New York State Court of Claims

New York State Court of Claims

BUSCH v. THE STATE OF NEW YORK, #2000-028-101519, Claim No. 102662, Motion No. M-62211


Synopsis


Defendant's motion to dismiss is granted for failure to state a cause of action because of unrefuted proof that Berkshire Farms Center and Services for Youth, the facility at which claimant's son was allegedly injured, is neither owned or operated by the State.

Case Information

UID:
2000-028-101519
Claimant(s):
MARGARET BUSCH, Individually and as Parent and natural Guardian of MICHAEL BUSCH, JR., an Infant
Claimant short name:
BUSCH
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102662
Motion number(s):
M-62211
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
DE LORENZO, PASQUARIELLO & WEISKOPF, P. C. BY: Carolyn Lamon, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Kathleen M. Resnick, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 22, 2000
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read on defendant's motion for an order of dismissal.
• abNotice of Motion and Supporting Affirmation of Kathleen M. Resnick, Esq., AAG, filed August 18, 2000 ("Resnick affirmation"), with annexed Affirmation of Diane M. Deacon, Esq., dated August 15, 2000 ("Deacon affirmation") and annexed Exhibit 1
• abAffirmation in Opposition: none received
• abFiled papers:
• ab Claim, filed June 27, 2000


Claimant alleges that this claim arose on May 30, 2000, when she petitioned Schoharie County Family Court for modification of its February 18, 2000 order of disposition, which order directed her son, Michael Busch, Jr., be placed at Berkshire Farms Center and Services for Youth. He was placed at that facility on March 3, 2000. It is implied, although not expressly alleged, that the State of New York is responsible for the operation of the facility where the juvenile was placed. According to claimant, her son was subjected to beatings and other physical and emotional injury while at the facility. The claim does not indicate the date on which Michael left the facility.
In lieu of an answer, the State has moved for an order dismissing the claim on the grounds that it is untimely and that it fails to state a cause of action on which relief may be granted. Asserting the defense of untimeliness by way of a pre-answer motion is in full accordance with the requirements of section 11(c) of the Court of Claims Act.
Timeliness
The claim was served on the Attorney General on July 14, 2000 and filed with the Court on June 27, 2000. These dates fall within ninety days of the date of alleged accrual, May 30, 2000, and thus – if that is the correct accrual date – the claim would be timely whether considered to sound in negligence (Court of Claims Act §10[3]) or intentional tort (Court of Claims Act §10[3-b]). Defense counsel, however, asserts that any cause of action must have arisen when Michael arrived at Berkshire Farms on March 3, 2000. If, in fact, it were proven that Michael was continually mistreated while at the facility, any cause of action arising from such mistreatment would accrue upon his departure and the conclusion of the alleged wrongful acts. Although the claim is unclear in many respects, it is evident that Michael was still at the facility on May 30, 2000. Consequently, that branch of the State's motion to dismiss this claim as untimely must be denied.
Failure to State a Cause of Action
This branch of defendant's motion is supported by the affidavit of Diane M. Deacon, Esq., Assistant Deputy Counsel of the New York State Office of Children and Family Services (OCFS), which was formerly known as the Division for Youth. Ms Deacon states that Berkshire Farms is a private charitable institution, authorized pursuant to Social Services Law §472-e et seq. and governed by a Board of Directors. Although the facility was subject to licensure and inspection by OCFS, Ms Deacon states that it was never owned by the State and that employees of Berkshire Farms were not State employees.
Claimant has made no submission in response to the motion, apparently conceding that the State is not responsible for the actions of Berkshire Farm management or employees and thus is not responsible for any injuries Michael suffered at their hands.
Defendant's motion is granted and the claim is dismissed.


November 22, 2000
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims