New York State Court of Claims


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New York State Court of Claims

DOE v. STATE OF NEW YORK, #2007-042-516, Claim No. 113167, Motion Nos. M-72970, CM-73098


Synopsis


This motion comes before the Court on defendant’s pre-answer motion to dismiss the claim pursuant to CPLR Rule 3211 (a) (2), (7) and (8) for failure to state a cause of action and lack of subject matter jurisdiction and personal jurisdiction. Claimants oppose the motion and cross-moves for leave to amend the claim and for leave to file a late claim pursuant to Court of Claims Act Section 10 (6). Defendant’s motion to dismiss the claim (and amended claim) is granted upon the grounds that the claim is jurisdictionally defective since the claim fails to comply with the substantive pleading requirements of Court of Claims Act Section 11 (b). The Court does not reach the other issues raised by the parties, and any issues not specifically addressed herein are deemed moot or denied, and in particular, the Court notes that claimant’s motion for leave to file a late claim, pursuant to Court of Claims Act Section 10 (6) is denied as that proposed claim has the same jurisdictional defects as discussed herein.

Case Information

UID:
2007-042-516
Claimant(s):
RC, INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN OF SC, CB, AND EK
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):
113167
Motion number(s):
M-72970
Cross-motion number(s):
CM-73098
Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
FISCHER, BESSETTE, MULDOWNEY & HUNTER, LLPBy: MATTHEW H. McARDLE, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 23, 2007
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this pre-answer motion to dismiss the claim before the Court pursuant to CPLR Rule 3211 (a) (2), (7) and (8) for failure to state a cause of action and lack of subject matter jurisdiction and personal jurisdiction. Claimants oppose the motion and cross-move for leave to amend the claim and for leave to claimant, EK, to file a late claim pursuant to Court of Claims Action Section 10 (6). The Court has considered the following papers:
  1. Notice of Motion, filed February 14, 2007
  2. Affirmation of Joel L. Marmelstein, Esq., dated February 14, 2007
  3. Exhibits A - B, annexed to the moving papers
  4. Notice of Cross-Motion, filed March 23, 2007
  5. Affidavit of Matthew H. McArdle, Esq., sworn to March 22, 2007
  6. Exhibits A - D, annexed to the cross-moving papers, Exhibit D of which included:
a. Amended Claim
b. Affidavit of EK, sworn to March 14, 2007
c. Affidavit of SC, sworn to March 14, 2007
d. Affidavit of CB, sworn to March 16, 2007
7. Affidavit of “CB”, sworn to March 16, 2007
8. Reply Affirmation of Joel L. Marmelstein, Esq., dated April 18, 2007
9. Answering Affirmation of Joel L. Marmelstein, Esq., dated April 18, 2007
10. Exhibits A - B, annexed to the answering affirmation
11. Reply Affidavit of Matthew H. McArdle, sworn to April 27, 2007
_____________________________________________


This matter[1] comes before the court on defendant’s pre-answer motion to dismiss the claim pursuant to CPLR Rule 3211 (a) (2), (7) and (8) for failure to state a cause of action and lack of subject matter jurisdiction and personal jurisdiction.

Claimants oppose the motion and cross-move for leave to amend the “Notice of Claim” (hereinafter properly referred to as a “claim”), and for leave to claimant EK to file and serve a late “Amended Notice of Claim” [sic] pursuant to Court of Claims Act § 10 (6).

According to the claim, Stephen H. Kotzen was an employee of the State of New York and a member of the New York State Police and/or the Bureau of Criminal Investigation at all times relevant to the claim. It is alleged that beginning “on or about 1998 through June 22, 2005” Kotzen:

during the course of his employ with the State of New York and while on duty with the New York State Police and/or Bureau of Criminal Investigation, used his position of authority with the New York State Police and/or Bureau of Criminal Investigation to establish confidential relationships with SC, CB and EK, and engaged in a consistent and continuing pattern of sexual abuse, rape, sexual misconduct, mental torture and mental abuse, against the said SC, CB and EK.


Claimants, SC, CB and EK, together with RC, the mother of SC, seek damages arising out of these incidents. The claim alleges that the incidents took place in “the Town of Massena, County of St. Lawrence and State of New York, and various other locations in St. Lawrence County.” No specific sites or dates and times are given for any of the incidents. Nor are facts offered in the claim to support the general allegation that Kotzen did the alleged acts while on duty or otherwise in the performance of his state employment. Likewise there are no factual allegations in the complaint, or any supporting materials offered on this motion, to support the repeated allegations in the motion papers that the defendant had any knowledge of these incidents or Kotzen’s activities during the relevant time period of 1998 through June 22, 2005.

As noted above, it is the defendant’s contention that the claim fails to state a cause of action and that the court lacks jurisdiction. It is the contention of defendant that “the claim should be dismissed as being vague, improper, and failing to meet the requirements of § 11 (b) of the Court of Claims Act and 22 NYCRR 206.6 (b) [Rule 206.6 (6) of the Uniform Rules of the Court of Claims]” (Marmelstein affirmation, dated February 14, 2007).

Also noted above, claimants cross-moved for permission to amend the claim. While defendant opposed that portion of the cross-motion which seeks to allow the filing of a late claim by claimant EK, the State did not oppose the motion to amend the claim. As defense counsel noted, permission is not necessary in this case. Accordingly, the court will consider the amended claim[2] in its discussion of the defendant’s motion. However, the only meaningful differences between the claim and amended claim are that the amended claim added specific residential addresses and mailing addresses for each claimant and added the dates of birth of each of the three younger claimants.

As for the alleged negligence of the state, the amended claim essentially seeks to hold the State liable under three theories: 1) Kotzen was acting within the scope of his employment, and therefore defendant is vicariously liable for the acts of its employee; 2) the State was negligent in its hiring and retention of Kotzen; and 3) the intentional acts of the State’s agents and employees. Claimants also allege a “special relationship” between the claimants and defendant.

Court of Claims Act § 11 (b) provides in relevant part:

[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed. [emphasis added]


Claimants misapprehend the significance of compliance with the statutory requirements of the Court of Claims Act. The State has sovereign immunity. It is only subject to legal action by its leave. In granting its consent for waiver of immunity against the State, the legislature conditioned such waiver with the limitation that it is made “provided the claimant complies with the limitations of this article [Court of Claims Act]” (Court of Claims Act § 8).

Because 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. . .


(Lichtenstein v State of New York, 93 NY2d 911, 913, quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724.)

The Court of Appeals’ recent decisions in Lepkowski v State of New York, 1 NY3d 201 and Kolnacki v State of New York, 8 NY3d 277, are dispositive of the primary issue raised on this motion - that is, whether the amended claim states a cause of action.

The amended claim states - as did the original claim - that the “time when” the claim arose is “[b]eginning on or about 1998 through June 22, 2005"[3]. Despite the claims of three separate individuals to molestation by Kotzen over the period of years, the claim offers not one single instance of a precise date on which such abuse occurred. This eight-year span of time simply - and regrettably - does not comply with the statutory prerequisites of the Court of Claims Act.[4]

A similar time span was presented in Lepkowski v State of New York, 1 NY3d 201. In that class action claimants, public employees, sought overtime compensation and specified the “time when” the claim arose as “July 1992 and continuing to the present [claim was filed in 1998]” (Lepkowski v State of New York, 1 NY3d 201, 207). The court stated that this left the State to guess that some or all of the class members worked some hours of overtime in some or all of the weeks over this time period.[5] The court in Lepkowski found that:

[t]his is insufficiently definite “to enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances,” which is the guiding principle informing section 11 (b) (Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]).


Lepkowski v State of New York,
1 NY3d 201, 207.


In Kolnacki v State of New York, 8 NY3d 277, a decision issued on March 22, 2007, the Court of Appeals again affirmed its position that the requirements of Court of Claims Act § 11 (b) are to be strictly construed:

Kolnacki argues that Lepkowski is distinguishable because in the present case there is only one deficiency in the claim - failure to allege the total sum claimed - and because this is an action for personal injuries, which may be harder to quantify. These distinctions lack merit. Lepkowski made clear that all of the requirements in section 11 (b) are “substantive conditions upon the State’s waiver of sovereign immunity” (1 N.Y.3d at 207). The failure to satisfy any of the conditions is a jurisdictional defect. . . . We have consistently held that nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary (citations omitted).


(Kolnacki v State of New York,
8 NY3d 277, 280-281).


The use of the eight-year time span for the “time when” the claim arose is a jurisdictional defect for which the claim must be dismissed. And, for the reasons set forth below, the failure to state a “place where such claim arose” is also such a jurisdictional defect. The amended claim sets forth the same general location for the place where the claim arose as set forth in the original claim and as quoted above.[6]

The issue of similar imprecise locations was also presented to the Court of Appeals in Lepkowski (supra). In that case, the “place where” the claims arose was the state employees’ various work locations, which were not specified. In response to the State’s motion to dismiss:

Claimants contend that the State can easily ascertain from its personnel records exactly when and where each claim arose[7] . . .; however, this is not the State’s burden. The Court of Claims Act does not require the State to ferret out or assemble information that section 11 (b) obligates the claimant to allege (Cobin v State of New York, 234 AD2d 498, 499 [2d Dept 1996]).


Lepkowski v State of New York,
1 NY3d 201, 208.


The issue of “place where” in this matter is controlled by the Court of Appeals’ rulings, as is the issue of “time when”. Accordingly, this claim is jurisdictionally defective, since the claim fails to comply with the substantive pleading requirements of Court of Claims Act § 11 (b); the motion to dismiss the claim (and amended claim) is granted upon this ground. The court does not reach the other issues raised by the parties, and any issues not specifically addressed herein are deemed moot, or denied, where appropriate. In particular, the court would note that EK’s motion for leave to file a late claim, pursuant to Court of Claims Act § 10 (6) is denied as that proposed claim has the same jurisdictional defects discussed herein.[8]



July 23, 2007
Utica, New York

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




[1]. This claim includes allegations of sexual abuse and rape. Thus, the claimants are entitled to the privacy protections of Civil Rights Law Section 50-b. As a result, claimants shall not be referred to by name, but shall be identified by initials serving as pseudonyms.
[2]. Though it should be noted that the only amended claim provided to the court is the amended claim attached to the cross-motion. This amended claim is neither signed nor verified.
[3]. While “June 22, 2005" would appear to be a precise date for when the claim arose, there is nothing to suggest that any incident occurred on that date. Rather, the exhibits and affidavits submitted by claimants and defendant indicate that on June 21, 2005 the mother of claimant CB first reported to the State Police that she had learned that Kotzen had molested her son when he was sixteen years old (he had recently turned seventeen prior to this report). Apparently the police immediately began an investigation and supporting depositions were taken from CB, RC, and EK, all of which are dated June 22, 2005. Affidavits submitted by claimants in support of the cross-motion are more specific about the period when the claims arose for each individual claimant. Nevertheless, each of those affidavits spreads the “time when” the individuals’ claims arose over periods of years.
[4]. And, as the State notes, the extended time span raises significant and numerous statute of limitation issues, which the court need not address here.
[5]. At least these were all state employees whose time records were capable of being confirmed. In the case before this court, the information on the dates of specific incidents is solely within the knowledge of the claimants, and not discoverable through a review of state records.
[6]. Interestingly, affidavits of the claimants were submitted simultaneously with the proposed amended claim, and they provide more specific - though still imprecise - information about the places where the various incidents occurred. By way of example, the affidavit of EK, sworn to March 14, 2007 states that “[b]eginning around 1997 through approximately 2000 or 2001, Kotzen sexually molested and abused me on several occasions. This abuse occurred countless times at Kotzen’s personal residence in Louisville, New York; approximately six or seven times at Kotzen’s hunting camp in Malone, New York; one time at Kotzen’s brother’s house in Pennsylvania; and one time at a hotel in Utica, New York on a trip for a hockey game.”
[7]. An option not available to the State in this case.

[8].Parenthetically, and while not necessary to the court’s determination, it cannot be left unsaid that there are serious issues raised as to the merits of the claim against the state. Let there be no misunderstanding - the alleged acts of Stephen Kotzen (for which he apparently pled guilty to criminal charges) are beyond reprehensible. And the harm which must have been done to his young victims is without measure. However, that does not equate to liability on the part of the State. As the State argued and claimants conceded, there is no legal cause of action against the State pursuant to 42 U.S.C. § 1983. While the claimants argue, as though beyond cavil, that the State is liable for the rape of citizens by one of its employees, there is ample case law that the State can only be held liable for the acts of employees acting within the scope of their employment and such sexual assault is not conduct in the furtherance of the employer’s business for which it can be held vicariously liable (see N.X. v Cabrini Medical Center, 97 NY2d 247; Judith M. v Sisters of Charity Hospital, 93 NY2d 932). Likewise, while the State may be held liable to individuals for the negligent performance of its police duties, where it can be established that a “special relationship” existed (see Cuffy v City of New York, 69 NY2d 255), there is not an iota of factual support offered on these motions for this cause of action. Lastly, while the State could certainly be held liable to claimants for negligence of the acts of its agents and employees in failing to take action or respond upon notice of the acts of Kotzen (see Judith M. v Sisters of Charity Hospital, 93 NY2d 932), no factual support is offered either in the claim or the supporting affidavits that defendant had any knowledge of Kotzen’s activities prior to June 22, 2005 or that they were done under any color of authority.