New York State Court of Claims

New York State Court of Claims

AVINS v. THE STATE OF NEW YORK, #2007-016-016, Claim No. None, Motion No. M-72617


Late claim motion was granted.

Case Information

JON AVINS, as father and natural guardian of ISABELLE AVINS, an infant and JON AVINS, individually
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:
Ronemus & VilenskyBy: Robert Vilensky, Esq. and Lori K. Sapir, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Ellen Matowik Russell, Esq., AAG
Third-party defendant’s attorney:

Signature date:
May 8, 2007
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants move for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the “Act”). In the proposed claim, it is alleged that on September 7, 2005, an individual known as Bernard Derr stabbed the infant claimant Isabelle Avins as she was being walked in her stroller near West 170th Street in Manhattan. At the time, Derr was a participant in a program run by a not-for-profit agency, Federation Employment and Guidance, Inc. (“FEGS”), which placed psychiatric patients in residential apartments. Following the incident, claimants sued FEGS (along with Derr and Derr’s landlord) in Supreme Court, New York County. Claimants state that after the Supreme Court action was commenced, they learned that prior to the incident, Derr had been receiving psychiatric treatment at a State Office of Mental Health facility, i.e., the Manhattan Psychiatric Center 125th Street Clinic. The proposed claim alleges that the State engaged in “negligence, malpractice and recklessness” in connection with Derr’s treatment at the clinic, e.g., by failing to monitor his medications and by failing to properly supervise him. As an initial matter, it should be noted that this motion is unnecessary with regard to the infant claimant Isabelle Avins, because §10.5 of the Act provides that if a claimant is under a legal disability, the claim may be presented within two years after such disability is removed. As to the claim of Isabelle’s father Jon Avins, however, he failed to serve and file a claim within 90 days of accrual as required by §10.3 of the Act. Accordingly, his late claim motion must be considered.[1] In order to determine such motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[2]

The first three factors – whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). Claimant points out that the news of the stabbing was published in various media outlets in the days following the incident, although he has supplied no legal authority to support a finding of notice under such circumstances.

However, there is an indication that the State had actual notice and an opportunity to investigate in this case, i.e., there is a June 7, 2006 letter prepared by the State Commission on Quality of Care and Advocacy for Persons with Disabilities to the Chief Operating Officer of FEGS. The letter states in relevant part that “the Commission reviewed the care and treatment provided to Bernard Derr, a former patient in the FEGS supported apartment program. Specifically, we were concerned about a September 2005 incident in which Mr. Derr allegedly stabbed a baby.” See exhibit D to claimant’s moving papers. Moreover, other than a general contention that it would be prejudiced by the granting of this motion, the State has pointed to no specifics. On balance, I find that these three factors have been satisfied.

With regard to an alternate remedy, as set forth above, claimant has sued FEGS and others in Supreme Court, although FEGS has apparently moved to dismiss. As to excuse, claimant alleges that until a motion to dismiss was made in the FEGS action, he was unaware that Derr had been treated at the State’s 125th Street Clinic. Such is not a valid excuse for the purposes of the Act. See, e.g., Matter of E.K. (Anonymous) v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997), lv denied 89 NY2d 815, 659 NYS2d 856 (1997).

The remaining factor to be considered is whether the proposed claim appears meritorious. With regard to such factor, the only dispute between the parties arises from differing views as to the State’s involvement with Derr. Defendant focuses on Derr’s participation in the FEGS program and seeks to show that FEGS and not the State had control in connection with the program. However, claimant argues that his claim in this court relates not to Derr’s participation in the FEGS program, but rather to the separate issue of Derr’s treatment at the 125th Street Clinic. In any event, for the purposes of this motion, I find that claimant meets the standard set forth in Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977): (i) the claim “must not be patently groundless, frivolous, or legally defective” and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, “there is reasonable cause to believe that a valid cause of action exists.”

Accordingly, having considered the statutory factors[3], IT IS ORDERED that motion no. M-72617 be granted as to Jon Avins, individually and denied as moot with regard to Isabelle Avins. IT IS FURTHER ORDERED that within forty-five (45) days of the filing of this Decision and Order, Jon Avins shall serve and file his claim in compliance with Court of Claims Act §11 and §11-a.

May 8, 2007
New York, New York

Judge of the Court of Claims

  1. [1]In view of the fact that this motion is necessary only with regard to Jon Avins, references hereafter will be to claimant in the singular.
  2. [2]See Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  3. [3]The court reviewed the following submissions on this motion: the notice of motion no. M-72617 with affirmations in support and exhibits A through F; defendant’s affirmation in opposition with exhibits A through C; and the reply affirmation of Lori K. Sapir.