Opinion
# 2019-015-177 Claim No. 121690 Motion No. M-94091
08-07-2019
KEVIN MYERS as Administrator for the Estate of M.M. v. THE STATE OF NEW YORK
Law Offices of Elmer Robert Keach, III, P.C. By: Elmer Robert Keach, III, Esq. Honorable Letitia James, Attorney General By: Sean B. Virkler, Esq., Assistant Attorney General
Synopsis
Claim alleging multiple sexual assaults during a one-month period was sufficiently specific to meet the requirements of Court of Claims Act § 11 (b).
Case information
| UID: | 2019-015-177 |
| Claimant(s): | KEVIN MYERS as Administrator for the Estate of M.M. |
| Claimant short name: | MYERS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121690 |
| Motion number(s): | M-94091 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Law Offices of Elmer Robert Keach, III, P.C. By: Elmer Robert Keach, III, Esq. |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Sean B. Virkler, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 7, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves for dismissal on the ground the claim fails to meet the pleading requirements of Court of Claims Act § 11 (b).
Claimant seeks damages on behalf of the estate of his deceased son M.M. who, it is alleged, was repeatedly raped and sexually assaulted while he was a resident of the Tryon Residential Center, a facility operated by the New York State Office of Children and Family Services (OCFS). Claimant alleges in pertinent part the following:
While claimant alleges the assaults occurred at the "Tyron Residential Center", the correct name of the facility is the "Tryon Residential Center" (see claimant's Exhibit B).
"a. The acts hereinafter giving rise to this Claim occurred between the dates of January 1, 2009 and January 31, 2009, and the further acts and omissions giving rise to this Claim occurred from January 1, 2009 until [M.M.'s] release from Tyron [sic]Residential Center, 881 County Highway 7, Johnstown, NY, 12095.
b. Each and every act occurred after the residents at Tyron [sic] Residential Center (hereinafter referred to as the 'facility') were confined to their rooms at night. During those times, a Youth Division Aid named Josh Davenport (hereinafter referred to as 'JD') raped and sexually assaulted [M.M.]. [M.M.] was raped and sexually assaulted on four separate occasions from January 1, 2009 through January 31, 2009. Furthermore, during those times and thereafter, [M.M.] was threatened with violence and physical harm by JD if he revealed the rape and assaults. At all times, [M.M.] did not consent to any personal interaction, touching, and/or sexual contact, and lacked the capacity to do so as he was a minor" (defendant's Exhibit D, Amended Claim, ¶¶ 2 [a] and [b]).
The amended claim alleges M.M. suffered serious personal and psychological injuries as a result of the repeated sexual assaults including "rectal prolapse . . . resulting in surgical intervention" (defendant's Exhibit D, Amended Claim, ¶ 7). M.M., whose date of birth is September 9, 1992 (id. at ¶ 3), died on April 7, 2015 (defendant's Exhibit C, p. 2). By Decision and Order dated February 22, 2017, claimant's motion to be substituted as the administrator of the estate of M.M. "and to amend the claim in the form proposed" was granted (defendant's Exhibit C, p. 3).
No argument regarding the sufficiency of the claim was raised in opposition to the motion to amend the claim.
Defendant now contends, for the first time, that the claim fails to comply with the pleading requirements of Court of Claims Act § 11 (b) because "[n]o specific date or dates is provided, nor is a specific time of day provided" as to when the alleged sexual assaults occurred (affirmation of Sean B. Virkler dated May 30, 2019, ¶ 8). Defendant argues that the failure to specify the exact dates and times of the rapes hampered its ability to conduct an investigation. To support this contention, defendant submits an affidavit from Nicholas Steinbock-Pratt, Supervising Attorney for the OCFS, in which Mr. Steinbock-Pratt indicates that he reviewed the claim and amended claim at defense counsel's request (defendant's Exhibit F, ¶ 2). After noting "[t]he Claim and Amended Claim fail to state the time when the Claim allegedly accrued . . . , stating only that the 'Claim occurred between the dates of January 1, 2009 and January 31, 2009' " (id. at ¶ 3), he concludes "I have determined that neither the Claim nor the Amended Claim provide sufficient information to identify the date and time when the incident allegedly occurred, which does not allow the defendant to properly investigate the Claim" (id. at ¶ 4).
Section 11 (b) of the Court of Claims Act requires that a claim state "the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, [with certain exceptions] . . . the total sum claimed." The State's waiver of immunity from suit is contingent upon compliance with the specific conditions set forth in article II of the Court of Claims Act, which include the pleading requirements set forth in § 11 (b) (Court of Claims Act § 8; Lepkowski v State of New York, 1 NY3d 201 [2003]; Davis v State of New York, 64 AD3d 1197 [4th Dept 2009], lv denied 66 AD3d 1504 [4th Dept 2009], lv denied 13 NY3d 717 [2010]). As a result, statutory requirements conditioning suit must be strictly construed (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]) and the failure to abide by the pleading requirements of the Court of Claims Act constitutes a jurisdictional defect requiring dismissal of the claim (Sommer v State of New York, 131 AD3d 757, 758 [3d Dept 2015], quoting Morra v State of New York, 107 AD3d 1115, 1116 [3d Dept 2013]; see also Dinerman v NYS Lottery, 69 AD3d 1145, 1146 [3d Dept 2010], lv dismissed 15 NY3d 911 [2010]; Nasir v State of New York, 41 AD3d 677 [2d Dept 2007]; Mujica v State of New York, 24 AD3d 898 [3d Dept 2005], lv denied 7 NY3d 701 [2006]).
The guiding principle in determining the sufficiency of a claim is whether it is sufficiently definite " 'to enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances' . . ." (Lepkowski v State of New York, 1 NY3d at 207, quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]; see also Flemming v State of New York, 120 AD3d 848, 848 [3d Dept 2014]). While pleading with "absolute exactness" is not required, a cause of action must be pled with sufficient specificity so as not to mislead, deceive or prejudice the rights of the State (Heisler v State of New York, 78 AD2d at 767).
To the extent the claimant alleges that the four sexual assaults occurred at night between the dates of January 1, 2009 and January 31, 2009 while M.M. and the other residents were confined to their rooms at the Tryon facility, the claim sufficiently alleges the time when and place where the claim arose as required by Court of Claims Act § 11 (b). The date of accrual is obviously important in determining not only the timeliness of the claim, but the circumstances surrounding it. Here, however, claimant's decedent was an infant at the time of the alleged assaults and the applicable limitation period was extended until two years after he attained the age of 18 (see Court of Claims Act § 10 [5]; CPLR 208; CPLR 105 [j]). Furthermore, defendant's contention that its investigation was hampered by a lack of detail in the claim is wholly unsupported by reference to the nature of the efforts undertaken to investigate the matter, or the results of that investigation. In fact, the investigation referenced by defense counsel in paragraph 10 of his affirmation is, other than the fact it occurred, not otherwise addressed in the motion. Nor is there any discussion of the manner in which the alleged lack of specificity of the claim affected defendant's ability to promptly investigate the claim and ascertain its potential liability under the circumstances. With regard to the attorney from OCFS, Mr. Steinbock-Pratt, he merely states, in conclusory terms, that he reviewed the claim and amended claim and determined that they fail to specify the date and time when the incidents allegedly occurred "which does not allow the defendant to properly investigate the Claim" (defendant's Exhibit F, ¶ 4). However, as recently indicated by the Court in Davila v State of New York (140 AD3d 1415 [3d Dept 2016]), "[w]here an agency of defendant has performed the internal investigation of an incident and is therefore the primary or, perhaps, even the sole source of information upon which a claim is based, it cannot be readily found that a lack of specificity has interfered with defendant's ability to investigate a claim" (140 AD3d at 1417). Here, M.M. was in the custody of OCFS at the time of the assaults and an investigation was admittedly performed. In opposition to the motion, claimant's counsel proffered certain reports of the investigations performed by the New York State Police as well as the OCFS. Moreover, the claim included the name of the alleged assailant, the one-month period during which the alleged multiple assaults occurred, and the claimant's physical manifestation of injury- rectal prolapse- for which surgical intervention was required. Inasmuch as the deceased infant was in the custody of the OCFS at the time of the occurrence, and OCFS actually performed an investigation, the particulars set forth in the claim were adequate to meet the pleading requirements of Court of Claims Act § 11 (b).
Certain cases in which contrary determinations have been made provide guidance. In Robin BB. v State of New York (56 AD3d 932 [3d Dept 2008]) claimant's allegations of sexual misconduct at various locations in St. Lawrence County over the course of an eight-year period fell far short of satisfying the pleading requirements of Court of Claims Act § 11 (b). In W.W. v State of New York (Ct Cl, Feb. 29, 2008, DeBow, J., claim No. 110062, UID No. 2008-038-585) claimant's allegation that her disabled son was sexually assaulted and exposed to H.I.V. at some point during the nine-year period he was a resident of the Oswald D. Heck Developmental Center was insufficiently specific as to the time when the claim arose. In Morra (107 AD3d 1115) claimant's allegations of negligent supervision and malicious prosecution were insufficiently specific to meet the pleading requirements of Court of Claims Act § 11 (b) where the allegedly negligent investigation occurred over a two-year period and the place where the acts occurred potentially encompassed a nine-county area. In Bhagalia v State of New York (228 AD2d 882 [3d Dept 1996]) allegations of unlawful discrimination over the course of claimant's 16 years of employment failed to adequately allege the time when and place where the claim arose. Here, by contrast, the claim alleges multiple assaults occurring during January 2009, the alleged assailant was identified, the deceased infant was in the defendant's custody when the alleged assaults occurred and an investigation was in fact performed. Under these circumstances, the time when the claim arose was sufficiently set forth in the claim so as to meet the pleading requirements of Court of Claims Act § 11 (b).
Select unreported decisions from the Court of Claims are available via the internet at: https://www.nyscourtofclaims.state.ny.us.
Based on the foregoing, the defendant's motion (motion No. M-94091) is denied.
August 7, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of motion dated May 30, 2019; 2. Affirmation of Sean B. Virkler, A.A.G. dated May 30, 2019, with Exhibits A-F; 3. Affirmation in opposition of Elmer Robert Keach, III, Esq. dated July 26, 2019, with Exhibits A-H; 4. Reply Affirmation of Sean B. Virkler, A.A.G. dated August 5, 2019.