New York State Court of Claims

New York State Court of Claims

EDGHILL v. STATE OF NEW YORK, #2007-029-023, Claim No. 112986, Motion Nos. M-72795, M-73105


Claim seeking damages for defendant’s failure to allow claimant to participate in Bedford Hills Correctional Facility’s nursery program is dismissed. Claim accrued when initial decision was made, not when defendant adhered to its decision after reconsideration. Informal late filing application denied because claimant failed to request late filing relief in a cross-motion, only in a memorandum of law, and also denied on substantive grounds as there was no indication of merit to the proposed claim and claimant had an adequate alternate remedy in the form of an action against the City of New York.

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):
M-72795, M-73105
Cross-motion number(s):

Claimant’s attorney:
By: Dori A. Lewis, Esq.

DARBY & DARBY, P.C.By: Kathryn A. Starnella, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Wanda Perez-Maldonado, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 22, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This is defendant’s motion to dismiss the claim for lack of jurisdiction arising from alleged untimely service and filing and claimant’s motion for leave to serve and file an amended claim adding a cause of action to the filed claim.

The claim arises out of the birth of a daughter to claimant on May 27, 2006 while she was confined in Rikers Island on a parole violation charge. About a month prior to the birth, claimant had applied for admission to the Rikers Island nursery program, which would allow the infant to reside with her mother at the facility. That application was denied two weeks prior to the birth, “based on negative report from ACS” [1] and claimant was returned to Rikers Island from Elmhurst hospital on May 29, 2006, without her baby. On June 6, claimant designated an aunt to be temporary custodian for her baby, and on June 7, she was transferred to State custody and began serving her sentence at Bedford Hills Correctional Facility.

Upon her arrival at Bedford Hills, claimant requested that she be admitted into that facility’s nursery program. In a memorandum dated June 8, 2006, Bedford Hills Superintendent Ada Perez denied that request, writing:
“Your child has been in the community [at] an approved residence. Your request to have a nursery application processed to have your infant come to BHCF is denied. If you had arrived pregnant we could have processed the application for possible inception to the nursery program.” [2]

On July 17, 2006, an attorney representing claimant wrote to the Deputy Superintendent of Programs at Bedford Hills to request reconsideration of the decision, noting their understanding that the Bedford Hills denial was based on the Rikers Island denial and asserting that the Rikers Island officials had made their decision based on erroneous information and that there had never been an ACS (New York City Administration for Children’s Services) case against claimant. Superintendent Perez denied this request in an August 3, 2006 memorandum, stating that it was “unfortunate” if an error had been made at Rikers Island, but the child was already adjusted in the community in an approved residence. [3] On August 9, claimant’s attorneys again wrote to Superintendent Perez requesting reconsideration, and on August 16, she responded by stating that “a thorough review of [claimant’s] circumstance was conducted and that a “determination was made to keep the infant in the community in an approved residence.” [4] During the month of August, claimant also wrote letters and filed grievances seeking to obtain a reconsideration of the decision.
In a letter dated September 26, 2006 [5], claimant’s counsel wrote to the acting DOCS Commissioner, enclosing a copy of a letter to Superintendent Perez from an official with ACS dated September 11, 2006 [6], who advised that he was in charge of nursery clearances for ACS, that there had been a change in command at ACS at the time the Rikers Island request was made and he was preoccupied with other matters, that there was no record of any response by ACS to the request, that the information that there had been an ACS case against claimant was mistaken and that there had been an ACS case against claimant’s mother but never against claimant. He stated he had no idea how the wrong information had been communicated to Rikers Island. Also on September 26, claimant was transferred from Bedford Hills to Albion Correctional Facility, which does not have a nursery.

On October 10, claimant filed an Article 78 petition seeking transfer to a facility with a nursery program and admittance into the program. Nine days later, she was transferred to Taconic Correctional Facility and admitted into the nursery program and on October 24, she was reunited with her infant daughter. The Article 78 petition was subsequently dismissed as moot.

In this claim, served and filed on November 6, 2006, claimant seeks damages of $100,000 for defendant’s alleged tortious interference with her relationship with her child, negligent infliction of emotional distress and violations of her Constitutional rights to due process and equal protection. She also seeks an award of attorneys’ fees and costs, relief that is unavailable in this court (Court of Claims Act § 27). In Motion No. M-73105, claimant seeks to amend her claim to add a cause of action for “negligent breach of duty.” In Motion No. M-72795, defendant seeks dismissal of the claim for lack of jurisdiction arising out of claimant’s alleged failure to timely serve and file the claim.

As defendant notes, the Court of Claims Act requires tort claims to be served and filed within 90 days of accrual (Court of Claims Act §§ 10[3], 10[3-b]). Defendant contends that this claim accrued on June 8, 2006 when Superintendent Perez denied claimant’s application for admission into the Bedford Hills nursery program and that it must therefore be dismissed. Claimant, citing Mahoney v Temporary Commn. of Investigation of the State of New York (165 AD2d 233 [3d Dept 1991]), argues that defendant’s employees engaged in “continuous wrongful conduct through October 24, 2006” [7] and that the claim was therefore timely filed and served. Claimant’s position in this regard is without merit.

The Court of Appeals has consistently held that “[b]ecause suits against the State are allowed only by the State’s waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed” (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; see also Lepkowski v State of New York, 1 NY3d 201 [2003]). Such strict construction applies to the time limitations set forth in section 10 of the Court of Claims Act; as applicable here, the requirement that a claim be served and filed within 90 days of its accrual.

A claim accrues when damages become ascertainable (Augat v State of New York, 244 AD2d 835 [3d Dept 1997], lv denied 91 NY2d 814 [1998]; Flushing National Bank v State of New York, 210 AD2d 294 [2d Dept 1994]). Here, claimant’s damages – i.e., her separation from her child as the result of defendant’s allegedly improper rejection of her application for admission into the Bedford Hills nursery program – were apparent when she was notified of Superintendent Perez’s decision on June 8, 2006. Claimant argues that this case warrants application of the “continuing violation” doctrine where liability is “predicated on continuing unlawful acts and not on the continuing effect of earlier unlawful conduct”. Her position in this regard is clearly untenable (Selkirk v State of New York., 249 AD2d 818, 819 [3d Dept 1998]). The continuing unlawful acts that claimant asserts extend the filing period consist of the defendant’s adherence to its original decision, despite continuing requests for reconsideration in the form of letters from claimant, grievances and letters from counsel. Claimant has presented no authority for the proposition that a potential claimant can extend the jurisdictional filing period merely by requesting reconsideration of the decision that forms the basis of the causes of action. The fact that Superintendent Perez re-reviewed the matter, and that her staff attempted for some time to contact ACS to find out whether there had been a mistake, does not change this conclusion.

The Mahoney decision [8] relied upon by claimant is instructive. There, claimants alleged that officials of the NYS Temporary Commission of Investigations engaged in a course of conduct design to harass and defame them, citing specific acts that occurred during the course of the investigation which began in 1983 and continued through December, 1985 when the commission issued its report. The court held that all of the alleged wrongful acts were part of a continuous course of conduct and that any damages resulting from individual acts “could not be effectively ascertained and evaluated until the report was released”[emphasis added] (id., 165 AD2d 233, 241). The case at bar is distinguishable from Mahoney on its face. Nothing prevented claimant from serving and filing a claim, or serving a notice of intention, while at the same time requesting reconsideration. Her damages were fully ascertainable when she was first notified of the decision. Although counsel, in her affirmation in opposition to the motion to dismiss, refers to the Superintendent’s June 8 decision as “preliminary,” that characterization is a completely false and transparent attempt to create the impression that this case is somehow analogous to Mahoney. Notwithstanding that it was, in fact, later reconsidered, there was nothing “preliminary” about this decision.

Accordingly, defendant’s motion to dismiss for lack of jurisdiction arising from late service and filing of the claim must be, and is hereby granted. [9] Claimant’s motion for leave to amend the claim is denied as moot.

In her Memorandum of Law in Opposition to the dismissal motion, claimant requests permission to late file pursuant to Court of Claims Act § 10(6). That statute grants the court the discretion to allow a claimant to serve and file a late claim upon consideration of all relevant factors, including whether claimants delay was excusable, whether defendant had timely notice and the opportunity to investigate the pertinent allegations, whether defendant would suffer substantial prejudice should late filing be allowed, whether the proposed claim has the appearance of merit and whether claimant has an alternate remedy.

The statute further provides: “The application for such permission shall be made upon motion returnable at any regular or special session of the court and may be heard and determined by any judge thereof.” The words “upon motion” were added to the quoted sentence in 2001 (L.2001, c. 205) upon “the request of the Chief Administrative Judge upon the recommendation of the judges of the State Court of Claims” in order to specify that “applications brought pursuant [ to § 10(6)] be initiated upon motion” (N.Y. Bill Jacket, 2001, A.B. 7925, Ch. 205). Thus, the court is without power to grant claimant’s request for permission to late file, since no motion or cross-motion was made. An informal request made in a memorandum of law does not suffice (see Signature Health Center v State of New York, Ct Cl, Collins, J., UID No. 2005-015-058, January 3, 2006). Accordingly, claimant’s informal request for permission to late file is denied for that reason.

Nevertheless, the court is constrained to note that, had a proper motion or cross-motion been made, it would have been denied on substantive grounds. Although it is clear that defendant had timely notice of the relevant facts and conducted a timely investigation, and would not suffer any prejudice from an order allowing late filing, the remaining statutory factors would weigh against granting the motion.

The reason for claimant’s delay – counsel’s misapprehension of the law as to when a claim accrues – cannot be deemed excusable within the meaning of the statute ( see, e.g., Matter of E.K. (Anonymous) v State of New York, 235 AD2d 540 [2d Dept 1997]), particularly since it would have taken minimal additional effort to prepare and serve a notice of intention to file a claim, thereby preserving claimant’s opportunity to interpose a claim.

While claimant is correct in noting that the burden of establishing apparent merit to a proposed claim is not high 1[0], the facts before the court provide no indication that a cause of action exists against the State of New York. While it appears that a mistake was made by officials at either Rikers Island (a facility operated by the City of New York) or the New York City Administration for Children’s Services, this court has no jurisdiction over the City of New York. Clearly, this mistake was the major factor in Superintendent Perez’s decision, both directly and indirectly (because the rejection of claimant’s application by Rikers Island and the subsequent placement of the infant with claimant’s aunt was a fait accompli by the time claimant was transferred to State custody).

Moreover, defendant is correct in arguing that Correction Law § 611, which is the basis for nursery programs at correctional facilities, provides that a child born to a mother in custody “may” be returned to its mother and may remain there “for such period as seems desirable...” This language clearly indicates that decisions in this regard are matters of discretion and do not implicate any right accruing to an inmate requiring admittance into a nursery program. Claimant has not submitted any authority to the contrary. Indeed, the papers before the court indicate that Superintendent Perez exercised her discretion in an appropriate manner and considered all relevant factors. Once the mistake as to the crucial factor was revealed (i.e., six weeks later, allowing for typical bureaucratic delay and conceding the role played by claimant’s filing the Article 78 proceeding) the decision was reconsidered and claimant was reunited with her child.

Finally, the court notes the availability of an obvious alternate remedy – an action against the City agencies who have acknowledged that they made the mistake that was the initial and most direct cause of claimant being separated from her child.

Thus, had claimant properly made a motion or cross-motion for relief pursuant to § 10(6), it is likely that such would have been denied.

For the reasons stated, defendant’s motion is granted and the claim is dismissed for lack of jurisdiction.

June 22, 2007
White Plains, New York

Judge of the Court of Claims

The court read and considered the following papers:

1. Notice of Motion to Dismiss (M-72795), Affirmation and Exhibits.

2. Claimant’s Memorandum of Law with annexed Affirmation and Exhibits.

3. Reply Affirmation and Exhibits.

4. Notice of Motion to Amend Pleadings (M-73105) with annexed Affidavit and Exhibits.

5. Claimant’s Memorandum of Law in Reply to M-72795 and in Support of M-73105.

6. Claimant’s Reply dated April 24, 2007.

7. Claim filed November 6, 2006 and annexed Exhibits.

8. Answer filed December 12, 2006.

[1].Exhibit B to Claim.
[2].Exhibit C to Claim.
[3].Exhibit E to Claim.
[4].Exhibit I to Claim.
[5].Exhibit M to Claim.
[6].Exhibit N to Claim; Superintendent Perez received the letter September 14.
[7].Claimant’s February 7, 2006 Memorandum of Law, p 1
[8].165 AD2d 233, supra.
[9].The jurisdictional defect arising from late service and filing was duly set forth, with particularity, in the State’s answer (Court of Claims Act § 11[c]).
1[0].Requiring merely to show that it is not patently groundless, frivolous or legally defective and that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).