4) Reply Affidavit of Stephen Buchalter, Esq., filed September 22, 2003 with
annexed Exhibits I-VII;
5) Supplemental Affirmation in Opposition of Assistant Attorney General G.
Lawrence Dillon filed October 6, 2003;
6) Sur Reply Affidavits of Stephen Buchalter, Esq., (Sur Reply) and Jane Doe
(Doe Affidavit) filed October 16, 2003 with annexed Exhibits I-II;
Filed Papers: None.
The facts as alleged by Movant on this application for permission to late file
a claim are straight forward and appear undisputed. At all times relevant,
Movant was a resident at Defendant's Tryon Secure Detention Center for Girls
. On two occasions in September and
October 2002, Movant, 19 years old at the time, was raped by a staff member,
Curtis Payne (Payne), who supervised Movant's
. Both incidents occurred in the evening
in the bathroom area of the unit. As a result of the second incident, Movant
became pregnant, a pregnancy she subsequently terminated. The pregnancy
triggered investigations by Tryon. The investigation, which included DNA
analysis, culminated in Payne's arrest on March 6, 2003. He was charged with
two counts of rape in the third degree in violation of Penal Law §
130.25(1), a felony, and two counts of official misconduct in violation of Penal
Law § 195.00(1), a misdemeanor, and thereafter was convicted upon his plea
of guilt. Movant asserts only negligence causes of action. Movant was
released from Tryon in April, 2003.
The instant motion followed a difficult path to submission due to Movant's
counsel's admitted unfamiliarity with the Court of Claims Act. What the Court
has designated as Claimant's Sur Reply has attached an AMENDED proposed CLAIM
(Sur Reply Exhibit 1) which Movant asserts addresses deficiencies raised
by Defendant in its opposition papers (SurReply ¶¶ 6, 8 &
9) and which Movant asks be deemed filed nunc pro tunc (id.).
Given the Sur Reply was filed and served before the expiration of the applicable
CPLR Article 2 statute of limitations, the Court need not address Movant's
request for consideration nunc pro tunc, but rather in its discretion the
Court will deem all papers filed as part of a properly and timely made motion
and proceed to address the merits of the application. Defendant opposes the
application on each of the statutory factors.
It is well settled that the factors a Court must consider in determining a
properly framed Court of Claim Act §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 (see
Matter of Gavigan v State of New York, 176 AD2d 1117, 1118; Bay
Terrace Coop. Section IV v New York State Employees' Retirement System
Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981). The Court
"is vested with broad discretion to grant or deny a motion for permission to
file a late claim following the consideration of the statutory factors"
(Gonzalez v State of New York, 299 AD2d 675).
Movant, who was released from Tryon in April, 2003, asserts that she has a
reasonable excuse for her delay in commencing this action based upon her fear of
reprisals which would jeopardize her release date, psychological trauma and her
tender years. Movant's allegations regarding her psychological condition, both
as to the trauma and fear of reprisal are unsupported by an appropriate expert
affidavit (see Smythe v State of New York, Ct Cl, Ruderman, J., Claim No.
NONE, Motion No. M-61994, August 23, 2000, UID#2000-010-056). The Court also
finds unavailing Movant's claim regarding her tender years - Movant was in fact
19 years old and not a minor - and concomitant with unfamiliarity with the
legal system, an argument which is tantamount to ignorance of the law (Innis
v State of New York, 92 AD2d 606, affd 60 NY2d 654; Hall v State
of New York, 85 AD2d 835). Movant further asserts she was advised by a
member of the Tryon staff to wait until her release before pursuing her legal
remedy (Sur Reply ¶ 39, et seq, Doe Affidavit ¶
30) and, without citation, posits that Tryon had an affirmative duty to advise
her of her legal rights (id.). The Court notes that Movant had access to
her mother during this time period. Notwithstanding the foregoing review of
each individual excuse proffered by Claimant, in view of the totality of the
circumstances, the Court finds Movant had a reasonable excuse for the delay in
initiating this action. This factor weighs in favor of the application.
The factors of notice, opportunity to investigate and prejudice are generally
viewed together. Defendant offers as opposition that "there was neither
notice, nor an opportunity to investigate the causes of action until the
criminal action was taken by the District Attorney" (Dillon Affirmation
¶ 10). This statement is belied by Movant's effort to contact the
facility administrator, i.e., Movant's mother actually notifying Tryon of the
pregnancy and Tryon's notification to local authorities in January 2003 of the
events alleged, including the name of the alleged perpetrator. On this record,
the Court cannot conclude that Defendant lacked notice of the essential facts or
that Defendant has been precluded from a meaningful opportunity to investigate
the allegations (McLaughlin v County of Albany, 258 AD2d 778, 779).
Moreover, where the information germane to the very claim itself is likely
contained within Defendant's records, Defendant is not substantially prejudiced
(id.; see also Parody v State of New York, Ct Cl,
Fitzpatrick, J., Claim No. None, Motion No. M-63078, August 17, 2001, UID
#2001-018-097). The Court finds these factors weigh in favor of the instant
Turning to the issue of merit, this factor is often referred to as the most
decisive factor 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). Movant must establish the proposed claim is not patently groundless,
frivolous, or legally defective and that there is reasonable cause to believe
that a valid claim exists. (id. at 11). Movant need not establish a
prima facie case at this point, but rather the appearance of merit (see e.g.
Jackson v State of New York, Ct Cl, Midey, J., Claim No. NONE, Motion No.
M-64481, February 19, 2002, UID #2002-009-007) a standard which has been
described as a "low threshold" (Bernard v State of New York, Ct Cl, Bell,
J., Claim No. NONE, Motion No. M-61948, August 4, 2000, UID#2000-007-043).
Generally, in reviewing the allegations in the proposed claim any "[f]acts
stated in a motion for leave to file a late claim against the State are deemed
true for purpose of motion, when not denied or contradicted in opposing
affidavits [citations omitted]." (Sessa v State of New York, 88 Misc 2d
454, 458, affd 63 AD2d 334, affd 47 NY2d 976).
Having assumed physical custody of Claimant, the State owed a duty of care to
safeguard her; however, that duty does not render the State an insurer of her
safety. Rather, the scope of the State's duty is limited to risks of harm that
are reasonably foreseeable (see Flaherty v State of New York, 296 NY 342;
Wilson v State of New York, 36 AD2d 559). In a situation analogous to
that at bar, the Court of Appeals declined "to impose absolute liability upon
the State for any injuries suffered by patients at State institutions at the
hands of State employees, even if those employees are not acting in the scope of
their employment and the State is free from any fault" (Cornell v State of
New York, 46 NY2d 1032, 1033-1034 [14 year old male patient in a State
mental health facility, was sodomized by a male attendant]).
Movant sets forth causes of action alleging the State's culpability for the
negligent training, supervision and retention of the staff member who raped her.
A critical element of such claims is that the Defendant have notice of the
perpetrator's propensity for the at-issue conduct (see Mirand v City
of New York, 84 NY2d 44, 49-50; Park v N. Y. C. & H. R. R. R.
Co.,155 NY 215). Movant supports these claims with allegations that Payne
had previously been investigated for sexual improprieties (Amended Proposed
Claim ¶¶ 17 &18) and then undercuts the contention by stating that
the investigation culminated in no finding of wrongdoing (id.). Movant
salvages the allegation by asserting the investigation into Payne should have
uncovered the truth (id.; but see Doe v State of New York, 267
AD2d 913 [governmental immunity attaches to investigation]) and the Defendant
has not disputed these allegations. At the current stage of this litigation, it
is unlikely Movant has gained access to written information concerning that
investigation. As such, and given that information is within the control of the
Defendant, the Court will not view said allegations as bare and conclusory
(see Goble v State of New York, Ct Cl, Ruderman, J., Claim No.
99390, Motion No. M-63559, July 16, 2001,UID #2001-010-047). Therefore, these
allegations provide a basis for showing that the Defendant may have been on
prior notice of sexual abuses perpetrated by Payne and results in the appearance
of merit of the claims for negligent training, supervision and retention of
Payne (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1;.
Kidd v State of New York, Ct Cl, Patti, J., Claim No. None,
Motion No. 67198, November 19, 2003, UID #2003-013-030).
To the extent Movant seeks to establish the Defendant's negligence premised
upon deficiencies in staffing in that a female was either supervised by male
staff or was subject to being alone with male staff, Movant has failed to
establish that such a claim has merit. The mere possibility of improper conduct
is insufficient to impose liability since, historically, liability for
negligence has been determined by what is probable, not merely what is possible
(Velez v City of New York
, 157 AD2d 370). This cause of action is
supported only by counsel's opinion. As noted, in a § 10(6) motion Movant
must do more than plead a cause of action. Absent an appropriate affidavit
addressed to the standards of supervision of youth in secure detention
facilities, an area beyond the ken of the Court (see e.g. Nyberg v State of
, 154 Misc 2d 199, 202), the mere possibility of a sexual assault
based upon one on one supervision of a female resident by a male staff member is
not sufficient to suggest a meritorious claim of negligence (compare
Sanchez v State of New York,
99 NY2d 247, 251 and Diaz v N.Y.
., 99 NY2d 542).
Turning to the final factor of another available remedy, it appears that Movant
is pursuing damages actions in other forums ( Reply ¶ 17) which causes
that factor to weigh against Movant (see Biggs v State of New York, New York
State Thruway Authority, and New York State Canal Corporation, a Subsidiary
Corporation of the New York State Thruway Authority, Ct Cl, Fitzpatrick, J.,
Claim No. NONE, Motion No. M-62319, June 25, 2001, UID #2001-018-088).
Taking into account the six statutorily prescribed factors, the Court finds
them to weigh in favor of granting Movant's motion for permission to file a
late claim for negligent hiring, retention and supervision.
By virtue of the foregoing, the Court does not reach Movant's alternative
requests for relief. The Court does note however, that the allegation in the
Sur Reply papers that the Clerk of the Court rejected Movant's "Notice of
Intention to Sue" because the Clerk viewed the "‘occurrence' at issue to
have been solely the rapes" (Sur Reply ¶ 47) is simply inaccurate and
further reflects counsel's failure to familiarize himself with the Court of
Claims Act before attempting to commence this action. Since 1995, Court of
Claims Act § 11 has not required that a notice of intention be filed with
the Clerk of the Court (see L 1995, ch 466, § 2, eff. Aug. 2,
Accordingly, the Court exercises its discretion and Movant's application for
permission to late file a claim is GRANTED to the extent set forth above, and
Movant is directed to file and serve a claim setting forth causes of action for
negligent hiring, retention and supervision as alleged in the amended proposed
claim, annexed as Exhibit A to the Sur Reply papers, and to do so in conformity
with the requirements of Court of Claims Act §§ 10, 11 and 11-a within
45 days of the date this Decision and Order is filed.