                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 25, 2016                    521533
________________________________

NICHOLAS MAYORGA,
                     Appellant,
     v
                                             MEMORANDUM AND ORDER
BERKSHIRE FARM CENTER AND
   SERVICES FOR YOUTH,
                    Respondent,
                    et al.,
                    Defendants.
________________________________


Calendar Date:   January 14, 2016

Before:   McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

                              __________


      Tabner, Ryan & Keniry, LLP, Albany (Brian M. Quinn of
counsel), for appellant.

      Burke, Scolamiero, Mortati & Hurd, LLP, Albany (Erin K.
Hayner of counsel), for respondent.

                              __________


Garry, J.

      Appeal from an order of the Supreme Court (Mott, J.),
entered December 11, 2014 in Columbia County, which granted a
motion by defendant Berkshire Farm Center and Services for Youth
for summary judgment dismissing the complaint against it.

      In this action, plaintiff seeks damages for injuries he
sustained in a June 2012 collision with a vehicle operated by a
former resident (hereinafter the resident) of defendant Berkshire
Farm Center and Services for Youth (hereinafter defendant).
Earlier that year in the course of juvenile delinquency
proceedings, Family Court had ordered the resident to be placed
                              -2-                521533

in the care and custody of the Columbia County Department of
Social Services (hereinafter DSS). In February 2012, DSS
initially placed the resident in defendant's nonsecure detention
facility in the Town of Canaan, Columbia County. After about two
months, he left without permission and was subsequently
discharged. In late May, DSS again referred the resident to
defendant, this time to defendant's residential treatment center,
located on the same campus as the nonsecure detention facility.
Within 24 hours, the resident again left without permission;
defendant discharged him a week later. On June 28, 2012, the
resident engaged in a high-speed chase with police while driving
a stolen car and collided with plaintiff's vehicle. Plaintiff
commenced this negligence action against defendant, the resident
and others, and, following joinder of issue, defendant moved for
summary judgment dismissing the complaint against it. Supreme
Court granted the motion, and plaintiff appeals.

      "'In any negligence action, the threshold issue before the
court is whether the defendant owed a legally recognized duty to
the plaintiff'" (Daily v Tops Mkts., LLC, 134 AD3d 1332, 1333
[2015], quoting Gilson v Metropolitan Opera, 5 NY3d 574, 576
[2005]). "The injured party must show that a defendant owed not
merely a general duty to society but a specific duty to him or
her, for without a duty running directly to the injured person
there can be no liability in damages, however careless the
conduct or foreseeable the harm" (Hamilton v Beretta U.S.A.
Corp., 96 NY2d 222, 232 [2001] [internal quotation marks and
citation omitted]; see Kunz v New Netherlands Routes, Inc., 64
AD3d 956, 957 [2009]). We agree with Supreme Court that
defendant established as a matter of law that it owed no duty to
plaintiff to prevent the resident from leaving its facility, and,
thus, had no liability to plaintiff.

      Defendant established without dispute that the residential
treatment center where the resident was placed was a nonsecure
detention facility within the meaning of Family Ct Act article 3
(see Family Ct Act § 301.2 [5]). The term "detention," as used
in the context of juvenile delinquency, is not equivalent to
confinement or restraint, but instead means "the temporary care
and maintenance of children away from their own homes" (Family Ct
Act § 301.2 [3]; see Matter of Dylan C., 16 NY3d 614, 616
                              -3-                521533

[2011]). Family Ct Act article 3 provides for both secure and
nonsecure facilities for the detention of juveniles. "[B]oth are
designed to detain but not imprison, and to rehabilitate rather
than punish, and neither has as a principal end the protection of
the public – that objective being present in both cases but
necessarily subordinate to the creation of a salutary therapeutic
milieu for troubled but presumably not particularly dangerous
persons" (Matter of Dylan C., 16 NY3d at 618). However, a secure
detention facility is "characterized by physically restricting
construction, hardware and procedures" (Family Ct Act § 301.2
[4]), while a nonsecure detention facility is "characterized by
the absence of physically restricting construction, hardware and
procedures" (Family Ct Act § 301.2 [5] [emphasis added]).
Nonsecure facilities, like the one at issue here, "are designed
to provide structured residential care for alleged and
adjudicated juvenile delinquents in a supportive, family-like
environment" (Matter of Dylan C., 69 AD3d 127, 131 [2009], affd
16 NY3d 614 [2011]). A child who is placed in a nonsecure
facility "is not locked up, but rather placed temporarily in an
open setting" (Merril Sobie, Practice Commentaries, McKinney's
Cons Laws of NY, Book 29A, Family Ct Act § 320.5 at 25).

      Defendant's nonsecure residential treatment center is
located on an open campus without gates or bars, and residents
are not locked in. Here, the resident was attending an
educational program when he chose to leave. One of defendant's
staff members followed him and tried unsuccessfully to persuade
him to return. The staff member did not attempt to physically
prevent the resident from leaving, pursuant to defendant's policy
that – under the statutory mandate against physical restrictions
– permits such intervention only when a resident's behavior is
dangerous to the resident or others. After the resident
departed, defendant notified DSS and the police and discharged
him when directed to do so by DSS a week later. Plaintiff's
argument that defendant should have imposed greater supervision
or restraints to prevent the resident from leaving disregards the
distinction between secure and nonsecure detention facilities
and, more fundamentally, disregards the fact that defendant did
not make the placement decision. Instead, the record establishes
that Family Court and/or DSS determined the appropriate level of
security; the court placed the resident in the legal care and
                              -4-                521533

custody of DSS, and that agency chose to place him in a nonsecure
facility. Defendant did not participate in the court proceedings
and, once the resident had been placed in its facility, had no
duty to impose a higher level of restraint upon the resident than
that requested by DSS and mandated by the statute. Plaintiff's
contention that defendant was obligated to impose a higher level
of supervision upon the resident because, having left defendant's
program without permission once before, it was foreseeable that
he might do so again overlooks the basic principle that
"[f]oreseeability, alone, does not define duty – it merely
determines the scope of the duty once it is determined to exist"
(Hamilton v Beretta U.S.A. Corp., 96 NY2d at 232).

      Plaintiff's claim that defendant breached a duty to
adequately supervise the resident arising from the fact that it
had accepted his physical care and custody is likewise without
merit. The duty owed by a school to prevent foreseeable injuries
caused by negligent supervision of its students arises "from the
simple fact that a school, in assuming physical custody and
control over its students, effectively takes the place of parents
and guardians" (Mirand v City of New York, 84 NY2d 44, 49
[1994]). Because this duty arises from the school's physical
custody of its students, it ceases when a student leaves the
premises and the student's parent or legal custodian is free to
resume control (see Pratt v Robinson, 39 NY2d 554, 560 [1976]).
Here, assuming without deciding that defendant's residential
treatment center can be analogized to a school for this purpose,
the collision that injured plaintiff occurred almost a month
after the resident left defendant's physical premises, and three
weeks after defendant discharged him from its care, upon the
direction of the resident's legal custodian. Any duty that may
have existed while the resident was in its physical custody had
long since terminated (see id. at 560-561).

      Defendant thus established that it owed plaintiff no legal
duty, and plaintiff's submissions raised no triable issues of
fact. As such, Supreme Court properly granted summary judgment
dismissing the complaint against defendant.

     McCarthy, J.P., Lynch, Devine and Clark, JJ., concur.
                        -5-                  521533

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
