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COUNTY IMMUNE FROM SUIT BY STUDENT ASSAULTED BY A WORKER, A LEVEL THREE SEX OFFENDER, WHO WAS REFERRED BY THE COUNTY AS PART OF A WELFARE TO WORK PROGRAM.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined the county was immune from suit by a student who was assaulted by a worker at a county-owned facility. The worker was referred to the lessee of the premises, the North Amityville Community Economic Council (NACEC), as part of a welfare to work program. NACEC only accepted referrals for persons with no criminal record. The Suffolk County Department of Labor (SWEP) referred the worker despite knowledge of his status as a level three sex offender. The court determined the county was acting in its governmental, not proprietary, capacity when it referred the worker and there was no special relationship between the county and the victim of the assault:

In this case, the specific act or omission that caused plaintiff’s injury was the County’s referral of Smith to NACEC through the County’s SWEP program, a referral made in spite of NACEC’s caveat that it would not accept candidates with a criminal record. The administration of SWEP … was quintessentially a governmental role. The County’s conduct in referring Smith was undertaken solely in connection with its administration of that program and was part of the County’s fundamental governmental activity. Therefore, we hold that the County was acting in its governmental capacity when it referred Smith to NACEC. * * *

There is no view of the evidence that could allow one to conclude that the County voluntarily assumed a special duty to plaintiff. Even if the County promised that it would not refer anyone with a criminal background, that promise would have been made only to NACEC and there is no evidence that plaintiff ever had any knowledge of NACEC’s request. In addition, … it is undisputed that there was no direct contact between plaintiff and the County. Tara N.P. v Western Suffolk Bd. of Coop. Educ. Servs., 2017 NY Slip Op 01255, CtApp 2-16-17

 

MUNICIPAL LAW (COUNTY IMMUNE FROM SUIT BY STUDENT ASSAULTED BY A WORKER, A LEVEL THREE SEX OFFENDER, WHO WAS REFERRED BY THE COUNTY AS PART OF A WELFARE TO WORK PROGRAM)/IMMUNITY (COUNTY IMMUNE FROM SUIT BY STUDENT ASSAULTED BY A WORKER, A LEVEL THREE SEX OFFENDER, WHO WAS REFERRED BY THE COUNTY AS PART OF A WELFARE TO WORK PROGRAM)/GOVERNMENTAL FUNCTION (MUNICIPAL LAW, IMMUNITY, COUNTY IMMUNE FROM SUIT BY STUDENT ASSAULTED BY A WORKER, A LEVEL THREE SEX OFFENDER, WHO WAS REFERRED BY THE COUNTY AS PART OF A WELFARE TO WORK PROGRAM)/PROPRIETARY FUNCTION (MUNICIPAL LAW, IMMUNITY, COUNTY IMMUNE FROM SUIT BY STUDENT ASSAULTED BY A WORKER, A LEVEL THREE SEX OFFENDER, WHO WAS REFERRED BY THE COUNTY AS PART OF A WELFARE TO WORK PROGRAM)/SPECIAL RELATIONSHIP (MUNICIPAL LAW, IMMUNITY, COUNTY IMMUNE FROM SUIT BY STUDENT ASSAULTED BY A WORKER, A LEVEL THREE SEX OFFENDER, WHO WAS REFERRED BY THE COUNTY AS PART OF A WELFARE TO WORK PROGRAM) 

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