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 ). 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 ). 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.
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,
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
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.
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.