(dissenting). A residential drug treatment facility, as an alternative to incarceration, may discharge its residents at any time for rule violations. Residents there are not prisoners, and may simply leave the facility at will — although if they leave without permission they may lose the privilege of receiving an alternative to incarceration. It is through this lens that the circumstances of this appeal must be understood. From these two essential facts, it follows as a rule of law and a statement of common sense that these facilities cannot properly be saddled with a duty to protect the general public from a discharged resident on the theory that he may possibly become violent toward some unknown third party after leaving the facility. Moreover, even if any such duty existed in law, it would be fulfilled when that resident was turned over to police custody; the facility has neither the right nor the obligation to ensure that the police thereafter prevent the resident’s release.
On July 17, 2010, at approximately 10:00 p.m., plaintiff, Anthony Oddo, was punched and stabbed in the shoulder by Sean Velentzas, the son of the woman he was then dating. Just a few weeks earlier, Velentzas had been admitted, as an alternative to incarceration under the TASC (Treatment Alternatives for Safer Communities) program, to a residential drug treatment facility run by defendant, Queens Village Committee for Mental Health for Jamaica Community Adolescent Program, Inc. However, on the day of the incident, he had been expelled from the facility for pushing another resident to the ground and consuming alcoholic beverages on the premises in violation of facility rules.
*219Because Velentzas’s discharge involved a physical assault, defendant’s employees began to fill out paperwork to transfer Velentzas to Faith Mission, a program used as an intermediary location where a discharged resident can be held until TASC can be notified. However, when Velentzas became enraged and began acting out while the paperwork was being completed, the police were called to the facility, and Velentzas was escorted off the premises by the police. The police released Velentzas shortly after escorting him out of defendant’s facility, and he made his way to his grandmother’s residence, where his attack on plaintiff took place.
Plaintiff’s theory of liability is that the facility negligently discharged Velentzas in a manner that failed to ensure that he would remain in custody, even though it knew or should have known that he was prone to violent conduct.
Defendant moved for summary judgment dismissing the complaint on the ground that it owed no duty to plaintiff, as a member of the general public. I would grant that motion.
In support of the motion, defendant’s Acting Clinical Program Director explained that when a patient is discharged for violating a rule, the entity that made the reference is contacted. Some agencies, such as probation or parole, send someone to pick up the discharged resident. However, he explained, other referring agencies do not arrange for a pick-up of the discharged person; the individual is simply instructed to report to the agency the following business day. In particular, residents who had been referred by TASC would be instructed to report to TASC the next business day following dismissal from the program. Further support for the motion is provided by a notice given to defendant’s program by Queens TASC that indicates that it is possible for a participant to simply leave, against clinical advice, and confirms TASC’s expectation that the program’s obligation is limited to notifying TASC if a resident is discharged: “Any change by way of the client leaving against clinical advice or being discharged for any reason, should be brought to the attention of TASC immediately via telephone followed by written confirmation. TASC will in turn notify all criminal justice agencies involved.”
The majority holds that because Velentzas was residing at the facility as an alternative to incarceration, and because defendant’s employees knew that Velentzas could be violent, they had a duty to instruct the police that Velentzas must not be released into the general public, and to ensure that he was *220taken to the Faith Mission Crisis Center. The majority takes issue with the facility’s offered proof regarding exactly what was communicated to the police, indicating that defendant had the burden to prove that it ensured that Velentzas was taken into custody and held until he could be turned over to Faith Mission, and failed to make that showing. But, the facility was under no such obligation.
The majority’s analysis relies on the distinction between the police taking a person “into custody,” as opposed to removing him from the site where he was causing trouble and then releasing him rather than arresting and booking him. The majority holds that it was the duty of the defendant facility to ensure that its discharged resident be taken into and remain in custody until such time as he could be turned over to the Faith Mission program to be held until TASC could take custody of him.
However, the police were summoned through a 911 call, a measure any such facility is entitled — and perhaps well advised — to take if a resident threatens or engages in aggression towards others. Once the police arrive in response to such an emergency call, it is they who have the sole discretion regarding how to handle the individual whose conduct prompted the call. A private drug treatment facility simply cannot control what the police do. It has no authority to instruct the police as to how to handle its discharged resident. It lacks any power to ensure that the police take an unruly discharged former resident into custody or hold him until another facility claims him.
Yet, the majority goes even further than imposing on the defendant facility an obligation to instruct the police as to how to handle a resident whose conduct prompted a 911 call; the obligation it imposes logically survives past the removal of that resident by the police, so that no matter how the police handle that resident initially, if the police later decide to release him, the facility will still be liable for any harm he does. The unreasonableness of such an obligation should be apparent, since the responding officers have a number of options, from deciding not to arrest the individual at all, to arresting him but releasing him, to arresting him, booking him, and leaving it to the arraignment court to decide how to handle him. The observation that the police did not take Velentzas into custody does not justify holding the defendant facility liable; once the police took Velentzas, he was under their control and authority, and the facility had no further duty or ability to control him.
*221Indeed, a rule that a drug treatment facility has an obligation to instruct the police that a discharged resident must remain in custody, and may not be released to the public, cannot succeed at its intended impact; it would be, in effect, an illusory obligation. The facility cannot ensure that a discharged resident will be taken into or retained in custody, since the police have no obligation to abide by the instructions of a private facility.
Even if defendant facility gave the respondent officers the exact instructions the majority requires, the police would not be liable to an injured third party for failing to abide by such instructions, absent a special relationship with the injured individual (see De Long v County of Erie, 60 NY2d 296 [1983]). Therefore, the only practical value of creating such a legal duty is not really to protect the public, but simply to provide injured third parties with an entity that can be sued. That is the true impact of the majority’s ruling here.
The majority attempts to buttress its assertion that the facility has a duty to prevent a discharged resident’s release by referring to a statement by the facility’s Acting Clinical Program Director that it had no intention to release Velentzas into the general public. This is wrong; a private drug treatment facility does not have a duty to protect the general public from its discharged residents and such a duty cannot be created by such a statement of intent.
Plaintiff also offers the expert opinion of a psychiatrist, who asserts that defendant deviated from the applicable standard of care by releasing Velentzas, failing to conduct a proper clinical assessment of Velentzas prior to his discharge to determine his risk to others, and allowing the police to merely escort Velentzas off the premises without advising them of the need to detain him or transfer him to a facility with “a higher level of residential care and containment.”
However, the cases offered by plaintiff and those cited by the majority in support of holding defendant liable are inapposite, and the psychiatric opinion offered by plaintiff is neither applicable nor relevant in this context.
“In the ordinary circumstance, common law in the State of New York does not impose a duty to control the conduct of third persons to prevent them from causing injury to others; liability for the negligent acts of third persons generally arises when the de*222fendant has authority to control the actions of such third persons” (Purdy v Public Adm’r of County of Westchester, 72 NY2d 1, 8 [1988]).
The Court held in Purdy that the defendant, a health-related residential facility, could not be liable to an individual who was injured when struck by a car driven by a resident of the facility who was prone to fainting spells and blackouts and whose crash was caused by a blackout. The Court observed that the patient was a voluntary resident who was entitled to leave the facility unaccompanied; there was no statute or rule that gave the facility the authority to prevent her from leaving the premises or to control her conduct while she was off the premises so as to prohibit or prevent her from operating a motor vehicle, even knowing or having reason to know that because of her medical condition, she might black out at the wheel.
In Eiseman v State of New York (70 NY2d 175, 183 [1987]), where the claimants were the victims of a released former prison inmate, it was undisputed that the former inmate’s release could not form the basis for a claim of negligence by the State, since his release from prison was required by law. The only issue was whether the failure by the prison physician to include the former inmate’s medical and psychiatric history on a college admission medical form constituted grounds for liability on the part of the State. In dismissing that claim, the Court expressed particular concern with the potential for “limitless liability to an indeterminate class of persons conceivably injured by any negligence in that act” (id. at 188). It concluded that “the physician plainly owed a duty of care to his patient and to persons he knew or reasonably should have known were relying on him for this service to his patient. The physician did not, however, undertake a duty to the community at large” (id.).
A number of cases acknowledge the existence of a rule that a duty to control others may arise where “ ‘[the] relationship between the defendant and the person who threatens the harm to the third person may be such as to require the defendant to attempt to control the other’s conduct’ ” (Pulka v Edelman, 40 NY2d 781, 783 [1976], quoting Harper & Kime, The Duty to Control the Conduct of Another, 43 Yale LJ 886, 887-888 [1934]; see D’Amico v Christie, 71 NY2d 76, 85 [1987]). Importantly, however, as the Court pointed out in D’Amico, that duty to control the conduct of a third person, even where applicable, may be imposed only where the defendant has the opportunity *223to control that person, that is, while the third person is on its premises (id.).
That is why, in D’Amico, the Court explained that while there may be liability for injuries caused by an intoxicated guest that occur on a defendant’s property or in an area under a defendant’s control, where the defendant had the opportunity to supervise the intoxicated guest, a non-commercial host who fails to prevent a picnic participant from driving away after consuming a large number of alcoholic beverages will not be held liable for the damage caused by the intoxicated driver (id. at 85-86). Similarly, in Henry v Vann, a companion case to D’Amico v Christie, where the plaintiffs’ decedents died as a result of a collision with an automobile driven by an intoxicated individual shortly after his employer fired him and ordered him off the work site in that condition, the Court of Appeals dismissed the claim against the employer, because the employer owed no duty to the users of the public highway, and did not assume a duty of supervision or control when it directed the intoxicated employee to leave the premises (71 NY2d at 87).
In Avins v Federation Empl. & Guidance Serv., Inc. (67 AD3d 505 [1st Dept 2009]), this Court held that the defendant could not be held liable for a vicious knife attack against a 10-month-old infant committed by an individual with a history of mental illness who resided in an apartment operated by the defendant to provide housing and support services to individuals with a history of mental illness. We explained that while the defendant might owe a duty to other residents of its facility to protect them from foreseeable violent conduct of a resident, such duty would not extend to members of the community at large (id. at 507, citing Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 233 [2001], and Waters v New York City Hous. Auth., 69 NY2d 225, 228-231 [1987]).
Despite the foregoing limitations on the duty of establishments to protect the general public from dangerous people who had previously been within their confines, plaintiff, and the majority, impose on defendant a duty to ensure that when Velentzas left its premises, he remained in involuntary custody.
But, defendant’s facility was entitled to discharge Velentzas; indeed, a violent incident required his discharge. Defendant’s program is not a prison; from the notice provided to defendant’s program by Queens TASC, it even appears that a participant can decide to leave against clinical advice. Indeed, defendant’s incident report stated that Velentzas said he was *224leaving against clinical advice. The program’s responsibilities do not include a duty to ensure that the general public is protected from any residents who are discharged or who leave against clinical advice.
The cases relied on by the majority do not support the imposition of a duty owed to the general public under these circumstances. For instance, Ramsammy v City of New York (216 AD2d 234 [1st Dept 1995], lv dismissed in part, denied in part 87 NY2d 894 [1995]) illustrates the absence of a duty owed to the general public. There, a security guard woke an intoxicated driver sleeping in a car, and directed him to drive away although the guard knew the driver was intoxicated; the driver then struck and killed a pedestrian. The action was dismissed against the security company, based on the lack of a duty. The only claim that was allowed to proceed in Ramsammy was against the property owner, on the ground that it created a pedestrian mall that experts had assessed as unsafe.
As to Fox v Marshall (88 AD3d 131 [2d Dept 2011]), its ruling does not support the imposition on defendant of a duty to protect the general public. In Fox, a heinous murder was committed by a mentally ill resident of a mental health care facility while he was temporarily released pursuant to a temporary pass issued by facility staff; the Second Department relied on the liberal pleading requirements of CPLR 3211 to hold that although the resident’s confinement was voluntary, his need for a pass to be allowed out — unlike the patient in Purdy, he apparently was not free to come and go as he pleased — provided sufficient support to avoid dismissal of a cause of action in negligence against the operator of the mental health facility for letting the resident out (id. at 137-138). Here, however, we are not judging the allegations of the complaint alone. We are presented with a summary judgment motion; in the face of defendant’s showing that it violated no applicable duty, plaintiff was required to present any evidence that would establish such a violation of duty. Plaintiff offered no such showing.
Plaintiff’s submission of an affirmation by a psychiatric expert claiming failure to abide by the required standard of care, in effect, relies on case law concerning medical malpractice claims against mental health facilities for decisions to allow the release of patients without a proper assessment of the danger they posed (see e.g. Laura I.M. v Hillside Children’s Ctr., 45 AD3d 260 [1st Dept 2007]). However, the duty owed by a medical facility to exercise professional judgment regarding *225its patients’ physical or psychiatric illnesses does not apply to defendant, a facility that provides substance abusers with counseling and the opportunity for drug-free living. The duty owed by medical professionals has no applicability here.
Finally, even assuming that defendant facility had some duty to protect the public from a discharged resident, or at least from this particular discharged resident, any such duty was extinguished when he was turned over to the police. More than that, the facility had neither the right nor the obligation to do.
In my view, defendant is therefore entitled to summary judgment dismissing the complaint.
Gonzalez, P.J., Renwick and Feinman, JJ., concur with Sweeny, J.; Saxe, J., dissents.
Order, Supreme Court, Bronx County, entered February 25, 2014, affirmed, without costs.