DAVIS v. STATE OF NY
257 A.D.2d 112 (1999)
691 N.Y.S.2d 668
BETH A. DAVIS, Appellant, v. STATE OF NEW YORK, Respondent. (Claim No. 85517.)
Appellate Division of the Supreme Court of the State of New York, Third Department.
June 17, 1999.
Smyk, Smyk & Fahrenz, L. L. P., Binghamton ( Stephen D. Smyk of counsel), for appellant.
Eliot Spitzer, Attorney General, Albany ( Laura Etlinger of counsel), for respondent.
CREW III, YESAWICH JR. and SPAIN, JJ., concur with CARPINELLO, J.; MIKOLL, J. P., dissents in a separate opinion.
OPINION OF THE COURT
On March 14, 1991, Oscar Linderberry was conditionally released from Auburn Correctional Facility in Cayuga County having been convicted of first degree rape in 1976 and having served 18 years of a 12½-to-25-year prison sentence. His release included certain special conditions, including prohibitions against consuming alcohol and driving a motor vehicle. He was also obligated to participate in sex offender therapy and to attend Alcoholics Anonymous.
On March 6, 1992, Linderberry's ex-wife reported to the City of Cortland Police that he menaced her with a kitchen knife. Police Officer Daniel Merritt investigated the charge, which included interviewing Linderberry on March 7, 1992. At this time Linderberry was "very calm", and Merritt concluded that Linderberry's ex-wife, who had admitted herself into the mental health unit of a local hospital and declined to press charges, was not in any immediate danger. On March 9, 1992, after Linderberry backed out of an agreement with his ex-wife
Upon learning of the previous days' events, Maio conducted an investigation to determine whether a parole revocation warrant was indicated. At 9:30 A.M. on March 12, 1992, Maio contacted the Cortland Police about the incident and picked up the arrest report. One hour later, he conducted a home visit and ordered Linderberry to stay away from his ex-wife and to immediately make an appointment for a mental health evaluation. Between 2:30 and 3:00 P.M. that same afternoon, Maio had a conference with Senior Parole Officer Gerald Szczech who, after reviewing police documents and discussing the situation with Maio, decided that a warrant should be issued. Maio was directed by Szczech to execute it the following morning. Several factors went into this decision; namely, Linderberry's positive adjustment while on parole, his release by City Court the previous day, indications that he was not consuming alcohol and had been attending family counseling with his ex-wife on a regular basis, the fact that he moved out of the couple's residence and the extreme weather conditions that day. Less than 10 hours after this decision was made, however, Linderberry went on a violent criminal spree. In addition to abducting, beating, stabbing and raping claimant, he murdered his ex-wife and kidnapped another woman (see, People v Linderberry,
Claimant seeks to hold the State liable for the injuries she sustained based on the Division's alleged negligence in failing to timely execute the parole revocation warrant on Linderberry. In a prior appeal, this Court affirmed the denial of the State's motion for summary judgment (
We hold that the decision of when and how to execute a warrant is fundamentally a discretionary act, not a ministerial one, particularly on the facts, albeit tragic, of this case. Consequently, the State is immune from liability. Moreover, even if the State is not immune from liability, the evidence supports the Court of Claims' factual finding that the State was not negligent. Accordingly, we affirm.
The State has governmental immunity from liability for negligence in the execution of the parole violation warrant because the duties and functions relating to the execution of the warrant do entail discretion (see, e.g., Mesa v United States,
Here, Szczech, an officer permitted under the regulations to issue warrants (see, 9 NYCRR 8004.2 [e]), unquestionably made a judgment call as to when to execute the warrant. The record shows that Maio met with Linderberry at 10:50 A.M. on March 12, 1992, at which time Linderberry was compliant with Maio's instructions, showed no signs of drinking alcohol and acted "[v]ery good, calm [and] reserved". That afternoon, Maio consulted with Szczech about whether a parole violation warrant should be issued, and a decision was made by Szczech to issue the warrant. Since no evidence at that point and time indicated an emergency, and because a snow storm was in progress, a decision was made in the late afternoon hours of March 12, 1992 to wait less than 24 hours to execute the warrant.
The record also shows that Maio intended to seek the assistance of the local police in executing the warrant even though he was authorized to execute it on his own.
Finally, although this Court's inquiry is not limited to whether the verdict is against the weight of the evidence and may factually assess whether the judgment is warranted (see, e.g., Lewis v State of New York,
MIKOLL, J. P.
I respectfully dissent.
I disagree with the majority's conclusion that execution of the parole violation warrant was a discretionary function as to which the State is immune from the consequences of its negligence. While "almost any act admits some discretion in the manner of performance, even driving a nail" (Prosser, Torts § 132, at 990 [4th ed]), the State is protected by the doctrine of sovereign immunity only when its action "involves the exercise of discretion or expert judgment in policy matters, and is not exclusively ministerial" (Haddock v City of New York,
To be sure, the decision whether to issue the parole violation warrant was a discretionary one, involving the exercise of reasoned judgment and requiring a choice between two different courses of action, i.e., whether to issue the warrant or not issue it. Indeed, Parole Officer Joseph Maio discussed the matter with his superior, at whose direction the warrant was issued. Once that decision was made, however, execution of the warrant was compulsory; there was no longer any occasion for the exercise of reasoned judgment or the choice between alternative courses of action, i.e., whether or not to execute it. I am not persuaded by the majority's conclusion that in the absence of any statute, regulation or immutable department procedure dictating the method whereby the warrant was to be executed, the method of performance was left to Maio's discretion and hence, not ministerial. Taken to its logical conclusion,
In any event, concluding that the State does not enjoy immunity does not end the inquiry, since it remains to be determined whether the State was in fact negligent in the execution of the warrant. Turning, then, to the decision of the Court of Claims, I find its conclusion that the State acted reasonably under the circumstances essentially unsupported by the record. Particularly troublesome are two observations by the court bearing upon its result: " it was reasonable for Mr. Maio to believe that this was not an emergency situation. Mary O'Neill had waited three full days before making her complaint, and  once arraigned, Mr. Linderberry had been released by the Cortland City Court on his own recognizance".
With regard to the first statement, City of Cortland Police Officer Daniel Merritt testified that he responded to the contemporaneous 911 call from Linderberry's ex-wife, Mary O'Neill, the morning of March 6, 1992. While it is true that no formal complaint was signed until March 9, 1992, the reasons for the delay are clear and in no way undermine the significance of the underlying event. O'Neill's immediate objective, her personal safety, was accomplished initially with her confinement to the hospital, and prospectively addressed by Linderberry's subsequently breached promise to commit himself to the hospital. Under these circumstances, I would attach no evidentiary significance to the fact that the formal charge was not filed until March 9, 1992. I likewise fail to perceive why the Cortland City Court's bail decision allowing Linderberry to be released on his own recognizance would be relevant to an assessment of the negligence of the State Division of Parole (hereinafter the Division) in performing its duties, particularly in view of its superior knowledge of Linderberry's violent history and manifest deterioration.
Aside from these ill-founded observations, the Court of Claims did not elaborate on the evidentiary basis for its conclusion that the Division acted reasonably under the circumstances
Even though the negligent supervision claim is no longer extant, several observations relative to Linderberry's performance on parole are pertinent in view of the Division's claim, accepted by the majority, that its delay was justifiable because he had shown no warning signs of violence or alcohol use, and had positively adjusted to parole. The record discloses that prior to the incident of March 6, 1992, Maio had received complaints from Mary O'Neill that Linderberry was drinking and that she was concerned about her safety. The extent of the Division's investigation into these allegations appears to have been questioning Linderberry and accepting his denials. Despite the special condition prohibiting his operation of a motor vehicle, Maio's earlier progress notes reveal that Linderberry owned a truck and was attempting to apply for a driver's license. Despite being notified on March 10, 1992 of the March 6, 1992 attack, Maio took no action for two days. When he did travel to Cortland on March 12, 1992, his investigation was limited to reviewing the police report and meeting with Linderberry; he did not speak with Merritt or O'Neill concerning the events of March 6, 1992.
Based upon the lack of evidence to support the Court of Claims' determination, I would reverse the judgment entered in favor of the State and remit the case to the Court of Claims for a trial upon the question of damages.
Ordered that the judgment is affirmed, without costs.
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