New York State Court of Claims

New York State Court of Claims

SH v. THE STATE OF NEW YORK and CITY UNIVERSITY OF NEW YORK, #2008-036-317, Claim Nos. 114058, 114597, Motion Nos. M-74258, CM-74425


Case Information

SH, an infant over the age of 16 years, by her Mother and Guardian, DH and DH, Individually
1 1.Because of the nature of the allegations, the court has removed the names of all the parties involved to protect their privacy.
Claimant short name:
Footnote (claimant name) :
Because of the nature of the allegations, the court has removed the names of all the parties involved to protect their privacy.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114058, 114597
Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
Defendant’s attorney:
By: Cheryl Rameau, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 23, 2008
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants move for leave to file a late claim for damages resulting from alleged improper contact between the female infant claimant and a male employee of Hunter College High School (“Hunter”), a facility at least partially-controlled by the City University of New York (“CUNY”), and to strike certain affirmative defenses in defendant’s answer. Defendant opposes and cross-moves to dismiss the claim.[2] On or about July 31, 2007, claimants served a claim on the State of New York (No. 114058), filing it on August 9, 2007. The claim alleged that a 24-year old male employee at Hunter had illegal sexual contact, including statutory rape, with the infant claimant, a Hunter student, from November 2006 for a period of at least several months. Additionally, the claim alleged that a guidance counselor at Hunter learned of the situation in January 2007 and, without informing the student’s mother or seeking her consent, sent the student for psychological treatment. Defendant’s answer asserted the affirmative defense, among others, that claimants failed to name CUNY as a party and to serve it pursuant to statute. Claimants conceded the service defect.

Without discontinuing the original claim, claimants then served the State and CUNY with a new claim on or about November 21, 2007. It bore the same claim number as the original number; and still did not name CUNY in the caption, even though CUNY was served. Several weeks later, claimants filed this new claim with the Clerk on December 12, 2007 and the Clerk gave the claim a new number (No. 114597). Because the new claim, as served on defendant prior to its filing, repeated almost exactly the allegations of the original claim and bore its number, the State treated it as an amended claim and answered it as it had answered the original one, with the addition of two affirmative defenses based on an incorrect premise that claimants had served an amended claim which was unauthorized by statute, court order or stipulation. Presumably after becoming aware that the Clerk’s Office had assigned a new claim number, the State then filed a Verified Answer on January 18, 2008, bearing Claim No. 114597.[3]

All three answers asserted that the claim was untimely, even if filed as early as August 9, 2007. Claimants argue that the infant’s new claim is not untimely because Court of Claims Act § 10 (5) allows someone under a legal disability, such as a child, to present a claim within two years after the disability is removed, that is, upon reaching her majority. The infant claimant, born on June 25, 1991, is under 18 years old at present and the filing of a claim on her behalf as late as December 12, 2007 presents no jurisdictional issue to the court. With regard to the infant’s mother, however, she now moves to file a late claim. She states she first learned of the events pertaining to her daughter from a police officer in May 2007 (month and year only) and offers this as the accrual date of her claim which otherwise required the claim to have been filed within the ensuing 90 days pursuant to Court of Claims Act § 10 (3). Additionally, both purported claimants move to strike defendant’s affirmative defenses that the new claim fails to include sufficient particularization of the alleged injuries (sixth affirmative defense); that CUNY must be named as a party and served individually (eleventh affirmative defense); and that the claim for the mother’s individual cause of action is untimely (thirteenth affirmative defense which will be resolved by the mother’s motion for leave to file a late claim). In any case, the parties agree that claim number 114058, the original claim never served upon CUNY, is not properly before the court. Accordingly, the court dismisses claim number 114058.

A motion for leave to file and serve a late claim pursuant to Court of Claims Act § 10 (6) is usually determined by considering the primary statutory factors enunciated there: whether the delay in filing the claim was excusable; whether the State had notice of the essential facts constituting the claim; whether the State had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve a timely claim resulted in substantial prejudice to the State; and, whether claimant has another available remedy.

While claimants’ initial filing on or about August 9, 2007 already was untimely as to the mother for the purpose of addressing the events from November 2006 to February 2007, the mother’s undisputed contention that she knew nothing of the events until May 2007 provides a reasonable excuse for delay. Additionally, Hunter is allegedly run jointly by CUNY and the New York City Department of Education (“DOE”). While the incriminated male employee apparently was hired by DOE, claimants allege they still have not been able to establish who supervised him and to determine what consequences this may have on the attendant liability.

CUNY has not shown it would suffer substantial prejudice by the delay in filing the claim. Hunter’s administration must have had notice of the essential facts constituting the claim by the time the employee was arrested and charged with third-degree rape on June 25, 2007. Much, if not all, of the criminal investigation of the underlying events was complete as a result of an investigation by the special commissioner for investigation of the City’s school system, according to a report in the New York Times.

“In order for a claim to ‘appear to be meritorious:’ (1) it must not be patently groundless, frivolous, or legally defective, and (2) the court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists” (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11 [Ct Cl 1977]). This claim, which reflects events that already have evoked a criminal proceeding, meets the standard.

Accordingly, claimants’ motion for permission to file a late claim is granted to the following extent: For the purpose of judicial economy (to obviate the time required for the service and filing of a new claim, the payment of another filing fee and the consolidation of the new claim with the infant’s claim), insofar as it asserts a cause of action on behalf of DH, individually, claim number 114597 is hereby deemed timely filed and served (Jomarron v State of New York, 23 AD3d 527) and defendant’s fifth and thirteenth affirmative defenses are stricken. Defendant may serve an amended answer consistent with this decision within forty (40) days of the filing of this Decision and Order if it wishes to address additional matters.
While that second claim provides little detail concerning claimants’ alleged personal injuries, their general categorization, “expenses for psychological care” and “emotional and psychiatric damages,” is sufficient to meet the Court of Claims Act § 11 (b) requirement to state “the items of damage or injuries.” Where this is the case a “claim may always be amended at a later time, if necessary.” Kolnacki v State of New York, 8 NY3d 277, 281 (2007). Claimants’ motion to dismiss defendant’s sixth affirmative defense is granted.
“[T]he failure to name CUNY in the caption of the . . . claim did not create a jurisdictional infirmity but rather was merely a procedural irregularity that may be disregarded.” James v State of New York and City College, a Division of City University of New York, UID No. 2004-030-907, Claim No. 107968, Motion Nos. M-67711, CM-67805, CM-67816, CM-67913 [Ct Cl 2004] Scuccimarra, J. Claimants’ motion to dismiss defendant’s eleventh affirmative defense also is granted and the court, sua sponte, amends the caption of claim number 114597 to name the City University of New York as defendant.
April 23, 2008
New York, New York
Judge of the Court of Claims

[2].The court considered the following papers on this motion: claimant’s notice of motion dated November 21, 2007, together with affirmation in support of the motion and exhibits; defendant’s cross-motion dated January 14, 2008 together with affirmation in opposition to the motion and in support of the cross-motion; claimant’s affirmation in reply and in opposition to the cross-motion dated February 28, 2008 and exhibits.
[3].Although claimant’s motion to strike affirmative defenses was dated November 21, 2007, prior to the filing of defendant’s answer to Claim No. 114597, the challenged affirmative defenses are the same in each of the answers. The court therefore will treat claimant’s motion as directed to the answer to Claim No. 114597 filed January 18, 2008.