New York State Court of Claims

New York State Court of Claims

THOMAS v. THE STATE OF NEW YORK , #2007-028-550, Claim No. 105847, Motion Nos. M-66169, CM-71483


A person who suffers from severe, permanent mental retardation is under a legal disability for purposes of the tolling provisions of CPLR 208 and Court of Claims Act §10(5), and the 10-year limitation placed on the majority of such tolls by CPLR 208 applies to actions brought in the Court of Claims.

Case Information

ROBERT B. THOMAS and CAROL THOMAS, Guardians of the Person and Property of ROBYN THOMAS, a Mentally Retarded Person
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:
Defendant’s attorney:
BY: Dennis M. Acton, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 5, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimants’ motion to strike Defendant’s affirmative defenses, Defendant’s motion to dismiss, and Claimants’ cross motion for summary judgment in their favor and to amend the ad damnum clause.[1]

1. Notice of Motion and Supporting Affidavit of John Della Ratta, Esq, with annexed Exhibits;

2. Notice of Cross-Motion of Dennis M. Acton, AAG, with annexed Exhibits and Memorandum of Law;

3. Notice of Cross Motion and Responding Affirmation of John Della Ratta, Esq., with annexed Exhibits and Affidavits of Carol Thomas and Frank J. Doberman, Ph.D.;

4. Supplemental Memorandum of Law of Dennis M. Acton, AAG, with annexed Affidavit of Colette A. Robinson; and

5. Reply Affirmation of John Della Ratta, Esq.

Filed papers: Claim; Answer

Robyn Thomas, Claimants’ daughter, suffers from autism. She is now over forty years old, but her mental age has been estimated to be three years, nine months, with no competencies beyond the five year level. Robyn was a resident of Oswald D. Heck Developmental Center from 1980 to 1986. On March 19, 1986, she was transferred, under the auspices of the State Office of Mental Retardation and Developmental Disabilities (“OMRDD”), to a group home residence operated by Camary Statewide Services Corp. (“Camary”), a private, not for profit corporation. The Claim alleges that during the period from July 6, 1987 to June 13, 1992, Robyn was assaulted, abused, neglected and mistreated on a number of occasions, and the specifics of the alleged incidents are detailed. In addition, it is alleged that, except for the first four incidents (between July 1987 and September 1988), Claimants were not aware of the incidents until a lawsuit was commenced against Camary in September 1998.[2]

The Claim in this action sets forth three causes of action: 1) that OMRDD violated its own policies and governing procedures by preventing reports of abuse from being made to it; 2) that a 1992 investigation conducted by the New York State Commission on Quality of Care for the Mentally Disabled was not performed with due diligence; and 3) that the State failed in its duty to properly regulate and oversee the provision of treatment to its mentally retarded patients.

In its answer, Defendant asserted the following affirmative defenses: 1) Claimants’ own culpable conduct or the culpable conduct of third parties; 2) privilege and immunity; 3) arbitration and award, collateral estoppel and res judicata; 4) statute of limitations, CPLR 214; and 5) untimeliness pursuant to section 10(3) of the Court of Claims Act. As noted above (see footnote 1), Claimants initially moved for an order dismissing these affirmative defenses, and Defendant responded by seeking dismissal of the Claim on the ground that it was untimely and barred by the Statute of Limitations. Claimants have now cross-moved for summary judgment in their favor and to amend the ad damnum clause to allege damages in the amount of $60 million rather than $6 million.
The threshold issue of timeliness must be addressed first. There appears to be no dispute that the Statute of Limitations applicable to this claim is CPLR 214, three years, and the applicable Court of Claims time limitation is that contained in Court of Claims Act § 10 (3), 90 days.

The relevant events, in chronological order, are as follows:
March 2, 1983 Claimants are appointed guardians of the person and property of Robyn Thomas
March 19, 1986 Robyn is moved from O.D. Heck Developmental Center to the group home operated by Camary

June 13, 1992 Date of the last of the alleged incidents of mistreatment at Camary and Robyn’s transfer back to O.D. Heck Developmental Center

October 20, 1992 Report of the Commission on Quality of Care for the Mentally Disabled

September 22, 1998 Claimants commence Supreme Court action against Camary

July 14, 2000 Identified in the Claim as the date the claim accrued (Claim, ¶ 30)[3]

August 2, 2000 Notice of Intention is served (within 90 days of July 14, 2000)

April 3, 2002 Claim is filed with the Court of Claims and served on the Attorney General

The following is a chronological list of the events identified by specific dates that are said to give rise to the claim:
July 6, 1987 Robyn swallowed three to four ounces of Clorox that had been negligently left unattended;

May 8, 1988 Robyn’s mother discovered apparent cigarette or rug burns on the base of Robyn’s buttocks, spine and inner leg

August 23, 1988 Another burn was discovered on Robyn’s buttocks

Sept. 21, 1988 Robyn’s mother discovered a deep bruise on Robyn’s right knee and a rug type burn on her right elbow, and the knee injury was documented by a nurse as possibly having been caused by a kick or blow from a hard object

October 2, 1988 A nurse discovered a round deep purple bruise on Robyn’s right thigh, which was considered caused by a “possible blow”
October 3, 1988 A nurse documented several odd shaped bruises on Robyn’s left and right buttocks, said to be consistent with blows from a long, narrow object

Nov. 7, 1988 A developmental specialist witnessed a Camary employee hit Robyn

Dec. 4, 1988 A bite in Robyn’s scalp is documented by a nurse

Dec, 6, 1988 Robyn is said to have been the “object of attack by male clients”

Dec. 8, 1988 Observations of swollen left upper lip-inner teeth cuts and a quarter size bruise on her left upper thigh

March 15, 1989 Robyn was bitten in the left hand by a client

March 25, 1989 Robyn was hit on the head with a chair by another client

April 5, 1989 Two marks on Robyn’s buttocks that did not appear to be self-inflicted

April 13, 1989 Small open area found on Robyn’s right outer arm, and an injury to her left eye-lid where she was struck by another client

February 2, 1990 Robyn was struck by a chair thrown by another client

June 13, 1992 Robyn was discovered to be bleeding from the rectum.

If the Court accepts these allegations as true and as actions for which the State could be liable, it is evident that there was a “continuing wrong” that encompasses the entire period of time that Robyn was housed at the Camary facility.[4] That pattern of wrongdoing ceased, and damages would have become ascertainable on June 13, 1992, and it is undisputed that Claimants took no steps to institute a claim until eight years later in August 2000, when a Notice of Intention was served on the State, and did not commence the lawsuit until April 2002, almost ten years later.

The date that Claimants have selected as the date of accrual – July 15, 2000, the date on which they learned that, at some unspecified time, OMRDD directed that client on client abuse not be reported to it – cannot be the date of accrual under New York law. “A cause of action accrues when acts or omissions constituting negligence produce an injury” (Snyder v Town Insulation, Inc., 81 NY2d 429, 432-33 [1993]). Thus, a cause of action accrues when the claim becomes enforceable, that is, when all elements of the cause of action can be truthfully alleged, “even though the injured party may be ignorant of the existence of the wrong or injury” when that moment occurs (Schmidt v Merchants Despatch Transp. Co., 270 NY 287, 300 [1936]; see also Kronos, Inc. v AVX Corp., 81 NY2d 90, 94 [1993]). Courts have no authority to extend the discovery rule beyond those specific statutory exceptions that permit the date of accrual to be measured from the date of discovery of an alleged wrong (Konigsberg v State of New York, 256 AD2d 982, 983 [3d Dept 1998]; Flushing Natl. Bank v State of New York, 210 AD2d 294 [2d Dept 1994]). If the OMRDD’s decision to not require reporting of client on client abuse was made before June 13, 1992, the date on which Robyn left Camary’s care, that date is the latest that a cause of action based on the decision could have arisen. (If the decision were made after that date, of course, it would have had no effect on Robyn.) In normal circumstances, a claim would have had to be commenced, or a Notice of Intention served, within 90 days of that date, or, alternatively, Claimants would have had to move for permission to file a late claim within three years of that date (i.e., by June 13, 1995). Neither action was taken, and unless there is some operative tolling provision, the instant action, preserved by a Notice of Intention served in August 2000 and commenced by a Claim filed and served in April 2002, would be time-barred.

The viability of this claim, therefore, rests on Claimants’ contention that Robyn Thomas was under a legal disability that continued at least until August 2000 when the Notice of Intention was served and thus her time to commence an action had not expired. Defendant, however, argues that because Claimants had been formally appointed as Robyn’s guardians and thus were entitled to (and ultimately did) commence an action on Robyn’s behalf, any toll to which Robyn herself would be entitled ended when they became legally authorized to act on her behalf, in March 1983. This argument was rejected by the Third Department in Rosefsky by Koffman v State of New York (205 AD2d 120 [3d Dept 1994]), where the State executed a lease with an individual who was thereafter declared incompetent. Acting through his guardian and attorney-in-fact, he later commenced an action against the State for reimbursement of certain amounts he had expended. The State argued that the lawsuit was untimely, that the claimant should not be permitted to rely upon the toll afforded to those under a legal disability because guardians had been appointed for him. Noting that “[w]hen the Legislature has seen fit to make this type of exception to a tolling provision, it has done so explicitly ( see Workers' Compensation Law § 115),” the appellate court concluded that because there was no such exception in the tolling provision of the Court of Claims Act (section 10[5]), “we must presume that it was intended to apply to all claimants under a legal disability, regardless of whether they are represented” (id. at 123, citing to Young v State of New York, 92 Misc 2d 795 [Ct Cl 1978] [“neither the failure of an infant's natural guardian to file a notice of claim, nor the appointment of a guardian ad litem for an infant, has the effect of removing the infant's disability”]). (See also Henry ex rel. Henry v City of New York, 94 NY2d 275 [1999] [ the special status accorded an infant “is not altered by the action or inaction of the infant's parent or guardian”]; Giannicos v Bellevue Hosp. Medical Center, 37 AD3d 239 [1st Dept 2007] [the toll of insanity “did not terminate on the appointment of a guardian”]; see generally “Effect of Appointment of Legal Representative for Minor on Running of State Statute of Limitations Against Minor,” 1 ALR 6th 407 [2005]).

Defense counsel also argues that even if the toll for legal disability is not terminated with the appointment of a guardian, it applies only to infancy or insanity but “includes no mention whatsoever of mental retardation, autism or mental age” (Acton Affidavit, ¶ 10). In McCarthy v Volkswagen of America, Inc. (55 NY2d 543 [1982]), the Court of Appeals concluded that the benefit of the tolling provision of CPLR 208 was intended to extend only to those persons “who are unable to protect their legal rights because of an over-all inability to function in society.” Consequently, determining the condition of an individual’s mental capabilities, and thus the applicability of the tolling provision, “is largely a factual question” (id. at 548; see also Barnes v County of Onondaga, 103 AD2d 624, 628 [4th Dept 1984]). While severe mental retardation is rarely considered to be a type of insanity, the term “insanity” is not defined in CPLR 208 and, as one appellate court has stated, it “seems obvious” that a mentally handicapped individual who is unable to manage his business affairs or estate, or to comprehend his legal rights or liabilities, is someone who has an over-all inability to function in society therefore qualifies for the insanity toll under CPLR 208 (Kelly v Solvay Union Free School Dist., 116 AD2d 1006 [4th Dept 1986]; see also 2B Carmody-Wait 2d § 13:354 Construction of statute; nature and extent of insanity [2007] [“Only an overall inability to function which is actually attributable to a mental, rather than a physical, condition may properly serve as a predicate for the application of the insanity toll of limitations.”].) There can be no dispute that Robyn Thomas suffers from an overall inability to function in society as a result of her mental condition. The Court concludes, therefore, that someone with Robyn’s mental condition qualifies for the disability tolling provisions of CPLR 208 and Court of Claims Act §10(5) and that she is not deprived of the benefit of those provisions simply because her parents were appointed to act as her guardians.

Section 10(5) of the Court of Claims Act provides that where a claimant is under a legal disability, “the claim may be presented within two years after such disability is removed.” It is unfortunately obvious that Robyn’s disability will never be removed. CPLR 208 also extends an individual’s time to commence an action but provides an outside time period beyond which lawsuits would be barred. That statute provides that, with respect to causes of action for with the statute of limitations is three years or more, the time within which an action can be commenced is extended until three years after the disability ceases or the disabled person dies but, with one exception not relevant here,[5] “[t]he time within which the action must be commenced shall not be extended by this provision beyond ten years after the cause of action accrues.”

Although the Court of Claims tolling provision does not contain such a provision, the limitation found in the CPLR applies to Court of Claims practice as well. Matters not governed by the Court of Claims Act or its associated regulations “shall be governed by the Civil Practice Law and Rules (CPLR)” (22 NYCRR §206.1[c]). Thus while the Court of Claims Act provision does not define “legal disability” or indicate whether there is an outside limit to the benefit of its tolling provision, those aspects may be furnished by the related CPLR provision. More significantly, the State’s waiver of sovereign immunity is conditioned upon its liability being governed by the “same rules of law as applied to actions in the supreme court against individuals or corporations” (Court of Claims Act § 8). Therefore, the State cannot have greater potential liability than a private party would have in a similar situation. For example, if a permanently incapacitated claimant who was injured in 1992 would be barred from proceeding against a citizen or private corporation after the passage of 10 years (i.e., as of the same date in 2002), then the State’s potential liability would have to end at that time also.

The causes of action set forth in this claim accrued in June 1992 (or, at the latest, the second cause of action may have accrued in October 1992 with the issuance of the report of the Commission on Quality of Care for the Mentally Disabled, see Mahoney v Temporary Com'n of Investigation of State of N.Y., 165 AD2d 233 [3d Dept 1991]). Consequently, this action, commenced in April 2002, is timely, although only by a few months.[6]
Claimants’ Motion to Dismiss Affirmative Defenses
For the reasons set forth above, Defendant’s fourth and fifth affirmative defenses, based on allegations that the claim is barred by the CPLR statute of limitations and untimely pursuant to the Court of Claims Act, must be dismissed.

The first affirmative defense, that damages were caused by the culpable conduct of Claimants and/or a third party, shall not be stricken. Although Robyn Thomas cannot be responsible or liable for her actions, there are a multiplicity of other actors: her parents and guardians (the actual Claimants in this action), the other residents of the Camary home; and Camary Statewide Services Corp. itself. Defendant is entitled to attempt to prove that the actions of one or more of these parties was a cause of the injuries suffered by Robyn and that the State is not liable for that party’s actions. The same is true with respect to Defendant’s second affirmative defense, which rests on the privilege and immunity that, despite the general waiver of sovereign immunity, is still accorded to some of the functions of the State government (see e.g. Arteaga v State of New York, 72 NY2d 212 [1988]). Particularly where the alleged wrongs are said to arise from activity such as a State Commission’s conduct of an investigation, Defendant is entitled an opportunity to prove that such immunity bars the imposition of liability in one or more respects in this case (see generally Levin v Yeshiva University, 96 NY2d 484 [2001]). Finally, Defendant’s third affirmative defense – arbitration and award, collateral estoppel and res judicata – is allegedly based on findings contained in the report issued by the Commission on Quality of Care for the Mentally Disabled and in the Supreme Court action that was commenced by Claimants against Camary. While it is unlikely that the Commission’s report would have res judicata effect, particularly since conduct of the investigation leading to the report is one of the alleged instances of wrongdoing, some issues relevant to the instant claim may well have been litigated and resolved in the Supreme Court action (see Acton Affidavit, Exhibit 1 [Supreme Court complaint]), and consequently the Court will decline to strike this affirmative defense at the present time.
Claimants’ Motion for Summary Judgment and to Amend the Ad Damnum Clause
The rule governing summary judgment is well established: Summary judgment is a drastic remedy, the procedural equivalent of trial, and it should not be granted where there is any doubt as to the existence of triable issues of fact (S.J. Capelin Assoc., Inc. v Globe Mfg. Corp., 34 NY2d 338, 341 [1974]), The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]), and such showing must be made "by producing evidentiary proof in admissible form"(Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "[R]egardless of the sufficiency of the opposing papers," in the absence of admissible evidence sufficient to preclude any material issue of fact, summary judgment is unavailable (Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Summary judgment should not be granted where there is doubt as to the existence of a material issue of fact (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The Court's function is to determine if an issue exists: “issue finding, rather than issue determination, is its function (Matter of Suffolk County Dept. of Social Services v James M., 83 NY2d 178, 182 [1994]). In reviewing the papers submitted on a motion for summary judgment, the Court must examine the proof in a light most favorable to the party opposing the motion (Robinson v Strong Memorial Hospital, 98 AD2d 976 [4th Dept 1983]).

This action is not ripe for summary judgment at this time. Asssuming, arguendo, that Claimants could establish that the OMRDD violated its own policies and governing procedures, they still must make a causal connection between such violation and injuries suffered by Robyn. Similarly, even if Claimants’ submissions would prove lack of diligence by the New York State Commission on Quality of Care for the Mentally Disabled and/or the State’s failure in its duty to properly regulate and oversee treatment of its mentally retarded patients, those also would have to be causally connected to Robyn’s injuries for liability to be imposed. In another matter, while Counsel for Claimants asserts that Camary is operated by OMRDD (Della Ratta Responding Affirmation, ¶ 3), the Court has been provided with no proof of the relationship or any documentation relating to the role of Camary vis-a-vis the State or any agreement between those entities with respect to liability arising from its operation. That relationship and any legally binding agreement between Defendant and Camary will be critical to determining liability in this action.

In their cross motion, Claimants also seek to amend the ad damnum clause of the original claim from $6 million to $60 million. Defendant makes no opposition to this request, and in light of the statutory direction that leave to amend “shall be freely given” (CPLR 3025 [b]), it shall be granted.

In summary, Claimants’ motion to strike Defendant’s affirmative defenses (Motion No. M-66169) is GRANTED with respect to the fourth and fifth affirmative defenses and otherwise denied; Defendant’s cross motion for an order of dismissal (unnumbered) is DENIED; and Claimants’ cross motion (CM-71483) is DENIED to the extent that it seeks summary judgment in their favor and GRANTED with respect to the request to amend the ad damnum clause from $6 million to $60 million.

July 5, 2007
Albany, New York

Judge of the Court of Claims

[1]. The original motion (Motion No. M-66169), was brought by Claimants to strike Defendant’s affirmative defenses. Defendant’s response was captioned a cross motion and sought dismissal of the claim, but it was not given a separate cross motion number. Those motions were adjourned without date for several years, in light of other, related proceedings that were underway. When a new return date was established, Claimant’s current cross motion for summary judgment and to amend the ad damnum clause was filed.
[2]. The Claim does not identify the nature of the lawsuit or who commenced the action, but other submissions established that it was brought by Claimants themselves in New York State Supreme Court.
[3]. The relevance of this date is not immediately apparent from the Claim but is explained by counsel in supporting papers: “On July 14, 2000, during a deposition, it was discovered that the State of New York circulated an internal memorandum instructing it’s [sic] agencies not to report client to client abuse. This is contrary to the New York Code of Rules and Regulations.” (Della Ratta Affirmation, ¶ 8).

[4]. The “continuing wrong” doctrine applies where there are continuing unlawful acts (Selkirk v State of New York, 249 AD2d 818 [3d Dept 1998], citing to Day v Moscow, 769 F.Supp. 472, 477 [SDNY 1991], affd 955

F2d 807 [2d Cir 1992], cert denied 506 US 821).

[5]. That exception is for medical, dental or podiatric malpractice actions where the person is under a disability due to infancy.
[6]. The Court rejects Defendant’s argument that all but the last episode of alleged abuse, which occurred in June 1992, would be time-barred, because all of the other episodes occurred more than ten years before the claim was filed. Where there is a series or pattern of continuing wrongs, the time in which an action must be commenced does not start running until the wrong is “complete” (Boland v State of New York, 30 NY2d 337 [1972]).