New York State Court of Claims

New York State Court of Claims

PEREZ v. THE STATE OF NEW YORK, #2005-016-015, Claim No. 108710, Motion Nos. M-68881, CM-69323


Motion to amend claim was granted.

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):
Alan C. Marin
Claimant's attorney:
Gary E. Divis, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen S. Mendelson, Esq., AAG
Third-party defendant's attorney:

Signature date:
February 28, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of claimant Jeanette Perez for an order: (1) permitting her to file a late claim pursuant to §10.6 of the Court of Claims Act; (2) dismissing defendant's sixth affirmative defense to her amended claim which was filed on March 10, 2004 (the "Amended Claim"); and (3) nunc pro tunc amending the claim she originally filed on January 2, 2004 (the "Filed Claim").[1] Defendant cross-moves for summary judgment dismissing the claim, which alleges that claimant was repeatedly sexually assaulted by a correction officer at Bayview Correctional Facility, resulting in her pregnancy.

The relevant procedural history is as follows. Claimant, who at the time was representing herself, previously made a motion for permission to file a late claim, which was granted by the Hon. S. Michael Nadel in a November 6, 2003 Decision and Order. Such directed that claimant serve and file her claim "in the form it appears annexed to the claimant's submission."

Such claim (the "Proposed Claim") consisted of a handwritten document alleging that from January through March of 2001, a Bayview correction officer "engaged in impermissible physical contact when he initiated, provoked and continued a sexual relationship with the claimant," which included verbal and physical abuse, and which led to claimant becoming pregnant. Such proposed claim also states, inter alia, that other correction officers facilitated the sexual contact and that the defendant had previously had complaints of sexual misconduct by the officer, but continued to employ him. The proposed claim further states that claimant was subject to "sexual assault, assault, battery, and the intentional infliction of emotional distress . . . the claimant's rights to be free from cruel and unusual punishment as stated in the Eighth Amendment of the U.S. Constitution and Article 1 section 5 of the New York State Constitution were violated . . . As a result of the sexual and emotional abuse herein described, claimant suffered . . . mental anguish and pain, with emotional injuries . . . Claimant suffers from difficulty sleeping, extreme nervousness and an enhanced fear of men." See pp. 4-6 of Claimant's "Exhibits to Notice of Motion, Affirmation, Memorandum of Law."

When Perez filed her claim on January 2, 2004, she had retained counsel, and did not file the Proposed Claim. Rather, she filed a new version, i.e., the Filed Claim, which essentially differed from the Proposed Claim in three ways. First, the Filed Claim added two additional years to the period of alleged sexual misconduct, extending it from January through March of 2001 to January of 1999 through March of 2001. Second, the Filed Claim alleged theories of liability on the part of defendant as follows:
This claim is for damages suffered by claimant, by reason of the negligence, deliberate indifference, and misconduct of the State of New York, its officers, agents, or employees, by: negligently failing to properly protect, to provide an adequate number of guards for, and to supervise claimant; to reasonably protect claimant from sexual assault and contact, to investigate allegations of sexual misconduct by an employee, to remove claimant from the control of an employee, to supervise an employee, to follow relevant statutes and regulations, to adhere to and to observe public policy forbidding sexual contact between an inmate and defendant's employee, to supervise defendant's employees and prevent their having sexual contact with an inmate, to train employees not to have sexual contact with inmates; the negligent retention of an employee, and by failing to investigate reports of sexual relations between claimant and an officer, all while claimant was in the custody of [defendant].

Filed Claim, ¶3. Finally, the Filed Claim alleged that claimant had given birth to a child and will have to "alone have to bear the costs of such child [raising]."

In its answer to the Filed Claim, defendant's first affirmative defense was that the Court lacks jurisdiction because the Filed Claim "is not the same as the proposed claim in Haec Verba as approved by [Judge Nadel] for filing." Such is the basis for defendant's cross-motion for summary judgment.

On March 10, 2004, claimant filed the Amended Claim. Such reduced the period of alleged sexual misconduct back to January through March of 2001, but otherwise closely tracked the allegations in the Filed Claim. In addition, the Amended Claim elaborated as to the specific dates when the alleged sexual misconduct occurred.

Defendant's answer to the Amended Claim again contained an affirmative defense (the sixth) in which it is alleged that the Court lacks jurisdiction because the claim is "not the proposed claim approved by the Court for filing per Judge Nadel's Order . . ."
* * *
It has been held that "[w]here, pursuant to subdivision 6 of section 10 of the Court of Claims Act, the court directs that a claim be filed, it is the proposed claim which was tendered upon the motion which must be filed in haec verba or with such alterations as the court may have directed . . . Leave of court must be obtained for any subsequent amendments." Iazzetta v State of New York, 105 Misc 2d 567, 570, 432 NYS2d 987, 989 (Ct Cl 1980).

The appropriate procedure in this case would thus have been for claimant to file and serve her claim in the form of the Proposed Claim, and then to seek permission to amend. It is undisputed that she did not serve her claim as directed by Judge Nadel. However, such is not a jurisdictional defect warranting dismissal. See, e.g., Shimmerlik v City University of New York, 142 Misc 2d 118, 536 NYS2d 380 (Ct Cl 1988), affd 154 AD2d 959, 546 NYS2d 506 (1st Dept. 1989); Kerai v State of New York, Ct Cl filed June 8, 2000 (unreported, claim no. 93387, motion nos. M-60851 and CM-61020, Marin, J.); cf. Laird v State of New York, Ct Cl September 30, 2004 (unreported, claim no. 108812, motion no. M-68431, Lack, J., UID #2004-033-075[2]).

The issue before the Court here is thus whether the Proposed Claim may be amended to the form of the Amended Claim. Pursuant to CPLR 3025(b), the Court may permit the amendment of a pleading at any time. "If there is no prejudice to the other side, leave to amend must be freely given." Siegel, NY Prac §237, at 378 (3d ed).

The Amended Claim's allegations relating to theories of negligence -- such as failure to supervise or train -- do not prejudice defendant. While these theories may not have been specifically alleged in the Proposed Claim, the allegations of sexual assault by a correction officer, "facilitated" by other officers, necessarily implicate issues such as training and supervision. See, e.g., Arroyo v State of New York, Ct Cl dated May 17, 2002 (unreported, claim no. 103695, motion no. M-64501, Marin, J., UID #2002-016-041).

To the extent that the Amended Claim alleges particular dates on which the alleged sexual misconduct occurred, this limits rather than expands the allegations of the Proposed Claim, and thus does not prejudice defendant.

Finally, the third cause of action in the Amended Claim alleges that "claimant suffered mental anguish and anxiety and the pain associated with the pregnancy and delivery of the child, will have to rear her child without the assistance of its father, and will alone have to bear the ordinary costs of caring for and educating such child." Amended Claim, ¶34.

Claimant concedes that there is no cause of action for "wrongful birth" or "wrongful life" in the State of New York, and thus that a child or parent may not recover damages "for the mother's physical and mental suffering or for the normal costs of rearing the unwanted child." See p. 13 of claimant's July 30, 2004 memorandum of law.

Such policy was pronounced by the Court of Appeals in Williams v State of New York, 18 NY2d 481, 276 NYS2d 885 (1966), in which a mentally incompetent woman who was a patient in a State psychiatric facility became pregnant and gave birth after being raped by one of the facility's employees. See, also, e.g., Sorkin v Lee, 78 AD2d 180, 434 NYS2d 300 (4th Dept 1980), where a physician was alleged to have negligently performed a vasectomy resulting in an unplanned child. There, the Fourth Department held that "[d]amages may not be recovered for the normal expenses of rearing and educating" a healthy child. 78 AD2d at 181, 434 NYS2d at 301.

Claimant attempts to distinguish her case and argues, essentially, that an exception to such principle should be made here because of the public policy interest of preventing sexual assaults in correctional facilities, but she has supplied no applicable authority therefor. Accordingly, the third cause of action in her Amended Claim is not viable.

For the foregoing reasons, having reviewed the parties' submissions[3], IT IS ORDERED that cross-motion no. CM-69323 be denied except that the Filed Claim shall be deemed dismissed to the extent it extends the period of alleged sexual misconduct beyond the dates of January through March of 2001 and to the extent it seeks damages for "wrongful birth" or "wrongful life." IT IS FURTHER ORDERED that motion no. M-68881 be granted only to the extent that the Amended Claim filed on March 10, 2004 shall be deemed properly filed and served (except for the third cause of action, which is deemed stricken), and that defendant's sixth affirmative defense to the Amended Claim shall be deemed stricken.

February 28, 2005
New York, New York

Judge of the Court of Claims

  1. [1]Although Ms. Perez's notice of motion refers to "amending the amended claim," it is apparent from her papers that she does not in fact wish to further amend the Amended Claim.
  2. [2]This and other decisions of the Court of Claims may be found on the Court's website:
  3. [3]The following were reviewed: claimant's notice of motion with affirmation in support and "Exhibits to Notice of Motion, Affirmation, Memorandum of Law"; defendant's notice of cross-motion with attached affirmation and exhibits A through C; claimant's "Reply and Responsive Affirmation"; and defendant's reply affirmation.