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
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,
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
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
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
. 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
A similar time span was presented in Lepkowski v State of New York,
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
The court in Lepkowski
[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
(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
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
Claimants contend that the State can easily ascertain from its personnel records
exactly when and where each claim arose
. . .;
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,
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