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Non-Hazing but Unnecessary and tragic death of Nicholas Holt

JONES v. THE STATE OF NEW YORK, # 2019-045-008, Claim No. 129752, Motion No. M-91017


Claimant, a college student at SUNY Stony Brook, dies at off-campus college frat party.

Case information

UID: 2019-045-008
Claimant(s): WANDA JONES, as Administratrix for the Estate of NICHOLAS A. HOLT, Deceased and WANDA JONES, Individually
Claimant short name: JONES
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 129752
Motion number(s): M-91017
Cross-motion number(s):
Judge: Gina M. Lopez-Summa

Gina M. Lopez Summa


  • Judge, New York State Court of Claims, Appointed by Governor David Patterson, 2008 to 2017
  • Judge, New York State Court of Claims, Appointed by Governor George E. Pataki, 2006 to 2007


  • Counsel, NYS Division of Human Rights, 1999 to 2006
  • Managing Attorney, NYC Commission on Human Rights, 1997 to 1999
  • Assistant to the Commissioner, NYC Commission on Human Rights, 1996 to 1997
  • Law Secretary, Justice Marsha Steinhardt, 1995 to 1996
  • Law Secretary, Judge Gustin Reichbach, 1994 to 1995


  • J.D., Brooklyn Law School, 1994
  • B.A., St. John’s University, 1991


  • Appellate Division, Second Department, 1995


  • Member, NYS Bar Association, Suffolk County Bar Association and Nassau County Bar Association
  • Member, Brooklyn Law School Alumni Association

Profile provided by the New York State Office of Court Administration.

Claimant’s attorney: Queller, Fisher, Washor, Fuchs & Kool, LLP
By: Jonny Kool, Esq.
Defendant’s attorney: Hon. Letitia James, Attorney General
By: Daniel S. Hallak, Assistant Attorney General
Third-party defendant’s attorney:
Signature date: March 14, 2019
City: Hauppauge
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers were read and considered by the Court on this motion: Defendant’s Notice of Motion; Defendant’s Affirmation in Support with annexed Exhibits A-D; Claimants’ Affirmation in Opposition with annexed Exhibits A-D; Defendant’s Affirmation in Further Support of Motion to Dismiss.

Defendant, the State of New York, has brought this pre-answer motion pursuant to CPLR 3211 (a) (1) and (7) seeking an order dismissing the claim. Claimants, Wanda Jones, as administratrix for the Estate of Nicholas A. Holt, deceased and Wanda Jones, individually oppose the motion.

This matter arises from the tragic death of Nicholas Holt, an 18 year old student at State University of New York at Stony Brook (Stony Brook), who died on April 29, 2016. On the evening of April 24, 2016, Nicholas Holt attended an off campus “crossing party” at the Alpha Phi Delta fraternity house. The claim alleges that Nicholas Holt overdosed on alcohol, lapsed into a comatose state and 19-22 hours post alcohol consumption was dropped off by fraternity members at John T. Mather Memorial Hospital without explanation. He was admitted to the intensive care unit where he died on April 29, 2016 as a result of respiratory distress and multi-organ failure.

Claimants allege that defendant’s failure to enforce the suspension of Alpha Phi Delta and/or the Gamma Omicron Chapter of Alpha Phi Delta proximately caused or contributed to the conscious pain and suffering and wrongful death of Nicholas Holt. Claimants also allege that defendant’s negligent acts and omissions in investigating the circumstances of Nicholas Holt’s off-campus overdose, despite having no statutory authority to investigate, denied decedent a substantial opportunity for recovery or a better outcome while hospitalized prior to his death. Specifically, claimant alleges that defendant suspended Alpha Phi Delta and/or the Gamma Omicron Chapter of Alpha Phi Delta from operating as a fraternity at the University and its campus due to violations of the school’s rules and policies regulating student organizations party conduct that resulted in students being hospitalized for alcohol and drug overdoses. Notwithstanding the prior suspensions, defendant allowed the fraternity to operate off-campus without defendant enforcing its prior suspension. That failure allowed the fraternity to engage in misconduct and permitted the fraternity to conduct recruitment and induction of new students.

Claimant also alleges that after decedent’s sister reported the incident and her brother’s hospitalization, the SUNY Stony Brook police, (SUNY police) instead of reporting the incident to the Suffolk County Police Department, operated outside their jurisdiction and undertook its own investigation. The investigation did not test, photograph or otherwise inspect the locations for evidence during the 5 day period leading up to decedent’s death. Defendant allegedly failed to disclose material facts regarding decedent’s physical and mental condition. In addition, claimants allege, that they were induced to rely on the SUNY police to investigate and obtain evidence and to relay information relevant to Nicholas Holt’s treatment and care to the hospital.

“A party seeking dismissal on the ground that its defense is founded upon documentary evidence pursuant to CPLR 3211 (a) (1) has the burden of submitting documentary evidence that resolves all factual issues as a matter of law, and conclusively disposes of [claimants’] claim” (Mazur Bros. Realty, LLC v State of New York, 59 AD3d 401, 402 [2d Dept 2009][internal citations and quotations omitted]). A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be granted only if the documentary evidence submitted by the defendant utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law (see Goshen v Mutual Life Ins. Co., 98 NY2d 314, 326 [2002]). Further, the evidence submitted in support must be documentary or the motion must be denied (Rodolico v. Rubin & Licatesi, P.C., 114 AD3d 923 [2d Dept 2014]). In order for the evidence to qualify as documentary evidence, it must be unambiguous, authentic, and undeniable (Granada Condominium III Assn. v Palomino, 78 AD3d 996 [2d Dept 2010]). Affidavits, deposition testimony, and letters are not considered documentary evidence within the meaning of CPLR 3211 (a) (1) (Cives Corp. v George A. Fuller Co., Inc., 97 AD3d 713 [2d Dept 2012]).

Here, the documents submitted by defendant, which include the Notice of Intention to File a Claim, the Claim, the University Student Conduct Code and a Newsday article, do not constitute documentary evidence for the purposes of a motion to dismiss nor do they utterly refute claimant’s allegations and conclusively establish a defense as a matter of law.

Therefore, defendant’s motion to dismiss the claim pursuant to CPLR 3211 (a) (1) is denied.

On a motion to dismiss pursuant to CPLR 3211 (a) (7), the court is required to “accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). The review entails “whether the proponent of the pleading has a cause of action, not whether he has stated one” (id. at 88).

In order to succeed on a negligence claim, the plaintiff must establish the existence of a legal duty, a breach of that duty, proximate cause and damages. Without a duty of care, there can be no breach and therefore no liability. The existence of such a duty is a question of law for the court. New York has affirmatively rejected the doctrine of “in loco parentis” at the college level and colleges in general have no legal duty to shield their students from the dangerous activities of other students (Pasquaretto v Long Island Univ., 106 AD3d 794 [2d Dept 2013])[internal citations omitted]). Colleges and universities also have no legal duty to shield their students from their own dangerous activity which creates a risk of harm to themselves (Talbot v New York Inst. of Tech., 225 AD2d 611 [2d Dept 1996]). However, a duty may be imposed upon a college when it has encouraged its students to participate in an activity and has taken affirmative steps to supervise and control the activity (Hores v Sargent, 230 AD2d 712 [2d Dept 1996]).

Claimants argue that its negligent supervision claim is not based upon in loco parentis, it is instead based upon the State’s failure to perform a proprietary function, to supervise and regulate activities on campus and student activities. Claimants contend that by affirmatively acting to suspend Phi Alpha Delta, defendant assumed a duty to regulate the conduct of fraternities and was obligated to exercise reasonable care to prevent the fraternity from causing students harm from drug or alcohol overdoses at fraternity parties. Claimants further contend that a duty is imposed because defendant encouraged student participation in fraternities and took affirmative steps to supervise and control the activity, which in this case was suspending the fraternity.

In Hores, a college student was injured on a school-sponsored bicycle trip. The court held that the college “possessed a sufficient degree of control over the subject event because the college organized, planned and supervised the trip and thus was under a duty to take reasonable precautions for the safety of the participants” (Hores v Sargent, 230 AD2d 712 [2d Dept 1996]).

Claimants have not alleged that defendant encouraged participation in the Phi Alpha Delta off-campus party, nor has claimant alleged that defendant planned and supervised the party. In addition, there are no facts which would imply that defendant exercised any degree of control over the off-campus party or the fraternity for a legal duty to attach and no legal duty attaches by virtue of the fraternity’s suspension (see Pasquaretto v. Long Island Univ., 106 AD3d 794 [2d Dept 2013]); Rothbard v Colgate Univ., 235 AD2d 675 [2d Dept 1997]); Faiaz v. Colgate Univ., 64 F Supp 3d 336, 361-64 [NDNY 2014]; Lloyd v Alpha Phi Alpha Fraternity, 1999 WL 47153 [NDNY 1999]).

Claimants have failed to allege facts showing that defendant owed decedent a duty, and under the facts alleged, have failed to state a cause of action.

Claimants also allege that defendant negligently conducted an unauthorized investigation; failed to timely and accurately disclose material information to the hospital that had bearing on Nicholas Holt’s condition and induced claimant’s family to rely upon their investigation. Claimants argue that immunity does not apply because defendant’s agents acted outside the scope of their statutory authority. In support, claimants contend that Criminal Procedure Law § 10.20, 34-a (s) read together with Education Law § 355 (2) (1), specifically limits the duty for SUNY police officers “to preserve law and order on the campuses and other property of the university, including any portion of a public highway which crosses or abuts such property.”

Claimants contend that no discretionary governmental functions are implicated in the claim because defendant’s police officers were without jurisdiction to act and that defendant’s ulta vires investigative acts, which included keeping the investigation exclusive for a five day period and failing to disclose material information to the hospital, negated any immunity that would attach if they were acting within their legal authority and jurisdiction.

To the extent that this cause of action is alleging negligent investigation or general negligence with respect to the investigation, it is well settled that the New York State law does not recognize a cause of action for negligent investigation (Brown v State of New York, 45 AD3d 15,26 [3d Dept 2007], lv denied 9 NY3d 815 [2007]; Juerss v. Millbrook Cent. Sch. Dist., 161 AD3d 967, 968, [2d Dept 2018], lv denied, 32 NY3d 903 [2018]). Moreover, acting in excess of jurisdiction or mistakenly exercising discretion given by law cannot be a basis for state liability (Donald v State of New York, 17 NY3d 389 [2011]).

Although claimants argue that no discretionary functions are implicated, an investigation undertaken by SUNY police clearly involves the exercise of discretion and is not exclusively ministerial. It is also well settled that a governmental action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to claimant apart from any duty owed to the public in general (McLean v City of New York, 12 NY3d 194 [2009]). Claimants concede that their causes of action are not grounded upon the existence of a special duty. Additionally, the facts as alleged do not give rise to the implication of a special duty owed to claimants (id.; Cuffy v City of New York, 69 NY2d 255[1987]).

Undeniably, the death of Nicholas Holt was tragic, however claimants’ remaining allegations of police negligence couched as either a breach of a duty to disclose or negligent misrepresentation are belied by the facts and not actionable. Such allegations properly fall under either negligent investigation, which is not actionable, or require a showing of a special duty which is not alleged or present.

Based upon the foregoing, the Court finds that the acts of defendant were discretionary and as such defendant is protected by immunity. The Court also finds, to the extent that the claim contains any other allegations of negligence, such allegations are insufficient to constitute a cognizable cause of action against defendant.

Therefore, for the foregoing reasons, defendants’ motion to dismiss is granted and the claim is dismissed.

March 14, 2019

Hauppauge, New York

Gina M. Lopez-Summa

Judge of the Court of Claims

By Hank Nuwer

Journalist Hank Nuwer is the Alaska author of Hazing: Destroying Young Lives; Broken Pledges: The Deadly Rite of Hazing, High School Hazing, Wrongs of Passage and The Hazing Reader. In April of 2024, the Alaska Press Club awarded him first place in the Best Columnist division and Best Humorist, second place.

He has written articles or columns on hazing for the Sunday Times of India, Toronto Globe & Mail, Harper's Magazine, Orlando Sentinel, The Chronicle of Higher Education and the New York Times Sunday Magazine. His current book is Hazing: Destroying Young Lives from Indiana University Press. He is married to Malgorzata Wroblewska Nuwer of Warsaw, Poland and Fairbanks, Alaska. Nuwer is a former columnist for the Greenville (Ohio)Early Bird and former managing editor of the Fairbanks Daily News-Miner in Alaska.
Nuwer was named the Ohio Society of Professional Journalists columnist of the year in 2021 for his “After Darke” column in the Early Bird. He also won third place for the column in 2022 from the Indiana chapter of the Society of Professional Journalists. He and his wife Gosia, recently of Union City, Ind., have owned 20 acres in Alaska for many years. “The move is a sort-of coming home for us,” said Nuwer. As a journalist, he’s written about the Alaskan Iditarod sled-dog race and other Alaska topics. Read his musings in his blog at Real Alaska Daily-- and in his weekly column "Far from Randolph" in the Winchester Star-Gazette of Randolph County, Indiana.

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