Opinion
2022–02752 Claim No. 136836
06-28-2023
Jose DAVILA, appellant, v. STATE of New York, respondent.
Slater Slater Schulman, LLP, Melville, NY (Stephenie Lannigan Bross and Samantha A. Breakstone of counsel), for appellant. Letitia James, Attorney General, New York, NY (Ester Murdukhayeva and Kwame N. Akosah of counsel), for respondent.
Slater Slater Schulman, LLP, Melville, NY (Stephenie Lannigan Bross and Samantha A. Breakstone of counsel), for appellant.
Letitia James, Attorney General, New York, NY (Ester Murdukhayeva and Kwame N. Akosah of counsel), for respondent.
MARK C. DILLON, J.P., ANGELA G. IANNACCI, JOSEPH J. MALTESE, LILLIAN WAN, JJ.
DECISION & ORDER In a claim, inter alia, to recover damages for negligent hiring, retention, and supervision, the claimant appeals from an order of the Court of Claims (Catherine Leahy–Scott, J.), dated March 1, 2022. The order granted the defendant's motion to dismiss the claim.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion to dismiss the claim is denied.
This claim, brought pursuant to CPLR 214–g, the Child Victims Act (hereinafter the CVA), alleges that the claimant was sexually abused by a named counselor in 1992 and 1993, while residing at a state-certified boarding school where he was placed while in foster care. The defendant moved to dismiss the claim on the ground, among others, that the Court of Claims lacks subject matter jurisdiction because the claim failed to adequately state the nature of the claim and failed to adequately state the time when the claim arose, as required by Court of Claims Act § 11(b). The court granted the motion to dismiss on the ground that the claim failed to adequately state the nature of the claim. The claimant appeals.
Court of Claims Act § 11(b) "places five specific substantive conditions upon the State's waiver of sovereign immunity by requiring the claim to specify (1) ‘the nature of [the claim]’; (2) ‘the time when’ it arose; (3) the ‘place where’ it arose; (4) ‘the items of damage or injuries claimed to have been sustained’; and (5) ‘the total sum claimed’ " ( Lepkowski v. State of New York, 1 N.Y.3d 201, 207, 770 N.Y.S.2d 696, 802 N.E.2d 1094, quoting Court of Claims Act § 11[b] ; see Kolnacki v. State of New York, 8 N.Y.3d 277, 280, 832 N.Y.S.2d 481, 864 N.E.2d 611 ). Because suits against the State are allowed only by the State's waiver of sovereign immunity, and are in derogation of the common law, strict compliance with these jurisdictional requirements of section 11(b) is necessary (see Kolnacki v. State of New York, 8 N.Y.3d at 280–281, 832 N.Y.S.2d 481, 864 N.E.2d 611 ). Thus "[a] claimant's failure to sufficiently particularize the nature of its claim constitutes a jurisdictional defect mandating dismissal" ( Kimball Brooklands Corp. v. State of New York, 180 A.D.3d 1031, 1032, 121 N.Y.S.3d 129 ).
"[T]he claim must provide a sufficiently detailed description of the particulars of the claim to enable [the State] to investigate and promptly ascertain the existence and extent of its liability" ( D.G. v. State of New York, 214 A.D.3d 713, 715, 185 N.Y.S.3d 245 [internal quotation marks omitted]). "However, absolute exactness is not required, so long as the particulars of the claim are detailed in a manner sufficient to permit investigation" ( Wagner v. State of New York, 214 A.D.3d 930, 931, 187 N.Y.S.3d 61 [alteration and internal quotation marks omitted]).
Here, the claim sufficiently provided the defendant with a description of the manner in which the claimant was injured, and how the defendant was negligent in allegedly failing to protect the claimant from sexual abuse while a resident in a state-certified foster care facility. The claimant is not required to set forth the evidentiary facts underlying the allegations of negligence in order to satisfy the section 11(b) "nature of the claim" requirement ( Martinez v. State of New York, 215 A.D.3d 815, 819–820, 188 N.Y.S.3d 512 ). As the claim is sufficiently detailed to allow the defendant to investigate and ascertain its liability, it satisfies the nature of the claim requirement of Court of Claims Act § 11(b) (see Martinez v. State of New York, 215 A.D.3d 815, 188 N.Y.S.3d 512 ; D.G. v. State of New York, 214 A.D.3d 713, 185 N.Y.S.3d 245 ). The defendant further contends that the claim should be dismissed on the ground that it fails to adequately specify the time when the claim arose as required by Court of Claims Act § 11(b). The claim alleges that the claimant was sexually abused repeatedly in 1992 and 1993, on numerous and regular occasions, including conduct taking place in his room three to four times a week. This Court has stated recently in the context of the CVA, that "[w]e recognize that in matters of sexual abuse involving minors, as recounted by survivors years after the fact, dates and times are sometimes approximate and incapable of calendrical exactitude" ( Pisula v. Roman Catholic Archdiocese of N.Y., 201 A.D.3d 88, 104, 159 N.Y.S.3d 458 ). Thus a claimant commencing a claim pursuant to the CVA is not required to allege the exact date on which the sexual abuse occurred (see Wagner v. State of New York, 214 A.D.3d 930, 187 N.Y.S.3d 61 ). As the claim here sufficiently alleges the time when the abuse occurred, the Court of Claims properly declined to dismiss the claim on that ground (see Meyer v. State of New York, 213 A.D.3d 753, 757, 183 N.Y.S.3d 521 ; Fenton v. State of New York, 213 A.D.3d 737, 740–741, 183 N.Y.S.3d 529 ).
DILLON, J.P., IANNACCI, MALTESE and WAN, JJ., concur.