New York State Court of Claims

New York State Court of Claims

KIDD v. THE STATE OF NEW YORK, #2003-013-030, , Motion No. M-67198


Case Information

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:
Defendant's attorney:
Attorney General of the State of New York
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 19, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


On August 20, 2003, the following papers were read on Claimant's motion for permission to file a late claim pursuant to Court of Claims Act §10(6):
1. Claimant's Notice of Motion, Supporting Affirmation, and Exhibits Annexed

2. Affirmation in Opposition of Thomas G. Ramsay, Esq. and Exhibit Annexed

3. Reply Affirmation of Jeffrey P. Falk, Esq.

This is a motion for permission to file a late claim brought by new counsel for Claimant after my decision and order dismissing Claim No. 106483 on January 15, 2003 in Motion No. M-65775. This motion was commenced by the mailing of motion papers on July 25, 2003.

The underlying events precipitating the now dismissed claim and this application arose on August 9, 2001, at Albion Correctional Facility (Albion), where Claimant was incarcerated. It is alleged that on that date Claimant was assaulted, raped and sodomized by Correction Officer (CO) Dean Schmidt. The recitation of the history of these proceedings by Claimant's current counsel utilizes the terms "filing" and "service" interchangeably and without differentiation. To reiterate, the prior claim was dismissed, inter alia, because Claimant had failed to timely serve upon the Defendant a notice of intention to file a claim. Since 1995, notices of intention are not filed with Clerk of the Court (L 1995, ch 466).

That being said, I dismissed the earlier claim because the notice of intention had been served on the 91st day following accrual of the claim, holding that:

Section 11(a) of the Court of Claims Act requires that a copy of a claim or a notice of intention must be served on the Attorney General, and consequently service on another State officer will not suffice to give this Court jurisdiction over the Defendant State of New York. In addition, failure to comply with the time or manner of service requirements contained in Sections 10 and 11 of the Court of Claims Act is a fatal jurisdictional defect and deprives this Court of the power to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721; Bogel v State of New York, 175 AD2d 493). Even those claims that miss the filing or service deadlines by only one day must be dismissed (Dependable Trucking Co. v New York State Thruway Auth., 41 AD2d 985; Matter of Marshall v State of New York, 144 Misc 2d 193).

I also noted:

Counsel for Claimant did not cross-move for permission to file an untimely claim pursuant to Court of Claims Act §10(6) but, rather, merely added a request for such relief within his affirmation in opposition to the motion to dismiss (Zimmermann Affirmation, ¶¶31-43). Section 10(6) of the Court of Claims Act now expressly requires that application for the relief provided by that subdivision "shall be made upon motion" (L 2001, ch 205, §1, as amended).

Accordingly, Claimant, now represented by new counsel, brings the instant motion seeking relief pursuant to Section 10(6). Claimant appends a proposed claim[1] to her motion papers which sounds in:
assault; battery; deliberate indifference to claimant's health and safety; harassment; negligence and intentional infliction of emotional distress; prima facie tort; negligent training, supervision and retention of correction officers; and negligent failure to provide medical/psychological treatment.

There are some eight different causes of action listed, albeit not separately stated and numbered. Claimant proceeds to describe horrific allegations of assault, rape and sodomy upon her by former CO Schmidt at Albion on August 9, 2001, with a resulting pregnancy and then an abortion. The correction officer involved later pleaded guilty to related criminal charges and was imprisoned.

Among the other allegations in the claim are that "Superintendent Andrews and other officers of the Albion Correctional Facility were aware of Schmidt's history as were the Inspector General for the New York State Department of Corrections...." and that the Defendant and its employees were "reckless, careless and negligent in failing to provide appropriate supervision and training to safeguard claimant from the sexually predatory behavior of Schmidt, failing to provide treatment after learning of the unlawful sexual contact...." and that her injuries were a direct result of the deliberate indifference, intentional and wrongful acts of the State in "total disregard for Claimant's civil rights."

In addressing the merits of this motion, Claimant urges as an excuse for the failure to timely file that the service of the notice of intention was only one day late. It would appear that this excuse falls within the aegis of ignorance of the law, as Claimant's prior counsel allegedly thought that the date of mailing prevailed, whereas the statute is abundantly clear that it is date of receipt that governs (Court of Claims Act §11[a][i]), and as such does not provide a reasonable excuse. Claimant then suggests that the State had timely notice of the underlying circumstances and the opportunity to investigate in connection with the criminal prosecution of former CO Schmidt. Claimant also suggests that the State would not be prejudiced in a substantial way if this application were to be granted, as well as noting that she has no other direct remedy against the State of New York by reason of the Eleventh Amendment to the United States Constitution. Claimant believes that she has a meritorious claim, and explains certain reasons why she so believes.

However, Claimant's application is totally silent about a prerequisite to consideration of the six factors enunciated in Section 10(6), whether the causes of action alleged would be permitted in a like claim against a citizen of the State under the provisions of CPLR article 2. Specifically, the Defendant contends that as to any causes of action sounding in assault or battery, CPLR 215 applies, and the one-year limitation for such causes of action expired one year after the alleged assault took place on August 9, 2001. Claimant has totally ignored this issue in her moving papers and in her reply to the Defendant's opposing papers which raised this and other issues directly.

By statute I am precluded from even applying the statutory criteria or considering whether to exercise my discretion to permit a claim sounding in an alleged assault or battery, as those causes of action are time barred by operation of CPLR 215. Such an application would have to have been commenced within one year of the accrual of the cause[s] of action. It was not, and I have no legal authority to consider them.

With respect to prima facie tort, it is defined as the infliction of intentional harm, resulting in damage, without excuse or justification, by an act or series of acts which would otherwise be lawful (Lincoln First Bank of Rochester v Siegel, 60 AD2d 270). The failure to plead special damages would entitle the Defendant to summary judgment in its favor (Hays v Penn Traffic Co., 270 AD2d 941). Here, with no special damages having been pleaded, a meritorious cause of action is not properly pleaded, and it would be an exercise in futility to allow such a cause of action to proceed (cf., Prusack v State of New York, 117 AD2d 729).

With respect to the cause of action purporting to sound in harassment, it is the essential equivalent of another proposed cause of action, the intentional infliction of emotional harm, and public policy prohibits such actions against the State of New York (Brown v State of New York, 125 AD2d 750, lv dismissed 70 NY2d 747; Wheeler v State of New York, 104 AD2d 496; De Lesline v State of New York, 91 AD2d 785, lv denied 58 NY2d 610).

Liability may be imposed on the State for the negligent infliction of emotional distress (Johnson v State of New York, 37 NY2d 378). An injured party must prove: (1) that the negligence on the part of the governmental official was ministerial in nature, as discretionary actions are immune from liability; (2) that the negligence was tortious, i.e., that it would give rise to a cause of action if the actor were a private person; and (3) that the negligence breached a duty that was owed directly to the injured party (Lauer v City of New York, 95 NY2d 95, 99-100). It is limited to those extremely rare instances where the emotional injury is a direct, rather than a consequential, result of the negligence (Kennedy v McKesson Co., 58 NY2d 500, 506). The proposed pleadings with respect to this cause of action are woefully inadequate.

The proposed cause of action sounding in deliberate indifference to Claimant's health and safety may not stand either. While an inmate in a civil rights action may pursue a constitutional claim of cruel and unusual punishment under the Eighth Amendment for the deliberately indifferent failure by State prison officials to provide adequate medical care, the State of New York is not amenable to suit under 42 USC §1983 in the Court of Claims ( Brown v State of New York, 89 NY2d 172; also see, Will v Michigan Dept. of State Police, 491 US 58)

Next, Claimant seeks permission to bring a cause of action for the negligent failure to provide medical/psychological treatment. The moving papers are markedly deficient. Neither counsel's affirmation nor Claimant's affidavit in support even reference these allegations, and I am left to review the verified proposed claim which does nothing more than assert, in Paragraph 8, that Claimant's claims include the "negligent failure to provide medical/psychological treatment," and in Paragraph 11 of negligence for "failing to provide treatment after learning of the unlawful sexual contact claimant [sic]."

The parties then engage in a debate, with Defendant asserting that this sounds in medical malpractice necessitating a CPLR 3012-a Certificate of Merit (see, Jolley v State of New York, 106 Misc 2d 550), and Claimant urging that the cause of action relates to the alleged failure to get adequate treatment in a timely fashion, which she contends sounds in negligence but not malpractice. That debate needs no resolution, because there are no factual assertions or support for any such allegations in the moving papers. Counsel's averment that Claimant "has consistently stated that the State and its agents failed to get her adequate treatment in a timely fashion" has no support in the papers before me. There are no dates, no purported denials of treatment, no duties or standards that may have been breached, etc. In short, there is nothing more than the bare inclusion of that cause of action in the proposed claim. Moreover, use of the subjective terms "adequate treatment" and "timely fashion" suggest some measurable standards that on their face would seemingly require expert opinion to be sustained, and as such, neither Claimant nor her counsel appear competent to express such opinions. In a late claim application, where a prospective claimant seeking the exercise of discretion must do something more than one who has timely served and filed a claim (see, Nyberg v State of New York, 154 Misc 2d 199), the moving papers fail to persuade me to find the appearance of merit in this putative cause of action.

The remaining cause of action alleges the State's culpability for the negligent training, supervision and retention of correction officers, presumably as it relates to former CO Schmidt.[2] Claimant supports these contentions with demonstrable proof of admissions made by the Defendant's agents or employees. I find that this theory does bear the appearance of meritoriousness in that it is undisputed that Anginelle Andrews, the Superintendent of Albion Correctional Facility and Richard Roy, the Inspector General of the Department of Correctional Services (DOCS), both admitted in their answers in a related federal court proceeding brought by Claimant that they had received previous complaints from other female prisoners about sexual abuse by Schmidt and perhaps other male guards, and that reports were made to the Office of the Inspector General about such alleged abuses (see the summons and complaint appended as Exhibit A to Defendant's opposing papers, in particular paragraphs 19 and 20 thereof, and paragraph 1 of the answers of Andrews and Roy, appended as exhibits to Claimant's reply papers).

These allegations provide a basis for showing that the Defendant may have been on prior notice of sexual abuses perpetrated by Schmidt on other female inmates. That being the case, I find the appearance of meritoriousness in allegations of negligent training, supervision and retention of former CO Schmidt, as Claimant's burden merely is to show that the proposed cause of action is not patently groundless, frivolous or legally defective and that there is reasonable ground to believe that a cause of action may exist (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). As to this cause of action, I find that Claimant has met that test.

The related federal court proceeding has been cited by the Defendant as demonstrating the availability of an alternative remedy. Claimant demurs, averring that it would not permit recovery against the State of New York itself, and thus is not adequate. Of course, Claimant may not receive a double recovery for the same injuries, and the mere existence of putative remedies in another court is but one of the factors in Section 10(6) that I must balance.

Accordingly, upon review of all the papers before me, and after considering the arguments, I have decided to exercise my discretion on Claimant's behalf and grant the motion to the limited extent that she shall be permitted to serve and file a claim alleging only a cause of action sounding in negligent training, supervision and retention of former CO Schmidt. Claimant shall have 45 days from service of a file-stamped copy of this order to serve and file a claim consistent with her proposed claim, as limited by this decision, and in accordance with the provisions of Court of Claims Act §§10, 11 and 11-a.

November 19, 2003
Rochester, New York

Judge of the Court of Claims

  1. [1]Contrary to the Defendant's argument that the proposed claim is not verified, I note that Claimant's counsel has provided an attorney's verification, permissible where the party resides in a different county than the attorney (CPLR 3020).
  2. [2]The proposed claim is silent as to allegations of negligent hiring, although counsel's affirmation in support alludes to such allegation. There is nothing before me, other than such bare assertion, to suggest any negligence by the State of New York in the hiring of Schmidt. Since it is not contained in the proposed claim, I have not considered it.