New York State Court of Claims

New York State Court of Claims

DOE v. STATE OF NEW YORK, #2007-042-508, Claim No. 111417, Motion No. M-72861


Synopsis


This motion is brought by the claimants seeking summary judgment on the issue of liability and seeking to increase the ad damnum. Claimants’ motion for summary judgment on liability is denied. Claimants’ motion seeking to increase the damages sought is granted.

Case Information

UID:
2007-042-508
Claimant(s):
JANE DOE, AN INFANT BY ANN DOE, AS PARENT AND NATURAL GUARDIAN
Claimant short name:
DOE
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111417
Motion number(s):
M-72861
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
PHILLIPS LYTLE, LLPBy: CHAD W. FLANSBURG, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 5, 2007
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This motion is brought before the Court by the claimant seeking summary judgment on the issue of liability and to increase the ad damnum. The Court has considered the following papers:
  1. Notice of Motion, filed January 23, 2007
  2. Affirmation of Chad W. Flansburg, Esq., dated January 22, 2007
  3. Affidavit of Paul DeMuro, sworn to January 9, 2007
  4. Affidavit of "Jane Doe", sworn to January 22, 2007
  5. Exhibits A - N, annexed to the moving papers
  6. Opposition affirmation (incorrectly titled "affidavit") of G. Lawrence Dillon, Esq., dated January 31, 2007
  7. Reply affirmation of Chad W. Flansburg, Esq., dated February 2, 2007
_______________________________________________

This matter comes before the court on a motion by claimant Ann Doe[1], as parent and natural guardian of infant Jane Doe (who is hereinafter also referred to as “claimant”), seeking summary judgment on the issue of liability and seeking to increase the $250,000.00 damages originally sought in the claim (incorrectly titled as “Notice of Claim”) to $2,000,000.00. The State’s position in opposition is that there are issues of fact which preclude granting of summary judgment. Defendant contends further that it is inappropriate to use defendant’s responses to a Notice to Admit as a foundation for summary judgment relief.

According to the filed claim, during the period of December 19, 2002 through December 31, 2002 while Jane Doe was a resident of the defendant’s Tryon Girls Center Facility she was repeatedly raped and/or sexually assaulted by a Tryon employee, John Smith. Claimant contends that John Smith, employed as a Youth Division Aide by the New York State Office of Children and Family Services (hereinafter referred to as “OCFS”), which operated the Tryon facility, was an agent, servant and employee of OCFS, acting within the scope of his employment and that his contacts with Jane Doe occurred in the course of his duties. Additionally claimant maintains that defendant was negligent in failing to warn, in failing to take proper safety precautions for the infant, in failing to properly supervise its employee, in its hiring practices, in failing to prevent inappropriate relationships, in failing to conduct a proper background check of its employee, in failing to provide proper training and instructions, and in failing to terminate or investigate Smith once it knew or should have known that he had previously entered into a “meretricious relationship” with one or more other residents.

While the parties have many areas of factual dispute, the fact that incidents with claimant occurred is uncontested. Specifically, in its response to claimant’s Notice to Admit, defendant admits that Jane Doe, who was 15 years old at the time, arrived at the Tryon Reception Center on December 19, 2002 and remained there for approximately two weeks. During her stay at the center, defendant’s employee, John Smith, had vaginal intercourse with the infant claimant on two separate occasions. It was also conceded that John Smith gave Jane Doe Chinese food and soda after the other residents were in their rooms contrary to Tryon’s rules and procedures.

Additionally, the following facts are undisputed, and were known by and reported to defendant’s staff before December 19, 2002 (the date of the infant claimant’s admission to Tryon), as evidenced by defendant’s admission of these facts in defendant’s Response to Notice to Admit[2] (these admissions are set forth verbatim, as they appear in the Notice to Admit):
  1. On August 19 or 20, 2002, it was reported to staff of the Girls Reception Center that John Smith threw cold water on a resident, April Coe, while she was naked in the shower. [Admission No. 16]
  1. On August 19 or 20, 2002, it was reported to staff of the Girls Reception Center that John Smith had given April Coe Chinese food on several occasions and allowed her to stay up past 11 pm. [Admission No. 19]
  1. On August 20, 2002, it was reported to staff of the Girls Reception Center that there were allegations that John Smith had sex with April Coe on the bathroom floor. [Admission 20]
  1. From the investigation concerning the water throwing incident of August 19, 2002, it was learned that there was evidence that John Smith did in fact throw cold water on April Coe while she was naked in the shower. [Admission No. 46]
  1. During the investigation concerning the water throwing incident of August 19, 2002, there was no documentation that April Coe was ever asked if there was any sexual contact between herself and John Smith. [Admission No. 48]
  1. During the investigation concerning the water throwing incident of August 19, 2002, one resident reported that she had seen John Smith touch April Coe inappropriately on the shoulders. [Admission No. 49]
  1. During the investigation concerning the water throwing incident of August 19, 2002, one resident reported that John Smith was rubbing April Coe's shoulders and touching her hair. [Admission No. 50]
  1. During the investigation concerning the water throwing incident of August 19, 2002, one resident reported that she saw John Smith touch April Coe on the buttocks. [Admission No. 51]
  1. During the investigation concerning the water throwing incident of August 19, 2002, one resident reported John Smith also threw water on Beth Foe. [Admission No. 52]
  1. During the investigation concerning the water throwing incident of August 19, 2002, Beth Foe reported that John Smith opened the shower curtain on her and threw cold water on her. [Admission No. 53]
  1. On August 20, 2002, John Smith admitted to Lucy Jones [a supervising employee of OCFS] that he had thrown cold water on April Coe while she was showering on August 19, 2002. [Admission No. 56]
  1. On August 20, 2002, John Smith admitted to Lucy Jones that he did this because he was "playing around". [Admission No. 57]
  1. On August 20, 2002, John Smith denied that he ever allowed residents to stay up beyond their 9:00 pm bedtime. [Admission No. 65]
  1. Lucy Jones determined that the preponderance of evidence indicated that on August 19, 2002, April Coe and two other residents were allowed to stay [up] beyond their 9:00 pm bedtime. [Admission No. 66]

The essence of claimant’s legal argument on this motion for summary judgment is that the defendant knew or should have known of John Smith’s “past history of sexual misconduct against infant residents at Tryon” (claimant’s Memorandum of Law) and that defendant failed to stop John Smith from committing acts of sexual misconduct against the infant claimant.

The gist of defendant’s opposition to this motion is two-fold. First, defendant maintains that “admissions” made in response to a Notice to Admit are an inappropriate foundation for CPLR § 3212 relief. Second, defendant argues that there are issues of fact which preclude a grant of summary judgment.

With regard to the claimant’s use of the defendant’s responses to the Notice to Admit in support of this summary judgment motion, the CPLR Commentaries have noted that:

[s]tated simply, the availability of a notice to admit should not depend on the particular point in the litigation at which its fruits are to be exploited. There are many cases that impliedly make this point. For example, there are many decisions in which statements in a notice to admit have been considered by the courts on motions for summary judgment. See, e.g., Kowalski v. Knox, 293 A.D.2d 892, 741 N.Y.S.2d 291 (3d Dep’t 2002); Beneficial Fin. Co. of New York, Inc. v. Youngman, 57 A.D.2d 727, 395 N.Y.S.2d 787 (4th Dep’t 1977).


(Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3123:4 at 401). Likewise, Weinstein-Korn-Miller has opined, with regard to the use of CPLR § 3123 admissions in motion practice, that:

[m]otions for summary judgment have been allowed if a party has established through admissions that the other party has no meritorious defense. Both express admissions [Weiss v Testrite Instrument Co., 272 App Div 696] and failures to deny or respond to a notice to admit should be considered by the court in ruling on a summary judgment motion.


(6 Weinstein-Korn-Miller, NY Civ Prac ¶ 3123.15).


There is no basis in logic to exclude the use of these admissions on this motion for summary judgment and there is ample law to support their use.

However, defendant is correct in asserting that there are issues of fact which preclude summary judgment at this time.

There is no proof on this motion of negligent hiring. There is also no legal basis upon which the court can find that John Smith, an employee of defendant at the time of his egregious behavior, was acting within the scope of his employment and in the course of his duties, thus making defendant liable under a theory of respondeat superior. Claimant’s argument has been discounted by the courts in numerous cases - most notably by the Court of Appeals in N.X. v Cabrini Medical Center, 97 NY2d 247. In Cabrini the plaintiff patient, while in the recovery room following surgery, was sexually assaulted by the defendant hospital’s surgical resident. The court held that:

[u]nder the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer’s business and within the scope of employment (see, Riviello v Waldron, 47 NY2d 297, 302). A sexual assault perpetrated by a hospital employee is not in furtherance of hospital business and is a clear departure from the scope of employment, having been committed for wholly personal motives (see, Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933).


(N.X. v Cabrini Medical Center, 97 NY2d 247, 251).


It has likewise been noted that:


sexual assaults are not the kind of intentional torts that may render the employer liable under the doctrine [of respondeat superior] because they are clearly perpetrated for the employee’s own purposes, and are a departure from service to the employer. See Judith M. v Sisters of Charity Hospital, 93 NY2d 932, 933 (1999); Doe v Rohan, 17 AD3d 509, 793 NYS2d 170 (2d Dept 2005). Bowman v State of New York, 10 AD3d 315 (1st Dept 2004).


(Shantelle v State of New York, UID No. 2006-030-516, Claim No. 110268, Motion No. M-70538).

Claimant cannot be granted summary judgment of liability on either a theory of negligent hiring or a theory of respondeat superior under the facts of this case. Nevertheless, this does not preclude a consideration of liability under the theories of negligent retention or negligent supervision.

For example, a reasonable person might well conclude that what the defendant essentially characterizes as horseplay by its employee John Smith with previous Tryon residents, was in fact a form of sexual foreplay which should have alerted the defendant either to the danger John Smith posed to claimant or the inadequacy of existing supervision of the claimant. Likewise, one might conclude that providing food treats to other residents or allowing them to stay up past their bedtimes, was inappropriate and done to curry sexual favors. But these conclusions are conjecture. Additionally, it is a significant leap to conclude that those actions constituted sufficient notice that it was probable that the employee, John Smith, would go on to rape a future resident of the facility.

Given what is known on this motion about John Smith’s employment history, given the lack of proof developed in the prior investigation of any sexual intercourse or admitted sexual acts, and given the fact that John Smith knew his behavior was under scrutiny, the court cannot determine as a matter of law that defendant knew or should have known that it was probable that either a lack of supervision, or the retention of John Smith would result in the rape of a resident.

The admitted behavior of John Smith is reprehensible. Nevertheless, the granting of summary judgment against the defendant at this juncture would require the court to draw many conclusions from facts which are subject to differing interpretations. On a motion for summary judgment, the moving party carries a heavy burden, and in the granting of such a motion “there must be only one conclusion that can be drawn from the undisputed facts” (Sanchez v State of New York, 99 NY2d 247, 254).

Even where the relevant facts are uncontested, summary judgment is rarely appropriate in negligence cases, inasmuch as the issue of whether the defendant or the plaintiff acted reasonably under the circumstances can rarely be resolved as a matter of law [citations omitted].


(Rubin v Reality Fashions, Ltd., 229 AD2d 1026 [4th Dept 1996], quoting Davis v Federated Dept. Stores, 227 AD2d 514).

In light of the foregoing, claimant’s motion for summary judgment on liability is denied.

Claimant also moves to increase the ad damnum from $250,000.00 to $2,000,000.00. Defendant did not submit opposition to this portion of claimant’s motion. Claimant’s counsel alleges, without documentary support, that “claimant may have contracted a sexually transmitted disease as a result of the rape” (attorney’s affirmation in support of the motion) and alleges generally that “the full extent of the rapes and the damages suffered by the plaintiff [sic] were only recently learned” (attorney’s affirmation in support of the motion). It is certainly credible that the full extent of damages for trauma such as alleged here might not be readily apparent at the outset.

The law is well established that amendments to ad damnum clauses are freely granted. As the court noted in McIver v State of New York, UID No. 2006-016-032, Claim No. 110890, Motion Nos. M-71045, M-71046:

Amendment under such section [CPLR 3025 (b)] is generally granted absent any prejudice. See, e.g., 5 Weinstein-Korn-Miller, NY Civ Prac ¶ 3025.14. With regard to amending the ad damnum clause, “[p]rejudice . . . is not found in the mere exposure of the defendant to greater liability. Instead, there must be some indication that the defendant has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position . . .” Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23, 444 NYS2d 571, 573 (1981).


The record is devoid of a showing of prejudice and, in practical terms, “regardless of the amount claimed, claimant still has the burden to establish her entitlement to these damages at trial” (Stockholm v State of New York, UID No. 2002-009-50, Claim No. 95825, Motion No. M-65742).

That portion of claimant’s motion seeking to increase the ad damnum from $250,000.00 to $2,000,000.00 is granted.



April 5, 2007
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims



[1]. In order to protect the identity of the infant claimant, and in order to comply with a Stipulated Confidentiality Order entered into between the parties and previously approved by the court, which stipulation protects the claimant, other witnesses, and certain employees of the defendant, pseudonyms have been assigned to numerous persons. The attorneys for claimant and defendant shall be provided with a separate index to the pseudonyms (the attorneys are reminded that dissemination of this index is circumscribed by both applicable law and the Stipulated Confidentiality Order) . The index will not be otherwise distributed and will not be filed with the decision or otherwise filed with the Clerk of the Court of Claims. However, the pseudonyms will be printed in italics for the benefit of other readers.
[2]. Only the admissions particularly germane to this decision are included.