Opinion
Claim No. 136018
11-16-2022
EMMA T., Claimant, v. The STATE of New York, Defendant.
For Claimant: Bruce A. Young, and Amy J. Fricano, Esqs. For Defendant: Hon. Letitia A. James, Attorney General of the State of New York, By: Antonella Papaleo, Esq., Assistant Attorney General
For Claimant: Bruce A. Young, and Amy J. Fricano, Esqs.
For Defendant: Hon. Letitia A. James, Attorney General of the State of New York, By: Antonella Papaleo, Esq., Assistant Attorney General
Javier E. Vargas, J. For the following reasons, the Motion by Defendant State of New York (hereinafter "State"), to dismiss the Claim filed by Claimant Emma T. (hereinafter "Claimant"), is granted, and the Claimant's Cross Motion to amend his Claim, is denied in accordance with the following decision.
By Claim filed on February 22, 2021, Claimant commenced the instant action against the State in the Court of Claims pursuant to the Child Victims Act, embodied in CPLR 214-g, alleging that she, as a minor and ward of the State, was placed by the State in various foster care facilities and homes, including at the Brentwood Residential Center for Girls ("Brentwood") "from approximately 1997 to 1999" (Claim at 3, ¶¶ 12). At all times, the Claim states that a State's supervisory employee serving as Brentwood's Director, Randy S., "used the tasks, premises, and instrumentalities of his position with the [State] to isolate and sexually abuse Claimant when she was approximately 15 to 16 years old" (id. ¶¶ 16-18). "The sexual abuse included fondling, masturbation, and forced oral sex and vaginal intercourse, among other sexual acts," in violation of New York Penal Law Article 130 (id. ). Brentwood, which is located in the central Long Island Community of Dix Hills, New York, is owned, operated and controlled by the New York State Office of Children and Family Services ("OCFS").
"From approximately 1997 through her discharge in 1999, Director S. utilized the trust and authority vested in him by the [State] to groom and gain Claimant's trust and to obtain control over her as part of his plan to sexually abuse her" (Claim at 4, ¶ 23). According to the Claim, the sexual abuse of Claimant "occurred at locations that were owned, operated, and/or controlled by the [State], including in the offices and isolated quarters at Brentwood, in her room, and elsewhere on the Brentwood premises" on "at least ten times" (id. ¶ 26, 29). Based on those allegations, the Claim concludes that the State had both general and specific notice of the sexual abuse of its residents by Brentwood's staff members, could foresee the damage but negligently permitted it to continue unabated (id. at 5, ¶¶ 31-35).
On April 15, 2021, the State filed its Verified Answer, denying Claimant's allegations of negligence or culpability, and asserting 16 Affirmative Defenses, including that "the claim fails to comply with Court of Claims Act § 11(b) by failing to include "an adequate description of the location of the incidents alleged," "an adequate particularization of the nature of the cause(s) of action," or "the specific time when and date" of the alleged sexual abuse, and therefore, there is no proper claim over which the Court of Claims has subject matter jurisdiction. That same day, the State also filed and served Claimant with a Demand for a Verified Bill of Particulars, Combined Demands, Medicare Demand and Notice for Examination before Trial. Claimant complied with some of these disclosure requests and has served her own discovery instruments upon the State pursuant to CPLR 3101 and 3107.
Claimant submitted responses to the Verified Bill of Particulars on March 2, 2022, and Responses and Objections to the State's Combined Demands on April 29, 2022.
On January 11, 2022, the State filed the instant Notice of Motion to Dismiss the Claim, seeking summary judgment dismissal pursuant to CPLR 3212, arguing that the Claim fails to comport with the jurisdictional requirements regarding a specific location, nature, time and date of the Claim as required by Court of Claims Act § 11(b), and is subject to dismissal. The State argues that Claimant must allege the dates and times of the abuse with sufficient specificity to enable it to investigate the Claim promptly and ascertain its potential liability. Namely, the State maintains that Claimant simply provides a broad period of over two years when the alleged abuse occurred. In Paragraph 13 of the Claim, Claimant alleges that she resided in Brentwood from 1997 to 1998; however, she inconsistently alleges in other parts of the Claim that the abuse occurred between 1997 to 1999. In addition, the States argues that, although the Claim provides a general description of an unknown number of sexual assaults by Mr. S., it fails to provide more detailed information concerning the nature of the alleged incidents. There is a complete lack of specificity in the Claim as to how the State's negligence contributed to the alleged abuse or how the State was to reasonably foresee that the alleged conduct would constitute a basis for the lawsuit. According to the State, the Claim is essentially about its alleged negligence in the hiring, training, and supervision of the alleged perpetrator, but to the extent that Claimant views her Claim as one directly against the State for the alleged sexual assault under a respondeat superior legal theory, such a cause of action is not cognizable.
Thereafter, on February 7, 2022, the parties entered into a Preliminary Conference Stipulation and Order with respect to a discovery schedule, so ordered by then Court of Claims Judge Faviola A. Soto. Counsels appeared for a subsequent conference with Judge Soto on May 2, 2022, where the Court made further rulings and permitted extensions of time to comply with each party's discovery requests.
On February 22, 2022, Claimant opposed the Motion and filed her own Notice of Cross Motion to Amend the Claim and Strike Affirmative Defenses, arguing, inter alia, that summary judgment is inappropriate because the State acknowledged that more discovery was necessary when it provided responses, that child sexual abuse cases require some latitude in specifying times and dates, and that the Claim sufficiently alleges several incidents occurring from 1997 to 1999 when Claimant was a child in State's custody. Incongruously, Claimant's asserts that the first incident of abuse occurred in "approximately September 2004" (sic) and that the particular behavior was repeated at least but not limited to nine or ten times with the last incident occurring approximately three weeks before "her release on March 16, 2005" (Claimant's Affirmation in Opposition to Defendant's Motion and in Support of Claimant's Cross Motion at para. 80). Claimant maintains that the abuse she suffered from Mr. S. occurred at the facility, but does not state the exact number of incidents of abuse Claimant is alleging nor precisely when these incidents occurred. Also, according to Claimant, the Claim adequately states a factual basis before any discovery of a valid claim for negligence based upon inadequate supervision, failure to report pursuant to Social Services Law §§ 413 and 420, negligent hiring and retention, and adequate prior notice of the risk of harm to Claimant who was in the State's protective custody.
On January 17, 2022, Claimant filed a separate but similar notice of motion to amend the claim, strike the State's affirmative defenses, and to deny the State's motion to dismiss. Pursuant to CPLR 3212, Claimant requested a stay of hearing and decision on Claimant's motion for summary judgement, pending further outstanding discovery, and that after the parties meet and confer regarding outstanding discovery, that the Court should order and direct discovery in accordance with the preliminary conference. This motion was not assigned a motion number, but that now-redundant motion is hereby disposed of.
This appears to be a typographical error, as the dates of occurrence match a companion case, Williams v. State of New York , filed under Claim no. 136016.
Separately, Claimant cross-moves for leave to amend the Claim pursuant to Court of Claims Act § 602.7(b) and CPLR 3025(b), arguing that her Affidavit and proposed Amended Claim satisfy any perceived deficiencies as to the particularized detail required under Court of Claims Act § 11(b), and the State has not been surprised or prejudiced because there was a significant amount of information concerning the events involving Claimant within a few months of the incident including police reports which provided various details of the abuse. Furthermore, Claimant cross-moves to strike the State's Court of Claims Act § 11 affirmative defenses, contending that the original Claim and the proposed amended Claim present sufficient facts to satisfy the Act. She contends that Court of Claims Act § 11 was raised without regard to the applicability to the nature of the Claims or the State's special duty, as the State is presently not entitled to summary dismissal and unable to explain or justify its affirmative defenses.
The Court is in receipt of the State's Affirmation in Further Support of the Motion to Dismiss the Claim and in Opposition to the Cross Motion filed on April 13, 2022, where the State maintains that the Claim fails to provide any details as to when or where the abuse took place in either the two-year period or one-year period between 1997 and 1999, other than generalized statements such as in "numerous times in various ways and locations on and off the Brentwood premises" (Claim at 3, ¶ 25). The State also argues that CPLR 3025(b) does not apply to amend the Claim in this instance because the Claim is substantially insufficient under Court of Claims Act § 11, and the fatal jurisdictional defects preclude any amendment. In response, Claimant's Affirmation in Reply which was filed in this Court on April 27, 2022, asks for the Court to Stay the CPLR 3212 Motion to Dismiss until further discovery, and that this Court deem the proposed amended Claim to be filed and direct the State to answer the Amended Claim within 20 days.
On May 2, 2022, Judge Soto held a conference with counsel for Claimant and the State. As per the recordings for that day, Claimant's counsel complained about a lack of discovery responses from the State, and that the State is in control of those relevant documents. Counsel conducted independent discovery via authorizations and Freedom of Information Law ("FOIL") requests, and received a FOIL response from the Suffolk County District Attorney's Office, which had prosecuted one of Brentwood's employees. One of the documents referenced seven State Central Registry complaints against that employee, and Claimant made a FOIL request for those reports. However, counsel was advised that he could not obtain direct access to those reports outside the purview of this action, without a so-ordered subpoena, giving notice to the State. Judge Soto then directed Claimant's counsel to submit the subpoenas for her signature, and she adjourned the case for a status conference scheduled for September 26, 2022.
The Court's file contains so-ordered subpoenas for OCFS and the Office of the Inspector General, on notice to the State's attorney, and signed by Judge Soto on June 1, 2022.
Commencing June 30, 2022, following the retirement of Judge Soto, all matters and motions currently pending before her were reassigned to the Undersigned. Shortly thereafter, on July 6, 2022, the State filed separate Motions to Quash the aforementioned subpoenas served on OCFS and Inspector General under Motion Nos. M-98545 and M-98548 respectively. In a letter dated July 10, 2022, Claimant's counsel corresponded with the State regarding the instant Claim as well as related Claim numbers 136016 and 136017 in reference to the State's Motions to Quash. As required by the Preliminary Conference Order, counsel proposed that the parties meet and confer on July 12, 2022, regarding discovery before invoking the Court's intervention. On July 27, 2022, this Court reached out to counsel regarding the July 12th meeting, and scheduled an earlier status conference to take place on September 6, 2022. A conference was held before the Undersigned on September 6, 2022, where Claimant argued for the Court to stay the Motion to Dismiss, pending additional discovery pursuant to CPLR 3212(f). The State opposed by arguing that under CPLR 3212, there should have been an automatic stay of discovery when the State filed its Motion in January 2022, however, Judge Soto allowed limited discovery to continue. After hearing arguments, by Daily Report & Order dated September 6, 2022, this Court (Vargas, J.) reconsidered that prior ruling, stayed discovery pending disposition and reserved decision on the Motions. All papers on the Motion to Dismiss and Cross Motion to Amend were deemed submitted, and decision was reserved. Upon reading all the papers herein, this Court agrees with the State.
If there is no agreement between the parties, those motions will be decided under a separate decision.
The Child Victims Act revived the time to commence civil actions against individuals and entities based upon certain "conduct which would constitute a sexual offense" committed by them against children less than 18 years of age ( CPLR 214-g ; see S.H. v. Diocese of Brooklyn, 205 A.D.3d 180, 186, 167 N.Y.S.3d 171 [2nd Dept. 2022] ; Pisula v. Roman Cath. Archdiocese of N.Y. , 201 A.D.3d 88, 98-99, 159 N.Y.S.3d 458 [2nd Dept. 2021] ). The rule creates a revival or "window" period running from the effective date of the Act in 2019 to two years and six months for civil actions for which the statute of limitations has already expired (see CPLR 214-g ). In addition to enacting CPLR 214-g, the New York State Legislature amended Court of Claims Act § 10 to specify that the time limitations contained therein did not apply to claims brought pursuant to the Child Victims Act (see L 2019, ch 11 § 7 [codifying Court of Claims Act § 10[10] ). However, the Legislature did not amend the substantive pleading requirements of Court of Claims Act § 11(b) as it relates to Child Victims Act claims (see González v. State of New York , Claim No. 136780, Motion No. M-97259 [Ct. Cl, Leahy-Scott, J. January 10, 2022]; see generally L 2019, ch 11; L 2020, ch 130).
" ‘[B]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed’ " ( Lichtenstein v. State of New York , 93 N.Y.2d 911, 913, 690 N.Y.S.2d 851, 712 N.E.2d 1218 [1999], quoting Dreger v. New York State Thruway Auth. , 81 N.Y.2d 721, 724, 593 N.Y.S.2d 758, 609 N.E.2d 111 [1992] ). A claimant's failure to strictly comply with the filing requirements of the Court of Claims Act may deprive the Court of Claims of subject matter jurisdiction (see Court of Claims Act § 8 ; Criscuola v. State of New York , 188 A.D.3d 645, 134 N.Y.S.3d 67 [2nd Dept. 2020] ; J.F. v. State of New York , 76 Misc.3d 1082, 176 N.Y.S.3d 436, 2022 N.Y. Slip Op. 22297 [Ct. Cl., Vargas, J., August 30, 2022] ), and be subject to dismissal pursuant to CPLR 3211 and 3212 (see Gabbur v. State of New York, 202 A.D.3d 761, 158 N.Y.S.3d 847, 2022 N.Y. Slip Op. 00850 [2nd Dept. 2022] ; Correa v. State of New York , 208 A.D.3d 847, 849, 174 N.Y.S.3d 110 [2nd Dept. 2022] ). Even viewing the facts in the light most favorable to the non-moving party under CPLR 3212(b) (see Shabat v. State of New York, 177 A.D.3d 1009, 113 N.Y.S.3d 174 [2nd Dept. 2019] ), the Court of Claims Act § 11(b) "places five 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 , 1 N.Y.3d 201, 207, 770 N.Y.S.2d 696, 802 N.E.2d 1094 ; see Kolnacki v. State of New York , 8 N.Y.3d 277, 280, 832 N.Y.S.2d 481, 864 N.E.2d 611 [2007] ; González v. State , supra, Claim No. 136780). "Although absolute exactness is not required, the 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 liability" ( Morra v. State of New York, 107 A.D.3d 1115, 1116, 967 N.Y.S.2d 169 [3rd Dept. 2013] ; see Criscuola v. State , 188 A.D.3d at 645, 134 N.Y.S.3d 67 ; Sharief v. State of New York , 164 A.D.3d 851, 83 N.Y.S.3d 139 [2nd Dept. 2018] ). The sufficiency of a claim rests solely upon the assertions contained therein, and the State is not required "to ferret out or assemble information that section 11(b) obligates the Claimant to allege" ( Lepkowski, supra at 208, 770 N.Y.S.2d 696, 802 N.E.2d 1094 ; see Triani v. State of New York, 44 A.D.3d 856, 857, 843 N.Y.S.2d 452 [2d Dept. 2019] ; Pressley v. State of New York , 74 Misc. 3d 1233[A], 2022 N.Y. Slip Op. 50319[U], 2022 WL 1183276 [Ct. Cl., N.Y. 2022] ). Applying these principles to the matter at bar, the State has sufficient established that the Claim fails to comply with Court of Claims Act § 11(b), thus requiring dismissal. The record reflects that Claimant provides general assertions of acts committed against her by Mr. S. without providing any specificity. The Claim amounts to general recitations of sexual acts and a presentation of legal conclusions without factual averments which seek to connect Mr. S. to the Penal Law violations. As for the "time when" the Claim arose, Claimant is very inconsistent with her factual averments. Initially, Claimant alleges that from approximately 1997 to 1999, she was in the care and custody of the State while residing at Brentwood (see Claim at 3, ¶ 12). Next, she alleges somewhat contradictorily that she began residing there in 1997 until her release in 1998 (id. ¶ 13). Yet later, Claimant alleged in the same Claim that "from approximately 1997 through her discharge in 1999, Director S. utilized the trust and authority vested in him by the [State] to groom and gain [her] trust, and to obtain control over her as part of his plan to sexually abuse her" (id. at 4, ¶ 23). Inconsistency with respect to the time when the Claim arose is a clear departure from the requirements of Court of Claims Act § 11(b), as correctly pointed out by the State.
While understandably the passage of time may have prevented Claimant from providing the exact dates and time of the abuse (see Pisula v. Roman Cath. , 201 A.D.3d at 104, 159 N.Y.S.3d 458 ; see generally Ali, S., Most Child Victims Act Claims Against NY are Being Dismissed: Why and What's Being Done , Poughkeepsie Journal, October 6, 2022), the one year or perhaps two-year time range is just too broad. Claimant does not identity the month, date or even the season when she was allegedly assaulted. More confusingly, in her Cross Motion, Claimant does not clarify or even address the clear inconsistency as to time of the incidents when she provided dates of abuse occurring in "September 2004" and "three weeks before her release in 2005" (Claimant's Cross Motion at 2, ¶ 9). Despite these obvious typographical errors related to a companion case, Claimant insists that the details contained in the present Claim are sufficient to sustain it warranting a denial of the instant Motion to Dismiss.
In claims alleging negligent hiring, supervision, training, and/or retention of a State employee who committed acts of sexual assault against a claimant, courts have held that the failure to plead the specific date(s) when the assault(s) occurred violates Court of Clams Act § 11(b) and mandates dismissal of the claim (see Robin BB. v. State of New York , 56 A.D.3d 932, 867 N.Y.S.2d 284 [3rd Dept. 2008] [allegation that a State employee "engaged in numerous acts of sexual misconduct at various times locations in St. Lawrence County over the course of an eight-year period" insufficient]). Myriad of claims have been dismissed for only providing a range of years when the sexual assaults allegedly occurred (see Morra v. State, 107 A.D.3d at 1115, 967 N.Y.S.2d 169 ; Wimbush-Burkett v. State of New York , Claim No. 136559, Motion No. M-97122 [Ct. Cl., Leahy-Scott, J., Jan. 4, 2022]; Doe v. State of New York , UID No. 2013-048-125, 2014 WL 91448 [Ct. Cl., Bruening, J., Dec. 19, 2013] ); or by failing to specify the particular location of the assaults (see C.C. v. State of New York , UID No. 2016-051-011 [Ct. Cl., Martin, J, April 26, 2016]). Similarly here, the Claim's allegations are not specifically detailed enough to satisfy the pleading requirements of the Court of Claims Act § 11(b), and is jurisdictionally defective (see Morra v. State , 107 A.D.3d at 1116, 967 N.Y.S.2d 169 ). Thus, summary judgment should be granted in the State's favor, and the Claim dismissed for lack of subject matter jurisdiction (see Correa v. State , supra at 849, 174 N.Y.S.3d 110 ).
With respect to Claimant's Cross Motion to Amend the Claim pursuant to CPLR 3025(b), it is well settled that a decision whether to permit an amendment of a pleading is one that lies within the sound discretion of the trial court and "the exercise of such discretion will not lightly be set aside" ( Nelson v. State Of New York , 67 A.D.3d 1142, 892 N.Y.S.2d 201 [3rd Dept. 2009] ; Cessna Aircraft Co. v. State , 231 A.D.2d 667, 647 N.Y.S.2d 988 [2nd Dept. 1996] ), especially when the amendment does not cause undue prejudice or surprise to the opposing party, and is not palpably insufficient or patently devoid of merit (see Edwards v. 1234 Pacific Mgmt., LLC, 139 A.D.3d 658, 30 N.Y.S.3d 675 [2nd Dept. 2016] ; Favia v. Harley-Davidson Motor Co., Inc. , 119 A.D.3d 836, 990 N.Y.S.2d 540 [2nd Dept. 2014] ; Gomez v. State , 106 A.D.3d 870, 965 N.Y.S.2d 542 [2nd Dept. 2013] ). Here, however, since the original Claim is jurisdictionally defective ab initio pursuant to Court of Claims Act § 11(b), such jurisdictional defects may not be corrected by amendment (see Roberts v. State of New York , 4 Misc. 3d 768, 780 N.Y.S.2d 863 [Ct. Cl., New York, 2004] ; Rosello v. State of New York , Claim No. 126325, Motion No. M-89259 [Ct. Cl., Lynch, J., 2017]). Moreover, a review of the Amended Claim reflects the same inconsistency and broad range of dates, creating a similar deficiency, preventing the State from promptly investigating the Claim and assessing its liability. Since the Court has already ruled that the Claim is defective, Claimant's motion to strike that affirmative defense as to subject matter jurisdiction is denied as moot (see Suarez v. State Of New York , 60 A.D.3d 1243, 876 N.Y.S.2d 195 [3rd Dept. 2009] ). Accordingly, this Court must deny Claimant's Cross Motion in its entirety.
Based on the foregoing, the Court grants the State's Summary Judgment Motion to Dismiss the Claim (Motion No. M-97735), hereby dismisses the Claim, and denies the Claimant's Cross Motion to amend the Claim and strike the affirmative defenses (CM-97871).