New York State Court of Claims

New York State Court of Claims

DOE v. THE STATE OF NEW YORK, #2004-028-512, Claim No. NONE, Motion No. M-67159


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:
STEPHEN BUCHALTER, Esq. The Law Firm of Zwiebel, Brody, Gold & Fairbanks, LLP was substituted for Stephen Buchalter, Esq. pursuant to a duly executed consent to change attorney filed with the Clerk of the Court on February 27, 2004.
Defendant's attorney:
BY: G. Lawrence DillonAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 10, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Movant's[1] motion pursuant to Court of Claims Act § 10(6) for permission to late file her claim:
1) Notice of Motion and Supporting Affidavits of Stephen Buchalter, Esq. (Buchalter Affidavit) and Jane Doe filed July 14, 2003 with annexed Exhibits;

2) Claimant's Brief;

3) Affirmation in Opposition of Assistant Attorney General G. Lawrence Dillon filed August 20, 2003;

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 (Tryon)[2]. 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 unit[3]. 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 application.

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 New York, 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. Downtown Hosp., 99 NY2d 542).[4]

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, 1995).

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.

March 10, 2004
Albany, New York

Judge of the Court of Claims

[1] Because the proposed claim involves a victim of a sexual offense, the caption has been amended to protect her identity (see Civil Rights Law § 50-b).
[2] The basis for Claimant's placement is not disclosed in any of the papers submitted to the Court. Movant also erroneously describes the facility as operated by the Department of Correctional Services when in fact it is a facility operated by the Office of Children and Family Services.
[3] By statute, Claimant, who was over the age of 17 at the time of the attacks, was legally incapable of consenting to sexual intercourse with Payne (see Penal Law § 130.05).
[4] The Court notes in this regard that Movant has not pointed to a regulation or statute violated by Defendant in supervising Movant (see e.g. Cucalon v State of New York, 103 Misc 2d 808 [Mental Hygiene Law ]).