Court of Claims

Decided on April 13, 2026

Claim No. 136015

Javier E. Vargas, J.

[*1]

Papers Considered:

Notice of Motion, Affirmation & Exhibits Annexed 1-12

Affidavit in Opposition, Affirmation, Memorandum of Law & Exhibits.3-40

Defendant's Reply Affirmation.41

Upon the foregoing papers, the Motion by Defendant, State of New York (hereinafter "State"), for dismissal of the Claim filed by Claimant Anthony T., by his guardians N.T. and C.T. ("claimant"), is granted in accordance with the following decision.

By Claim filed February 22, 2021, claimant seeks to recover damages against the State for injuries he sustained on November 9, 2017, at Human First, Inc. ("Human First"), a "contracted corporation" that was licensed by the State's Office of People With Developmental Disabilities ("OPWDD") as a group home to care for claimant, a person with developmental [*2]disabilities, including autism (Claim at 1-2, ¶¶ 2-3). Specifically, claimant alleges that on that day, he was at the Human First day program when an employee belittled him and threatened to call the police to arrest him when he did not get on the bus to return to the group home located at 120-24 196th Street in Jamaica, New York (see id. at 6, ¶ 6). Claimant further alleges that as he got on the bus, he threatened to kill and/or hurt himself in front of the Human First employees (see id.). When he arrived at Human First, claimant alleges that, as he walked to his room on the second floor, he again stated to a Human First employee that he was going to kill himself (see id. at 7, ¶ 8). The employee then escorted claimant into his room, commenting that life was too short, closed the door, and then claimant jumped out the second-floor window seriously injuring himself (see id. at 8, ¶ 9).

In his Claim, claimant further alleges that prior to the accident, he attempted to jump out of the window in his room and although said attempt was reported to the State, it failed to install window guards to prevent him from jumping out his window (see id, ¶ 10). Protective window guards were later installed after the November 9, 2017 incident (see id, ¶ 11). In his cause of action, claimant alleges that the State was negligent in failing to monitor, review, and require adequate care of him by Human First and said negligence was the proximate cause of his injuries (see id. at 8-9, ¶ 12). Furthermore, claimant's injuries were allegedly caused by the State's failure to protect him in violation of the First and 14th Amendment of the United States Constitution, and the New York State Constitution (see id. at 9, ¶ 13). As a result, claimant asserts, inter alia, that he "sustained multiple fractures and injuries to his legs, ankles, back, spine[,] neck[,] head, and other parts of his body, and was rushed to the hospital where [he] had surgeries, and was in the intensive care unit" (id. at 8, ¶ 12).

By Verified Answer filed March 31, 2021, the State denied a majority of the allegations, and raised nine affirmative defenses, including that the Court lacks jurisdiction of the Claim to the extent that it alleges violations of State or Federal Constitutional rights and that the State does not own, operate or maintain the situs of the accident alleged in the Claim.

Thereafter, on March 1, 2022, the parties entered into a Preliminary Conference Stipulation with respect to a discovery schedule. By Order filed August 29, 2022 (Sise, P.J.), following the retirement Court of Claims Judge Faviola A. Soto, all matters and motions pending before her were reassigned to the undersigned. Counsel then appeared before the undersigned for subsequent status conferences, where discovery and deposition deadlines were discussed and extended on agreement by the Court and counsel. On April 28, 2025, the Court issued a Certification Order, executed by counsel, declaring "that discovery is complete" and directing the filing of a Note of Issue and a virtual pre-trial conference date set for September 11, 2025. The Note of Issue was in fact filed by claimant on May 7, 2025.

However, prior to the pre-trial conference, the State filed the instant motion on August 29, 2025, seeking the dismissal of the Claim pursuant to CPLR 3211 & 3212 and Court of Claims Act §§ 9 and 11. With respect to summary judgment dismissal,^FN1 the State argues that it [*3]cannot be held vicariously liable for the actions of a privately owned entity or the actions of individuals who were not agents or employees of the State and who were not under the control of the State. The State maintains that according to Michelle Guiliano, Deputy Director of the Developmental Disabilities Regional Office ("DDRO"), of OPWDD Region 4, while the State provides a license to enable Human First to provide services, OPWDD has no proprietary interest in, nor does it operate, oversee or partake in any of the day-to-day activities of Human First (see Aff. in Support, Exh. I). Moreover, it cannot be held liable for Human First's action or inaction or its failure to put window guards in claimant's room. The State further argues that the Claim must be dismissed since it does not own or operate the subject group home.

The State further argues that its actions are subject to governmental immunity, as it was acting in a governmental capacity, not under its proprietary function. Per the State, its only role was in licensing the location of the incident which is a discretionary governmental action that cannot provide the basis for liability. Where the act complained of concerns the performance of a governmental function, the State argues that absent a special duty, there is no liability. According to the State, there was no statutory duty that was enacted to benefit claimant because Mental Hygiene Law §§ 13.01, 13.17 (a), 16.03, 16.11, and 16.17 do not authorize a private right of action; and OPWDD merely issues operating certificates for programs operated by Human First as required by the Mental Hygiene Law.

Next, the State asserts that it did not voluntarily assume a duty which caused the claimant to justifiably rely on that assumption in that Evette Herdsman, an 18-year veteran of OPWDD, testified that she did not speak with Ms. T. regarding window guards and that Ms. T. was offered transfers but they were rejected (see Aff. in Support, Exh. H at 14, 19-21, 23, 27-30). Additionally, claimant's assigned OPWDD social worker, Ivett Dixon, testified that she received Ms. T.'s transfer request and was assigned to assist in a new placement (see id., Exh. G at 7-9, 10-11). Ms. Dixon further testified that she was unaware that claimant attempted to jump out the window prior to November 2017 (see id. at 10, 39); that she never discussed placing window guards (see id. at 13-14, 18, 32-34); and that the only issues discussed with Ms. T. were the level of supervision, and her desire to move claimant outside the New York City ("NYC") region (see id. at 14, 23-24).

Furthermore, the State maintains that, as per her testimony, Ms. T. did not reasonably rely on any statements/assurances made by OPWDD, as she spoke to Ms. Dixon and Ms. Herdsman regarding transferring her son outside of NYC and rejected three possible transfers (see id., Exh. F at 12-15, 16-17). While claimant testified that she told Ms. Dixon over the phone that window guards need to be placed in the room or the area would be unsafe (see id. at 26), Ms. Dixon did not say much about the window bars but only stated that she would take care of it and was neutral (see id. at 26-28, 73). Furthermore, Ms. Dixon did not specify how and when the window guards would be installed (see id. at 27-28). Ms. T. testified that she spoke to Mr. Herdsman once regarding window guards and that she stated that she would take care of it, but her response was simple, short and not compassionate (see id. at 35, 74). The State argues that none of these interactions demonstrate a causal connection with the purportedly assumed duty and reliance. Lastly, the State argues that the Court of Claims does not have jurisdiction [*4]over claims that are in violation of the United States and State Constitutions.

By Affirmation in Opposition, Memorandum of Law and Affidavit filed November 10, 2025,^FN2 claimant argues that a special relationship existed between Ms. T. and the State such that the State was required to exercise ordinary care to ensure that window guards and other protections were installed to protect him from jumping out of the window. Claimant argues that Mental Hygiene Law § 13.01 was enacted to address the needs of individuals, like him, with developmental disabilities and recognizing his private right of action would promote the legislative purpose and scheme of the statute since the ability to challenge the State's actions and inactions raises pivotal questions as to its failure to act in the manner that it was created. He argues that the State failed to deal with his issues before he jumped because it did not have proper records and failed to keep abreast of his suicidal ideation. Also, the State simply mouthed reassurances that it was dealing with the issues at Human First and looking for a safer group home which is a stark violation of its statutory duty.

With regard to the second way that a special duty can be formed where the municipality voluntarily assumes a duty that generates justifiable reliance, claimant argues that the State assumed the responsibility to ensure that window bars would be placed on his window. During her deposition, Ms. T. stated that she spoke with OPWDD case worker Ivett Dixon more than twice, maybe four times before the incident, and was told that OPWDD will take care of installing the window guards (see Aff. in Opp., Exh. 1 at 22-24, 26-28). In addition, Ms. Dixon's supervisor, Evette Herdsman also purportedly assured her over the phone that Human First would install window guards prior to the incident (see id.at 74-76). Also, claimant argues that it was clear from Ms. T.'s statements that the State clearly understood that if it did not take action, [*5]there was a great likelihood that claimant would try to hurt himself given its knowledge of his suicidal ideations (see id., Exh. 5). Additionally, claimant claims that there was direct contact between Ms. T. and the State as she contacted OPWDD many times, and that he was justified in relying on the State's assurance about installing the window bars. Similarly, claimant argues that the State assumed a positive direction or control in the face of a known and dangerous safety violation by assuring Ms. T. about the importance and necessity for window bars to be installed due to claimant's history of elopement, suicidal ideations and previous attempts to jump.

Lastly, claimant argues that under Article I, §§ 11 and 19 of the New York State Constitution, the developmentally disabled have the right to due process of the law, freedom from discrimination and equal protections of the law, as well as the right to clean air and water. Claimant further argues that Article XVII, §§ 1 and 4 of the New York State Constitution commits the State to making the care of the needy a public concern. Moreover, there are designated rights and responsibilities enshrined in the New York Constitution for claimant's protection, and when said rights are violated, it is a constitutional tort for which the Court of Claims has jurisdiction.

By Reply Affirmation filed December 11, 2025, the State argues that claimant's opposition fails to establish a triable issue of fact for which liability can be imposed and reiterates its argument that the State does not own, operate or control Human First. The State further argues that although the Mental Hygiene Law was created for the benefit of persons with disabilities, this does not create either a direct or implied private right of action. Also, the emails which claimant attaches as alleged proof that there were communications between Ms. T. and OPWDD, support the State's position that OPWDD only assisted claimant with suitable transfers and had made no assurances with respect to window guards. With respect to the constitutional claims, the State argues that the constitutional tort remedy is only appropriate where the claimant has no common law or statutory remedy available. Here, the alleged violations fit within the definition of a common law tort remedy. This Court agrees.

It is well-settled that in order to prevail in a summary judgment motion under CPLR 3212, the movant bears the initial burden of establishing their "entitlement to judgment as a matter of law by 'tendering sufficient evidence to demonstrate the absence of any material issues of fact'" from the case (Edwards v State of New York, 23 AD3d 710, 711 [3d Dept 2005], appeal dismissed 6 NY3d 772 [2006], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] [citations omitted]; see CPLR 3212 [b]; Encarnacion v State of New York, 49 AD3d 1038, 1039 [3d Dept 2008]). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Rivera v State of New York, 59 Misc 3d 1233 [A], 2017 NY Slip Op 52002 [U], * [Ct Cl 2017], affd 34 NY3d 383 [2019], quoting Alvarez, 68 NY2d at 324 [internal citation quotation marks omitted]). On a motion to dismiss a claim pursuant to CPLR 3211 (a) (7), the court is required to accept the facts as alleged in the claim as true, accord claimants the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Gioeli v Vlachos, 89 AD3d 984,984 [2d Dept 2011]).

Applying these principles to the matter at bar, the Court is satisfied that the State has tendered sufficient admissible evidence to establish its entitlement to summary judgment dismissal, and that claimant has failed to demonstrate the existence of a triable issue of fact (see [*6]Alvarez v Prospect Hosp., 68 NY2d at 324). The record reflects that on February 17, 2014, claimant, a 21-year-old with developmental disabilities and autism, moved to a Human First group home with the assistance of OPWDD (see Aff. in Support, Exh. F at 7-8). It was a multifamily dwelling housing with three adolescents and staff downstairs and two adolescents plus claimant with staff upstairs (see id. at 9). Prior to relocating to Human First, claimant resided at the May Institute, a residential school in Massachusetts where he aged out at 21 (see Aff. in Opp., Exh. 5 at 5). Shortly after joining Human First, Ms. T. had problems with claimant remaining there, initially because he was being ostensibly provoked and the staff would block the refrigerator to prevent claimant from getting a drink (see Aff. in Support, Exh. F at 11, 14). Sometime in 2015, she contacted OPWDD and requested that claimant be moved to a new location out of NYC because before he moved to Human First, he thrived in the residential placement well out of the city (see id. at 12, 15). OPWDD offered Ms. T. multiple options for residential placement but she rejected them (see id. at 15-17).

While the search for new placement was ongoing, on June 23, 2016, claimant attempted to jump out of the window in his room at Human First and was placed on one-on-one supervision (see Aff. in Opp., Exh. 5 at 9). On February 1, 2017, claimant made a second attempt to jump out the window (see id. at 10; Aff. in Support, Exh. F at 18), and per Ms. T., one of the officers at the scene stated that there should be bars on his window (see id., Exh. F at 20). At the time of the February 2017 incident, claimant was no longer in one-on-one supervision (see id. at 41). After the incident, Ms. T. testifies that she was verbally informed by Human First employees Anna Martinez and Sandra Egobar that they would place window bars on claimant's window (see id. at 23-24). Thereafter, due to an alleged provocation by Human First staff, and after making threats to jump, claimant jumped out of his second story window and injured himself (see id. at 42-44, 58-62; Aff. in Opp, Exh. 5 at 10).

The initial question to consider is "whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose" (Halberstam v Port Auth. of NY & N.J., 175 AD3d 1264, 1265 [2d Dept 2019], quoting Applewhite v Accuhealth, Inc., 21 NY3d 420, 425 [2013] [internal citation quotation marks omitted]; see Vongphakdy v State of New York, UID NO. 2018-040-024 [Ct Cl, McCarthy, J., Mar. 13, 2018]). Here, if the State was engaged in proprietary functions, like a private enterprise, then it is subject to suit under ordinary negligence principles applicable to non-governmental actors (see Sebastian v State of New York, 93 NY2d 790, 793 [1999]; Drever v State of New York, 134 AD3d 19, 22 [3d Dept 2015]). On the other hand, if the State's actions were "undertaken for the protection and safety of the public pursuant to the general police powers," they are deemed governmental and the State is subject to suit only if it owed a special duty to the claimant (Tara N.P. v Western Suffolk Bd. of Coop. Educ. Servs, 28 NY3d 709, 713 [2017] [internal citation quotation marks and citation omitted]; see Telfair v State of New York, UID No. 2023-058-068 [Ct Cl, Leahy-Scott, J., Oct. 2, 2023]).

Central to this Claim is OPWDD, a State governmental agency tasked with the oversight of facilities that are issued operating certificates for the care and treatment of persons with developmental disabilities (see Mental Hygiene Law §§ 16.03, 16.11). The statute reveals that OPWDD's review of facilities who receive operating certificates include periodic visitation and review of each facility with inspections made twice per calendar year without prior notice (see Mental Hygiene Law § 16.11 [a] [i]). Such areas of review shall include, but not limited to, "a review of facility's physical plant, fire safety procedures, health care, protective oversight, abuse [*7]and neglect prevention and reporting procedures" (id.). In the event OWPDD determines that the holder of the certificate fails to comply with the provisions of any applicable statute, rule or regulation, OPWDD may revoke, suspend or limit an operating certificate or impose penalties (see Mental Hygiene Law § 16.17).

Here, the Claim does not allege that the State owned or operated Human First but alleges that the State failed to oversee Human First, a "contracted corporation" that was licensed to care for claimant (see Claim at 2, ¶ 3). Contrary to the Claim's assertions, however, Human First is not a "contracted corporation" but rather is classified as a private, non-profit service provider (see Aff. in Support, Exh. I). The State does not own, operate or have any proprietary interest in Human First; but is responsible for developing a system of services for the developmentally disabled which includes providing operating certificates, licenses and oversight to service providers such as Human First (see id.). If OPWDD were to provide medical or psychiatric care, which is a proprietary and not a governmental function, the standard of care would be governed by ordinary negligence (see Zatlow v State of New York, 52 Misc 3d 440, 444 [Ct Cl 2015]). At any rate, it is apparent here that while claimant was in the residential care of Human First, OPWDD's oversight of Human First and its actions or inactions were governmental in nature (see Classey v State of New York, 79 Misc 3d 527, 531 [Ct Cl 2023]).

That being said, the question now turns to whether the State owed a special duty to claimant. "[A]n agency of government is not liable for the negligent performance of a governmental function unless there existed 'a special duty to the injured person, in contrast to a general duty owed to the public'" (McLean v City of New York, 12 NY3d 194, 199 [2009], quoting Garrett v Holiday Inns, 58 NY2d 253, 261 [1983] [additional citations omitted]). Courts have held that a special relationship:

can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation" (id., quoting Pelaez v Seide, 2 NY3d 186, 199-200 [2004] [citation omitted]; T.T. v State of New York, 151 AD3d 1345, 1347 [3d Dept 2017]; see also Metz v State of New York, 20 NY3d 175, 180 [2012]).

Opposing the State's motion, claimant contends that a special relationship was formed between himself and the State in all three ways, therefore this Court will conduct its analysis seriatim. First, to form a special relationship through breach of statutory duty, the governing statute must authorize a private right of action (see T.T., 151 AD3d at 1347). Where, as here, none of the applicable Mental Hygiene Law statutes make express provisions for civil liability against OPWDD, a private right of action may be implied in three ways "(1) whether the plaintiff is one of the class 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 right would be consistent with the legislative scheme" (see Joseph v Nyack Hosp. 191 AD3d 1, 4 [2d Dept 2020], quoting Haar v Nationwide Mut. Fire Ins. Co., 34 NY3d 224, 228 [2019] [internal quotations omitted]). All three factors must be present before an implied private right of action can be recognized (see Haar, 34 NY3d at 229).

Under Mental Hygiene Law § 13.01, the State assumes responsibility to develop policies to meet the particular needs of persons with developmental disabilities; and under Mental [*8]Hygiene Law § 13.07, the State assures that the programs and services will be implemented to provide services to individuals with developmental disabilities, as well as their families and representatives. Nothing in the Mental Hygiene Law's legislative scheme suggests that the State intended for every aggrieved person with disability and their families to be able to sue the State in the event OPWDD is perceived to have inadequately performed its oversight. As mentioned earlier, among others, OPWDD's role is to provide operating certificates and licenses, to conduct periodic visitation and review of each facility, and to revoke, suspend or limit an operating certificate or impose penalties, if out of compliance (see Mental Hygiene Law §§ 16.11, 16.17). Here, the Mental Hygiene Law created a means to ensure that OPWDD's statutory duties are enforced, and the ability to sue that agency directly would not promote its legislative purpose to protect the public (see Metz, 20 NY3d at, 180).

Second, the next question to address is whether the State voluntarily assumed a duty for which claimant justifiably relied. A municipality will be held to have voluntarily assumed a duty or special relationship with a claimant where there is (1) an assumption of a duty or a special relationship with the claimant through promises or actions; (2) knowledge on the part of the municipality's agents that inaction would lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking (see Cuffy v City of New York, 69 NY2d 255, 260 [1987]; Holloway v City of New York, 141 AD3d 688, 690 [2d Dept 2016]).

Here, claimant contends that OPWDD assumed the responsibility to ensure that window bars would be placed on his window. At her deposition, Ms. T. testified that after the February 1st incident and prior to the November 9, 2017 incident, she spoke to OPWDD employee Ivett Dixon about three to four times over the phone and Ms. Dixon made assurances that window bars would be placed in claimant's window (see Aff. in Support, Exh. F at 25-28, 73). When queried, Ms. T. could not specifically articulate Ms. Dixon's exact wording but indicated that Ms. Dixon stated that she would take care of it and sounded neutral (see id. at 27-28). Also, during a conference call with Ms. Dixon and her supervisor Evette Herdsman, Ms. T. testified that she expressed the importance of placing window bars in claimant's window and Ms. Herdsman also stated that it would be taken cared of (see id. at 34-35, 74).

During her deposition testimony, Ms. Dixon testified that she was employed by OPWDD as a Social Worker and her duties included finding group home placements for individuals who reside in the community in forensic sites (see id, Exh. G at 6). She was assigned to assist claimant in July 2017, as he was seeking alternative home placement (see id. at 7-8). Ms. Dixon acknowledged speaking to Ms. T. who submitted paperwork and was always interested in having her son placed outside of the NY region (see id at 8). She described numerous virtual meetings (about five to eight) with her, Ms. Herdsman, Ms. T. and people from the Human First residence (see id. at 11-12), wherein Ms. T. mentioned that "her son attempted to jump, or jumped," that he had issues with staff, and that she desperately wanted him to move (id. at 13). Although she spoke to Ms. T. via phone and at meetings, Ms. Dixon testified that window bars were never discussed (see id. at 13-14). Similarly, Ms. Herdsman testified that as OPWDD supervisor for Region 4, her unit works to find residential placement and she supervised six or seven employees, whose job it is to send out referrals to agencies for residential placement (see id. Exh. H at 6-8, 16). Ms. Herdsman recalled a conversation with Ms. Dixon and Ms. T. over the phone where Ms. T. wanted claimant to move outside of Region 4, but they did not mention or discuss window bars (see id. at 19, 21, 25). Ms. Herdsman recalled receiving messages from [*9]Ms. T., but they concerned claimant's residential placement, nothing about bars (see id. at 28).

While there was contact between OPWDD employees and Ms. T., it appears from the record that OPWDD did not make any firm promises to ensure that Human First installed window bars in claimant's window. Even if this Court were to attribute the statements which Ms. T. alleges were made to her by Ms. Herdsman and Ms. Dixon regarding window bars, those statements did not amount to an undertaking and thus failed to create a justifiable reliance (see e.g. Valdez v City of New York, 18 NY3d 69, 83-84 [2011]). It is inconceivable from this record that Ms. T. relied on an affirmative undertaking by an OPWDD, DDRO unit which is responsible for finding residential placement, when at the same time she testified to persistently reaching out to Human First employees about the bars (see Exh. F at 22-25, 29-33).

The third and final analysis of the special duty test establishes that OPWDD did not assume a positive control of a known, blatant and dangerous safety violation (see Smullen v City of New York, 28 NY2d 66, 71 [1971]). Here, a special relationship may be formed when a municipality, having actual knowledge of a blatant violation of safety laws, nevertheless provides affirmative assurances of safety on which the injured plaintiff relies (see Abraham v City of New York, 39 AD3d 21, 28 [2d Dept 2007], lv denied 10 NY3d 707 [2008]). When queried, Ms. Dixon testified that her role was to locate housing (see Aff. in Support, Exh. G at 17). At the time that claimant's packet came into DDRO, Ms. Dixon explained that his need level was deemed "current need" since he already had housing, but as of January 7, 2018, claimant's priority level changed to substantial need after the incident (id. at 20). From the time Ms. Dixon was first assigned claimant's case, she testified that Ms. T. wanted her son to be moved from Human First (see id. at 23). Ms. Dixon sent claimant's packets to various residential providers throughout the State, and claimant was screened for an opportunity in Long Island, as well as placement in Staten Island (see id. at 23-24). Ms. Dixon and Ms. Herdsman tried to encourage Ms. T. to accept the Staten Island placement but she objected and insisted that claimant be moved outside of Region 4 to a more rural setting (see id. at 24). In her deposition, Ms. Herdsman explained that Ms. T. did not want residential placement for claimant in Region 4, the five boroughs, but wanted him to be placed in Region 5 (Long Island) or Regions 1 and 2 which are further Upstate New York (see id., Exh. H at 29-30).

Notably, OPWDD email correspondence suggests that as of August 15, 2017, Ms. T. declined offers for Region 4, and OPWDD was actively working to locate placement for claimant (see Aff. in Opp., Exhs. 8- 11, 18-19). What's more, Ms. T. stated in her affidavit that after claimant was stopped from jumping out of the window in June 2016, she pressed OPWDD to transfer her son to another group home (see Ms. T.'s Affidavit at 6-7, ¶¶ 20, 23). She was not happy with their suggestions because the early options for group homes were all in NYC and she wanted him to be transferred outside of the city--somewhere in the countryside (see id. at ¶ 25). Significantly, it appears here that although Ms. T. had numerous opportunities prior to claimant's accident to move him to a safer location, her main priority was moving him outside of NYC to a rural location. Between the first and second incident, Ms. T. testified that she had regular communications with claimant, and he "never" expressed any ideas concerning suicide (see Aff. in Support, Exh. F at 52-53). Nothing in this record suggests that the State made assurances of safety, especially with respect to installing window bars. Although it appears that the State was aware of claimant's propensity to harm himself, the record reflects a methodical performance by OPWDD, DDRO in its governmental function which was to explore suitable residential housing as per Ms. T.'s stringent demands. Even if the State failed to act expeditiously, that conduct is [*10]insufficient to create a special relationship (see Sutton v City of New York, 119 AD3d 851, 853 [2d Dept 2014]).

As for the constitutional claims, to the extent that the Claim asserts violations of the First and 14th Amendment of the United States Constitution, the Court of Claims lacks subject matter jurisdiction to consider those claims, given that the statutory basis for such claims, 42 USC § 1983, authorizes claims only against a "person" and the State "is not a person within the meaning of this statute" (Kelly v State of New York, 206 AD3d 1309, 1310 [3d Dept 2022]; see Brown v State of New York, 89 NY2d 172, 185 [1996]). Nor can claimant establish tort claims based on alleged violations of the State Constitution as this narrow remedy may only be pursued where no other remedy is available to enforce his rights (see Martinez v City of Schenectady, 97 NY2d 78, 83-84 [2001]; Lyles v State of New York, 2 AD3d 694, 695-696 [2d Dept 2003], affd 3 NY3d 396 [2004]). Whereas the instant Claim pleads an alternative legal remedy originating in negligence, these State constitutional claims should also be dismissed (see Franza v State of New York, 164 AD3d 971, 973 [3d Dept 2018], lv denied 32 NY3d 910 [2018]; Leibovitz v State of New York, 81 Misc 3d 1218[A], 2023 NY Slip Op 51366 [U] *8 [Ct Cl 2023]), as he is clearly pursuing a lawsuit against Human First.

Hence, in consideration of this record, the Court finds that there are no triable issues of fact as to the existence of a special duty or special relationship owed to claimant sufficient to form a basis for liability against the State (see T.T., 151 AD3d at 1349; Abraham, 39 AD3d at 28-29). Viewed in the light most favorable to claimant, and absent a special duty or valid constitutional claim, the Claim should also be dismissed for failure to state a cause of action (see Ellis v City of New York, 2024 NY Slip Op 30929[U], *6 [Sup Ct, NY County 2024]; Brown v New York State, 73 Misc 3d 1225[A], 2021 NY Slip Op 51123[U], *4 [Ct Cl 2021]).

Based on the foregoing, it is ORDERED that the State's motion for summary judgment dismissal and failure to state a cause of action, Motion No. M-102713, is granted, and Claim No. 136015 is hereby dismissed.

April 13, 2026

New York, New York

JAVIER E. VARGAS

Judge of the Court of Claims