New York State Court of Claims

New York State Court of Claims

DeSTEFANO v. THE STATE OF NEW YORK, #2001-017-615, Claim No. None, Motion No. M-60941


Late filing motion alleging physical and sexual abuse of State group home for mentally retarded is granted.

Case Information

ROBERT DeSTEFANO, incompetent, by his mother and natural guardian, CARMELINA DeSTEFANO
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Levidow, Levidow & Obermanby: Thomas Corvino
Defendant's attorney:
Eliot Spitzer, Attorney Generalby: Michael Zeytoonian, Asst. Attorney General
Third-party defendant's attorney:

Signature date:
March 21, 2001
New City

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were considered on claimant's application for permission to file a late claim:

Notice of Motion, Affirmation, Affidavit and Exhibits

Affirmation in Opposition

Supplemental Affirmation and Affidavit in Support

Supplemental Affirmation in Opposition

Second Supplemental Affirmation in Support

Carmelina DeStefano (hereinafter "claimant") seeks permission, pursuant to Court of Claims Act § 10(6), to file a claim on behalf of her 38 year old son, Robert, whom she describes as having suffered brain damage from birth and whom she states has an IQ in the range of 53 to 61. Claimant alleges that Robert was a resident of a State-operated group facility from 1989 through November, 1998, and that during that time he was physically and sexually abused. Such allegations form the basis of the proposed claim.

After receiving claimant's motion papers, the court inquired of counsel as to claimant's authority to appear on behalf of her son, since the appellation "natural guardian," as the caption hereof is styled, is properly limited to parents of minor children. Claimant then submitted a copy of a decree from the Surrogate's Court, Dutchess County, dated April 7, 1992, appointing Anthony DeStefano and Carmelina DeStefano as the guardians of the person and property of their son, Robert DeStefano.

In support of her application, claimant avers that her son was the victim of sexual abuse and physical abuse and that he was treated for injuries in October, 1997 and November, 1998. She attaches a letter to her, dated May 4, 1999, from the Commission on Quality of Care for the Mentally Disabled, which states that "the incidents of sexual abuse involving Robert and two other consumers were founded," and that the State Police had investigated and found that criminal charges were not warranted.

Defendant, in its initial affirmation in opposition, argued that the dates of the alleged abuse were not stated in claimant's papers, which had the effect of (1) making a determination as to whether the motion was timely impossible, and (2) preventing an adequate response to the motion. The first objection is without merit, given that Robert DeStefano has been judicially found to be a mentally retarded person pursuant to the applicable procedures of the Surrogate's Court Act (Court of Claims Act §§ 10(6), 10(5)) notwithstanding his parents' appointment as guardian of his person and property (Henry v City of New York, 94 NY2d 275; Costello v North Shore Univ. Hosp., ___ AD2d ___ , 709 NYS 2d 108).

In response to defendant's position that the allegations of the proposed claim were not specific enough, claimant submitted her affirmation setting forth what information she had, including copies of hospital emergency room records, concerning sexual and physical abuse occurring in 1997 and 1998. Claimant argues that there was a reasonable excuse for her "delay" in presenting the claim since she acted shortly (actually about six months) after receiving the letter from the Commission on Quality of Care. Actually, in view of Robert DeStefano's status as a person under a disability, claimant's receipt of that letter did not operate to begin the running of any limitations period, and relief pursuant to § 10(6) is unnecessary. But since that is how the parties have chosen to proceed, the court will decide the application on the merits.

The court finds that claimant's submission of this motion within six months of becoming aware of possible mistreatment of her son was reasonable, that the defendant had actual notice of the pertinent allegations and the opportunity to investigate (and did in fact conduct an investigation), and that no prejudice would accrue to the defendant's ability to defend a civil action by virtue of claimant's failure to have proceeded at some earlier date. The court further finds that claimant has no alternative remedy and that, to the extent that the claim arises out of events occurring in 1997 and 1998, it has the appearance of merit (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1) so that claimant should at least be able to proceed with her claim through disclosure. The proposed claim refers to incidents "from 1991 through November 1998" but the court finds no basis for finding apparent merit to any claim arising out of alleged events occurring prior to 1997.

Accordingly, the motion is granted to the following extent: (1) The reference in paragraph 15 of the proposed claim to 1991 is to be changed to 1997; (2) the claim should be brought by "Carmelina DeStefano and Anthony DeStefano, as Guardians of the Person and Property of Robert DeStefano," instead of the improper reference to "mother and natural guardian," and (3) claimant is to attach to the claim a certificate with a contemporaneous date indicating that the gurardianship is in current effect. If Carmelina DeStefano is currently the sole guardian, then the claim may be brought by her alone; in any event, the caption of the claim should conform with whatever the current status of the guardianship is. The claim shall be served, in a manner provided by law, and filed within 60 days of the filing date hereof, accompanied by the required filing fee or an application for a waiver of the fee.

March 21, 2001
New City, New York

Judge of the Court of Claims