New York State Court of Claims

New York State Court of Claims

SMALLS v. THE STATE OF NEW YORK, #2004-015-431, Claim No. NONE, Motion No. M-68685


Court granted late claim application regarding negligent hiring and training of female correction officer who engaged in sexual conduct with inmate but denied late claim relief based on doctrine of respondeat superior since CO's acts were clearly outside the scope of her employment duties.

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:
Andrew F. Plasse, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Stephen J. Maher, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 28, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's application for late claim relief pursuant to Court of Claims Act § 10 (6) is granted in part and denied in part. The proposed claim seeks to recover damages for personal injuries allegedly sustained as a result of the negligence of the Department of Correctional Services in hiring, supervising, controlling and training of one of its correction officers. Movant alleges that on four separate occasions between March and November, 2002 he and Correction Officer Lucy Godfrey engaged in sexual activity at the Clinton Correctional Facility, Dannemora, New York for which Godfrey was paid from Small's inmate account. Movant alleges that he was legally incapable of consenting to what would otherwise have been consensual sexual contact and that he was subjected to cruel and inhumane treatment in violation of article 1, section 5 of the New York State Constitution. No notice of intention to file a claim was served and no claim was served and filed within 90 days of accrual. Movant now seeks late claim relief.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether 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, whether the claimant has any other available remedy".

The motion filed on June 21, 2004 is timely in that a personal injury claim arising from the alleged negligence of the State is governed by the three year Statute of Limitations set forth in CPLR § 214 (5). A claim sounding in Constitutional Tort is also subject to a three year statute of limitations pursuant to CPLR 214 (4) (see Brown v State of New York, 250 AD2d 314; Johnson v State of New York, 131 Misc 2d 630).

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965). The statutory factors are not exhaustive nor is one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254).

Movant alleges that the delay in filing the claim stemmed from his status as an inmate and his fear of retaliation by prison officials. This allegation is belied by the fact that as early as October 2003 movant was admittedly aware of Godfrey's criminal conviction on related charges (see movant's affidavit, para 12) and was no longer fearful that he might be charged with rape (see movant's affidavit, para 14). Moreover, neither incarceration nor fear of retaliation are acceptable excuses for the failure to meet the filing and service requirements of the Court of Claims Act. This factor weighs against granting the motion (see Plate v State of New York, 92 Misc 2d 1033, 1037; Bommarito v State of New York, 35 AD2d 458, 459) (Boyd v State of New York, Ct. Cl., March 3, 2004 [Claim No. None, Motion No. M-67708, UID # 2004-030-512] Scuccimarra, J., unreported)[1].

The intertwined issues of notice, opportunity to investigate and prejudice will be considered together. Movant alleges in his affidavit in support of the motion that he spoke to the Inspector General regarding Godfrey's activities after being transferred to Bare Hill Correctional Facility subsequent to November 2002. He further alleges that the Inspector General, the Department of Correctional Services and the Clinton County District Attorney conducted investigations of this matter. Defense counsel does not deny that the investigations occurred but argues that they were conducted for law enforcement purposes and not as part of an investigation to determine the State's potential liability as a defendant in a civil suit. The Court is not persuaded by defendant's argument and these factors weigh in favor of granting the motion.

Regarding the issue of merit it is movant's burden to show that the proposed claim is not patently groundless, frivolous or legally defective and there is reasonable cause to believe that a valid claim exists (see Rosenhack v State of New York, 112 Misc 2d 967; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). In this regard the proposed claim asserts causes of action for negligence and constitutional tort. Although loosely stated, movant's negligence cause of action appears to be based upon both the doctrine of respondeat superior and the negligent hiring, retention and/or supervision of Correction Officer Godfrey. Respondeat superior is obviously inapplicable under the facts alleged here. As the Appellate Division, Third Department recently held in Steinborn v Himmel, 9 AD3d 531, 532):
[L]iability for the acts of an employee or agent can follow only if the agent's tortious acts were committed within the scope of employment (see, Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933; Dia CC. v Ithaca City School Dist., 304 AD2d 955, 956, lv denied 100 NY2d 506; State of New York v Popricki, 89 AD2d 391, 393) and . . . an act of 'sexual assault by an employee is a clear departure from the scope of employment, committed solely for personal reasons, and unrelated to the furtherance of the employer's business' (Dia CC v Ithaca City School Dist., supra at 956; McKay v Healthcare Underwriters Mut. Ins. Co., 295 AD2d 686, 687 lv denied 99 NY2d 503).

Correction Officer Godfrey's actions in engaging the movant in sexual activity were obviously outside the scope of her duties as a correction officer and the defendant may not be held liable for any injury sustained by movant as a result thereof based upon the doctrine of respondeat superior.

It has been held, however, that where vicarious liability cannot be imposed against an employer on the basis of respondeat superior the employer may still be held liable for injuries occasioned by an employee "under theories of negligent hiring, negligent retention, and negligent supervision (see Hall v Smathers, 240 NY 486; Restatement [Second] of Torts § 317)" (Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 161, cert denied 118 S. Ct. 413). "[A] necessary element of such causes of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury (see, e.g., Park v New York Cent. & Hudson Riv. R.R. Co., 155 NY 215; Gallo v Dugan, 228 AD2d 376; Mataxas v North Shore Univ. Hosp., 211 AD2d 762; Detone v Bullit Courier Serv., 140 AD2d 278; DiCosala v Kay, 91 NJ 159, 450 A2d 508; Restatement [Second] of Agency § 213, comment d)" (Kenneth R. v Roman Catholic Diocese of Brooklyn, supra at 161; see also N.X. v Cabrini Med. Ctr., 280 AD2d 34, 41 [footnote 4]) and Dia CC v Ithaca City School Dist., 304 AD2d 955).

In the instant matter movant has alleged in the proposed claim (at para 15) "[t]hat prior to the aforesaid rape and sexual abuse, the State of New York had actual and/or constructive notice that Corrections [sic] Officer Lucy Godfrey had performed oral sex and sexual intercourse with prisoners previously, and allowed her to continue her employment with the State of New York by virtue of its improper supervision, training, retention and hiring policies." These allegations have not been contradicted or denied in the State's opposing papers and are therefore deemed true for purposes of this late claim motion (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976). As a result, the Court finds that the movant has demonstrated "reasonable cause to believe a valid cause of action does exist" (Rosenhack v State of New York, 112 Misc 2d 967) based upon the defendant's negligence in hiring and/or retaining C.O. Godfrey (see Kidd v State of New York, Ct Cl, November 19, 2003 [Claim No. None, Motion No. M-67198, UID # 2003-013-030] Patti, J., unreported).

As previously noted movant also seeks to assert a constitutional tort cause of action premised upon an alleged violation of his right to be free from cruel and inhumane treatment pursuant to article 1, section 5 of the New York State Constitution. In Brown v State of New York, (89 NY2d 172, 187) the Court of Appeals recognized a narrow remedy for constitutional tort which would be implied where necessary to assure a constitutional provision's effectiveness and further its purpose. Following the Brown decision the Courts of this State have been reluctant to recognize a constitutional tort under the New York State Constitution in cases where the potential claimant has or had an alternative remedy available to redress the purported wrong (see Martinez v City of Schenectady, 97 NY2d 78; Bullard v State of New York, 307 AD2d 676; Lyles v State of New York, 2 AD3d 694).

Here, as just noted, movant asserts a common law cause of action for negligent hiring and/or retention. Under such circumstances this Court need not imply a constitutional tort (see Lyles v State of New York, supra; Ferrari v State of New York, Ct Cl, July 13, 2000 [Claim No. None, Motion No. M-61586, UID # 2000-011-550] McNamara, J., unreported; Vennera v State of New York, Ct Cl, December 29, 2003 [Claim No. 107437, Motion Nos. M-66679, CM-66989, UID # 2003-028-595] Sise, J., unreported; Smith v State of New York, Ct Cl, December 4, 2002 [Claim No. None, Motion No. M-65980, UID # 2002-019-589] Lebous, J., unreported). Consequently, the Court finds that movant failed to establish the merit of the constitutional tort cause of action set forth in the proposed claim. The apparent merit of the negligence cause of action, however, argues in favor of granting the motion.

As to the remaining factor the Court finds that movant has or had an alternative remedy in the form of an action for damages against Correction Officer Godfrey in federal court. The existence of such a remedy weighs against granting the motion.

Upon consideration of all of the above factors the Court in its discretion finds in favor of the movant. Movant shall serve and file a claim limited to a cause of action for negligence in conformance with the requirements of Court of Claims Act § § 10, 11 and 11-a within 30 days of the filing of this decision and order.

October 28, 2004
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated May 28, 2004;
  2. Affirmation of Andrew F. Plasse dated May 28, 2004 with exhibits;
  3. Affidavit of Leon Smalls sworn to March 6, 2004;
  4. Affidavit of Stephen J. Maher sworn to July 14, 2004.
  5. Affirmation of Andrew F. Plasse dated August 12, 2004;
  6. Affidavit of Leon Smalls sworn to August 6, 2004;
  7. Affirmation of Stephen J. Maher dated August 17, 2004 with exhibit.

[1]Unreported decisions from the Court of Claims are available via the internet at