New York State Court of Claims

New York State Court of Claims

W.W. v. THE STATE OF NEW YORK, #2008-038-585, Claim No. 110062, Motion No. M-72943


Defendant’s motion to dismiss for failure to adequately plead the “time when” the claim arose granted. Claimant, who is autistic and severely mentally retarded, alleged that he was sexually assaulted and exposed to HIV during his nine-year residency at a State developmental facility. This lengthy period of time does not satisfy Court of Claims Act § 11(b) or Lepkowski.

Case Information

W.W., by his Mother &, Legal Guardian, V.V., as Guardian of the person and property of W.W., a mentally retarded person
1 1.The Court has sua sponte altered claimants’ names in the caption for reasons of privacy.
Claimant short name:
Footnote (claimant name) :
The Court has sua sponte altered claimants’ names in the caption for reasons of privacy.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michele M. Walls, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 29, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, whose claim is brought on his behalf by his mother and legal guardian, has severe disabilities, including autism and severe mental retardation. As alleged in the claim, he is “incapable of linguistic communication with the outside world” (Claim, ¶ Third). The claim states that claimant was a resident of Oswald D. Heck Developmental Center (O. D. Heck) in Schenectady, New York, a facility operated by the New York State Office of Mental Retardation and Developmental Disabilities, from sometime in 1988 until September 1997. The claim alleges that claimant contracted Human Immunodeficiency Virus (HIV) as a result of defendant’s negligence, in that it allowed him to be the victim of sexual assault while he was a resident at O.D. Heck. The State’s liability is alleged to rest on various theories, including the negligent hiring, training and supervision of its employees, the negligent supervision of claimant, other residents and visitors to the facility, and the failure to provide adequate security to claimant and other residents of the facility. Defendant moves to dismiss the claim for failure to satisfy the pleading requirements of Court of Claims Act § 11(b). Claimant opposes the motion.

As pertinent to defendant’s motion, Court of Claims Act § 11(b) requires that “[t]he claim shall state the time when and place where such claim arose [and] the nature of same...” Defendant contends that the claim does not adequately state the “time when” the claim arose inasmuch as the claim identifies only claimant’s nine-year residency at O.D. Heck but does not specifically state the date of the accrual of the claim.[2] Claimant argues that he has substantially complied with the requirement that he state the time when the claim arose, and that the claim should not be dismissed because claimant’s disabilities render him unable to state with any greater specificity when he was assaulted or was infected with HIV. For the following reasons, defendant’s motion to dismiss the claim must be granted.

It is clearly established that a claim against the State must identify the time when the claim arose with sufficient specificity to allow the State to investigate the claim and its liability (see Lepkowski v State of New York, 1 NY3d 201, 207 [2003]). This statutory requirement is a substantive condition of the State’s waiver of immunity from suits for money damages, and it must be strictly construed (see id. at 206-207, quoting Lichtenstein v State of New York, 93 NY2d 911, 913 [1999] quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). The failure to satisfy this pleading requirement of Court of Claims Act § 11(b) constitutes a defect in subject matter jurisdiction that requires dismissal of the claim (see Kolnacki v State of New York, 8 NY3d 277, 281 [2007]; Finnerty v New York State Thruway Auth., 75 NY2d 721, 722 [1989]; Harper v State of New York, 34 AD2d 865 [3d Dept 1970]).

The instant claim alleges only that claimant resided at O. D. Heck for nine years and that at some point during his residency he was sexually assaulted. This is plainly inadequate specificity of the time when the claim arose – the assaultive acts and defendant’s related negligence could have occurred in 1988, in 1997, or at any time in between. Such a broad allegation of time has been held to be “insufficiently definite ‘to enable the State ... to investigate the claim promptly and to ascertain its liability under the circumstances,’ which is the guiding principle informing section 11 (b)” (Lepkowski, 1 NY3d at 207, quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]).

Claimant’s reliance on Harper v State of New York for the proposition that “no claim should be dismissed if the claimant is unable to ascertain the time at which it arose” (Harper, 34 AD2d at 865) is unpersuasive. The holding of Harper did not rest on this statement,[3] and claimant has not cited (nor has the Court found) any case decided in the nearly 40 years since Harper that applied this statement to find that a claim alleging a substantial period of time during which a claim arose to overcome the jurisdictional pleading threshold of Court of Claims Act § 11(b). Moreover, Harper predates the many decisions in which the Court of Appeals has revisited and restated that strict construction of the section 11(b) pleading requirements is required (see e.g. Kolnacki, supra; Lepkowski, supra; Lichtenstein, supra; Dreger, supra; Finnerty, supra). Claimant’s further reliance on Sheinbaum v State of New York, 101 Misc 2d 250 (Ct Cl 1979) is unavailing for similar reasons. Moreover, the medical malpractice claim in Sheinbaum alleged a period of slightly more than four months, during which claimant’s deceased was a patient at Downstate Medical Center. Even if Sheinbaum was correctly decided and is controlling authority, it is manifestly distinguishable from the instant claim. As compared to a period of nine years in this claim, the four months in Sheinbaum is a brief period of time, which would give the State a narrower temporal focus for its investigation of the allegations of the claim. Moreover, allegations of medical malpractice occurring during a patient’s confinement in a hospital are substantially different, and more easily investigated, than allegations of negligence relating to allowing intentionally assaultive conduct by a third party.[4]

The Court is not unmindful that, if the allegations of the claim are true, claimant has been heinously victimized, that he has suffered grievous injuries that may lead to his premature death, and that the instant claim is likely his only remedy for the injuries he has sustained. The Court is further aware of the cruel irony that the very same disabilities that allowed claimant to be allegedly victimized in the first instance also render him unable to assist his counsel in adequately pleading his claim against the State. While it is unclear whether a claim of this nature was ever contemplated when Court of Claims Act § 11(b) was drafted by the Legislature, the Court is constrained by the plain language of Court of Claims Act § 11(b) and Court of Appeals’ precedent to strictly construe and apply the “time when the claim arose” pleading requirement, and, consequently, to grant defendant’s motion to dismiss this claim.

Accordingly, it is

ORDERED, that Motion No. M-72943 is GRANTED and Claim No. 110062 is DISMISSED.

February 29, 2008
Albany, New York

Judge of the Court of Claims

Papers considered:

(1) Notice of Motion, dated December 22, 2006;

(2) Affirmation in Support of Michele M. Walls, AAG, dated December 22, 2006,

with Exhibits A-B;

(3) Affirmation in Opposition of Bryan J. Swerling, Esq., dated November 14, 2007, with


[2]. Defendant’s alternative argument – that the claim does not adequately specify the nature of the claim – is without merit. As indicated above, the claim does, in fact, reveal that claimant alleges that he contracted HIV via non-consensual sexual contact, and that the State is liable under various legal theories for allowing that contact to occur.
[3]. The Harper Court did hold that a claim “must convey notice to the State to enable it to properly investigate, defend and/or settle the claim” (Harper, 34 AD2d at 865), which this claim – in alleging that the sexual assault occurred at some point over the course of nine years – has failed to do.
[4]. In a related argument, claimant contends that defendant’s investigation of the claim would not be burdened or prejudiced by having to “comb through nine years of institutional records for evidence” because claimant’s records during his residency at O. D. Heck “are not overly voluminous” (Swerling Affirmation, at ¶ 22). This argument completely overlooks the fact that the claim includes allegations of negligence related to employment practices, visitors, supervision and facility security. It is difficult to estimate the enormity of an investigation into the facts relating to these allegations over a period of nine years.