This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 9
Anthony Oddo,
            Respondent,
        v.
Queens Village Committee for
Mental Health for Jamaica
Community Adolescent Program,
Inc.,
            Appellant.




          Amy S. Weissman, for appellant.
          Brian J. Isaac, for respondent.
          Pacific Legal Foundation, amicus curiae.




ABDUS-SALAAM, J.:
          On this appeal challenging the denial of a motion for
summary judgment, we consider whether the defendant mental health
and substance abuse treatment facility owed a duty of care to
plaintiff, who was assaulted by one of defendant's discharged
residents.   Because defendant discharged the resident from the


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program, and thus lacked control over him at the time of the
incident, we hold that defendant owed no duty of care to
plaintiff.


                                I.
          Non-party Sean Velentzas was arrested for holding a cab
driver at gunpoint and forcing him to withdraw money from an ATM.
Velentzas was given the opportunity to participate in Treatment
Alternatives for Safer Communities (TASC).   TASC is an
alternative-to-incarceration service which, with the consent of
the court and the district attorney, works with organizations
like defendant, Queens Village Committee for Mental Health for
Jamaica Community Adolescent Program, Inc. (JCAP), to provide
criminal defendants with substance abuse and mental health
treatment services.   Velentzas was admitted to JCAP and was
expected to complete the program within eighteen months; however,
three weeks into his program, he got into an altercation with
another resident and admitted to having consumed alcohol while at
JCAP's facility.   As a result, and pursuant to established
guidelines, JCAP discharged Velentzas from the facility.   Shortly
after his expulsion, Velentzas assaulted plaintiff Anthony Oddo
-- his mother's boyfriend -- by repeatedly punching him in his
face and stabbing him in the shoulder.
          Plaintiff commenced this negligence action against JCAP
contending that his injuries were solely the result of JCAP


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negligently releasing Velentzas.    After answering the complaint
and following discovery, JCAP moved for summary judgment
dismissing the complaint.    JCAP argued that it owed no duty to
plaintiff because Velentzas was properly discharged from the
facility for having violated its policies against violence and
alcohol use.    In support of its motion, JCAP submitted the
deposition testimony and affidavit of Ricky Cottingham, JCAP's
acting clinical program director.    In his deposition, Cottingham
explained that during approved outings, residents are escorted by
JCAP staff and must sign in and out when they leave and return to
the facility.    However, residents can leave the program against
medical advice and, in any event, JCAP staff members are not
authorized to physically prevent a participant from leaving the
building.
            In his affidavit, Cottingham stated that he was advised
by facility staff on the day of the incident that Velentzas broke
two cardinal rules of the facility: intoxication and physical
violence.   This required his dismissal.   He explained that when
TASC participants are dismissed from the program, TASC must be
notified of the participant's rule violation and discharge from
the program, and the participant is directed to report to TASC on
the following business day.    Cottingham stated that because
Velentzas was dismissed on a weekend, he would have to report to
TASC the following Monday.     Similarly, because of the weekend
dismissal, TASC would also be notified on that date.


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          Cottingham explained that, following the incident, JCAP
began filling out paperwork to transfer Velentzas to an
intermediary facility until Queens TASC could be notified of the
altercation and violation of JCAP's rules.   However, Cottingham
stated that as the paperwork was being filled out, Velentzas
became enraged and began acting out of control.    Staff, in
accordance with JCAP's policy, called 911.   When the police
arrived Velentzas was escorted off the premises.    Cottingham
opined that JCAP did not release Velentzas to the general public
and did not intend to do so.
          Additionally, in support of its motion, JCAP submitted
a copy of the report that was created by a JCAP Clinical
Counselor following the incident, which stated:
          "Client had pushed another client to the
          ground. It was alleged that he was
          intoxicated. He refused to submit to a
          breathalyzer but admitted to drinking. He
          stated that he was leaving and left against
          clinical advice. . . . Staff informed him
          that he had broken a cardinal rule and that
          there is no threat of violence or violence on
          property. Staff called 911 and he was
          escorted by police officers off the
          property."
          Supreme Court denied JCAP's motion for summary
judgment, holding that JCAP owed a duty of care to plaintiff.
The Appellate Division, with one Justice dissenting, affirmed
(135 AD3d 211 [1st Dept 2015]).   The dissent reasoned that JCAP
did not have a duty to protect the general public from Velentzas
after his proper discharge from the facility.   That court granted


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JCAP's motion for leave to appeal to this Court, certifying the
following question: "Was the order of this Court, which affirmed
the order of Supreme Court, properly made?"   Because we agree
with the dissent's conclusion, we reverse, and answer the
certified question in the negative.


                                II.
           On this motion for summary judgment, we are guided by
our principle that summary judgment will be granted to the movant
where it presents sufficient evidence to demonstrate the absence
of any material issue of fact (see Alvarez v Prospect Hospital,
68 NY2d 320, 324 [1986]).   The issue here -- whether JCAP owed a
duty of care to plaintiff -- "is a legal issue for the courts" to
decide (Eiseman v State of New York, 70 NY2d 175, 187 [1987]).
Thus, the absence of a duty of care in this negligence action
will entitle JCAP to summary judgment, as "[t]he threshold
question in any negligence action is . . . [whether the]
defendant owe[s] a legally recognized duty of care to [the]
plaintiff" (Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 232
[2001]).
           Generally, there is no
           "duty to control the conduct of third persons
           to prevent them from causing injury to
           others; liability for the negligent acts of
           third persons generally arises when the
           defendant has authority to control the
           actions of such third persons. This is so
           . . . even where 'as a practical matter'
           defendant could have exercised such control"

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(Purdy v Public Adm'r of County of Westchester, 72 NY2d 1, 8
[1988], quoting D'Amico v Christie, 71 NY2d 76, 88 (1987) [other
citations omitted], rearg denied 72 NY2d 953 [1988]).   As we
recognized in Hamilton v Baretta U.S.A. Corp., "[a] duty may
arise . . . where there is a relationship either between
defendant and a third-person tortfeasor that encompasses
defendant's actual control of the third person's actions, or
between defendant and plaintiff that requires defendant to
protect plaintiff from the conduct of others" (96 NY2d at 233).
Such relationships include master and servant, parent and child,
and common carriers and their passengers (see id.).
          JCAP relies on our decisions in D'Amico v Christie and
its companion case Henry v Vann (71 NY2d 76) to support its
contention that it owed no duty to plaintiff, because it was no
longer in control of Velentzas.    In D'Amico, an employee became
intoxicated while attending a work event and upon leaving got
into a car accident.   Similarly, in Henry, an employee, after
being fired, left the employer's premises and was involved in a
car accident.   In both cases, we determined that the employer was
not liable for the injuries of the plaintiff because the employer
was not in control of the employee's actions.   In Henry, we noted
that the employer "did not take charge of [the employee]; it
discharged [him]" (id. at 89).
          Plaintiff argues that we should reject JCAP's reliance
on D'Amico and Henry because here JCAP maintained control over

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Velentzas.   We disagree.   JCAP discharged Velentzas from its
facility and was no longer in charge of him when the incident
occurred.


                                III.
            JCAP had some control or authority over its residents
while they remained participants of the program.    But, JCAP
residents could leave the facility and terminate their
participation in the program against medical advice.    Although
voluntary departure from the program would trigger adverse legal
consequences -- namely, dismissal from the TASC program and
potential prosecution in criminal court for the charges against
them -- residents could leave at any time.    In short, facilities
like JCAP cannot force a participant to remain on the premises.
These facilities are not prisons; JCAP's control over Velentzas
was, "in fact entirely dependent upon [his] willingness to comply
with and carry out" its directives (Matter of New York City
Asbestos Litig., 5 NY3d 486, 495 [2005]).    In the absence of the
authority to prevent a participant from leaving, it follows that,
when a participant is discharged from JCAP for violating facility
rules, or withdraws from the program, he or she is no longer
under the facility's control.
            Since JCAP had dismissed Velentzas from the program, it
was not in control of him at the time of the incident giving rise
to this lawsuit.   Indeed, to hold otherwise would raise the


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question of how long any prior control would last.   In Eiseman v
State of New York, we noted that we must be cognizant not to
impose on a party "limitless liability to an indeterminate class
of persons conceivably injured by any negligence" (70 NY2d at
188).   Recognizing that concern here, it is difficult, if not
impossible, to determine when JCAP's duty to protect the public
from Velentzas would end if any duty existed beyond his
discharge.   It is unreasonable to impose upon facilities like
JCAP a duty to protect the public from individuals they have
dismissed from their charge because the duty would essentially be
limitless.   Additionally, finding a duty here could adversely
impact facilities like JCAP's willingness to participate in TASC,
thereby inhibiting defendants' access to treatment where TASC is
deemed appropriate.   Such a result would be contrary to public
policy aimed at helping certain defendants overcome substance
abuse issues and obtain treatment for mental health issues, in
lieu of prison sentences so long as they remain in treatment.
           Finally, JCAP is not negligent for failing to follow
its internal policy of referring intoxicated residents discharged
during the weekend to an intermediary facility.   Although
Velentzas was intoxicated at the time of his discharge, because
he got into a physical altercation with another resident and was
out of control while his transfer paperwork was being completed,
JCAP called the police in an effort to protect the other resident
and its staff members.   JCAP's failure to place Velentzas in an


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intermediary facility, however, is not a reason to hold that it
still had control over him following his discharge and could be
found negligent (see Pink v Rome Youth Hockey Association, 28
NY3d 994, 998 [2016]).   Therefore, JCAP is not negligent for
failing to follow that particular policy.


                                  IV.
            In sum, JCAP is correct that Velentzas was not under
its control at the time of the assault and it owed no duty of
care to plaintiff or to the public in general.       Accordingly, the
order of the Appellate Division should be reversed, with costs,
defendant's motion for summary judgment dismissing the complaint
granted, and certified question answered in the negative.
*   *   *   *    *   *   *   *    *      *   *   *   *   *   *   *   *
Order reversed, with costs, defendant's motion for summary
judgment dismissing the complaint granted, and certified question
answered in the negative. Opinion by Judge Abdus-Salaam. Chief
Judge DiFiore and Judges Rivera, Stein, Fahey and Garcia concur.
Judge Wilson took no part.

Decided February 16, 2017




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