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Caution As of: Sep 10, 2008 Ram Krishna Maheshwari et al., Appellants, v. City of New York et al., Respondents, et al., Defendants. No. 54 COURT OF APPEALS OF NEW YORK 2 N.Y.3d 288; 810 N.E.2d 894; 778 N.Y.S.2d 442; 2004 N.Y. LEXIS 978 March 25, 2004, Argued May 6, 2004, Decided PRIOR HISTORY: Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered August 7, 2003. The Appellate Division, with two Justices dissenting, (1) reversed, on the law, an order of the Supreme Court, New York County (Marcy S. Friedman, J.), which had denied a motion by defendant Delsener/Slater Enterprises, Ltd. for summary judgment, (2) granted the motion, and (3) directed entry of a judgment in favor of defendants Delsener/Slater Enterprises, Ltd. and City of New York dismissing the complaint as against them. Maheshwari v. City of New York, 307 A.D.2d 797, 763 N.Y.S.2d 287, 2003 N.Y. App. Div. LEXIS 8650 (N.Y. App. Div. 1st Dep't, 2003), affirmed. DISPOSITION: firmed. CASE SUMMARY: PROCEDURAL POSTURE: Plaintiffs, an injured party and his wife, sued defendants, the City of New York and a company that produced a concert, alleging negligence. The trial court denied the company's motion for summary judgment, but the Supreme Court of New York, Appellate Division, First Department, reversed the trial court's judgment and granted summary judgment for the company and the City. The court of appeals granted leave to appeal. Order of the appellate division afOVERVIEW: An injured party was hurt when he was attacked by four men while he was distributing pamphlets to concertgoers in a parking lot near a stadium, and he sued New York City and a company that produced the concert, alleging that they did not provide adequate security for the concert. The trial court denied the company's motion for summary judgment, but the intermediate appellate court reversed that judgment and granted summary judgment for the company and the City. The state's highest court held that (1) the evidence showed that the company and the City took reasonable measures to deal with issues of crowd control and other forms of disorderliness, short of unprovoked criminal acts; (2) random attacks such as that perpetrated on the injured party were not a predictable result of gatherings by large groups of people; and (3) even assuming that the company and the City were responsible for a lapse in security in the parking lot where the attack occurred, the injured party was not entitled to recover damages from the City or the company because that lapse was not the proximate cause of the injuries he sustained. OUTCOME: The court of appeals affirmed the intermediate appellate court's judgment. CORE TERMS: concert, parking areas, foreseeable, stadium, parking, crowd, criminal acts, parking lot, foreseeability, proximate cause, police officers, summary judgment, traffic, random, island, criminal assaults, unidentified, assigned, causal, unprovoked, festival, intervening act, provide adequate, adequate security, nor-

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mal course, far removed, provocation, pedestrian, attended, assault LexisNexis(R) Headnotes

the situation created by the defendant's negligence. An intervening act may break the causal nexus when it is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct. HEADNOTES

Real Property Law > Landlord & Tenant > Duty to Repair Torts > Premises Liability & Property > Lessees & Lessors > Liabilities of Lessors > Negligence > Criminal Acts Torts > Premises Liability & Property > Lessees & Lessors > Liabilities of Lessors > Negligence > Duty to Repair > Common Law Requirements [HN1] New York landowners owe people on their property a duty of reasonable care under the circumstances to maintain their property in a safe condition. Although landlords and permittees have a common law duty to minimize foreseeable dangers on their property, including the criminal acts of third parties, they are not the insurers of a visitor's safety. Torts > Negligence > Duty > General Overview [HN2] Foreseeability and duty are not identical concepts. Foreseeability merely determines the scope of the duty once the duty is determined to exist. Torts > Premises Liability & Property > General Premises Liability > General Overview [HN3] In cases arising out of injuries sustained on another's property, the scope of the possessor's duty is defined by past experience and the likelihood of conduct on the part of third persons which is likely to endanger the safety of a visitor. Torts > Negligence > Causation > Proximate Cause > General Overview [HN4] A random criminal attack is not a predictable result of the gathering of a large group of people. Torts > Negligence > Causation > Proximate Cause > Foreseeability [HN5] To establish a prima facie case of proximate cause, a plaintiff must show that the defendant's negligence was a substantial cause of the events which produced the injury. Where the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed. In such a case, liability turns on whether the intervening act is a normal or foreseeable consequence of

Negligence -- Foreseeability -- Proximate Cause -Failure to Provide Adequate Security in Concert Parking Lot Plaintiff, having sustained injuries as the result of a random and unprovoked attack by four unidentified men in the parking lot of a public park during a rock concert, could not hold the municipal owner of the park and the concert producer liable. Defendants took reasonable measures to deal with the issues of crowd control and other forms of disorderliness short of unprovoked criminal acts. The brutal attack on plaintiff was not a foreseeable result of any security breach. COUNSEL: Nitkewicz & McMahon, LLP, Commack (Edward J. Nitkewicz and Jinan M. Arafat of counsel), for appellants. I. Defendants-respondents had notice of criminal activity in connection with their rock concerts and therefore had a duty to provide minimal security measures which they failed to meet. (Provenzano v Roslyn Gardens Tenants Corp., 190 A.D.2d 718, 593 N.Y.S.2d 80; Iannelli v Powers, 114 A.D.2d 157, 498 N.Y.S.2d 377; Balsam v Delma Eng'g Corp., 139 A.D.2d 292, 532 N.Y.S.2d 105; Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507, 407 N.E.2d 451, 429 N.Y.S.2d 606; Basso v Miller, 40 N.Y.2d 233, 352 N.E.2d 868, 386 N.Y.S.2d 564; Miller v State of New York, 62 N.Y.2d 506, 467 N.E.2d 493, 478 N.Y.S.2d 829; Jacqueline S. v City of New York, 81 NY2d 288, 614 N.E.2d 723, 598 N.Y.S.2d 160; Riss v City of New York, 22 N.Y.2d 579, 240 N.E.2d 860, 293 N.Y.S.2d 897; Palsgraf v Long Is. R.R. Co., 248 N.Y. 339, 162 N.E. 99; Rotz v City of New York, 143 A.D.2d 301, 532 N.Y.S.2d 245.) II. Common contemporary experience gives rise to a duty of care to protect users of the permitted premises from disorder, unruliness, a melee or a riot erupting from a cause ignited by the vagaries of individuals brought together in a heightened atmosphere such as an all-day rock concert with drinking, marijuana smoking and "tailgating." (Rotz v City of New York, 143 A.D.2d 301, 532 N.Y.S.2d 245; Pulka v Edelman, 40 N.Y.2d 781, 358 N.E.2d 1019, 390 N.Y.S.2d 393; Palsgraf v Long Is. R.R. Co., 248 N.Y. 339, 162 N.E. 99.) III. Defendants-respondents failed to provide any security to the sunken meadow parking field and thus failed to meet their duty of care. (Curry v Baisley Park Assoc., 162 Misc. 2d 436, 617 N.Y.S.2d 420.) IV. Whether defendants-respondents' failure to provide any security to the parking field known as "Sunken Meadow" was a proxim-

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ate cause of the assault upon plaintiff-appellant is a question of fact for jury determination. (Garrett v Twin Parks Northeast Site 2 Houses, 256 A.D.2d 224, 682 N.Y.S.2d 349; Burgos v Aqueduct Realty Corp., 92 N.Y.2d 544, 706 N.E.2d 1163, 684 N.Y.S.2d 139; Rotz v City of New York, 143 A.D.2d 301, 532 N.Y.S.2d 245; Burgundy Basin Inn v Watkins Glen Grand Prix Corp., 51 A.D.2d 140, 379 N.Y.S.2d 873; Derdiarian v Felix Contr. Corp., 51 N.Y.2d 308, 414 N.E.2d 666, 434 N.Y.S.2d 166.) V. The criminal assault upon plaintiff-appellant at a rock concert was foreseeable and therefore not an intervening act which severs the liability of defendants-respondents for negligent security. (Derdiarian v Felix Contr. Corp., 51 N.Y.2d 308, 414 N.E.2d 666, 434 N.Y.S.2d 166; Kush v City of Buffalo, 59 N.Y.2d 26, 449 N.E.2d 725, 462 N.Y.S.2d 831; Parvi v City of Kingston, 41 N.Y.2d 553, 362 N.E.2d 960, 394 N.Y.S.2d 161; Stephenson v Johnson & Son, 168 Misc. 2d 528, 638 N.Y.S.2d 889; Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507, 407 N.E.2d 451, 429 N.Y.S.2d 606.) VI. Defendant-respondent City of New York is not entitled to an order of summary judgment based upon issues not presented in the motion papers to the trial court below. (Dunham v Hilco Constr. Co., 89 N.Y.2d 425, 676 N.E.2d 1178, 654 N.Y.S.2d 335; Frank v City of New York, 211 A.D.2d 478, 621 N.Y.S.2d 546; Marshall v New York City Health & Hosps. Corp., 186 A.D.2d 542, 588 N.Y.S.2d 364; Conroy v Swartout, 135 A.D.2d 945, 522 N.Y.S.2d 354; Mercedes-Benz Credit Corp. v Dintino, 198 A.D.2d 901, 604 N.Y.S.2d 451; Sebastian v State of New York, 93 N.Y.2d 790, 720 N.E.2d 878, 698 N.Y.S.2d 601; Matter of Richardson v Fiedler Roofing, 67 N.Y.2d 246, 493 N.E.2d 228, 502 N.Y.S.2d 125; People v Rodriguez y Paz, 58 N.Y.2d 327, 448 N.E.2d 102, 461 N.Y.S.2d 248; Sega v State of New York, 60 N.Y.2d 183, 456 N.E.2d 1174, 469 N.Y.S.2d 51; Carnegie Hall Corp. v City Univ. of N.Y., 286 A.D.2d 214, 729 N.Y.S.2d 93.) VII. The duty originally assigned to Delsener/Slater Enterprises, Ltd. under the stadium use agreement was not governmental but proprietary, and when the City of New York later reassumed the duty it remained proprietary. VIII. The City of New York's failure to provide security to the crime-infested parking fields of its stadium where a rock concert was being held for profit was an omission which fell within its proprietary function. (Weiner v Metropolitan Transp. Auth., 55 N.Y.2d 175, 433 N.E.2d 124, 448 N.Y.S.2d 141; Miller v State of New York, 62 N.Y.2d 506, 467 N.E.2d 493, 478 N.Y.S.2d 829; Preston v State of New York, 59 N.Y.2d 997, 453 N.E.2d 1241, 466 N.Y.S.2d 952; Bass v City of New York, 38 A.D.2d 407, 330 N.Y.S.2d 569, 32 N.Y.2d 894, 300 N.E.2d 154, 346 N.Y.S.2d 814; Basso v Miller, 40 N.Y.2d 233, 352 N.E.2d 868, 386 N.Y.S.2d 564; Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507, 407 N.E.2d 451, 429 N.Y.S.2d 606; Levy v State of New York, 262 A.D.2d 230, 692 N.Y.S.2d 354; Rashed v State of New

York, 232 A.D.2d 394, 648 N.Y.S.2d 131; Ruchalski v Schenectady County Community Coll., 239 A.D.2d 687, 656 N.Y.S.2d 784.) Michael A. Cardozo, Corporation Counsel, New York City (Julian L. Kalkstein and Larry A. Sonnenshein of counsel), for City of New York, respondent. I. The duty owed to plaintiff at a concert attended by 25,000 people did not include a guarantee of protection from a random act of violence. Failure to provide security from such an indiscriminate, stealthy assault was not the proximate cause of plaintiff's injury. (Hamilton v Beretta U.S.A. Corp., 96 N.Y.2d 222, 750 N.E.2d 1055, 727 N.Y.S.2d 7; Palka v Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 634 N.E.2d 189, 611 N.Y.S.2d 817; Lauer v City of New York, 95 N.Y.2d 95, 733 N.E.2d 184, 711 N.Y.S.2d 112; Tobin v Grossman, 24 N.Y.2d 609, 249 N.E.2d 419, 301 N.Y.S.2d 554; Mason v U.E.S.S. Leasing Corp., 96 N.Y.2d 875, 756 N.E.2d 58, 730 N.Y.S.2d 770; Di Ponzio v Riordan, 89 N.Y.2d 578, 679 N.E.2d 616, 657 N.Y.S.2d 377; Greene v Sibley, Lindsay & Curr Co., 257 N.Y. 190, 177 N.E. 416; Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507, 407 N.E.2d 451, 429 N.Y.S.2d 606; Leyva v Riverbay Corp., 206 A.D.2d 150, 620 N.Y.S.2d 333; Florman v City of New York, 293 A.D.2d 120, 741 N.Y.S.2d 233.) II. Delsener/Slater Enterprises, Ltd. had a contractual duty with the City of New York to provide security in the parking areas. Delsener was not absolved of any of that duty by any security the City agreed to undertake. (Florman v City of New York, 293 A.D.2d 120, 741 N.Y.S.2d 233; W.W.W. Assoc. v Giancontieri, 77 N.Y.2d 157, 566 N.E.2d 639, 565 N.Y.S.2d 440; Readco, Inc. v Marine Midland Bank, 81 F.3d 295; A.H.A. Gen. Constr. v New York City Hous. Auth., 92 N.Y.2d 20, 699 N.E.2d 368, 677 N.Y.S.2d 9; Modell & Co. v City of New York, 159 A.D.2d 354, 552 N.Y.S.2d 632, 76 N.Y.2d 845, 559 N.E.2d 1288, 560 N.Y.S.2d 129; Granada Bldgs. v City of Kingston, 58 N.Y.2d 705, 444 N.E.2d 1325, 458 N.Y.S.2d 906; Public Improvements v Board of Educ., 56 N.Y.2d 850, 438 N.E.2d 876, 453 N.Y.S.2d 170; Matter of Parkview v City of New York, 71 N.Y.2d 274, 519 N.E.2d 1372, 525 N.Y.S.2d 176, 71 N.Y.2d 995, 524 N.E.2d 879, 529 N.Y.S.2d 278, 488 U.S. 801, 109 S. Ct. 30, 102 L. Ed. 2d 9.) III. The municipal defendants cannot be held liable for the failure to adequately perform a governmental function. (Balsam v Delma Eng'g Corp., 90 N.Y.2d 966, 688 N.E.2d 487, 665 N.Y.S.2d 613; Kircher v City of Jamestown, 74 N.Y.2d 251, 543 N.E.2d 443, 544 N.Y.S.2d 995; Cuffy v City of New York, 69 N.Y.2d 255, 505 N.E.2d 937, 513 N.Y.S.2d 372; Weiner v Metropolitan Transp. Auth., 55 N.Y.2d 175, 433 N.E.2d 124, 448 N.Y.S.2d 141; Riss v City of New York, 22 N.Y.2d 579, 240 N.E.2d 860, 293 N.Y.S.2d 897; Price v New York City Hous. Auth., 92 N.Y.2d 553, 706 N.E.2d 1167, 684 N.Y.S.2d 143; Bonner v City of New York, 73 N.Y.2d 930,

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536 N.E.2d 1147, 539 N.Y.S.2d 728; Vitale v City of New York, 60 N.Y.2d 861, 458 N.E.2d 817, 470 N.Y.S.2d 358; Krakower v City of New York, 217 A.D.2d 441, 629 N.Y.S.2d 435; Akinwande v City of New York, 260 A.D.2d 586, 688 N.Y.S.2d 651.) Law Office of Ted M. Tobias, New York City (Milagros A. Matos of counsel), for Delsener/Slater Enterprises, Ltd., respondent. I. Delsener/Slater Enterprises, Ltd. had no duty to provide security because it had no notice of criminal activity in the area. (Florman v City of New York, 293 A.D.2d 120, 741 N.Y.S.2d 233; Karp v Saks Fifth Ave., 225 A.D.2d 1014, 639 N.Y.S.2d 575.) II. Defendant met its obligation to provide minimal security and therefore plaintiff failed to establish that inadequate security was the proximate cause of his injuries. (Burgos v Aqueduct Realty Corp., 92 N.Y.2d 544, 706 N.E.2d 1163, 684 N.Y.S.2d 139; Brewster v Prince Apts., 264 A.D.2d 611, 695 N.Y.S.2d 315, 94 N.Y.2d 875, 726 N.E.2d 483, 705 N.Y.S.2d 6; Karp v Saks Fifth Ave., 225 A.D.2d 1014, 639 N.Y.S.2d 575; Leyva v Riverbay Corp., 206 A.D.2d 150, 620 N.Y.S.2d 333.) III. Delsener/Slater Enterprises, Ltd. had no duty to provide greater security because there was no indication that plaintiff's assailants were dangerous. (Florman v City of New York, 293 A.D.2d 120, 741 N.Y.S.2d 233; Rotz v City of New York, 143 A.D.2d 301, 532 N.Y.S.2d 245.) IV. If there was inadequate security in the ballfield, liability rests with the City of New York and not with Delsener/Slater Enterprises, Ltd. (Florman v City of New York, 293 A.D.2d 120, 741 N.Y.S.2d 233; Burgos v Aqueduct Realty Corp., 92 N.Y.2d 544, 706 N.E.2d 1163, 684 N.Y.S.2d 139.) JUDGES: Opinion by Judge Rosenblatt. Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read and R.S. Smith concur. OPINION BY: ROSENBLATT OPINION [***443] [**895] [*291] Rosenblatt, J. Randomly and without provocation, four unidentified hoodlums attacked plaintiff in the parking lot at a music festival in a New York City park. We must decide whether plaintiff may hold the City and the concert producer liable. On July 10 and 11, 1996, defendant Delsener/Slater produced a Lollapalooza concert at Downing Stadium, a facility owned by defendant City of New York, on Randall's Island. The festival included heavy metal and rap acts such as Metallica, Soundgarden, Wu Tang Clan and the Ramones. Delsener entered into a [*292] stadium use agreement with the City, by which Delsener was to

provide "supervision of the parking areas for the Event," including "sufficient trained security personnel as may be necessary" to police the stadium and additional facilities, ensure the orderly entrance and exit of patrons, manage the parking and traffic flow, and safeguard the property. In addition, the contract called on Delsener to "prepare and submit a site and operations plan" detailing "public vehicular and pedestrian traffic circulation, parking control, and security from the Triborough Bridge ramps and the access roads to the designated ballfields to be used for parking and access to the stadium area." The agreement also obligated Delsener to furnish a plan for the "number, location and [**896] [***444] hours of deployment of licensed security personnel assigned to the . . . parking fields." Several weeks before the event, representatives of those involved in the planning (including Delsener, the Police Department, the Parks Department and other private security companies) attended an "all-agency meeting" to discuss logistics. The participants agreed that the City, through the Police Department and the Parks Department Parks Enforcement Police (PEP), would provide security in the parking areas. On the days of the concert, the security plan was in place: 24 police officers, three sergeants and approximately two dozen PEP officers patrolled the parking areas. Police were assigned to maintain the island during the concert and to move the crowd of 25,000 people safely in and out of the stadium. PEP's role was to patrol the parking areas in search of illegal vendors, alcohol, open fires and littering. Delsener also contracted with another firm to maintain the traffic flow and direct parking in the parking areas. On July 10, 1996, plaintiff went to the concert to distribute pamphlets on behalf of the International Society for Krishna Consciousness. While in the Sunken Meadow parking area, four unidentified young men assaulted him without provocation. When the attack occurred, officers were stationed at certain parts of the parking fields, but apparently none were in the Sunken Meadow parking area. Plaintiff suffered serious personal injury at the hands of his attackers, whom he described as "heavily drunk, red eyes, bottles in their hand, smelling." As the Appellate Division noted, "[a]lthough plaintiff did not see any police officers or anybody on horseback in the parking lot, he saw people in uniform directing traffic" (307 A.D.2d 797, 798-799, [*293] 763 N.Y.S.2d 287 [1st Dept 2003]). At a deposition, a police officer testified that, according to his "post list," no police officer had been assigned to the Sunken Meadow parking area. In his complaint, plaintiff (and his wife derivatively) sued Delsener and the City for not providing adequate security. 1 Delsener moved for summary judgment,

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claiming in essence that it owed plaintiff no duty to prevent a random criminal act of this kind. Supreme Court denied the motion and Delsener appealed. By a divided court, the Appellate Division reversed and granted summary judgment not only to Delsener but to the City as well. 2 The Court based its decision on Florman v City of New York (293 A.D.2d 120, 741 N.Y.S.2d 233 [1st Dept 2002]), in which another plaintiff was injured in the parking area at the same Lollapalooza concert. In assuming that the injury in Florman was the result of a willful attack, the Court concluded that plaintiff had failed to raise a triable issue of fact as to foreseeability and proximate cause. 1 The remaining defendants--Randall's Island Sports Foundation, Inc., Keith Kevan Organization, Inc. and Keith Kevan--are not parties to this appeal. Supreme Court dismissed all claims against the Kevan defendants. 2 Although the City did not appeal from Supreme Court's order, the Appellate Division had the authority to search the record and grant summary judgment to the City under CPLR 3212 (b) (see Merritt Hill Vineyards Inc. v Windy Hgts. Vineyard, 61 N.Y.2d 106, 460 N.E.2d 1077, 472 N.Y.S.2d 592 [1984]). Two Justices dissented, believing there to be questions of fact as to the predictability of criminal assaults at a Lollapalooza concert. They referred to a journalist's description of the event as attended by "a moshing crowd of bare-chested, sweating, staggeringly drunk and stoned 'Beavis and Butt-Head' types." (307 A.D.2d at 801, [**897] [***445] 763 N.Y.S.2d 287.) We now affirm the order of the Appellate Division. In arguing that the City and Delsener breached their duty to provide adequate security in the parking area, plaintiff seeks to hold Delsener liable under the stadium use agreement and the City in its proprietary capacity as the owner of Downing Stadium and Randall's Island. Plaintiff maintains that the crime was foreseeable because defendants had notice of criminal activity at previous Lollapalooza festivals, and that defendants' negligence in providing security was a proximate cause of his injury. Plaintiff essentially argues that Lollapalooza attracts concertgoers who are predictably prone to criminal behavior. In support, he presented statistics from previous Lollapalooza concerts [*294] in which arrests were made for disorderly conduct, misdemeanor assault, criminal mischief, resisting arrest and possession of stolen property. He also claims that defendant knew that one of the musical acts, Wu Tang Clan, had violent incidents at previous concerts. Further, plaintiff argues that defend-

ants knew that tailgating occurred in the parking areas before and during the concert. Tailgating, he contends, increases the chances that criminal activity will occur, presumably because tailgaters may drink alcoholic beverages. Defendants argue that any duty they owed to plaintiff did not include a guarantee of protection from a random act of violence. They assert that the indiscriminate, spontaneous assault upon plaintiff was not proximately caused by any deficiency in security. We conclude that the Appellate Division was correct in accepting defendants' arguments. We have long held that [HN1] "New York landowners owe people on their property a duty of reasonable care under the circumstances to maintain their property in a safe condition" (Tagle v Jakob, 97 N.Y.2d 165, 168, 763 N.E.2d 107, 737 N.Y.S.2d 331 [2001]; see Basso v Miller, 40 N.Y.2d 233, 241, 352 N.E.2d 868, 386 N.Y.S.2d 564 [1976]). Although landlords and permittees have a common-law duty to minimize foreseeable dangers on their property, including the criminal acts of third parties, they are not the insurers of a visitor's safety (see Burgos v Aqueduct Realty Corp., 92 N.Y.2d 544, 548, 706 N.E.2d 1163, 684 N.Y.S.2d 139 [1998]; Jacqueline S. v City of New York, 81 N.Y.2d 288, 292-293, 614 N.E.2d 723, 598 N.Y.S.2d 160 [1993], rearg denied 82 N.Y.2d 749, 622 N.E.2d 308, 602 N.Y.S.2d 807 [1993]; Nallan v Helmsley-Spear Inc., 50 N.Y.2d 507, 519, 407 N.E.2d 451, 429 N.Y.S.2d 606 [1980]). As we have noted, however, [HN2] foreseeability and duty are not identical concepts. Foreseeability merely determines the scope of the duty once the duty is determined to exist (see Pulka v Edelman, 40 N.Y.2d 781, 785, 358 N.E.2d 1019, 390 N.Y.S.2d 393 [1976]). [HN3] In cases arising out of injuries sustained on another's property, the scope of the possessor's duty is defined by past experience and the "likelihood of conduct on the part of third persons . . . which is likely to endanger the safety of the visitor" (Nallan, 50 N.Y.2d at 519, quoting Restatement [Second] of Torts 344, Comment f). Here, the brutal attack was not a foreseeable result of any security breach. The types of crimes committed at past Lollapalooza concerts are of a lesser degree than a criminal assault, and would not lead defendants to predict that such an attack would occur or could be prevented. By all accounts, defendants took reasonable measures to deal with issues of crowd control and other forms of disorderliness short of unprovoked criminal acts. [HN4] A random criminal attack of this nature is not a [**898] [***446] predictable result of the gathering of a large group of people. [*295] The Appellate Division concluded, as do we, that the record reveals no failure by the organizers of

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the event to provide adequate control or security. The concert was host to thousands of people over a large area. Security officers cannot be everywhere at once. As the Appellate Division stated in Florman, "[i]t is difficult to understand what measures could have been undertaken to prevent plaintiff's injury except presumably to have had a security officer posted at the precise location where the incident took place or wherever pedestrians were gathered, surely an unreasonable burden" (293 A.D.2d at 127). Plaintiff and the Appellate Division dissenters rely heavily on Rotz v City of New York (143 A.D.2d 301, 532 N.Y.S.2d 245 [1st Dept 1988]). There, the Appellate Division denied summary judgment to defendants after the plaintiff sustained injury at a concert in Central Park when a stampeding crowd trampled over him. While we do not express an opinion on the merits of that case, it is enough to say that it is, in any event, distinguishable from the one before us. The Appellate Division correctly recognized that Rotz involved crowd control, which is not the issue here. We also agree with the Appellate Division's conclusions that even assuming a lapse in the security in the parking lot, plaintiff's injuries were not the result of any such lapse, but were caused by an independent, intervening criminal act. [HN5] To establish a prima facie case of proximate cause, a plaintiff must show "that the defendant's negligence was a substantial cause of the events which produced the injury" (Derdiarian v Felix Contr.

Corp., 51 N.Y.2d 308, 315, 414 N.E.2d 666, 434 N.Y.S.2d 166 [1980] ). "Where the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence" (id.). An intervening act may break the causal nexus when it is "extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct" (id.). Here, as an independent act far removed from defendants' conduct, the criminal assault broke the causal nexus. The attack was extraordinary and not foreseeable or preventable in the normal course of events. Inasmuch as we agree with the Appellate Division's dismissal of the action against the City on the lack of foreseeability and on the absence of causation, we need not address the City's argument that it is immune from liability based on its claim [*296] that it acted in a governmental, and not proprietary, capacity. In addition, plaintiff's remaining arguments are without merit. Accordingly, the Appellate Division order should be affirmed, with costs. Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read and R.S. Smith concur. Order affirmed, with costs.

2 of 55 DOCUMENTS

Caution As of: Sep 10, 2008 Keith Bauer, Appellant, v. Female Academy of the Sacred Heart, Defendant and Third-Party Plaintiff-Respondent. Environmental Service Systems, Third-Party Defendant-Respondent. No. 21 COURT OF APPEALS OF NEW YORK 97 N.Y.2d 445; 767 N.E.2d 1136; 741 N.Y.S.2d 491; 2002 N.Y. LEXIS 548 February 6, 2002, Argued March 26, 2002, Decided PRIOR HISTORY: Appeal from a judgment of the Supreme Court (Bernard J. Malone, Jr., J.), entered May

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24, 2001 in Albany County, upon a verdict in favor of defendant, dismissing the complaint and bringing up for review (1) a prior nonfinal order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered September 8, 2000, as amended by an unpublished order entered January 25, 2001, which, with two Justices dissenting, modified, on the law, and, as modified, affirmed a judgment and an amended judgment of the Supreme Court (Bernard J. Malone, Jr., J.), entered upon a verdict in favor of plaintiff, awarding plaintiff damages in the principal sum of $ 3,408,323.28 and apportioning damages between defendant and the thirdparty defendant; the modification consisted of remitting the matter to Supreme Court for a new trial on the issue of liability; and (2) a prior nonfinal order of the Appellate Division, entered December 30, 1998, which, with two Justices dissenting, modified, on the law, and, as modified, affirmed an order of the Supreme Court (Victoria A. Graffeo, J.), entered in Albany County, denying a motion by defendant and the third-party defendant to dismiss all of plaintiff's causes of action except for one predicated on Labor Law 202, and denying a cross motion by plaintiff for summary judgment; the modification consisted of reversing so much of the order as denied the motions of defendant and the third-party defendant to dismiss plaintiff's Labor Law 240 cause of action, and denied the motion by the third-party defendant for summary judgment dismissing defendant's claim for contractual indemnification, granting those motions, and dismissing those claims. Bauer v Female Academy of Sacred Heart, 250 AD2d 298, modified. Bauer v Female Academy of Sacred Heart, 275 AD2d 809, modified. DISPOSITION: Judgment appealed from and orders of the Appellate Division brought up for review modified in part, affirmed in part and remitted in part for new trial. CASE SUMMARY: PROCEDURAL POSTURE: Plaintiff injured window cleaner appealed from a judgment and orders of the Appellate Division (New York) summarily dismissing his claim against defendant premises owner predicated on N.Y. Lab. Law 240(1) and directing trial of his unsuccessful N.Y. Lab. Law 202 claim subject to comparative negligence principles. OVERVIEW: A window cleaner was injured in a fall, and sued the landowner pursuant to N.Y. Lab. Law 202, which dealt especially with window cleaners, and N.Y. Lab. Law 240(1), which imposed strict liability on

landowners in certain situations. The landowner brought a third-party action against the cleaner's employer, alleging it failed to provide proper safety equipment. The high court held that the existence of an action peculiar to window cleaners did not preclude the cleaner from seeking relief under the strict liability statute, since they both dealt with cleaning and covered varying situations. The strict liability claim should have been allowed to proceed to trial. The intermediate court had properly, however, determined that liability under the window cleaning statute was subject to comparative negligence principles, since the statute no longer mandated particular safety equipment or precautions. OUTCOME: The court modified the judgment and orders to the extent of reinstating the cleaner's strict liability claim and remitted the matter to the trial court for trial of that claim only. CORE TERMS: window, anchor, cause of action, strict liability, cleaning, window cleaner's, industrial, hook, safety devices, exterior, washer, comparative negligence, safe, summary judgment, ordinance, modified, industrial board, comparative, inadequacy, common-law, lessee, lanyard, Labor Law, negligence principles, board of standards, evidence of negligence, public buildings, exclusivity, coverage, cleaner LexisNexis(R) Headnotes

Labor & Employment Law > Occupational Safety & Health > Duties & Rights [HN1] According to N.Y. Comp. Codes R. & Regs. tit. 12, 21.13, window cleaning anchors must be round, like the openings on the hooks that clip onto them. Governments > Legislation > Interpretation Labor & Employment Law > Occupational Safety & Health > Civil Liability [HN2] New York case law does not prohibit assertion of alternative claims under the New York Labor Law. Labor & Employment Law > Occupational Safety & Health > Duties & Rights [HN3] N.Y. Lab. Law 202 protects people who clean windows and exterior surfaces of buildings. The requirements of N.Y. Lab. Law 202 apply to owners, lessees, agents, and managers. N.Y. Lab. Law 202 is inapplicable to multiple dwellings of six stories or less and to non-public buildings. N.Y. Lab. Law 202 necessarily involves the periodic cleaning of windows at residences,

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albeit not at multiple residences less than six stories in height. Labor & Employment Law > Occupational Safety & Health > Duties & Rights [HN4] N.Y. Lab. Law 240(1) applies to workers engaged in the cleaning of a building. Strict liability under N.Y. Lab. Law 240(1) flows to owners and contractors only. N.Y. Lab. Law 240(1) is inapplicable to one- and two-family homes. Moreover, although N.Y. Lab. Law 240(1) covers cleaning, it does not apply to routine household cleaning. Labor & Employment Law > Occupational Safety & Health > Duties & Rights [HN5] While N.Y. Lab. Law 202, 240, sometimes apply to the same fact patterns, they do not in every case. The sections serve different goals, apply to different defendants, and are interpreted differently. Torts > Negligence > Defenses > Comparative Negligence > General Overview Torts > Negligence > Proof > Violations of Law > General Overview Torts > Strict Liability > General Overview [HN6] In New York State, statutory causes of action predicated upon violations of administrative regulations do not give rise to strict liability. Labor & Employment Law > Occupational Safety & Health > Duties & Rights [HN7] See N.Y. Lab. Law 202. Governments > Local Governments > Claims By & Against Torts > Negligence > Defenses > Comparative Negligence > Intentional & Reckless Conduct Torts > Negligence > Proof > Violations of Law > General Overview [HN8] In New York, the violation of a rule of an administrative agency or of an ordinance of a local government, lacking the force and effect of a substantive legislative enactment, is merely some evidence which the jury may consider on the question of a defendant's negligence. Thus, case law determining whether a particular rule violation results in a finding of negligence per se or is merely some evidence of negligence is relevant to determining when such violations result in strict liability versus comparative negligence.

Governments > Legislation > Enactment Governments > Local Governments > Administrative Boards Governments > Local Governments > Duties & Powers [HN9] The constitution of New York State commits to the legislature alone the power to enact a statute. A constitutional statute, once passed, cannot be changed or varied according to the whim or caprice of any officer, board, or individual. It remains fixed until repealed or amended by the legislature. Administrative Law > Separation of Powers > Legislative Controls > General Overview Governments > Local Governments > Administrative Boards Governments > Local Governments > Duties & Powers [HN10] New York's legislature can give to or confer upon a commission, officer, board, or municipality the power to make rules and ordinances governing the administration of their respective affairs. HEADNOTES Labor - Safe Place to Work - Window Washer - Multiple Statutory Causes of Action Permitted 1. A window washer, who was injured when he fell from the third story of a building, may assert claims under both Labor Law 202 and 240 (1). Allowing a claim under section 240 (1) would not render section 202 "virtually useless." While the statutes will sometimes apply to the same fact patterns, they do not in every case. They serve different goals, apply to different defendants, and have been interpreted differently. The fact that coverage under the two sections may overlap is no reason to imply exclusivity. The Legislature has not expressed an intention that the statutes be mutually exclusive, and inclusion of the term "cleaning" in section 240 (1) negates any inference of exclusivity. The assertion of alternative Labor Law claims has never been prohibited, and merely because an injured window cleaner's claim appears cognizable under both statutes does not mean that one cause of action must be chosen to the exclusion of the other. Negligence - Comparative Negligence - Window Washer's Claim under Labor Law 202 2. A violation of Labor Law 202, which provides a cause of action to persons injured while cleaning windows and building exteriors, requires application of comparative negligence principles. Section 202 mandates that safety devices be in place "as may be required and approved by the board of standards and appeals." Although the anchors on defendant's building to which an exterior window washer may attach a safety belt did not

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meet Industrial Code requirements, a violation of a regulation or ordinance is only some evidence of negligence. Statutory causes of action predicated upon violations of administrative regulations do not give rise to strict liability. Strict liability could result from the absence or inadequacy of anchors under prior versions of section 202, because there was an explicit reference to safety anchors in the language of the statute, and the absence of any safety devices was a violation of the statute itself. Labor - Safe Place to Work - Window Washer - Statutory Liability - Retrial 3. Plaintiff, an injured window washer whose first trial resulted in a verdict in his favor and whose second trial resulted in a verdict in defendant's favor, may assert a cause of action pursuant to Labor Law 240 (1) in a third trial. Whether plaintiff can make a successful case for a violation of section 240 (1) has yet to be demonstrated since plaintiff's motion for summary judgment was initially denied. Because plaintiff's strict liability verdict at the first trial was based upon a finding of a violation of the requirements of Labor Law 202, that verdict may not stand as a substitute for a finding of strict liability under section 240 (1). Moreover, the jury finding at the second trial, that defendant's negligence was not a proximate cause of plaintiff's injuries, has no estoppel effect upon remittal since the theory of liability under section 240 (1) involves different statutory duties and possibilities of causation that the previous juries did not consider. COUNSEL: O'Connell and Aronowitz, Albany (Cornelius D. Murray and James A. Shannon of counsel), for appellant. I. A window washer injured after falling from the third floor window of a school as a result of the defendant's failure to provide safe anchors has a cause of action under Labor Law 240 , independent of any cause of action under Labor Law 202. (Cruz v Bridge Harbor Hgts. Assoc., 249 AD2d 44, 96 NY2d 705; Williamson v 16 W. 57th St. Co., 256 AD2d 507; Retamal v Osborne Mem. Home Assn., 256 AD2d 506; Ojeda v Peak Janitorial Servs., 270 AD2d 322, 95 NY2d 755; Ferrari v Niasher Realty, 175 AD2d 591; Brown v Christopher St. Owners Corp., 87 NY2d 938; Rivers v Sauter, 26 NY2d 260; Koenig v Patrick Constr. Corp., 298 NY 313; Ball v State of New York, 41 NY2d 617; Cimo v State of New York, 306 NY 143.) II. The relevant legislative history clearly establishes that the Legislature had absolutely no intention of transforming Labor Law 202 from a strict liability statute into a comparative negligence statute when it amended section 202 in 1970. (Zimmer v Chemung County Performing Arts, 65 NY2d 513; Amo v Little Rapids Corp., 268 AD2d 712; Craft v Clark Trading Corp., 257 AD2d 886; Tomlins v Siltone Bldg. Co., 267 AD2d 947; Koenig v

Patrick Constr. Corp., 298 NY 313; Fumarelli v Marsam Dev., 92 NY2d 298; Pollard v Trivia Bldg. Corp., 291 NY 19.) III. The original jury verdict should be reinstated. Friedman, Hirschen, Miller & Campito, P.C., Schenectady (Lynn M. Blake of counsel), for defendant and third-party plaintiff-respondent. I. Regardless of how this Court construes Labor Law 202, the judgment dismissing plaintiff's complaint should be affirmed. The jury found that plaintiff's own negligence was the sole proximate cause of his injuries, and that finding was reasonable given the evidence presented at trial. (Duda v Rouse Constr. Corp., 32 NY2d 405; Mendes v Caristo Constr. Corp., 5 AD2d 268, 6 NY2d 729; Nohejl v 40 W. 53rd Partnership, 205 AD2d 462; Weininger v Hagedorn & Co., 91 NY2d 958; Gootkin v Uniform Print. & Supply Co., 24 AD2d 448; Aviles v Crystal Mgt., 253 AD2d 607, 93 NY2d 804; Mack v Altmans Stage Light. Co., 98 AD2d 468.) II. Labor Law 202 is a comparative negligence statute. (Long v Forest-Fehlhaber, 55 NY2d 154; Teller v Prospect Hgts. Hosp., 280 NY 456; Rocovich v Consolidated Edison Co., 78 NY2d 509.) III. Labor Law 202 is plaintiff's exclusive remedy. (Rocovich v Consolidated Edison Co., 78 NY2d 509; Staples v Town of Amherst, 146 AD2d 292; Board of Coop. Educ. Servs. v Goldin, 38 AD2d 267, 30 NY2d 486; Williamson v 16 W. 57th St. Co., 256 AD2d 507.) Thuillez, Ford, Gold & Johnson, LLP, Albany (Michael J. Hutter of counsel), and James P. O'Connor, New York City, for third-party defendant-respondent. I. Labor Law 202 provides the exclusive Labor Law cause of action for plaintiff as he was injured in the course of commercial window cleaning activities involving a multistory nonresidential building subject to the section, which activities were not incident to construction, thereby precluding a cause of action under Labor Law 240 (1). (Narducci v Manhasset Bay Assoc., 96 NY2d 259; Koenig v Patrick Constr. Corp., 298 NY 313; Connors v Boorstein, 4 NY2d 172; Brown v Christopher St. Owners Corp., 87 NY2d 938; Terry v Young Men's Hebrew Assn., 78 NY2d 978; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Wingert v Krakauer, 76 App Div 34; Butler v Townsend, 126 NY 105; Kimmer v Weber, 151 NY 417; Stewart v Ferguson, 164 NY 553.) II. Labor Law 202 is a negligence-based statute and not an absolute liability statute, requiring proof of a violation of a regulation promulgated pursuant to its rule-making delegation, which violation constitutes some proof of negligence, and under which plaintiff's comparative negligence is to be considered. (Schumer v Caplin, 241 NY 346; Pollard v Trivia Bldg. Corp., 291 NY 19; Kindga v Noyes Co., 260 NY 521; Teller v Prospect Hgts. Hosp., 280 NY 456; Gonzalez v Concourse Plaza Syndicates, 31 AD2d 401; Durham v Metropolitan Elec. Protective Assn., 27 AD2d

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818, 18 NY2d 433; Hunter v 1001 Tenants Corp., 16 Misc 2d 582; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Schmidt v Merchants Despatch Transp. Co., 270 NY 287.) III. Plaintiff has not established defendant's liability as a matter of law under his alleged Labor Law 240 (1) and Labor Law 202 causes of action as pleaded. (Aviles v Crystal Mgt., 253 AD2d 607; Tweedy v Roman Catholic Church of Our Lady of Victory, 232 AD2d 630; Anderson v Schul/Mar Constr. Corp., 212 AD2d 493; J.R. Loftus, Inc. v White, 85 NY2d 874; Biener v City of New York, 47 AD2d 520; Bacon v Celeste, 30 AD2d 324; Zimmer v Chemung County Performing Arts, 65 NY2d 513; Weininger v Hagedorn & Co., 91 NY2d 958.) IV. The judgment dismissing the complaint should be affirmed, based upon the verdict in the second trial which found that plaintiff's own negligence was the proximate cause of his injuries. JUDGES: Opinion by Judge Ciparick. Chief Judge Kaye and Judges Smith, Levine, Wesley and Rosenblatt concur. Judge Graffeo took no part. OPINION BY: CIPARICK OPINION [*449] [***492] [**1137] Ciparick, J. The two issues to be resolved on this appeal are first, whether an injured window cleaner's claims under Labor Law 202 and Labor Law 240 (1) can coexist, and second, whether a violation of Labor Law 202, which gives a cause of action to persons injured while cleaning windows and building exteriors, results in strict liability or comparative negligence. We conclude that plaintiff can assert claims under both Labor Law 202 and Labor Law 240 (1), and that Labor Law 202 requires application of comparative negligence principles. Keith Bauer was a window washer employed by third-party defendant Environmental Service Systems (ESS). In October 1992, defendant Female Academy of the Sacred Heart hired ESS to clean windows, including the third floor exterior windows, of a building located on its campus in Albany. As is sometimes the case with older buildings, the exterior portions of the windows were to be cleaned using the belt-and-anchor method, meaning that a window cleaner wears a safety belt through which an adjustable wire (or lanyard) runs, with hooks on each end. The cleaner typically hooks one end of the lanyard to one of two anchors on each side of a window while standing inside and then steps onto the window ledge, hooking the other end to the second anchor. The cleaner keeps both ends of the lanyard hooked to the anchors while washing the window. When finished, the cleaner normally detaches one hook, steps in-

side the building and then detaches the second hook. [HN1] According to current Industrial Code requirements, anchors must be round, like the openings on the hooks that clip onto them (see, 12 NYCRR 21.13). The parties do not dispute that the anchors outside the third floor of defendant's building were square. The openings on the hooks used by ESS were round (see, 12 NYCRR 21.11). On the day of the accident, the ESS foreman assigned plaintiff the job of cleaning the third floor exterior windows. [*450] Plaintiff was not experienced with the belt-and-anchor method. After cleaning his first window that day, plaintiff detached the left hook of his lanyard from its anchor. Then, while still standing on the window ledge, plaintiff attempted to detach the right hook, which became stuck on the square anchor. Still standing on the ledge, plaintiff jiggled the hook with the safety clip open and finally pried it free, but lost his balance and fell to the ground three stories below and was severely injured. Plaintiff commenced this action against defendant and others, alleging violations of Labor Law 200, 202 and 240 (1), and common-law negligence. Defendant then commenced a third-party action against ESS seeking both contractual and common-law contribution and indemnification. After discovery, both defendant and ESS moved to dismiss all of plaintiff's causes of action except for the Labor Law 202 claim, arguing that that section was the exclusive statutory remedy available to an injured window cleaner. Plaintiff cross-moved for summary judgment on his Labor Law 240 (1) claim. Supreme Court denied the motions and the cross motion, [***493] [**1138] holding that plaintiff could allege alternative Labor Law causes of action, along with common-law negligence, but finding questions of fact precluding summary judgment. The Appellate Division modified by granting defendants' motions for summary judgment dismissing the Labor Law 240 (1) claim. The court held that the Legislature did not intend actions under section 240 (1) and section 202 to be maintained simultaneously (250 AD2d 298, 301 [1998]). After plaintiff withdrew his Labor Law 200 and common-law negligence causes of action, the case proceeded to trial on the Labor Law 202 claim. At trial, Supreme Court granted plaintiff's motion for a directed verdict finding that the use of square anchors at defendant's building constituted a violation of Labor Law 202 and that, because a violation of Labor Law 202 resulted in strict liability, the only question left for the jury--other than damages--was whether defendants' negligence proximately caused plaintiff's injuries. The jury returned a verdict in plaintiff's favor and awarded damages, apportioning 80% of the fault to ESS and 20% to defendant.

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On defendants' appeal, the Appellate Division held that, although Labor Law 202 was originally enacted as a strict liability statute, a 1970 amendment made it a comparative negligence statute by deferring to the safety standards for window cleaners set forth in regulations of the Industrial Board (275 AD2d 809, 811 [2000]). The court sent the case back for [*451] another trial on plaintiff's Labor Law 202 claim, this time with application of comparative negligence principles. At the second trial, the jury found that, although defendant was negligent, its negligence was not a substantial factor in causing plaintiff's injuries. Plaintiff appealed, bringing up for review the two prior orders of the Appellate Division. We now modify by reinstating plaintiff's Labor Law 240 (1) claim and remit to Supreme Court on that cause of action only. I Addressing plaintiff's Labor Law 240 (1) cause of action, the Appellate Division held that when section 202 was enacted it offered window cleaners the "precise protection afforded other enumerated workers" under section 240 (1); that allowing claims under both sections would render section 202 "virtually useless"; and hence that the Labor Law 240 (1) claim required dismissal (250 AD2d at 301). We disagree. The Legislature has not expressed an intention that these statutes be mutually exclusive and we see no need to imply such an intention. Indeed, inclusion of the term "cleaning" in Labor Law 240 (1) makes that position untenable. [HN2] This Court has never prohibited assertion of alternative Labor Law claims. More importantly, the spheres of activity to which Labor Law 202 and Labor Law 240 (1) apply reflect their separate histories. We would be ill-advised to hold that--simply because an injured window cleaner's claim appears cognizable under both Labor Law 202 and Labor Law 240 (1)--one cause of action must be chosen to the exclusion of the other. [HN3] Labor Law 202 protects people who clean windows and exterior surfaces of buildings. Among other activities, [HN4] Labor Law 240 (1) applies to workers engaged in the "cleaning" of a building. The requirements of Labor Law 202 apply to owners, lessees, agents and managers while strict liability under Labor Law 240 (1) flows to owners and contractors only. Labor Law 202 is inapplicable to multiple dwellings of six stories or less and [***494] [**1139] to nonpublic buildings, while Labor Law 240 (1) is inapplicable to one- and two-family homes. Moreover, although Labor Law 240 (1) covers "cleaning," it does not apply to routine household cleaning (Brown v Christopher St. Owners Corp., 87 NY2d 938 [1996]). Conversely, Labor

Law 202 necessarily involves the periodic cleaning of windows at residences, albeit not at multiple residences less than six stories in height. Labor Law 240 (1) has no similar requirement. The inescapable conclusion is that [HN5] while the statutes will sometimes apply to the same fact patterns, they do not in every [*452] case. The sections serve different goals, apply to different defendants and have been interpreted differently. The fact that Labor Law 202 coverage may often overlap with Labor Law 240 (1) coverage is not a sound reason to imply exclusivity. We find unpersuasive defendants' contention that this cause of action is unavailable since Labor Law 240 (1) imposes obligations on defendants incompatible with those imposed by Labor Law 202. To the extent Labor Law 240 (1) may impose liability upon parties who, under the requirements of the Industrial Code, bear no responsibility for the provision of certain safety devices, that problem can be addressed, in appropriate circumstances, by a third-party action. Here, plaintiff may pursue his Labor Law 240 (1) cause of action. Whether he can make a successful case for a violation of Labor Law 240 (1) has yet to be demonstrated since Supreme Court denied plaintiff's motion for summary judgment. Because plaintiff's strict liability verdict at the first trial was based upon a finding of a violation of the requirements of a different statute-Labor Law 202--we cannot let that verdict stand as a substitute for a finding of strict liability under Labor Law 240 (1). Moreover, the jury finding at the second trial that defendant's negligence was not a proximate cause of plaintiff's injuries has no estoppel effect upon remittal since the Labor Law 240 (1) theory of liability involves different statutory duties and possibilities of causation that the previous juries did not consider. Thus the case must be remitted for further proceedings. II As to the Labor Law 202 claim, the Appellate Division was correct in holding that comparative negligence principles must be applied to plaintiff's culpable conduct. As with Labor Law 241 (6), [HN6] statutory causes of action predicated upon violations of administrative regulations do not give rise to strict liability (see, Long v Forest-Fehlhaber, 55 NY2d 154 [1982]). For some time before it was amended in 1970, Labor Law 202 required that owners, lessees and others responsible for public buildings install and maintain anchors on all windows. 1 This mandate was removed in 1970 and replaced by language [*453] that referred exclusively to the requirements of the Board of Standards and Appeals (L 1970, ch 822). 2 Thus, whereas [***495] [**1140] the absence or inadequacy of anchors may in

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the past have constituted a direct violation of a specific requirement contained in the statute, after 1970 any particular safety standard required reference to the Industrial Code. 1 Labor Law 202 formerly stated that the "owner, lessee, agent and manager of every public building where the windows are cleaned from the outside shall install and maintain anchors on all windows of such building or provide other safe means for the cleaning of the windows of such building as may be required and approved by the board of standards and appeals" (L 1955, ch 379). 2 Labor Law 202 [HN7] currently states that the "owner, lessee, agent and manager of every public building and every contractor involved shall provide such safe means for the cleaning of the windows and of exterior surfaces of such building as may be required and approved by the board of standards and appeals" (L 1970, ch 822). We have held that a violation of a regulation or ordinance is only some evidence of negligence (see, Schumer v Caplin, 241 NY 346, 351 [1925]; Teller v Prospect Hgts. Hosp., 280 NY 456, 460 [1939]; see also, Elliott v City of New York, 95 NY2d 730 [2001]). As we noted in Long, the rule imposing strict liability only when there has been a violation of a statute is "reinforced by the principle, long and firmly established in New York, that [HN8] the violation of a rule of an administrative agency or of an ordinance of a local government, lacking the force and effect of a substantive legislative enactment, is merely some evidence which the jury may consider on the question of defendant's negligence" (55 NY2d at 160 [citations and internal quotations omitted]). Thus our cases determining whether a particular rule violation results in a finding of negligence per se or is merely some evidence of negligence are also relevant to determining when such violations result in strict liability versus comparative negligence. In Schumer v Caplin (241 NY 346 [1925]), a case that predated Labor Law 202, plaintiff window cleaner sought to hold defendant property owner liable for the absence of anchors as required by the Industrial Code. We observed that the "violation of a statute under certain circumstances may of itself establish negligence. Not so, however, with a rule or ordinance." (241 NY at 351.) Likewise, in Teller v Prospect Hgts. Hosp. (280 NY 456 [1939]), a case involving a version of Labor Law 202 quite similar to the current statute, 3 plaintiff window cleaner sought to establish defendant's negligence through an alleged violation of the statute. We rejected the argument, [*454] holding that the absence of anchors violated the requirements of the Industrial Code, to

which the statute referred, not the statute itself which contained no mention of anchors. "The statute does not in terms provide that anchors shall be attached to the windows of the building nor does it provide any particular device or contrivance that shall be provided to make it safe for the window washer to clean the window from the outside. We are required to look to the Industrial Code * * * to learn what rules of the Industrial Board are applicable, what means have been required by the rules of the Industrial Board to be furnished and what devices have been or may be approved for the safety of the person cleaning windows. * * * "Violation of a rule of the Industrial Board, however, constitutes merely some evidence which the jury may consider on the question of defendant's negligence, along with other evidence in the case which bears on that subject" (Teller, [***496] [**1141] 280 NY at 459-461 [citations omitted]). That distinction is material. As we explained in Schumer: "[HN9] The Constitution of the State commits to the Legislature alone the power to enact a statute. [HN10] It can give to or confer upon a commission, officer, board or municipality the power to make rules and ordinances governing the administration of their respective affairs. * * * Under [Labor Law] sections 52-a and 52-b, any rule adopted by the Commission may be suspended, modified or varied, depending upon conditions. This cannot be done with a statute. A constitutional statute, once passed, cannot be changed or varied according to the whim or caprice of any officer, board or individual. It remains fixed until repealed or amended by the Legislature" (Schumer, 241 NY at 351). 3 That version of Labor Law 202 required owners and others to "provide, equip and maintain approved safety devices on all windows [and] * * * shall not require, permit, suffer or allow any window in such building to be cleaned from the outside unless means are provided to enable such work to be done in a safe manner in conformity with the requirements of this chapter and the rules of the industrial board" (L 1937, ch 84, 2). Thus, under the prior, 1942, version of Labor Law 202, strict liability could result from the absence or inadequacy of anchors because that was an explicit requirement of the [*455] statute. In addition, to the extent that the 1937 version of section 202 required that approved safety devices be supplied and maintained, and that no window cleaning be done unless means were

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provided to do such work safely, proof that no safety devices at all were provided could form the basis for strict liability (as well as a finding of negligence per se). That is so because--unlike the current version of the statute--the absence of any safety devices was a violation of the statute itself (see, Teller, 280 NY at 460; Pollard v Trivia Bldg. Corp., 291 NY 19 [1943]). Contrary to plaintiff's assertion, Koenig v Patrick Constr. Corp. (298 NY 313, 318 [1948]) did not hold that Labor Law 202 was a strict liability statute. 4 There, a violation of the statute was established by the total absence of devices, not the absence or inadequacy of a device described only in the Industrial Code. 4 In making the observation that contributory negligence would not be a defense to a Labor Law 202 cause of action, Koenig cited to Pollard v Trivia Bldg. Corp. (291 NY 19 [1943]). In Pollard, however, all parties "stipulated that no safety devices of any kind, whether or not spe-

cified in the statute or in the Industrial Code, were provided by the owner or by anyone else" (291 NY at 23 [emphasis added]). Thus, we agree with the Appellate Division that Labor Law 202 is a comparative negligence, not a strict liability, statute. This cause of action having been properly tried to conclusion under principles of comparative negligence at the second trial need not be tried again. Accordingly, the judgment appealed from and orders of the Appellate Division brought up for review should be modified, without costs, by reinstating the Labor Law 240 (1) cause of action only and remitting to Supreme Court for further proceedings as to that cause of action and, as so modified, affirmed. Chief Judge Kaye and Judges Smith, Levine, Wesley and Rosenblatt concur; Judge Graffeo taking no part. Judgment appealed from and orders of the Appellate Division brought up for review modified, etc.

3 of 55 DOCUMENTS

Positive As of: Sep 10, 2008 Mark G. et al., Appellants-Respondents, v. Barbara J. Sabol, Individually and as Administrator of the New York City Human Resources Administration and as Commissioner of the New York City Department of Social Services, et al., Respondents-Appellants. Martin A. et al., Appellants-Respondents, v. Barbara J. Sabol, Individually and as Administrator of the New York City Human Resources Administration and as Commissioner of the New York City Department of Social Services, et al., Respondents-Appellants. Dakinya B. et al., Appellants-Respondents, v. Barbara J. Sabol, Individually and as Administrator of the New York City Human Resources Administration and as Commissioner of the New York City Department of Social Services, et al., Respondents-Appellants. Frances F. et al., Appellants-Respondents, v. Barbara J. Sabol, Individually and as Administrator of the New York City Human Resources Administration and as Commissioner of the New York City Department of Social Services, et al., Respondents-Appellants. No. 96 COURT OF APPEALS OF NEW YORK 93 N.Y.2d 710; 717 N.E.2d 1067; 695 N.Y.S.2d 730; 1999 N.Y. LEXIS 2106 April 28, 1999, Argued August 31, 1999, Decided PRIOR HISTORY: Cross appeals, by permission of the Appellate Division of the Supreme Court in the First

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Judicial Department, from an order of that Court, entered June 23, 1998, which (1) affirmed an order of the Supreme Court (Walter B. Tolub, J.; opn 169 Misc 2d 242), entered June 3, 1996 in New York County, granting a motion by defendants for leave to amend their answer to the intervening complaint of the Bronx Public Administrator to assert the affirmative defense of the Statute of Limitations and for summary judgment thereon dismissing all causes of action of the Public Administrator on behalf of the estate of Alan G., to the extent of dismissing, with prejudice, the first, third, fifth and seventh causes of action sounding in wrongful death, (2) affirmed an order of said Supreme Court, entered June 28, 1996 in New York County, granting a motion by defendants to reargue the court's decision, dated May 17, 1996, which had held that the personal injury claims asserted by the estate of Alan G. related back to the commencement of the action by his siblings and were timely interposed and, upon reargument, modified its decision to reflect that the estate's personal injury claims relate back to April 1991 when the G. children moved to intervene in the pending actions and were timely interposed, (3) modified, on the law, and, as modified, affirmed an order of said Supreme Court, entered July 3, 1996, in the G. family action, granting a motion by defendants for partial summary judgment and dismissing, with prejudice, the claims in the second amended complaint, the intervening complaint of Mark, Kevin, Steven and Susan G., and the intervening complaint of the Bronx Public Administrator on behalf of the estate of Alan G., except the eighteenth cause of action in which Mark, Kevin, Steven and Susan G. allege violations of Social Services Law 409 and 411 owing to defendants' alleged failure to promulgate a plan as mandated by the Social Services Law, the twentieth and twenty-first causes of action in which plaintiffs Mark, Kevin, Steven and Susan G. allege violations of article XVII of the State Constitution based on defendants' alleged failure to promulgate a plan mandated by the Social Services Law, and the first, second, third and fourth causes of action in the intervening complaint of the Bronx Public Administrator in which he alleges violations of Social Services Law 409 and 411 et seq., and article XVII of the State Constitution based solely on defendants' alleged failure to promulgate a plan, conduct investigations, and provide services in the time and manner mandated by the Social Services Law; the modification consisted of further granting defendants' motion and dismissing plaintiffs' claims insofar as they allege violations of Social Services Law 409 and article XVII of the State Constitution, (4) modified, on the law, and, as modified, affirmed an order of said Supreme Court, entered July 11, 1996 in New York County, granting a motion by defendants for partial summary judgment and dismissing, with prejudice, the claims in the second amended complaint, except the claim in the tenth cause

of action in which plaintiffs Martin, Bill, Laura and Vincent A. allege violations of Social Services Law 409 and article XVII of the State Constitution based upon defendants' alleged failure to promulgate a plan mandated by the Social Services Law; the modification consisted of further granting defendants' motion and dismissing plaintiffs' claims under the tenth cause of action, insofar as they allege violations of Social Services Law 409 and article XVII of the State Constitution, (5) modified, on the law, and, as modified, affirmed an order of said Supreme Court, entered July 9, 1996 in New York County, granting a motion by defendants for partial summary judgment and dismissing, with prejudice, the B. family's claims in the second amended complaint, except the claims alleging violations of Social Services Law 409 and article XVII of the State Constitution based on defendants' alleged failure to promulgate a plan mandated by the Social Services Law; the modification consisted of further granting defendant's motion and dismissing plaintiffs' claims under the tenth and fourteenth causes of action, insofar as they allege violations of Social Services Law 409 and article XVII of the State Constitution, and (6) modified, on the law, and, as modified, affirmed an order of said Supreme Court, entered July 9, 1996 in New York County, granting defendants' motion for partial summary judgment and dismissing, with prejudice, the claims in the second amended complaint, except the seventeenth cause of action in which Frances and John F. allege violations of Social Services Law 409 based upon defendants' alleged failure to promulgate a plan mandated by the Social Services Law; the modification consisted of further granting defendants' motion and dismissing plaintiffs' claims insofar as they allege violations of Social Services Law 409 et seq. The following question was certified by the Appellate Division: "Was the order of this Court, which affirmed the orders of the Supreme Court, entered on June 3 and June 28, 1996 and which modified the orders of said court entered on July 3, July 9, and July 11, 1996, properly made?" Mark G. v Sabol, 247 AD2d 15, modified. s. Corp., 250 AD2d 797, modified. affirmed. Martin A. v Sabol, 247 AD2d 15, modified. Dakinya B. v Sabol, 247 AD2d 15, modified. Frances F. v Sabol, 247 AD2d 15, modified. DISPOSITION: Order modified, without costs, by dismissing the remaining causes of action and, as so modified, affirmed. Certified question answered in the negative. CASE SUMMARY:

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scheme. PROCEDURAL POSTURE: Appeal from the order of the Appellate Division (New York), which on defendants' motion for summary judgment, dismissed some of plaintiffs' causes of action for money damages as a result of abuse or neglect that plaintiffs suffered in their homes or foster homes. OVERVIEW: Plaintiffs are children who asserted that they were dependent upon the child welfare system and that they suffered abuse or neglect in their homes or foster homes. Plaintiffs sought money damages from defendants in multiple causes of action under a variety of theories. Plaintiffs withdrew their claims against the State, along with the class certification and injunctive relief. Defendants filed a motion for summary judgment which was treated by the trial court as a motion to dismiss which was partially granted. On appeal the court modified the order by dismissing the remaining causes of action for substantive due process and common law torts with leave to amend, and as modified, affirmed, because plaintiffs failed to sufficiently plead a cause of action. OUTCOME: Order modified by dismissing plaintiffs remaining causes of action for substantive due process and common law torts with leave to amend, and as modified, affirmed, because plaintiffs failed to sufficiently plead a cause of action. CORE TERMS: money damages, foster care, social services, common-law, right of action, preventive, child welfare, causes of action, entitlement, child abuse, pleaded, placement, failures to provide, funding, foster, child welfare, foster homes, foster care, provide services, enforcement mechanisms, protective services, deliberate indifference, maltreatment, monitoring, prisoner, replead, child protective service, provides immunity, process right, professional judgment LexisNexis(R) Headnotes Governments > Legislation > Statutory Remedies & Rights [HN2] Any person, official, or institution participating in good faith in the providing of a service pursuant to N.Y. Soc. Serv. Law 424, the making of a report, the taking of photographs, or the removal or keeping of a child pursuant to this title shall have immunity from any liability, civil or criminal, that might otherwise result by reason of such actions. N.Y. Soc. Serv. Law 419. Constitutional Law > Substantive Due Process > General Overview [HN3] Substantive due process implicates the essence of state action rather than its modalities. Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > General Overview Constitutional Law > Substantive Due Process > General Overview [HN4] Procedural due process differs from substantive due process by focusing not on what a person has been deprived of, but rather on how the deprivation was accomplished. Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > General Overview [HN5] No amount of procedure can justify the wrongful denial of an entitlement. Moreover, merely asserting a denial of a statutory entitlement does not make out a claim of procedural due process. Civil Rights Law > Prisoner Rights > Medical Treatment Constitutional Law > Bill of Rights > Fundamental Rights > Criminal Process > Cruel & Unusual Punishment Criminal Law & Procedure > Sentencing > Cruel & Unusual Punishment [HN6] The State owes a duty to those whom it has placed in its custody, so that when a prisoner demonstrates that the State exhibited deliberate indifference to the prisoner's medical needs, the Constitution's guarantees against cruel and unusual punishment are violated. Constitutional Law > Substantive Due Process > General Overview Criminal Law & Procedure > Postconviction Proceed-

Civil Procedure > Remedies > Damages > Monetary Damages Governments > Legislation > Statutory Remedies & Rights [HN1] In determining whether a private right of action for money damages exists for violation of a New York State statute, the courts have established the following three-part test: (1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative

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ings > Imprisonment [HN7] People who are in the State's custody are dependent on the government for their basic needs. Constitutional Law > Substantive Due Process > General Overview Public Health & Welfare Law > Social Services > Institutionalized Individuals > Confinement Conditions [HN8] A person involuntarily committed and thereby dependent on the government for basic needs was entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish. As to persons so confined the State owes a duty to accord such services as are necessary to insure their reasonable safety. In such a setting an actionable claim is made out if and when a decision by the State through its professional administrators with respect to such services is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment. HEADNOTES Social Services - Preventive Services - Private Right of Action for Money Damages 1. In four similar actions against New York City child welfare officials in which plaintiffs assert that they were dependent on defendants' child welfare system and that they suffered abuse or neglect in their homes or foster homes, plaintiffs have no claims for money damages under title 4 of article 6 of the Social Services Law ("Preventive Services for Children and Their Families"). While plaintiffs are members of the class for whom title 4 was enacted, and a private right of action for money damages could arguably promote the title's goals, recognition of such a private right of action would not be consistent with the legislative scheme, since the legislative approach centers on improved monitoring and on penalizing local social services districts with a loss of State reimbursement of funds for their failure to provide services or meet the standards mandated by the statute. The Legislature specifically considered and expressly provided for enforcement mechanisms, and the provisions of title 4 were enacted as the "comprehensive" means by which the statute accomplishes its objectives. Accordingly, it would be inappropriate to find another enforcement mechanism beyond the statute's already "comprehensive" scheme. If the statute were opened to private causes of action for money damages, the legislative funding scheme would be affected, and allocations of money and government resources would be rechanneled, no longer to be based on administrative judgments, but driven, at least in part, by tort law principles. Inasmuch as the stat-

ute gives no hint of any private enforcement remedy for money damages, one should not be imputed. Social Services - Child Protective Services - Private Right of Action for Money Damages 2. In four similar actions against New York City child welfare officials in which plaintiffs assert that they were dependent on defendants' child welfare system and that they suffered abuse or neglect in their homes or foster homes, plaintiffs have no claims for money damages under title 6 of article 6 of the Social Services Law ("Child Protective Services"). Although plaintiffs assert an implied private right of action for money damages for defendant's alleged violations of Social Services Law 424, which deals with the reporting of child abuse, the legislative history of Social Services Law 419, which provides immunity from liability for those making reports of child abuse, reveals that it was intended to provide immunity only with respect to civil or criminal liability that would otherwise result from acts taken by persons, officials or institutions in a good faith effort to comply with specific provisions of the Social Services Law. There is no indication that section 419 was intended to apply to failures to provide the services required by the Social Services Law. Indeed, the Legislature specifically created a private right of action in the very next section for the willful failure of persons, officials or institutions required by title 6 to report cases of "suspected child abuse or maltreatment," and if the Legislature had intended for liability to attach for failures to comply with other provisions of title 6, it would likely have arranged for it as well. The Legislature's subsequent amendments to the enforcement scheme of title 6 specifically concentrated on the statutory scheme's enforcement provisions, which, except for the unique motivations that underlie Social Services Law 420, have never included private rights of action for money damages. Social Services - Foster Care - Procedural Due Process - Failure to Provide Services 3. In four similar actions against New York City child welfare officials in which plaintiffs assert that when they were placed in foster care they remained within the ambit of defendants' custodial responsibility, that defendants were obligated to take supervisory and interventive steps to keep them free from harm, and that while they were in foster care defendants failed to accord them the protective services to which they were entitled under titles 4 and 6 of the Social Services Law, plaintiffs have not adequately pleaded a violation of procedural due process. The classic procedural due process case arises when the government acts to deny or curtail someone's life, liberty or property interest and defends its action by asserting that it employed fair procedures in furtherance of a legitimate governmental objective; however, that is

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not the case at bar. Deprivation or denial is not the governmental goal: there has been no attempt by the government to deprive the plaintiffs of a right that carries with it a predeprivation procedure. The government may not decide to deny a foster child's safety or entitlements and seek to justify the denial by showing that its processes or procedures were fair. No amount of procedure can justify the wrongful denial of an entitlement. Moreover, merely asserting a denial of a statutory entitlement does not make out a claim of procedural due process, since process is not an end in itself. Social Services - Foster Care - Substantive Due Process - Failure to Provide Services 4. In four actions against child welfare officials in which plaintiffs assert that when they were placed in foster care they remained within defendants' custodial responsibility, that defendants were obligated to take steps to keep them free from harm, and that while they were in foster care defendants failed to accord them the protective services to which they were entitled under the Social Services Law, plaintiffs have not adequately pleaded a violation of substantive due process. Although the complaints are abundant with allegations relating to defendants' failure to provide plaintiffs with family social services, the complaints did not meet either the "deliberate indifference" standard or the "professional judgment" standard, applicable to a narrow set of constitutional entitlements to basic necessities, which arose in recognition of the total dependence in which the State itself had placed certain institutionalized persons (prisoners or the mentally handicapped). There is no support for any substantive due process right to monetary redress for defendants' alleged failure to provide the array of social services claimed by plaintiffs. The crux of the complaints is defendants' alleged failure to provide services to plaintiffs' families in order to avoid foster care placement and keep them at home in a safe environment, or to minimize their stay in foster care through family rehabilitation services, thereby expediting their return to a safe home environment. However, any substantive due process rights of foster children cannot be extended to entitlement to preventive and protective services before placement in care, or to family social services during placement. The allegations of harm or denial of needed medical or other services to children while in foster care are very much incidental to the primary complaints and since plaintiffs never articulated a violation of the "professional judgment" standard of care, an independent claim for money damages for injuries in foster care based on such omissions cannot be implied. Social Services - Preventive Services - Private Right of Action for Money Damages - Common-Law Tort Claims

5. In four similar actions against New York City child welfare officials in which plaintiffs assert that they were dependent on defendants' child welfare system and that they suffered abuse or neglect in their homes or foster homes, no viable common-law claim has been pleaded. Although the parties have addressed the viability of so-called common-law tort causes of action, those causes of action were not pleaded separately, but were intertwined with a plethora of other causes of action and theories. Indeed, the complaints do not identify any common-law duties claimed to be owed plaintiffs--as distinguished from the alleged breach of other governmental responsibilities to furnish protective and preventive services, which forms the primary bases for these actions. While pleadings should be construed liberally, it would be improvident to attempt to isolate and identify any common-law claims and theories asserted on plaintiffs' behalf, and while the possibility of any such common-law claims should not be ruled out as a matter of law, it is noted that no viable common-law claim has been pleaded. Accordingly, plaintiffs are granted leave to replead. Moreover, considering that there has never been occasion to deal with the contours of a substantive component of the Due Process Clause in the context of a child welfare case, leave to replead such claims is granted. COUNSEL: Debevoise & Plimpton, New York City (Robert Goodman, David W. Rivkin, Leigh R. Schachter and Christopher G. Karagheuzoff of counsel), Mark G. Peters, Rachel H. Park, Shirim Nothenberg and Marcia Robinson Lowry for appellants-respondents. I. Plaintiffs may sue to recover damages caused by defendants' violations of the State's Social Services Law. ( Martin A. v Gross, 153 AD2d 812; Grant v Cuomo, 130 AD2d 154, 73 NY2d 820; Franklin v Gwinnett County Pub. Schools, 503 US 60; Brown v State of New York, 89 NY2d 172; County of Broome v State of New York, 129 Misc 2d 914; Sheehy v Big Flats Community Day, 73 NY2d 629; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314; Izzo v Manhattan Med. Group, 164 AD2d 13; Hoxie's Painting Co. v Cato-Meridian Cent. School Dist., 76 NY2d 207; Henry v Isaac, 214 AD2d 188.) II. Plaintiffs, while in defendants' custody, have a substantive due process right to be free from harm. Based upon the facts presented to the Court below, a jury could easily determine that defendants violated this due process right. ( Umlauf v County of Chautauqua, 132 AD2d 958, 70 NY2d 1002; Figueroa v Orange County, 158 Misc 2d 452; Doe v New York City Dept. of Social Servs., 709 F2d 782; Marisol A. v Giuliani, 929 F Supp 662; Matter of H.--M. Children, 154 Misc 2d 438, revd on other grounds sub nom. Matter of Shinice H., 194 AD2d 444; Yvonne L. v New Mexico Dept. of Human Servs., 959 F2d 883; Norfleet v Arkansas Dept. of Human Servs.,

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989 F2d 289; Camp v Gregory, 67 F3d 1286, 517 US 1244; K.H. v Morgan, 914 F2d 846; Estelle v Gamble, 429 US 97.) III. State law mandates the provision of certain services upon a finding that children are at risk of abuse or at risk of entering foster care. Since defendants made such findings, they violated plaintiffs' procedural due process rights by failing to then provide the mandated services. ( Board of Regents v Roth, 408 US 564; Town of Orangetown v Magee, 88 NY2d 41; Matter of Daxor Corp. v State of New York Dept. of Health, 90 NY2d 89; Matter of Doe v Coughlin, 71 NY2d 48, 488 US 879; Allerton Coops Tenants Assn. v Biderman, 189 AD2d 249; Marisol A. v Giuliani, 929 F Supp 662; Taylor v Ledbetter, 818 F2d 791; Kraemer v Heckler, 737 F2d 214; Mayer v Wing, 922 F Supp 902; Grant v Cuomo, 73 NY2d 820.) IV. Plaintiffs have a private right of action for defendants' admitted violations of the Federal child welfare laws. ( Suter v Artist M., 503 US 347; Wilder v Virginia Hosp. Assn., 496 US 498; Wright v Roanoke Redevelopment & Hous. Auth., 479 US 418; Winston v Children & Youth Servs., 948 F2d 1380, 504 US 956; Timmy S. v Stumbo, 916 F2d 312; L. J. v Massinga, 838 F2d 118, 488 US 1018; Lynch v Dukakis, 719 F2d 504; Marisol A. v Giuliani, 929 F Supp 662; Doe v Chiles, 136 F3d 709; Laird v Ramirez, 884 F Supp 1265.) V. Plaintiffs had a "special relationship" with defendants and may recover for defendants' negligent failure to provide for their safety. ( Sorichetti v City of New York, 65 NY2d 461; Florence v Goldberg, 44 NY2d 189; Boland v State of New York, 218 AD2d 235; Raucci v Town of Rotterdam, 902 F2d 1050; Cuffy v City of New York, 69 NY2d 255; De Long v County of Erie, 60 NY2d 296; Martin A. v Gross, 153 AD2d 812.) Michael D. Hess, Corporation Counsel of New York City (Fay Ng and Pamela Seider Dolgow of counsel), for respondents-appellants. I. The Court below properly held that plaintiffs do not have a private right of action to seek damages for the City's alleged failure to provide preventive and protective services under title 4 and title 6 of article 6 of the New York Social Services Law. ( Sheehy v Big Flats Community Day, 73 NY2d 629; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314; Carrier v Salvation Army, 88 NY2d 298; Henry v Isaac, 214 AD2d 188; Doe v Roe, 190 AD2d 463; Izzo v Manhattan Med. Group, 164 AD2d 13; Grant v Cuomo, 73 NY2d 820; Klostermann v Cuomo, 61 NY2d 525; Varela v Investors Ins. Holding Corp., 81 NY2d 958; Van Emrick v Chemung County Dept. of Social Servs., 220 AD2d 952.) II. The Court below properly found that the City defendants did not have a special duty to protect plaintiffs from abuse by their parents or other third parties while they were not in foster care. ( Cuffy v City of New York, 69 NY2d 255; Mastroianni v County of Suffolk, 91 NY2d 198; Boland v State of New York, 218

AD2d 235.) III. The Court below properly dismissed plaintiffs' claims under the New York Social Services Law. Further, plaintiffs' claims alleging that defendants failed to protect them from parental abuse must fail because plaintiffs have not established the existence of a special relationship. Assuming, arguendo, that plaintiffs could pursue their claims under the Social Services Law or under common-law tort principles, defendants are immune from liability for any injuries resulting from actions taken in the exercise of their discretion. ( Tango v Tulevech, 61 NY2d 34; Mon v City of New York, 78 NY2d 309, 1124; Grant v Cuomo, 130 AD2d 154.) IV. Plaintiffs' 42 USC 1983 claims alleging violations of their substantive and procedural due process rights were properly dismissed. ( Lowrance v Achtyl, 20 F3d 529; DeShaney v Winnebago County Dept. of Social Servs., 489 US 189; Baby Neal v Casey, 821 F Supp 320; K.H. v Morgan, 914 F2d 846; Del A. v Roemer, 777 F Supp 1297; B.H. v Johnson, 715 F Supp 1387; Eric L. v Bird, 848 F Supp 303; Youngberg v Romeo, 457 US 307; Child v Beame, 412 F Supp 593; Black v Beame, 419 F Supp 599, 550 F2d 815.) V. The Court below properly dismissed plaintiffs' claims brought pursuant to 42 USC 1983 alleging violations of section 5106 of the Child Abuse Prevention and Treatment Act (42 USC 5101 et seq.) and section 671 (a) (16), and section 675 (5) of the Adoption Assistance Act (42 USC 671 et seq.). ( Vermont Dept. of Social & Rehabilitation Servs. v Bowen, 798 F2d 57, 479 US 1064; Wilder v Virginia Hosp. Assn., 496 US 498; Golden State Tr. Corp. v City of Los Angeles, 493 US 103; Wright v City of Roanoke Redevelopment & Hous. Auth., 479 US 418; Suter v Artist M., 503 US 347; Eric L. v Bird, 848 F Supp 303; LaShawn A. v Barry, 69 F3d 556, 74 F3d 303, 87 F3d 1389; Harris v James, 127 F3d 993; Doe v District of Columbia, 93 F3d 861.) VI. Applying the foregoing legal principles to the pleadings and the undisputed facts in this case, this Court should affirm so much of the Appellate Division order as dismissed plaintiffs' claims. On the City's cross appeal, this Court should dismiss all remaining claims and dismiss the complaints in their entirety. ( Hambsch v New York City Tr. Auth., 63 NY2d 723; Mon v City of New York, 78 NY2d 309; Boland v State of New York, 176 Misc 2d 625; Suter v Artist M., 503 US 347.) VII. Any claims of the Bronx Public Administrator, asserted on behalf of the estate of Alan G., which are not dismissed for the reasons stated in points I through VI should be dismissed on the City defendants' cross appeal as timebarred. ( Owens v Okure, 488 US 235; Odell v Dalrymple, 156 AD2d 967; Clausell v Ullman, 141 AD2d 690; Laudico v Sears, Roebuck & Co., 125 AD2d 960; Insurance Co. v Hellmer, 212 AD2d 665; Matter of Greater N. Y. Health Care Facilities Assn. v DeBuono, 91 NY2d 716; Key Intl. Mfg. v Morse/Diesel, Inc., 142 AD2d 448; MTB Banking Corp. v Consolidated Edison

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Co., 197 AD2d 479; State of New York v General Elec.