The Judge Rotenberg Center v. Blass et al

Filing 61

MEMORANDUM OF DECISION AND ORDER - Ordered that the Defendants' 52 motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) is denied. Signed by Judge Arthur D. Spatt on 6/25/2012. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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THE JUDGE ROTENBERG EDUCATIONAL
CENTER INC.,
Plaintiff,

MEMORANDUM OF
DECISION AND ORDER
10-cv-3628 (ADS)(ARL)

-againstGREGORY J. BLASS, Commissioner, Suffolk
County Department of Social Services in his
Official Capacity, and SUFFOLK COUNTY,
Defendants.
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APPEARANCES:
Jocelyne S. Kristal, Esq.
Attorney for the Plaintiff
19 Court Street
Third Floor
White Plains, NY 10601

Suffolk County Attorney Christine Malafi
Attorneys for the Defendants
100 Veterans Memorial Highway
PO Box 6100
Hauppauge, NY 11788
By:
Assistant County Attorney Drew W. Schirmer
SPATT, District Judge.
The Plaintiff in this case, The Judge Rotenberg Educational Center Inc. (“JRC”), seeks
payment from the Defendants Suffolk County and the Suffolk County Department of Social
Services (“DSS”) for educational and housing services that the JRC provided to a disabled young
woman from December 5, 2008 to December 15, 2009. The Defendants now move for judgment
on the pleadings, dismissing the Plaintiff’s claims against them. For the reasons that follow, the
Court denies the Defendants’ motion.

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I. BACKGROUND
The Court previously detailed the facts of this case in an order denying the Defendants’
motion to dismiss for failure to serve a timely notice of claim. However, the Court will restate
the relevant facts for purposes of the present motion.
The JRC is a Massachusetts non-profit corporation that owns and operates a live-in
school for individuals with severe emotional, psychiatric, and behavioral problems, coupled with
developmental disabilities. On April 11, 2007, the JRC agreed to care for a nineteen-year-old
emotionally and developmentally disabled woman referred to as RP, who had been recently
placed in the care and custody of the Suffolk County DSS by a New York State Family Court
Judge. The Suffolk County DSS agreed to pay tuition to the JRC for this placement.
Generally, the Suffolk County DSS only provides services for individuals until their
twenty-first birthday. See N.Y. Soc. Serv. Law § 398(6)(h) ( “Commissioners of public welfare
and city public welfare officers responsible under the provisions of a special or local law for the
children hereinafter specified shall have powers and perform duties as follows: . . . Supervise
children who have been cared for away from their families until such children become twentyone years of age or until they are discharged to their own parents, relatives within the third
degree or guardians, or adopted.”); see also Vega v. Fox, 457 F. Supp. 2d 172, 185 n.88
(S.D.N.Y. 2006). However, pursuant to Social Services Law § 398(13):
(a) In the case of a child with a handicapping condition who is placed, pursuant to
this chapter, in a foster care agency or institution located outside the state, and
who attains the age of eighteen, the social services official shall:
(ii) assess the nature of the services required;
(iii) notify the parent or guardian of such child’s need for services; and
(iv) upon the written consent of the parent or guardian . . submit a report on
the child’s need for services after age twenty-one to the department for
planning purposes.

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(b) Upon the written consent of the parent or guardian, the department shall
submit the report received pursuant to paragraph (a) of this subdivision to the
council on children and families.
(c) When a child’s report is submitted to the council on children and families
pursuant to this subdivision, the council shall cooperate with adult service
providers, such as the department of social services, the office of mental
retardation and developmental disabilities, the office of mental health and the
office of vocational rehabilitation of the education department in planning and
coordinating such child’s return to New York state for adult services. The
council shall arrange with the appropriate state agency for the development of
a recommendation of all appropriate in-state programs operated, licensed,
certified or authorized by such agency and which may be available when such
child attains the age of twenty-one. . . .
Thus, the Suffolk County DSS’s responsibilities for RP included assisting her in obtaining
appropriate adult social services to commence when she turned twenty-one. To this end, on
December 7, 2007, approximately six months before RP’s twenty-first birthday, which was on
June 30, 2008, the Suffolk County DSS and the JRC filed paperwork with the New York State
Office of Mental Retardation and Developmental Disabilities (“OMRDD”), seeking adult social
services for RP from the OMRDD. See Flowers v. Webb, 575 F. Supp. 1450, 1453 (E.D.N.Y.
1983) (“New York State’s Mental Hygiene Law (“MHL”) §§ 13.01 and 33.03 entitle mentally
retarded citizens of New York to care, treatment and rehabilitation. MHL § 13.07 delegates this
responsibility to the OMRDD, an autonomous office within the State Department of Mental
Hygiene.”).
However, on June 25, 2008, just five days before RP’s twenty-first birthday, the
OMRDD found that RP did not qualify for benefits from OMRDD. Nevertheless, the OMRDD
agreed to pay for RP to remain at the JRC past her twenty-first birthday, pending an appeal of
this finding.
On September 9, 2008, while the administrative appeal was pending, a Transmittal was
sent to the New York State Office of Mental Health (OMH) indicating that RP was in need of

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adult services and a residential placement. JRC was then advised by OMH that no housing was
available and that it would be notified of future openings.
On October 21, 2008, an administrative hearing was held at the Defendants’ offices to
reconsider OMRDD’s denial of RP’s eligibility to receive services. At that time, RP’s clinician
and case manager from JRC testified that RP did in fact meet all of OMRDD’s eligibility
requirements.
Nevertheless, on December 5, 2008, a designee of the New York Department of Health
Commissioner confirmed that RP was not eligible for OMRDD services. See MHL § 13(f)
(“Nothing in this section shall be construed to create an entitlement to adult services.”). In
connection with this finding, OMRDD ceased to pay for RP’s stay at the JRC. Shortly
thereafter, on January 12, 2009, the OMRDD expressly disclaimed responsibility to provide
services for RP, and on January 14, 2009, the Suffolk County DSS did the same. When
employees of the JRC requested direction from the Suffolk County DSS as to where RP should
be placed, the Suffolk County DSS directed that RP be taken to a Suffolk County homeless
shelter. They advised that it was the Agency’s standard procedure because RP was past the age
of twenty-one and no longer DSS’s responsibility. However, feeling that “it would be
unconscionable to leave RP in a homeless shelter without a plan, without housing, and without
adequate supervision,” (2d Am. Compl., ¶ 37), the JRC staff continued to house RP at the
Center, despite the fact that no public agency was paying for her tuition. JRC acknowledges that
the New York State Department of Health Commissioner’s office was unwilling to take
responsibility for her or make any efforts to provide RP with any further assistance.
At the time of these events, RP did not have any identified family or community ties, and
the director of the JRC believed that she was not capable of representing herself in any further

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appeal proceedings. The JRC’s director therefore petitioned the Suffolk County Supreme Court
to appoint a guardian for RP, and on April 13, 2009, a Judge in the Suffolk County Model
Guardianship Part granted this petition. RP’s new guardian then arranged for her to be placed in
a “community residence” in Suffolk County, and RP was released to that residence on December
15, 2009.
Neither the Suffolk County DSS nor New York State paid for RP’s stay at the JRC from
December 5, 2008 through December 15, 2009. Therefore, on December 15, 2009, the day RP
was released to a community residence, the JRC sent a statement to the Suffolk County DSS and
to Suffolk County detailing $245,787 in unpaid tuition charges for RP. On March 12, 2010, the
JRC also served Suffolk County with a notice of claim for this charge, and on April 29, 2010, it
sent a similar demand letter to the Suffolk County DSS. Neither Suffolk County nor the Suffolk
County DSS paid the invoice sent by the JRC.
On August 9, 2010, the JRC commenced this action against the Suffolk County DSS, as
well as the New York State Office of Mental Health. The Plaintiff ultimately amended its
complaint twice, withdrawing its claims against the New York State Office of Mental Health and
alleging new claims against Suffolk County. Presently, the Plaintiff asserts four quasi-contract
causes of action against both of the Defendants: (1) breach of implied contract, (2) unjust
enrichment, (3) restitution, and (4) quantum meruit. The Plaintiff’s basic theory underlying all
of these claims is that the Suffolk County DSS and Suffolk County either implicitly agreed — or
in fairness should have agreed — to pay for RP’s care at the JRC.
The Defendants now move for judgment on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c) (“Rule 12(c)”). They argue that the JRC has failed to allege: (1) that the
Defendants were legally responsible for RP’s care at JRC during the period of December 5,

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2008, to December 15, 2009; (2) that the Defendants agreed to be responsible, either implicitly
or explicitly, for RP’s care at JRC during the period of December 5, 2008, to December 15,
2009; or (3) that JRC submitted demands, bills, invoices or statements to the Defendants during
the period of December 5, 2008 to December 15, 2009, regarding charges for RP’s care at JRC
within that period. For the reasons set forth below, the Court finds that the Plaintiff has
adequately alleged that the Defendants had a duty to RP, and thus the Defendants’ motion for
judgment on the pleadings is denied.
II. DISCUSSION
A. As to the Legal Standard for Judgment on the Pleadings
In general, “the standard for addressing a Rule 12(c) motion for judgment on the
pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim.”
Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006).
Under the now well-established Twombly standard, a complaint should be dismissed only
if it does not contain enough allegations of fact to state a claim for relief that is “plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929, 570, 550
U.S. 544, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). The Second Circuit has explained
that, after Twombly, the Court’s inquiry under Rule 12(b)(6) is guided by two principles. Harris
v. Mills, 572 F.3d 66 (2d Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937,
1949, 173 L. Ed. 2d 868 (2009)).
“First, although ‘a court must accept as true all of the allegations contained in a
complaint,’ that ‘tenet’ ‘is inapplicable to legal conclusions,’ and ‘[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.’” Id. at
72 (quoting Iqbal, 129 S. Ct. at 1949). “ ‘Second, only a complaint that states a plausible claim
for relief survives a motion to dismiss’ and ‘[d]etermining whether a complaint states a plausible
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claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.’” Id. (quoting Iqbal, 129 S. Ct. at 1950). Thus, “[w]hen
there are well-pleaded factual allegations, a court should assume their veracity and . . . determine
whether they plausibly give rise to an entitlement of relief.” Iqbal, 129 S. Ct. at 1950.
In considering a motion to dismiss, this Court accepts as true the factual allegations set
forth in the complaint and draws all reasonable inferences in the Plaintiffs’ favor. Zinermon v.
Burch, 494 U.S. 113, 118, 110 S. Ct. 975, 979, 108 L. Ed. 2d 100 (1990); In re NYSE Specialists
Secs. Litig., 503 F.3d 89, 91 (2d Cir. 2007). Only if this Court is satisfied that “the complaint
cannot state any set of facts that would entitle the plaintiff to relief” will it grant dismissal
pursuant to Rule 12(b)(6). Hertz Corp. v. City of N.Y., 1 F.3d 121, 125 (2d Cir. 1993). The
issue on a motion to dismiss is “not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims.” Todd v. Exxon Corp., 275 F.3d 191,
198 (2d Cir. 2001) (quoting Scheuer v. Rhodes, 416 U. S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d
90 (1974)).
B. As to the Plaintiff’s Legal Theory
The Plaintiff is seeking recovery under the doctrine of restitution, which is a form of
equitable relief. There are various rubrics under which one can recover restitution for benefits it
voluntarily conferred, including quasi-contract, unjust enrichment, and quantum meruit. These
rubrics are not necessary mutually exclusive and often blend together. See Cooper v. Salomon
Bros. Inc., 1 F.3d 82, 86 (2d Cir. 1993) (“Although the complaint itself fails to specify the basis
for relief, the court interpreted his complaint as seeking restitution damages for unjust
enrichment under a theory of quasi-contract, in essence a claim for quantum meruit.”). “Because
the term ‘restitution’ entered the legal lexicon relatively recently, its use is often a source of

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confusion among courts and commentators.” F.T.C. v. Bronson Ptnrs., LLC, 654 F.3d 359, 370
(2d Cir. 2011).
Here, the Plaintiff does not clearly articulate any one theory for recovery, but conflates
several equitable doctrines. This is understandable, as several courts have found that quantum
meruit, unjust enrichment, and restitution claims “[a]re not separate causes of action under New
York law, but are instead conceptualized as different facets of a single quasi contract cause of
action and should be treated as such.” DeSilva v. North Shore-Long Island Jewish Health Sys.,
Inc., No. 10 Civ. 1341, 2012 WL 748760, at *9 n.12 (E.D.N.Y. March 7, 2012). See, e.g., MidHudson Catskill Rural Migrant Ministry, Inc. v. Fine Host Corp., 418 F.3d 168, 175 (2d Cir.
2005) (analyzing “quantum meruit and unjust enrichment together as a single quasi contract
claim,” because quantum meruit simply describes “one measure of liability for the breach” of a
quasi-contract); Newman & Schwartz v. Asplundh Tree Expert Co., Inc., 102 F.3d 660, 663 (2d
Cir. 1996) (“Counts One and Three for quantum meruit and unjust enrichment were quite
properly subsumed by the district court into a single count for restitution”).
The Court agrees that in the instant case, the Plaintiff essentially asserts one cause of
action for quasi-contract seeking restitution. Thus, the Court will address the merits of the
Plaintiff’s four causes of action simultaneously as one claim, grounded on breach of implied
contract; unjust enrichment; restitution; and quantum meruit.
C. As to the Law of Quasi-Contract
Under New York law, which both parties agree governs, there are two classes of implied
contracts: those implied in fact — which is not applicable here — and those created in law. The
latter are known as quasi or constructive contracts, which are unrelated to the intentions of the
parties. Goldman v. Metro. Life Ins. Co., 5 N.Y.3d 561, 807 N.Y.S.2d 583, 841 N.E.2d 742

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(2005). An implied-in-law contract is thus not a contract all, but rather an obligation which the
law creates from the circumstances present based upon equitable principles which serve to
operate whenever justice requires that compensation be made. See United States v. P/B STCO
213, ON 527 979 (“P/B STCO”), 756 F.2d 364, 370 n.7 (5th Cir. 1985) (“We use the term
‘quasi-contract’ rather than ‘contract implied in law’ because the clear weight of scholarship
suggests the former is more precise, reflecting the absence of promise that distinguishes so-called
contracts implied in law from true contracts in which the parties’ mutual promise is express or
implied in fact.”); Super v. Abdelazim, 139 A.D.2d 863, 527 N.Y.S.2d 591 (3d Dep’t 1988)
(finding a contract to be implied at law to prevent unjust enrichment of one party and to render as
much as is deserved to the other party in the interest of equity).
Professors Keener, Corbin, and Williston succinctly stated the non-consensual, policygrounded basis of quasi-contract as follows:
Quasi-contract “is a term used to cover a class of obligations where the law,
though the defendant did not intend to assume an obligation, imposes an
obligation upon him, notwithstanding the absence of intention on his part, and
in many cases in spite of his actual dissent.” W.A. Keener, The Law of QuasiContracts, at 5 (1893). “Quasi contractual obligations are imposed by the law
for the purpose of bringing about justice without reference to the intention of the
parties.” 1 Williston on Contracts § 3A, at 14 (3d ed., 1957). “A quasi
contractual obligation is one that is created by the law for reasons of justice,
without any expression of assent and sometimes even against a clear expression
of dissent.” 1 Corbin on Contracts § 19, at 46 (1963). Professor Corbin tartly
noted that “[t]he term quasi is introduced as a weasel word, that sucks all the
meaning of the word that follows it,” id. at 45-46; nevertheless, the phrase
quasi-contract endures as a label for actions in which recovery is based on the
theory of a non-consensual promise imposed for policy reasons of equity and
justice. See Corbin, Quasi-Contractual Obligations, 21 Yale L.J. 533, 544 &
545 n.63 (1912).
P/B/ STCO, 756 F.2d at 370. What defines an implied contract at law is a duty, because it is
clear that no promise or agreement was ever made or intended. Bradkin v. Leverton, 26 N.Y.2d

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192, 309 N.Y.S.2d 192, 257 N.E.2d 643 (1970); Reisner v. Recco Temp. Servs., Inc., 136
A.D.2d 686, 524 N.Y.S.2d 102 (2d Dep’t 1988).
D. As to the Plaintiff’s Claims
The Plaintiff claims that a contract was implied in law as a quasi-contractual obligation to
“do justice even though it is clear that there has been no agreement or expression of assent by
word or act.” (Pl.’s Opp. at 9.) According to the Plaintiff, there exists a class of cases where it is
imperative that a duty be performed swiftly and efficiently for the protection of the public or an
innocent third party, “in which a ‘Good Samaritan’ who voluntarily intervenes to perform a duty
may receive restitution for his services”. (Pl.’s Opp. at 11.) The Plaintiff relies on the idea that
it “has become crystallized in the doctrine that performance of another’s duty to a third person, if
rendered by one qualified to provide such services with intent to charge for them is grounds for
recovery in quasi-contract.” The Peninsular & Oriental Steam Navigation Co. v Overseas Oil
Carrier, Inc., 553 F.2d 830, 835 (2d Cir. 1977).
Although the Plaintiff relies heavily on cases arising in the tort context, the Plaintiff’s
claims solely arise under the doctrine of restitution. As articulated by the Restatement (Third) of
Restitution and Unjust Enrichment, restitution is “readily justified when the claimant’s
unrequested intervention takes the form of providing or supplying what may loosely be called
“emergency benefits.” Restatement (Third) of Restitution § 3 int. nt. (2011) (“Rest. 3d. Resti.”).
There are several theories under which a plaintiff can recover restitution. The common thread
between all of these concepts is “a manifest public interest that the transaction in question take
place, and a judgment that appropriate intervention (by the claimant, if need be) ought not be
deterred or delayed by requiring prior agreement as a condition of recovery.” Id.

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Generally, a plaintiff may recover restitution because it performed a duty of the
defendant, articulated as follows:
(1) A person who performs another’s duty to a third person or to the public is
entitled to restitution from the other as necessary to prevent unjust enrichment,
if the circumstances justify the decision to intervene without request.
(2) Unrequested intervention may be justified in the following circumstances:
...
(b) the claimant may be justified in performing another’s duty to furnish
necessaries to a third person, to avoid imminent harm to the interests of
the third person; and
(c) the claimant may be justified in performing another’s duty to the
public, if performance is urgently required for the protection of public
health, safety, or general welfare.
Id. Thus, the Plaintiff’s claims may be based on one of these three theories of liability: (1) that
the JRC intervened and took care of the Defendants’ duty to provide necessaries to RP; (2) that
the JRC intervened and took care of the Defendants’ duty to RP to protect her from harming
herself; or (3) that the JRC intervened and took care of the Defendants’ duty to the public’s
health, safety, or general welfare by protecting the public from RP.
According to the Restatement, the claimant must establish the following three elements:
(1) a degree of urgency; (2) some obstacle to a prior agreement; and (3) performance of another’s
duty without request when the claimant is a proper party to intervene. There is no question that
the Plaintiff has adequately alleged a degree of urgency, some obstacle to prior agreement, and
that it was the proper party to intervene. There was an emergency situation in that RP was to be
left at the homeless shelter with no other options for residency available. There was certainly an
obstacle to prior agreement as the Defendants not only expressly disclaimed any responsibility
for RP, but in fact expressly directed that she be taken to the homeless shelter. Finally, at least
for purposes of a motion to dismiss, it seems plausible that JRC was the appropriate party to
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intervene, as it was the institutional facility that RP was housed in prior to and after turning
twenty-one years of age.
It appears that the major obstacle to the Plaintiff’s ability to state a claim for relief
pursuant to the doctrine of restitution is whether it performed what could properly be
characterized as the Defendants’ duty in the first instance. In other words, the issue is whether,
taking all of the Plaintiff’s allegations as true, the Defendants had a duty to RP and/or to the
public under the particular circumstances of this case as set forth in the Second Amended
Complaint. The Court will first analyze each of the three potential theories of recovery and then
address whether the Plaintiff has adequately alleged the necessary predicate duty.
1. Necessaries
As described above, under one line of authority, “[a] person who has performed the
noncontractual duty of another by supplying a third person with necessaries which in violation of
such duty the other had failed to supply, although acting without the other’s knowledge or
consent, is entitled to restitution therefor from the other if he acted unofficiously and with intent
to charge therefor.” Rest. 3d. Resti. § 113. Necessaries generally refer to essentials, such as
food, clothing, housing and medical care. However, this theory is only applicable where there is
an underlying duty of the defendant to supply goods or services to a third party, either under
common law or statute. For example, traditionally this category included the common-law duty
of support owed by one spouse to another, or by a parent to a child; duties imposed on public
bodies to care for prisoners or others in custody; and the obligation of maintenance and cure
owed in admiralty by the ship owner to the injured seaman. Thus, it is a necessary prerequisite
that there be the existence of a legal duty to make the underlying act a “necessary.”

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One of the two cases relied upon the Plaintiff falls into this category of restitution. In
Greenspan v. Slate, 97 A.2d 390, 12 N.J. 426 (1953), the 17-year-old daughter of the defendants
injured her foot, but her parents declined to provide her with medical aid. An intervenor who
discovered her plight took her to the office of the plaintiff physician for medical care, deemed by
the court to be a necessary. Id. at 429 (“The testimony of Dr. Greenspan that permanent injury
would have ensued if there had not been proper medical care and attention at the time is
uncontradicted.”). Dr. Greenspan rendered a bill to the parents after the treatment, which they
refused to pay. The New Jersey Supreme Court confirmed that “[t]he defendants were under an
obligation as part of their duty to support and educate their daughter, to provide her with medical
services both under normal circumstances and in emergencies.” Id. at 443. In addition, the court
relied upon several New Jersey statutory provisions that supported this requisite duty of the
defendants. For example, the court took note of a criminal statute in which a father who refuses
to provide for his minor children is guilty of a misdemeanor. Id. at 438. Based upon this
premise, the court found that “[a]ll the necessary elements are present to impose on the
defendants the legal obligation to pay for medical expenses rendered to their child in an
emergency.” Id. at 443.
Here, the Plaintiff makes no allegations under this rubric and in any event, this legal
theory is inapplicable to the instant case. The Plaintiff has not alleged that the Defendants had a
predicate duty to RP to provide her with food or shelter after the age of twenty-one. Cases such
as Greenspan that have found such a duty, almost exclusively focus on the typical situation
where a husband or parent improperly fails to provide support for a wife or minor child. See also
In re Weber’s Estate, 239 N.W. 260, 256 Mich. 61 (1931) (finding that the plaintiff was entitled
to recover from the estate of a mentally incompetent person for necessaries furnished). The

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Plaintiff has pointed to no such duty in the Second Amended Complaint, either statutory or in
common law. In fact, the statutory law pointed to by the Plaintiff explicitly provides such a duty
to minors only. Thus, the Court sees no basis for the finding of such a duty in this case and any
cause of action for restitution premised on the provision of necessaries must be dismissed.
2. Avoiding Imminent Harm
In addition to a theory of restitution based on the provision of necessaries, “[t]here is also
a well-developed parallel to this type of case involving private parties seeking restitution for
fulfilling a defendant’s . . . moral obligation to a particular person. These private parties have
succeeded in quasi-contract actions where the public has an important interest in the performance
of the duty or moral obligation.” P/B/ STCO, 756 F.2d at 373 n.12; see Wade, Restitution for
Benefits Conferred Without Request, 19 Vand. L. Rev. 1183, 1185, 1195-98 & nn. 58-80 (1966);
Restatement of Restitution §§ 112–14 (1937); G.E. Palmer, II The Law of Restitution § 10.4(a),
at 377-83 (1978). This theory of recovery, which appears to form the core of the Plaintiff’s
allegations, is sometimes known as the “emergency assistance” doctrine. It arises when one
performs the duty of another by providing goods or services to a third person, although acting
without the other’s knowledge or consent, if (a) he acted unofficiously and with intent to charge
therefor, and (b) the things or services supplied were immediately necessary to prevent serious
bodily harm to or suffering by such person. Rest. 3d. Resti. § 114. Notably, the vast majority, if
not all of the cases to have applied this doctrine, have been in cases of urgent medical care.
To the extent the Plaintiff’s theory of recovery is premised on this strand of restitution
law, the Plaintiff supports its position with the Second Circuit case Peninsular & Oriental Steam
Navigation Co. v. Overseas Oil Carriers, Inc., 553 F.2d 830 (2d Cir. 1977). In Peninsular, the
question presented was whether the owner of a vessel that alters course to come to the aid of a

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stricken seaman aboard a ship without medical staff, may recover additional fuel costs caused by
the diversion. In short, when the fireman on the S.T. OVERSEAS PROGRESS suffered a heart
attack on board, another ship, the CANBERRA, changed course and increased her speed in order
to provide the necessary medical care. While the owner of the S.T. OVERSEAS PROGRESS
promptly paid for the medical expenses, it refused to pay for the additional fuel consumed by the
liner as a result of the extra distance traveled and the increased speed, claiming that it would be
contrary to the “traditional concept of rescue at sea.” Id. at 833. In Peninsular, the court ruled
that application of equitable principles required reimbursement of such additional fuel expenses.
However, this case is distinguishable in a significant manner. In Peninsular, the S.T.
OVERSEAS PROGRESS was “obligated to make reasonable efforts to provide him with swift
medical care” under an “admiralty doctrine [that] has been described as a preindustrial analogue
to modern ‘workman’s compensation’ statutes.” Id. at 834; see The Bouker No. 2, 241 F. 831
(2d Cir.), cert. den., 245 U.S. 647, 38 S. Ct. 9, 62 L. Ed. 529 (1917), 2 Norris, The Law of
Seamen s 542-544 (1970). In other words, the Second Circuit’s determination was based on the
fact that the vessel was obligated under the law, not merely because of ideas of decency, to
provide medical aid to its crew member, and thus the CANBERRA’s assistance saved it
considerable costs that it would have otherwise expended. See id. (“Through her expeditious
intervention, the CANBERRA performed the OVERSEAS PROGRESS’s duty to Turpin, far
more swiftly and more efficiently than it could have been carried out by the OVERSEAS
PROGRESS. In such circumstances, the principles of “quasi-contract” require recovery.”).
In Peninsular, Chief Judge Kaufman did note that:
Although the law ordinarily frowns on the claims of a “mere volunteer”, there is
a class of cases where it is imperative that a duty be performed swiftly and
efficiently for the protection of the public or an innocent third party, in which a
“good Samaritan” who voluntarily intervenes to perform the duty may receive
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restitution for his services. This rule has become crystallized in the doctrine
that performance of another’s duty to a third person, if rendered by one
qualified to provide such services with intent to charge for them, is a ground for
recovery in quasi-contract. This principle is limited to cases where the services
are immediately necessary to prevent injury or suffering. Greenspan v. Slate, 12
N.J 426, 97 A.2d 390, 397 (1953) (Vanderbilt, C.J.); Restatement of Restitution
s 114. Cf. Wyandotte Trans. Co. v. United States, 389 U.S. 191, 204, 88 S. Ct.
379, 19 L. Ed. 2d 407 (1967).
Id. at 834–35. This Court recognizes the validity of this legal theory. Nevertheless, the
operative phrase in the above recitation of the applicable doctrine is “performance of another’s
duty to a third person.” See id. at 835 (“The circumstances of this case compel application of the
rule. The OVERSEAS PROGRESS had a manifest duty to provide Turpin with speedy medical
attention. Her Captain, in the exercise of his reasonable discretion, asked the CANBERRA to
perform that duty in her stead.”); see also U.S. v. P/B STCO 213, ON 527 979, 756 F.2d 364,
369 (5th Cir. 1985) (applying quasi-contract principles to the United States’ action for recovery
of pollution cleanup costs because “[t]he FWPCA imposes on polluters the duty to clean up the
waters they have polluted. 33 U.S.C. § 1321(c)(1).”); id. at 371 (“Courts consistently have
recognized these principles and have imposed on defendants a quasi-contractual obligation to
reimburse a plaintiff, who has performed a duty, at his own expense, where the defendant was
primarily obligated to discharge the duty.”) (emphasis added).
Here, the Plaintiff alleges that RP “would have acted out and harmed herself . . . if left
unsupervised given her history of self-injurious and aggressive tendencies.” (Pl.’s Opp. at 13.)
Thus, for the Plaintiff to recover under this theory, it would necessarily need to plead and
eventually demonstrate that the County had a duty to protect RP from harming herself. Later in
this decision the Court will explore whether there is such a duty.

16

3. Public Health, Safety or General Welfare
Under the final potential theory of recovery, one may be entitled to restitution where a
person has performed the duty of another by supplying things or services, not because they were
immediately necessary to prevent serious bodily harm to or suffering by such person, but rather
because it was immediately necessary to further the interests of public decency, health, or safety.
This articulation of the restitution doctrine is also categorized as the “emergency assistance
doctrine” under New York law. See Chase Manhattan Bank, N.A. v. T&N plc, No. 87 Civ.
4436, 1996 WL 603934, at *8 (S.D.N.Y. Oct. 22, 1996) (“Under New York law, a claim of
restitution is governed by the ‘emergency assistance doctrine’ derived from § 115 of the
Restatement (First) of Restitution”). Historically, this rule has had various applications,
including burial of the dead and removing an obstruction from or making repairs upon a public
road, which had become imminently dangerous to members of the traveling public. “Cases
applying [this theory] illustrate that the nature of the danger must be acute and severe, not merely
serious or problematic.” Id.
In the Second Amended Complaint, the Plaintiff alleges that it its actions were necessary
to protect not only RP, but the safety of the public who would be coming in contact with her,
particularly those unaware of RP’s disabilities and impulsiveness which at times manifest as
aggression and assaultive behavior. (2d Am. Compl., ¶ 63.)
However, once again, the Defendants must have failed to comply with their own legal
duty, imposed in the interests of public health and welfare. See Rest. 3d Resti. § 22 cmt. h (“As
with any claim under § 22, a recovery under subsection (2)(c) is restricted to expenditures that
discharge a duty of the defendant as opposed to a duty of someone else.”); id. (“If the
defendant’s duty, the existence of an emergency, the benefits of the claimant’s intervention, and

17

the impossibility of action by the defendant are all clear, the claimant's entitlement to restitution
is clear as well.”) (emphasis added); id., cmt. i (“Even if the claimant’s intervention is justified in
every respect, there can be no unjust enrichment of the defendant/obligor — and therefore no
claim in restitution — unless such intervention relieves the defendant of a liability to which the
defendant would otherwise have been subject.”); United States v. Consolidated Edison Co., 580
F.2d 1122, 1127 (2d Cir. 1978) (The basis for recovery in this case is that the [United States]
performed Con Edison’s duty to acquire and maintain adequate supplies of electrical power
under emergency conditions with the clear intent that it be reimbursed for its costs.”); In re G-I
Holdings, Inc., 443 B.R. 645, 671 (Bankr. D.N.J. 2010) (“In other words, to maintain a claim for
restitution in this case [under New York law], the Housing Authority need not prove that it
provided Debtors with notice of its intent to charge for the abatement work, but it must establish
that it had an underlying duty to tenants to perform this work (as opposed to if the abatement
work performed was insignificant or voluntarily performed for altruistic reasons).”); see also Bd.
of Educ. v. A, C & S, Inc., 131 Ill.2d 428, 546 N.E.2d 580 (1989) (“the proper interpretation of
[Restatement of Restitution § 115 (1937)] is that the defendant must have a duty in the first
instance. . . . A section 115 cause of action does not result merely because the defendants’
product may be hazardous or damage the plaintiffs’ buildings . . . . There must be an independent
basis which establishes a duty upon the defendant to act and the defendant must have failed to
abide by that duty.”).
The duty element is a “‘flexible concept’ that can be met by the ‘manifest
responsibilities’ of a party in a given ‘factual context’ as well as by common law or statutory
mandates.” Hebron Pub. Sch. Dist. No. 13 of Morton Cnty., State of N.D. v. U.S. Gypsum, 690
F. Supp. 866, 869 (D.N.D. 1988) (citing United States v. Consolidated Edison Co. of N.Y., 580

18

F.2d 1122, 1127 (2d Cir. 1978)). Thus, in Consolidated Edison Co. of New York, the Second
Circuit found that the company had a “general responsibility” to provide its customers with
electricity, even though Consolidated Edison would only be liable to its customers in the event of
intentionally wrongful or grossly negligent cutoffs. The Second Circuit explained that under the
emergency assistance doctrine, something less than an absolute duty will qualify. See 580 F.2d
at 1128 (“Similarly, Con Edison had, if not an absolute, at least a manifest, duty to provide its
customers with electricity.”). However, the Consolidate Edison court still necessarily premised
this finding upon some sort of duty, albeit one not found directly in a statute or regulation. In
particular, the court stated that “based on the testimony of Con Edison’s own officials, Con
Edison has a general responsibility to provide electricity, one founded in its monopoly and the
public service nature of its business.” Id.; see Cayuga Power Corp. v. Pub. Serv. Comm’n, 226
N.Y. 527, 532, 124 N.E. 105, 106 (1919) (Cardozo, J.) (emphasizing that “(t)he duty to serve the
public goes hand in hand with the privilege of exercising a special franchise . . . .”). Moreover,
the Court did base this finding at least partly on the statutory law of New York, in which Con
Edison had a duty to “furnish and provide such service, instrumentalities and facilities as shall be
safe and adequate and in all respects just and reasonable. . . .” N.Y. Pub. Serv. Law § 65(1)
(McKinney 1955).
In City of St. Louis v. Am. Tobacco Co. Inc., 70 F. Supp. 2d 1008 (E.D. Mo. 1999), the
plaintiff alleged that the defendant company had a duty to “bear the cost of tobacco related
diseases” and were required to discharge their public benefit functions. The court found that this
pleading was sufficient to survive a motion to dismiss. Id. at 1017. However, in City of St.
Louis, the plaintiff could clearly articulate the defendant’s wrongful conduct as including, but
not limited to, the manufacture, advertising, sale and promotion of tobacco products in the state

19

of Missouri. With regard to the “duty” element of Section 115, although it “need not be
absolute, and need not be of a type or degree that would otherwise give rise to legal liability”,
Hebron Pub. Sch., 690 F. Supp. at 869 (citing United States v. Consolidated Edison Co. of N.Y.,
580 F.2d 1122, 1127 (2d Cir. 1978)), it must nevertheless have some basis.
Therefore, under either potential theory of recovery for restitution — avoiding imminent
harm or the interests of public health and safety — it is necessary for the Plaintiff to plead that
there was a duty imposed on the Defendants to protect the public from serious injury or bodily
harm caused by RP. The Court will address this issue below.
E. As to Whether There is the Necessary Predicate Duty Owed by the Defendants
The Plaintiff essentially contends that the Defendants breached a duty of care that it
allegedly owed to RP to provide her with a safe and appropriate placement after she turned
twenty-one years old, and thus created an emergency situation that placed JRC in a position
where it had to act immediately to prevent RP from being harmed or harming others.
1. As to a Statutory Duty
First, the Plaintiff points to the New York statutory scheme for a disabled minor’s
transition when he or she reaches twenty-one years of age, to imply a continuing duty on the part
of the County and the DSS to care for or otherwise provide for the individual. In particular, the
Social Services Law and the Mental Health Law describe a number of mandated steps that must
be taken in order to provide for the smooth transition to adulthood and possible continuing
placement for government provided social services. (See Pl.’s Opp. at 11 (“In essence, the law
requires the Commissioner to alert the various state agencies when students with disabilities that
have been placed in out of state residential facilities will be attaining the age of twenty-one and
will require in state services.”).)

20

Social Services Law § 398 requires the social services official, such as the
Commissioner, to submit a report on the child’s needs for services after she reaches the age of
twenty-one in anticipation of her return to New York, if the Commissioner determines that the
child will need services as an adult. Specifically, it states:
13. (a) In the case of a child with a handicapping condition who is placed,
pursuant to this chapter, in a foster care agency or institution located outside the
state, and who attains the age of eighteen, the social services official shall:
(i) determine whether such child will need services after the age of twenty-one,
and, if such need exists;
(ii) assess the nature of the services required;
(iii) notify the parent or guardian of such child’s need for services; and
(iv) upon the written consent of the parent or guardian, . . . submit a report on
the child’s need for services after age twenty-one to the department for planning
purposes.
(b) Upon the written consent of the parent or guardian, the department shall
submit the report received pursuant to paragraph (a) of this subdivision to the
council on children and families.
(c) When a child’s report is submitted to the council on children and families
pursuant to this subdivision, the council shall cooperate with adult service
providers, such as the department of social services, the office of mental
retardation and developmental disabilities, the office of mental health and the
office of vocational rehabilitation of the education department in planning and
coordinating such child's return to New York state for adult services. The
council shall arrange with the appropriate state agency for the development of a
recommendation of all appropriate in-state programs operated, licensed,
certified or authorized by such agency and which may be available when such
child attains the age of twenty-one. . . .
N.Y. Soc. Servs. Law § 398 (13). The purpose of completing a “Transmittal” — i.e., completing
an assessment and written report and then sending it to the Council of on Children and Families,
who then cooperates with other agencies such as the Office of Mental Retardation and
Development Disabilities (“OMRDD”) — is to evaluate and identify the returning individual’s
anticipated needs for adult services and residential placements. The Court agrees with the
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Plaintiff that the clear intent of these provisions is to garner all possible relevant information to
assist in securing an appropriate placement for an individual such as RP, if such placement is
warranted. However, whether the official must assess the nature of the services required and
submit a report setting forth the child’s needs for services after age twenty-one, depends upon
whether the official initially determines that the child will need services as an adult.
In this case, the Complaint alleges that “[t]he Commissioner of SCDSS was required to
prepare a Transmittal for RP in compliance with Social Services Law § 398 in anticipation of RP
attaining the age of twenty-one.” (2d Am. Compl. at 14.) However, there is no allegation that
the Commissioner determined that RP was in need of services and consequently whether or not
he proceeded with the steps outlined in Social Services Law § 398 13(a)(ii)-(iv). In fact, the
Complaint alleges that “[o]n information and belief, SCDSS again did not request assistance
from the Council on Children and Families.” Thus, the Plaintiff’s allegation appears to be that
the Commissioner either (1) wrongly determined that RP was not in need of adult services; or (2)
determined that RP was in need of adult services but did not follow with the steps outlined in
Social Services Law § 398 13(a)(ii)-(iv) — namely, to send a Transmittal to the Council on
Children and Families.
Instead, the Complaint states that “[o]n or about December 7, 2007, JRC along with
SCDSS as RP’s guardian, submitted a Transmittal, pursuant to Social Services Law § 398 to
begin evaluation for transition from child to adult services to the Long Island Developmental
Disabilities Services Office (LIDDSO), the regional OMRDD office.” (2d Am. Compl. at 19.)
Thus, the Defendants did participate in sending a Transmittal, but it was apparently not to the
correct authority under the statute. LIDDSO determined that RP was not eligible to receive adult
services under programs administered by OMRDD. This was administratively appealed to

22

OMRDD to no avail. On September 8, 2008, a Transmittal was also sent to OMH. However,
OMH advised that no housing was available.
It is not entirely clear based upon the briefing submitted to the Court whether the
Commissioner failed to make a determination as to RP’s entitlement to adult services in the first
instance, or whether he did make a determination but simply based it upon the denial of the
OMRDD. If it is the latter, and assuming the Commissioner can properly rely upon OMRDD’s
denial, then the Commissioner satisfied his duties as set out in the Social Services Law and there
is no duty upon which to base any theory of restitution. The OMRDD found that the clinical
evaluations did not provide evidence that RP had a qualifying diagnosis that met with the
agency’s statutory criteria. Despite the Plaintiff’s allegation that this is an “all too common ploy
used by OMRDD to reject dually diagnosed individuals”, this conjecture alone would not be
sufficient to create a duty to RP so as to state a claim for restitution.
Moreover, an administrative appeal took place to challenge the determination to deny RP
services as an adult in need of transition from the care and custody of the Defendants to the
OMRDD. The Court notes that the OMRDD paid the Plaintiff for the services it was providing
RP pending the outcome of the appeal. However, the New York State Department of Health’s
Commissioner Designee rendered his decision denying RP Medicaid eligibility to receive
residential placements and treatment services through OMRDD. Again, the Plaintiff may take
issue with the merits of that decision and whether some government entity should have continued
to take responsibility for RP. However, disagreement with that determination cannot create a
duty on the part of the current Defendants to RP so as to produce a right to restitutionary
recovery.

23

Notably, if the Commissioner properly determined that adult services were not warranted
to RP, the Plaintiff cannot point to a single statutory provision set forth in either the Second
Amended Complaint or in the Plaintiff’s opposition that states that the County or the DSS has a
duty to an individual once they turn twenty-one, even if there was a previous duty owed when he
or she was a minor. Cf. Palmer, supra, at 381 (“Quasi-contractual liability for emergency
medical care has arisen frequently in actions against a public agency which is under a statutory
duty to provide medical care for indigent persons or others who are entitled to public
assistance.”) (emphasis added). See, e.g., Fahey v. United States, 153 F. Supp. 878, 884 (2d Cir.
1957) (“Merely because a veteran once served in the United States Armed Forces does not mean
that the United States assumed the duty to protect the general public from those veterans who
might become dangerous to society.”).
However, if the Commissioner failed to make a determination as to RP’s entitlement to
adult services in the first instance, and thus the Commissioner breached its duty to send a
Transmittal to the Council and subsequently caused the emergency situation alleged in the
Complaint, then there is a conceivable statutory basis for a duty for restitutionary recovery. Cf.
Saratago Hosp. v. Ryan, 126 Misc.2d 351, 353, 482 N.Y.S.2d 701 (Sup. Ct. Saratoga Cnty.
1984) (discussing whether a hospital caring for a patient rather than retain him in an allegedly
inappropriate facility or release him with no treatment at all, could force the Social Services
Department to take action and find more appropriate care for the patient). Because the Court
cannot determine now what the Plaintiff can ultimately demonstrate, and accepting the Plaintiff’s
allegations as true and viewing the facts in a light most favorable to the Plaintiff, the Court finds
that there is a potential basis for a statutory duty of the Defendants to RP to assist with her
transition to receive services as an adult. In other words, if the reason RP was not provided with

24

services was because of a breach of the duty on the part of the Defendants to actively secure such
a placement, then JRC may be entitled to restitution in this case. Thus, on this very narrow
ground, the Court finds that the Plaintiff has stated a claim for restitution.
2. Moral Obligation
Other than the Plaintiff’s attempts to rely on New York’s statutory scheme to allege a
predicate duty, in its opposition the Plaintiff cites vaguely to the “heightened sense of
responsibility” the Defendants should have had because RP was under the “care and custody” of
DSS since she was nine years old. Certainly, one could argue that there may be a moral
obligation for the DSS to care for RP into adulthood. “Courts resolve legal duty questions by
resort to common questions of morality, logic and considerations of the social consequences of
imposing the duty.” Tenuto v Lederle Labs., Div. of Am. Cyanamid Co., 90 N.Y.2d 606, 612,
665 N.Y.S.2d 17 (1997). Nevertheless, this Court cannot rely solely upon vague notions of
morality to lead to a possible recovery of restitution in the particular circumstances of this case.
See Palmer, supra, at 379 n.17 (“There is dictum . . . that a father’s moral obligation to support
his child is a sufficient basis for restitution, but most courts have assumed that there must be a
legal obligation.”). If this was a sufficient basis to state a claim, it would open the door to allow
any claim for restitution from the government whenever the government has previously provided
social services to an individual and arguably those services should be continued, even if the
result of an administrative procedure dictates otherwise. Thus, any attempted cause of action for
restitution premised only on a moral duty of the Defendants, is denied.
3. Parens Patriae
The Plaintiff also raises the doctrine of parens patriae to allude to a duty on the part of
the Defendants. Parens patriae is defined as either the state in its capacity as provider of

25

protection to those unable to care for themselves; or, a doctrine by which a government has
standing to prosecute a lawsuit on behalf of a citizen. Black’s Law Dictionary (9th ed. 2009).
The Court recognizes that “the state has a legitimate interest under its parens patriae powers in
providing care to its citizens who are unable . . . to care for themselves,” as well as “authority
under its police power to protect the community” from any dangerous mentally disabled persons.
Addington v. Texas, 441 U.S. 418, 426, 99 S. Ct. 1804, 1809, 60 L. Ed. 2d 323 (1979); see also
Heller v. Doe by Doe, 509 U.S. 312, 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993). States are
vested with the historic parens patriae power, including the duty to protect “persons under legal
disabilities to act for themselves.” Hawaii v. Standard Oil Co., 405 U.S. 251, 257, 92 S. Ct. 885,
888, 31 L. Ed. 2d 184 (1972); see O’Connor v. Donaldson, 422 U.S. 563 ,583, 95 S. Ct. 2486,
2497, 45 L. Ed. 2d 396 (1975) (“The classic example of this role is when a State undertakes to
act as ‘the general guardian of all infants, idiots, and lunatics.’”); Mater of Sayeh R., 91 N.Y.2d
306, 313, 693 N.E.2d 724, 727 (1997) (“[i]n its role as parens patriae, New York is under a
powerful duty to protect its domiciliaries from harm); Matter of Maimonides Med. Ctr., 173
Misc.2d 111, 117–18, 660 N.Y.S.2d 614 (Sup. Ct. Kings Co. 1997) (“The State’s parens patriae
power vests the State with the duty to protect persons unable to care for themselves but it may
not be exercised indiscriminately nor invoked to confine a non-dangerous individual solely for
the purpose of providing treatment.”); see also N.Y. Const., art. XVII, § 3 (“The protection and
promotion of the health of the inhabitants of the state are matters of public concern and provision
therefor shall be made by the state and by such of its subdivisions and in such manner, and by
such means as the legislature shall from time to time determine.”).
However, the affirmative use by the Plaintiff of the parens patriae doctrine in this
context misses the mark. The thrust of this doctrine is that of the authority and power of the

26

state. See Com. of Puerto Rico ex rel. Quiros v. Bramkamp, 654 F.2d 212, 215 n.4 (2d Cir.
1981) (“The term parens patriae was traditionally used to refer to ‘the King’s power as guardian
of persons under legal disabilities to act for themselves,’ which function passed to the states in
this country.” (citing Hawaii, 405 U.S. at 257, 92 S. Ct. at 888-89). In State by Abrams v. N.Y.
City Conciliation and Appeals Bd., 123 Misc.2d 47, 472 N.Y.S.2d 839 (Sup. Ct. N.Y. Cnty.
1984), the idea was explained aptly as follows:
The concept of parens patriae is a judicial recognition of the inherent power of
the state to prevent injury to those who, for whatever reason, cannot protect
themselves.
In exercising its prerogative the state is not limited to
representation of citizens suffering a particular disability but may bring suit to
protect the welfare of any substantial segment of its population . . . .
123 Misc.2d at 49, 472 N.Y.S.2d 839.
The idea is that a state, in its capacity as parens patriae, may sue to prevent or repair
harm to its quasi-sovereign interests. Com. of Puerto Rico, 654 F.2d at 215; see Black’s Law
Dictionary 1137 (7th ed. 1999) (defining parens patriae as “[a] doctrine by which a government
has standing to prosecute a lawsuit on behalf of a citizen”); see also Alfred L. Snapp & Son, Inc.
v. Puerto Rico, 458 U.S. 592, 607, 102 S. Ct. 3260, 73 L. Ed. 2d 995 (1982) (“[i]n order to
maintain a [parens patriae] action . . . the State must be more than a nominal party”); Hawaii,
405 U.S. at 258-59, 92 S. Ct. 885 (explaining “the right of a State to sue as parens patriae”).
Certainly, the common law doctrine of parens patriae has been invoked in a variety of
contexts. Notably, the doctrine has been used as a premise of liability against a government or
other entity. For example, “[o]ne who takes charge of a third person whom he knows or should
know to be likely to cause bodily harm to others if not controlled is under a duty to exercise
reasonable care to control the third person from doing such harm.” Restatement (Second) of
Torts at § 319; see also Saint-Guillen v. U.S., 657 F. Supp. 2d 376, 384 (E.D.N.Y. 2009); Purdy
v. Public Adm’r, 127 A.D.2d 285, 289, 514 N.Y.S.2d 407 (2d Dep’t 1987), aff’d 72 N.Y.2d 1,
27

530 N.Y.S.2d 513, 526 N.E.2d 4 (1988) (citations omitted) (“In actions commenced by a
member of the public to recover damages for injuries proximately caused by the defendant’s
negligent supervision of the tort-feasors, courts in this State have declined to impose liability
upon a defendant who fails to restrain the tort-feasor’s conduct, unless the defendant has control
over the tortfeasor analogous to one in the role of parens patriae and the defendant knows of the
tort-feasor’s dangerous propensities.”).
However, these cases all arise in tort; not in the quasi-contractual context. The Court has
not uncovered any case in which the parens patriae doctrine was used by a private citizen as a
sword against a government entity in a non-tort context, so that under the doctrine of restitution
it is the sole premise for a legally enforceable duty. See Rest. 3d Resti. § 22 (“the fact that the
claimant has taken appropriate and effective steps in response to an undoubted emergency
affecting public health and safety will not prevent the defendant from asserting, as a defense to
the restitution claim, that it was under no legally enforceable duty to take such steps itself”). The
practical result of such a finding would be an unintended use for the doctrine. It would mean
that any time a claim could be made that a task was within the authority or power of a
government entity under its parens patriae powers to conceivably prevent a harm from
occurring, a private citizen could step in to perform the duty and then be compensated from the
government, with no statutory or other common law duty to point to. The Court is not prepared
to extend the doctrine to such extreme lengths, especially in light of the apparent absence of any
comparable precedent.
4. “Special Relationship”
The final potential basis for a duty of the Defendants to RP or to the public at large is that
a “special relationship” existed. This idea of a “special relationship” is a theme that runs in

28

various types of cases. For instance, a “special relationship” is relevant to the traditional
doctrine of a voluntary assumption of duty, which is a tort concept typically arising in connection
with negligence. In the standard case, a plaintiff usually alleges that the defendant voluntarily
assumed a duty for the purposes of holding the defendant liable, which is clearly not applicable
here. For example, in Newton v. City of New York, No. 07 Civ. 6211, 2010 WL 4177383
(S.D.N.Y. Oct. 22, 2010), the Plaintiff asserted that the City voluntarily assumed a duty to act on
his behalf when it initiated the search for a rape kit, necessary to establish “a special relationship
. . . between the municipality and an individual or class of persons, warranting the imposition of
a duty to use reasonable care for those persons' benefit.” Id. at *2 (citations omitted). The
Newton Court found that the plaintiff could not demonstrate that the City voluntarily agreed to
do something it was not already obligated by law to do. Thus, because the City initiated the
search pursuant to its statutory duties, the Plaintiff could not claim there was a breach of a duty
voluntarily assumed. See also Rosenthal v. Nierenberg, No. 09 Civ. 8237, 2010 WL 3290994, at
*6 (S.D.N.Y. Aug. 10, 2010) (“Rosenthal’s alternative duty argument — namely, that
Nierenberg voluntarily assumed a legal duty to warn Rosenthal through defendant’s series of email exchanges with other Bondy partners — is also unavailing.”); Boehme v. A.P.P.L.E., 298
A.D.2d 540, 541, 749 N.Y.S.2d 49 (2d Dep’t 2002) (“[T]here is no basis for the proposition that
a party may be liable for failing to follow a policy which it has adopted voluntarily, and without
legal obligation, especially when there is no showing of detrimental reliance by the plaintiff . . .
.”) (citation omitted); 1A N.Y. P.J.I. 2:24-Common Law Standard of Care — Voluntarily
Assumed Duty (3d ed. 2010) (“An unkept gratuitous promise to do an act does not give rise to
liability, but one who makes such a promise and enters upon performance, is bound to perform

29

according to his promise, and for failure to do so is liable to anyone relying on the
performance.”).
Here, the “special relationship” that the parties appear to be drawing from is the
exception to the general rule that there is no constitutional duty that requires state officials to
protect persons from private harms. See DeShaney v. Winnebago Cnty. Dep't of Soc. Servs.,
489 U.S. 189, 109 S. Ct. 998, 1004, 103 L. Ed. 2d 249 (1989). The Supreme Court has
recognized this exception — the “special relationship” between an individual and the State —
“[w]hen the state, through the affirmative exercise of its powers, acts to restrain an individual’s
freedom to act on his own behalf ‘through incarceration, institutionalization, or other similar
restraint of personal liberty’.” McClendon v. City of Columbia, 305 F.3d 314, 324 (5th Cir.
2002) (quoting DeShaney, 109 S. Ct. at 1005). “The State has frequently been held liable for the
consequences of its breach of duty to protect others from the acts of the mentally ill confined to
State institutions.” Schrempf v. State, 66 N.Y.2d 289, 487 N.E.2d 883 (1985); see Scolavino v.
State of New York, 297 N.Y. 460, 74 N.E.2d 174 (1947). This duty has been recognized, not
only in cases where the State has been negligent in permitting a mental patient to escape, see
Koenigsmark v. State of New York, 55 N.Y.2d 928, 449 N.Y.S.2d 191, 434 N.E.2d 260 (1982),
but also when it has been negligent in discharging a mental patient, see St. George v. State of
New York, 283 App. Div. 245, 127 N.Y.S.2d 147 (3d Dep’t 1954), or releasing him to outpatient
care. See Bell v. New York City Health & Hosps. Corp., 90 A.D.2d 270, 456 N.Y.S.2d 787 (2d
Dep’t 1982).
However, the “standard has been consistently applied in cases where it is alleged that
negligent care of a mental patient by the State or one of its subdivisions has produced injury to
the patient or others.” Schrempf v. State, 66 N.Y.2d 289, 487 N.E.2d 883 (1985). See, e.g.,

30

Koenigsmark v. State of New York, 55 N.Y.2d 928, 449 N.Y.S.2d 191, 434 N.E.2d 260 (1982)
(attempted suicide by patient after escape); Centeno v. City of New York, 40 N.Y.2d 932, 389
N.Y.S.2d 837, 358 N.E.2d 520 (1976) (suicide by patient after release); Cameron v. State of New
York, 37 A.D.2d 46, 322 N.Y.S.2d 562 (4th Dep’t 1971) (assault on others after release); Hirsch
v. State of New York, 8 N.Y.2d 125, 202 N.Y.S.2d 296, 168 N.E.2d 372 (1960) (suicide by
patient in hospital); Scolavino v. State of New York, 297 N.Y. 460, 74 N.E.2d 174 (1947)
(assault on another patient).
Certainly, the power to restrain, summarily and without court process, may be exercised
when “necessary to prevent the party from doing some immediate injury either to himself or
others and only when the urgency of the case demands immediate intervention.” Warner v.
State, 297 N.Y. 395, 401, 79 N.E.2d 459 (1948); see also Matthews v. Malkus, 377 F. Supp. 2d
350, 358 (S.D.N.Y. 2005); Lauer v. State, 57 A.D.2d 673, 674, 393 N.Y.S.2d 813 (3d Dep't.,
1977) (finding that where there was “a substantial and genuine concern for [plaintiff's] physical
and mental well-being” plaintiff's commitment could not form the basis for an action for false
arrest). However, the cases that invoke this sentiment all arise in the false imprisonment context,
which is distinguishable from the case at hand.
The Court is simply not prepared to find that this duty can be used independent of any
actual harm as the basis for restitutionary recovery without a single case cited by the parties, or
uncovered by this Court, to support that contention. The policy ramifications of such a result
could be troublesome. In its practical aspects, it could mean that a private entity could step in at
any time that it believed that the government was not properly controlling an individual with
possible dangerous tendencies, take that person into custody, then demand restitution for the
costs of doing so. The question of who or what entities should be permitted to restrain another

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and under what standards would be extremely complicated, and the Court declines to tread into
these unexplored waters at this time.
III. CONCLUSION
In sum, the Court appreciates that the JRC staff felt it would be “unconscionable to leave
PR alone in a homeless shelter without adequate supervision.” (Pl.’s Opp. at 6.) Thus, its action
in continuing to care for RP even after the Defendants’ express disclaimer of responsibility is
certainly commendable. However, “[t]he law does not require that every benefit be paid for.”
Rest. 3d Resti. § 20. “While it may seem that there should be a remedy for every wrong, this is
an ideal limited perforce by the realities of this world.” Trombetta v. Conkling, 82 N.Y.2d 549,
554, 605 N.Y.S.2d 678, 626 N.E.2d 653 (1993) (internal citations omitted). “A heroic rescue
may confer a benefit of inestimable value, but it is likely to be purely voluntary and altruistic in
origin. The imposition of restitutionary liability in such circumstances — a principle that would
become viable only when the claim was resisted — transforms an act of self-sacrifice into a
contentious exchange of values. The law avoids these unedifying consequences by presuming
that an emergency rescue is a gratuitous act.” Id.; Cf. Goldstick v. ICM Realty, 788 F.2d 456,
467 (7th Cir. 1986) (“[W]hen a businessman confers benefits in circumstances where payment is
normal and any inference of altruism can be rejected, a claim for restitution, or ‘quasi-contract,’
arises.”). Indeed, “while the need for the service is imperative it does not follow that anyone is
free to provide it in the justified expectation of reimbursement.” Palmer, supra, at 374.
Nevertheless, notwithstanding the novel features in this case and the lack of clear
precedence, the judgment on the pleadings filed by the Defendants is denied. Consequently, the
Plaintiff may proceed with its claim for restitution. However, any potential recovery must be
based narrowly upon the failure of the Defendants to comply with their duties under the relevant

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state statutory provisions. If those duties were not complied with so that RP’s adult placement
was jeopardized, and JRC necessarily stepped in until the situation was resolved, then the
Plaintiff may have a viable claim for recovery.

For the foregoing reasons, it is hereby
ORDERED that the Defendants’ motion for judgment on the pleadings pursuant to Fed.
R. Civ. P. 12(c) is denied.
SO ORDERED.
Dated: Central Islip, New York
June 25, 2012
____/s/ Arthur D. Spatt________
ARTHUR D. SPATT
United States District Judge

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