New York State Court of Claims

New York State Court of Claims

VANSICKLE v. THE STATE OF NEW YORK, #2001-019-559, Claim No. NONE, Motion No. M-63691


Motion to file late claim relative to infant claimant is denied as moot due to tolling of limitations period, while father's motion for permission to late file is denied.

Case Information

VERNON VANSICKLE Individually and as Parent and Natural Guardian of the infant Margaret VanSickle
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:
RINDE, URBANSKI & FLYNNBY: Kevin P. Flynn, Esq., of counsel
Defendant's attorney:
BY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
August 27, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants move for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6).

The Court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-63691, dated June 25, 2001, and filed June 29, 2001.
  2. Affidavit of Vernon VanSickle, in support of motion, sworn to June 25, 2001, with attached exhibits.
  3. Proposed Claim, dated June 25, 2001.
  4. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated July 30, 2001, and filed August 1, 2001, with attached exhibit.
The proposed claim alleges that on July 3, 2000, the infant Claimant, Margaret VanSickle, was a resident at the Ashland Detention Facility (hereinafter "Ashland") in Wellsburg, New York when she was sexually assaulted by a counselor of said facility, one Christopher Aiosa. Claimants' moving papers include documents from the State of New York's Office of Children and Family Services, Child Protective Services, indicating that these reports had been investigated and deemed "substantiated" and "indicated". (Exhibit B to Affidavit in Support). The proposed claim alleges causes of action by both the infant Claimant and her father upon various theories of liability including intentional tort, negligence due to improper hiring, training and supervision, and loss of services.

As a threshold issue, the Court must review whether it has the jurisdiction to review and determine this motion. It is well-settled that a motion for leave to file a late claim must be filed

"[b]efore an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." (CCA 10 [6]). Here, Claimants' request relief to file a late claim on behalf of both the infant child and father. However, Claimant Vernon VanSickle avers that "I understand that the statute of limitations in this action will not to run [sic] until after she turns eighteen years old." (Affidavit of Vernon VanSickle, ¶ 7). The State does not address this threshold issue. It is well settled that a child's infancy tolls all limitation periods. (Barrett v State of New York, 161 AD2d 61, affd 78 NY2d 1111; CCA 10 [5]). As such, as to the infant Claimant, this motion is denied as moot. Accordingly, the remainder of this Decision & Order will address the motion for permission to serve a late claim solely in reference to the derivative claim of the infant's father, Vernon VanSickle.[1]

The factors that the Court must consider in determining a properly framed CCA 10 (6) motion are whether:

1. the delay in filing the claim was excusable,

2. the State had notice of the essential facts constituting the claim,
3. the State had an opportunity to investigate the circumstances underlying the claim,

4. the claim appears to be meritorious,
5. the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the State, and

6. there is any other available remedy.

Whether the proposed claim appears meritorious has been characterized as the most decisive component in determining a motion under CCA 10 (6), since it would be futile to permit a meritless claim to proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10). In order to establish a meritorious claim, Claimant must show that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe a valid claim exists. (Matter of Santana v New York State Thruway Auth., supra, at 11).

The State's sole argument in opposition is that Ashland Detention Center is a facility operated by Glove House, a private not-for-profit organization, and, as such, is not owned or operated by the State of New York nor are said employees of said facility State employees. (Affirmation of James E. Shoemaker, AAG, ¶ ¶ 5 & 6). In support of its position the State submits a supporting affirmation from Diane M. Deacon, Esq., the Assistant Deputy Counsel for the New York State Office of Children and Family Services. Ms. Deacon avers that Ashland Detention Center is not owned or operated by the State nor are its workers considered to be State employees. (Affirmation of Diane M. Deacon, Esq., ¶ ¶ 6 & 7). Finally, Ms. Deacon indicates that although the Office of Children and Family Services has certain investigative responsibilities relative to allegations of child abuse, at no time was the infant within the custody of the State. (Affirmation of Diane M. Deacon, Esq., ¶ 8; Walker v State of New York, 104 Misc 2d 221). Claimant has not submitted any reply in response to this argument raised by the State. The Court views Claimant's failure to respond to this issue as a concession that the State is not responsible for the harm caused by an employee of Glove House. Consequently, the Court finds that this proposed claim does not appear to be meritorious.

Nevertheless, the Court will address the remaining factors. Claimant's reason for the delay in filing is that his daughter was not completely forthcoming with him, and understandably so, due to the nature of the incident such that he did not discover this incident occurred until well after the expiration of the 90-day filing period. (Affidavit of Vernon VanSickle, ¶ 3). Attached to Claimant's own moving papers, among other things, are letters dated July 7, 2000 and August 28, 2000 from the State Office of Children & Family Services addressed to Mr. & Mrs. Vernon VanSickle in which the report of suspected child abuse is discussed. Claimant contends that he did not receive these letters until February 13, 2001. (Affidavit of Vernon VanSickle, ¶ 5). The Court will give Claimant the benefit of the doubt on this factor and find that Claimant's delay was excusable.

Notice of the essential facts, opportunity to investigate and lack of substantial prejudice comprise the next three factors and may be considered together since they involve analogous considerations. Claimant contends the State obtained actual knowledge of these essential facts due to involvement of their own employees and based upon the hotline report and subsequent investigation by the New York State Office of Children and Family Services. As indicated above, Claimant has failed to establish that the employees at Ashland are, in fact, State employees.[2] Furthermore, Claimant cites no authority for the proposition that a report to the hotline and/or subsequent investigation resulting therefrom provides the State notice of and an opportunity to investigate a potential separate civil suit arising from the allegations. Therefore, without such notice or an opportunity to investigate there would be resulting prejudice to the State. Accordingly, the Court finds these three factors weigh against the Claimant.

The final factor for review is whether or not there is any alternative remedy available to Claimant. In a case such as this, Claimant would have the right to pursue legal recourse in the appropriate forum against Glove House as the entity in charge of this facility, as well as his daughter's attacker individually. As such, this factor weighs against Claimant.

Upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the Court finds that five of the six factors, including the all-important factor of merit, weigh against Claimant.

Accordingly, for the reasons stated above, IT IS ORDERED, that the motion for permission to permit the late filing and service of a claim, Motion No. M-63691, relative to Claimant Vernon VanSickle is DENIED; and

IT IS FURTHER ORDERED, that the motion for permission to permit the late filing and service of a claim on behalf of the infant Claimant, Margaret VanSickle is DENIED AS MOOT.

August 27, 2001
Binghamton, New York

Judge of the Court of Claims

[1]Consequently, the term "Claimant" will hereinafter refer solely to the father, Vernon VanSickle unless otherwise indicated.
[2]Assuming, arguendo, the involvement of a State employee, it is well-settled that direct involvement of a State employee in an accident does not, standing alone, qualify as notice when "[t]he claimed knowledge is that of the alleged torfteasor, and not that of a person possessing the supervisory authority to initiate an investigation into the claim [citations omitted]". (Witko v State of New York, 212 AD2d 889, 890; Avila v State of New York, 131 Misc 2d 449, 450).