New York State Court of Claims

New York State Court of Claims

DOE v. THE STATE OF NEW YORK, #2006-036-556, Claim No. None, Motion No. M-71559


Late filing motion granted . . . claimant raped by escapee from State psychiatric facility.

Case Information

1 1.The claimant’s name is fictitious.
Claimant short name:
Footnote (claimant name) :
The claimant’s name is fictitious.
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:
ELIOT SPITZER, ATTORNEY GENERALBy: Ellen Matowik Russell, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 21, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimant’s motion for permission to file a late claim pursuant to Court of Claims Act § 10(6). Claimant, an artist who resides in Sweden and who was in the United States for professional reasons, was attacked and sexually assaulted on August 2, 2005 in Brooklyn by Brian Palmer, an escapee from Creedmoor Psychiatric Center. She states that the police advised her that Palmer was “a mental patient with a long history of violence, including sexual assault” (petition, ¶ 4) and the proposed claim alleges that defendant’s employees were negligent in either improperly releasing him or allowing him to escape. [2] Claimant’s counsel advises that after Palmer’s arrest, a police officer indicated that Palmer had escaped from Elmhurst Hospital, operated by the New York City Health and Hospitals Corporation and, on that basis, a notice of Claim was served on the City of New York. Claimant did not serve a notice of intention or serve and file a claim against the State within 90 days of accrual. It was eventually revealed that Palmer had in fact escaped from Creedmoor, a State facility, and this motion ensued.

Court of Claims Act § 10(6) grants the court the discretion to allow the filing of a late claim, upon consideration of certain factors, including whether claimant’s delay in proceeding against the State is excusable, whether the State had timely notice of and the opportunity to investigate the pertinent allegations, whether the State would suffer substantial prejudice from an order allowing late filing, whether the proposed claim appears meritorious and whether claimant has an alternate remedy.

Defendant opposes the motion by contending that claimant has not shown a reasonable excuse for failing to timely file and that the proposed claim does not appear meritorious. Although defendant is correct in asserting that “mistake as to the proper governmental entity to sue is not generally considered excusable” (Imoka v State of New York, Scuccimarra, J., UID No. 2005-030-923 [2005]), the court does not view the situation at bar (a sexual assault victim not having accurate information as to which facility her assailant escaped from) as similar to the cases in which that maxim is typically invoked (e.g., Imoka, supra, [confusion as to responsibility for a construction site]; Erca v State of New York, 51 AD2d 611 [3d Dept 1976] [ownership of Tappan Zee Bridge]; Gross v State of New York, Read, P.J., UID No. 2002-001-084 [2002] [responsibility for State park]). Regardless, the reason for claimant’s failure to timely file is but one factor to consider (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979, 981 [1982]; Matter of Donaldson v State of New York, 167 AD2d 805 [1990]; Ledet v State of New York, 207 AD2d 965 [1994]). The balance of the statutory factors weigh in favor of granting the application.

Defendant does not directly address whether it had timely notice of the relevant facts and the opportunity to investigate, or whether it would suffer substantial prejudice from an order allowing late filing. Defendant does reveal, “upon information and belief according to State records, on August 1, 2005 patient Brian Palmer and one Creedmoor Psychiatric Center employee escort had been transported to Mary Immaculate Hospital in Queens for consultation with a surgeon for a medical condition of patient Palmer’s. While patient Palmer and his escort were at Mary Immaculate Hospital awaiting the transport van for the return trip back to Creedmoor Psychiatric Center, patient Palmer ran from his escort. The escort immediately called 911 and reported the escape” (Affirmation in Opposition, ¶ 6). Claimant alleges she was assaulted about 10:30 p.m. the next day and the police report confirms Palmer was arrested shortly thereafter and that he had escaped from Creedmoor the day before. There is obviously no issue here of notice to the defendant or prejudice arising from claimant’s failure to file or serve a claim or serve a notice of intention within 90 days.

Claimant’s burden with respect to the apparent merit of the claim is to show that it is not patently groundless, frivolous, defective or without merit and that there is reason to believe claimant may have a cause of action (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977]). The proposed claim herein meets that standard. See Jomarron v State of New York (23 AD3d 527 [2d Dept 2005]) and Marcus v State of New York (172 AD2d 724 [2d Dept 1991]) with respect to the burden of proof on a late filing motion where there is no prejudice to defendant. See Rattray v State of New York (223 AD2d 356 [1st Dept 1996]) and Genao v State of New York (178 Misc 2d 512 [1998]) with respect to the defendant’s potential liability under these circumstances.

Contrary to defendant’s assertion, the court does not require an affidavit from a psychiatric expert in order to find apparent merit to the proposed claim (Morales v State of New York, 292 AD2d 455 [2d Dept 2002]; Caracci v State of New York, 178 AD2d 876 [3d Dept 1991]; DePaolo v State of New York, 99 AD2d 762 [2d Dept 1984]), notwithstanding that psychiatric testimony may be relevant at least to some of the potential bases of liability arising out of the alleged events.

The court finds, on balance, that this case falls squarely within the remedial purpose of §10(6) – to allow those with potentially meritorious claims the opportunity to prove their claims on the merits (Calzada v State of New York, 121 AD2d 988 [1st Dept 1986]) – and that in view of the complete lack of prejudice occasioned by claimant proceeding, initially, against the wrong defendant, she has shown sufficient indicia of a valid cause of action such that she should be afforded that opportunity.

Defendant’s final argument – that Court of Claims Act § 11(b) requires claimant to specify, in her claim, “the deficiencies in the training of Palmer’s escort and how that deficiency caused Palmer to escape” (Affirmation in Opposition, ¶ 10) – reflects a fundamental misunderstanding of that statute. The “guiding principle” of § 11(b) is that a claimant allege facts with sufficient specificity to allow defendant to investigate and evaluate its potential liability (Lepkowski v State of New York, 1 NY3d 201; Heisler v State of New York, 78 AD2d 767 (4th Dept 1980]). At this point, claimant does not know the identity of the escort or what training that person received. Defendant, on the other hand, has sole knowledge of those facts. The level of detail that defendant suggests is required by the statute is not supported by its plain language (which requires that a claim set forth its “nature”) or by any appellate interpretation of the statute.

Accordingly, the motion is granted. Claimant is directed to serve and file her claim in accordance with the relevant provisions of the Court of Claims Act and the Uniform Rules for the Court of Claims, including those pertaining to manner of service and payment of the filing fee, within 40 days of the filing date of this decision and order.

September 21, 2006
New York, New York

Judge of the Court of Claims

[2].The court considered the Notice of Motion, Affirmation, Petition and Exhibits, the Affirmation in Opposition and the Reply Affirmation.