New York State Court of Claims

New York State Court of Claims

DOE v. THE STATE OF NEW YORK, #2007-015-238, Claim No. 109910, Motion No. M-73562


Synopsis


Claimant's motion for Court approval of a discontinuance on behalf of an allegedly competent adult was denied. That branch of the motion requesting that the file be sealed was granted pursuant to Civil Rights Law § 50-b.

Case Information

UID:
2007-015-238
Claimant(s):
MARY DOE, on behalf of JANE DOE and JANE DOE
1 1.Because this claim involves a victim of a sexual offense, the caption has been amended to give the claimants fictitious names in order to protect their identities (see, Civil Rights Law § § 50-b [1], 50-c).
Claimant short name:
DOE
Footnote (claimant name) :
Because this claim involves a victim of a sexual offense, the caption has been amended to give the claimants fictitious names in order to protect their identities (see, Civil Rights Law § § 50-b [1], 50-c).
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109910
Motion number(s):
M-73562
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Law Office of Elmer Robert Keach, III, PCBy: Elmer Robert Keach, III, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Kevan J. Acton, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 1, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimants move for an order approving the discontinuance of this action and directing the Chief Clerk to seal the file in this matter. The claimants (referred to herein as "Jane Doe" and her mother, "Mary Doe") allege that the defendant was negligent in releasing Jane Doe into the custody of Joseph Austin, a convicted felon, following her treatment at the Capital District Psychiatric Center ("CDPC") where she had been admitted for the treatment of serious depression . Following her release, the claimant Jane Doe was allegedly raped repeatedly by Mr. Austin, who was thereafter convicted of first degree rape. Jane Doe is neither an infant nor a judicially declared incompetent and no one has been appointed to act on her behalf in the prosecution of this claim.

In support of the request that the Court approve the discontinuance of this action, claimants' counsel submitted duly notarized consents to discontinue this claim from both Jane Doe and her Mother, Mary Doe, who is purporting to act in her representative capacity. Counsel for the claimant avers that although the claimant Jane Doe suffers from intermittent mental problems, it is his belief that she was "psychologically stable" when he discussed the reasons for the discontinuance and obtained her consent to same. Discontinuance of this action has been recommended by claimants' counsel after consultations with several experts.

There is no authority for Court approval of a discontinuance on behalf of an individual who is neither judicially declared incompetent nor incapable of adequately prosecuting or defending his or her rights (see CPLR 1201, cf., 3217(2), 1207). Where there is reason to believe that a party is incapable of protecting his or her interests, it is incumbent upon counsel to move for the appointment of a guardian ad litem (Brewster v John Hancock Mut. Life Ins. Co., 280 AD2d 300 [2001]; CPLR 1201)[2]. As the appointment of a guardian is necessary in the event the claimant is incompetent, the Court is unable to approve the discontinuance of this matter as requested. If the claimant is competent, however, judicial approval of the discontinuance is unnecessary. Accordingly, that branch of the claimant's motion seeking judicial approval of the discontinuance of this action is denied.

The sealing of the file in this matter is required pursuant to Civil Rights Law § 50-b as this case allegedly involved a sexual assault of the claimant Jane Doe. Subdivision (1) of that section provides in pertinent part the following:
The identity of any victim of a sex offense, as defined in article one hundred thirty . . . of the penal law . . . shall be confidential. No report, paper, picture, photograph, court file or other documents, in the custody or possession of any public officer or employee, which identifies such a victim shall be made available for public inspection. No such public officer or employee shall disclose any portion of any police report, court file, or other document, which tends to identify such a victim . . . .

Although the defendant has opposed the request to seal the file in this matter, it is not disputed that Mr. Austin was convicted of First Degree rape in violation of Penal Law § 130.35. Redaction of the claimant's identity is not an option as the statute does not allow for redaction and, in any event, such would not be a meaningful alternative since her identity appears throughout the court papers (see Matter of Horace, 168 Misc 2d 981 [Sup Ct Monroe County, 1996]; Doe v State of New York, Ct Cl, November 2, 2006 [Claim No. None, Motion No. M-72310, UID # 2006-040-001] McCarthy, J., unreported).

Based on the foregoing, that portion of the claimants' motion requesting Court approval of the discontinuance of this action is denied. That part of the motion requesting that the Court file be sealed is granted and the Chief Clerk is directed to seal the file pursuant to Civil Rights Law § 50-b.


October 1, 2007
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated June 11, 2007;
  2. Affirmation of Elmer Robert Keach, III dated June 11, 2007 with exhibits;
  3. Affirmation of Kevan J. Acton dated July 31, 2007 with exhibit;
  4. Letter reply of Elmer Robert Keach dated August 14, 2007.

[2]. A guardian ad litem is not authorized, however, to apply to the Court for approval of a settlement and discontinuance as this right is granted only to a guardian appointed in accordance with Mental Hygiene Law article 81 (Sills v Fleet National Bank, 32 AD3d 1157 [2006]; Tudorov v Collazo, 215 AD2d 750 [1995]).