accord McLean v City of New York, 12 NY3d at 200 ). Where a private right of action is not expressly created by the statute, one “may be fairly implied when (1) the [injured party] is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent

Here, claimant argues that the requisite special relationship was formed by OMRDD’s violation of Mental Hygiene Law former § 13.07 (c) (see L 1977, ch 978, § 11), as well as the reporting rules in 14 NYCRR former part 624.^[4] As relevant here, Mental Hygiene Law former § 13.07 (c) (see L 1977, ch 978, § 11) charged OMRDD with ensuring that the care and treatment provided to persons with developmental disabilities were of high quality and that the personal and civil rights of persons receiving such care and treatment were protected. As for the reporting rules, OMRDD promulgated detailed regulations requiring that reportable incidents, which included instances in which a resident sustained an injury requiring more than first aid, be recorded and investigated by the service provider under a defined procedure, subject to review by OMRDD. Undoubtedly, these statutory and regulatory provisions were enacted for the benefit of persons with developmental disabilities, a class within which the resident certainly falls.

However, no private right of action is expressly created by the implementing statute and the relevant regulations and, contrary to claimant’s contentions, one may not be fairly implied. During the time period relevant to this action, in the absence of an express private right of action, the Legislature did not leave residents or their legal guardians without recourse to address those perceived instances in which OMRDD did not adequately discharge its duty to protect the personal and civil rights of residents. Indeed, the Legislature created the Commission, which was responsible for, among other things, reviewing and investigating complaints of patient abuse and mistreatment and, where necessary, recommending to OMRDD that preventative and remedial actions be taken (see Mental Hygiene Law former § 45.07 [c] [1], [3]).^[5] Given the detailed statutory scheme of which Mental Hygiene Law former § 13.07 (c) (see L 1977, ch 978, § 11) was a part and the