New York State Court of Claims

New York State Court of Claims

DR v. THE STATE OF NEW YORK, #2008-044-510, Claim No. None, Motion No. M-73832


Synopsis


Claimant’s motion to file a late claim to recover for personal injuries allegedly received in a sexual assault by a fellow student is denied. The proposed claim is legally defective as it alleges a failure to provide adequate security on campus, which is a governmental function, without evidence of a special duty. Because neither claimant’s ignorance of the law nor counsel’s law office failure constitute acceptable excuses, claimant has not satisfactorily explained the delay in timely filing and serving the claim. Moreover, the substantial prejudice to defendant due to the lost opportunity to interview witnesses, and the existence of an alternate remedy in the form of an existing action against the perpetrator (among others) all weigh against claimant.

Case Information

UID:
2008-044-510
Claimant(s):
D.R.
Claimant short name:
DR
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-73832
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
LAW OFFICES OF GERARD M. MARRONEBY: Gary R. DeFilippo, Esq., of counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 26, 2008
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant [1] moves, for the second time, for permission to file a late claim. Claimant’s motion is again opposed by defendant State of New York (defendant). Defendant had moved to dismiss the claim previously filed by claimant (Claim No. 112620) for lack of personal and subject matter jurisdiction on the ground that claimant failed to comply with the mandatory service and filing requirements of the Court of Claims Act. Simultaneously, claimant moved for permission to file a late claim or to deem timely a document entitled “Notice of Claim” served on defendant on June 14, 2006. This Court granted defendant's motion to dismiss the claim, and denied claimant's motion for permission to file a late claim without prejudice (D.R. v State of New York, Ct Cl, Mar. 9, 2007, Schaewe, J., Claim No. 112620, Motion Nos. M-72317,

M-72422 [UID # 2007-044-510]).[2]

The underlying claim in both this and in the previous related motions stems from an incident that took place on the campus of the State University of New York at Binghamton (BU) during the period of May 12-13, 2005. Claimant, a 19-year-old female student at BU at the time of the incident, alleges causes of action against defendant, BU, the New York State Police, and the New York State University Police[3] for failing to prevent claimant from being sexually assaulted and raped in her dormitory room by another student, John Barravecchia, while claimant was voluntarily intoxicated. It is undisputed by the parties that Barravecchia subsequently pled guilty to a charge of rape in the third degree.

In the current motion, claimant's counsel again requests that the Court grant “plaintiff permission to serve late Notice of Claim” (emphasis supplied)[4] pursuant to Court of Claims Act § 10 (6). As noted in the previous Decision and Order, the threshold question in reviewing a motion for permission to file a late claim is whether the motion has been filed within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act § 10 [6]), which for negligence is three years (CPLR 214 [5]).[5] If that underlying requirement is not met, the Court does not have jurisdiction to entertain the motion. This motion is clearly timely, as it has been filed within three years of the accrual date of May 13, 2005.

The factors that the Court must consider in determining a motion to permit a late

filing of a claim are whether:
1) the delay in filing the claim was excusable;
2) defendant had notice of the essential facts constituting the claim;
3) defendant had an opportunity to investigate the circumstances

underlying the claim;
4) the claim appears to be meritorious;
5) the failure to file or serve upon the attorney general a timely claim or to

serve upon the attorney general a notice of intention resulted in substantial prejudice to defendant; and
6) claimant has any other available remedy.

The Court's findings regarding these factors are substantially the same as in the prior Decision and Order. As in her prior motion, claimant first asserts that the delay in filing the claim was excusable, as claimant was not aware of the filing requirements including the strict time limitations.[6] The excuse that claimant was ignorant of the law has been held to be unacceptable, and the delay found to be inexcusable (Matter of E.K. v State of New York, 235 AD2d 540, 541 [1997], lv denied, 89 NY2d 815 [1997]; Sevillia v State of New York, 91 AD2d 792 [1982]). Claimant's counsel also cites the failure of one of his employees to serve a “Notice of Claim” as a basis for delay. However, it is well settled that law office failure[7] is not an adequate excuse for failing to comply with the filing requirements of Court of Claims Act § 10 (see Nyberg v State of New York, 154 Misc 2d 199, 200 [1992]; see also Osho v State of New York, Ct Cl, Mar. 8, 2004, Sise, J., Claim No. None, Motion No. M-67743 [UID #2004-028-509]). This factor weighs against claimant.

The next three factors: notice of the essential facts, opportunity to investigate and lack of substantial prejudice, are frequently analyzed together since they involve similar considerations. Because claimant was a student at BU and reported the incident to University officials, defendant obviously had notice of the essential facts and an opportunity to investigate[8], both of which factors weigh in favor of claimant.

As in the prior motions, defendant contends that it has been substantially prejudiced, as any witnesses to the events, including the drinking and claimant's interactions with Barravecchia, would be lost and unavailable to it. In the prior motion for permission to late file, claimant conversely contended that, because the Broome County District Attorney's Office prosecuted Barravecchia, any claim that a lost opportunity to interview witnesses or investigate the facts is prejudicial must mean that the District Attorney's investigation and prosecution were incompetent. Claimant also argued that since Barravecchia was prosecuted and convicted, it is clear that the claim was fully investigated and that no information had been lost. The Court noted in its Decision and Order that claimant's argument overlooked the point that it was not the State of New York, but rather the Broome County District Attorney's Office that conducted the investigation and prosecution, and further that the issues involved in a prosecution and conviction of rape in the third degree are substantially different than those involved in an investigation of the potential negligence of a landowner in allowing such an incident to happen (D.R. v State of New York, supra at 8). The Court found that this factor weighed against claimant.

In the current motion, claimant now argues that defendant would suffer no prejudice because “the Binghamton University Police conducted an extensive investigation of the incident.”[9] However, the Court must note, again, that the issues involved in a prosecution and conviction of rape are substantially different than those involved in an investigation of the potential negligence of the landowner. Defendant would clearly be prejudiced if the Court were to grant claimant's motion. This factor weighs against claimant.

The next factor to be reviewed is whether claimant has any other remedy. Claimant's counsel avers that claimant has no other remedy, stating: “[o]ther than this lawsuit . . . [c]laimant has no other recourse for compensation for her injuries.”1[0] However, in the prior motion, claimant's counsel repeatedly referred to Mr. Barravecchia as a “separately suited defendant.” Moreover, defendant notes the existence of an action by claimant in Supreme Court, Queens County, under Index No. 15509-2007, against John P. Barravecchia individually, as well as against both 85 State Street Corp. and the Student Association of the State University at Binghamton for damages in connection with the same events underlying the instant claim. Claimant's counsel's outrage (see n 9, supra) might be more appropriately reserved for those making not only inaccurate but actually misleading statements in a sworn document submitted to the Court. This factor weighs against claimant.

The final factor in the consideration of whether to permit filing of a late claim is the merit thereof, since it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [1977]). In order to establish a meritorious claim, a claimant must demonstrate that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (id. at 11). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg v State of New York, supra).

Claimant's counsel's only argument specifically regarding the merit factor in this motion is his conclusory assertion that: “[c]laimant's case met the standards for a meritorious claim at the time it accrued and the claim is no less meritorious now.”1[1] Claimant's affidavit in support of the motion and the proposed claim do contain more specific statements of the grounds for the cause of action for negligence asserted against defendant, however.

Claimant summarizes her assertions of negligence with the statement that defendant “was negligent as a landowner and landlords [sic] of the University and the dormitories on campus by failing to hire and maintain an adequate University Police force to maintain security on the University campus, as well as creating an environment in which the Student Association could act negligently in failing to take measures to insure that underage drinking did not take place on the University campus.”1[2]

In the proposed claim itself, as well as in her Affidavit in Support of the Motion, claimant alleges at length that defendant was negligent in allowing alcoholic beverages to be consumed on campus, and in the dormitories in particular. However, nowhere in either of these documents - or any others submitted in support of this motion - is there any contention that claimant's assailant was drinking on campus or in any dormitory. Rather, claimant avers that both she and Barravecchia had been drinking at a local bar located off-campus immediately prior to the assault.

Interestingly, however, a review of the exhibits attached to claimant's motion reveals that in two separate sworn statements to two different University Police officers, claimant said that she herself had been drinking before she left campus.1[3] Essentially, claimant's contention appears to be nothing more - or less - than an assertion that defendant was negligent when it failed to prevent claimant herself from participating in underage drinking on campus.1[4] New York law is clear in that colleges have no duty to shield their students from their own dangerous activity which may create a risk of harm to themselves (Rothbard v Colgate Univ., 235 AD2d 675 [1997]). Like the plaintiff in Rothbard, “[a]t the time of [her] injury, [claimant] was not a young child in need of constant and close supervision; [s]he was an adult, responsible for [her] own conduct” (id. at 676).1[5]

The other portion of claimant's contention that defendant was negligent pertains to the issue of security on campus, with claimant submitting that the allegedly inadequate security was a proprietary function performed in defendant's capacity as a landlord. Defendant, of course, contends that the allegations pertain to police protection, which is normally a governmental function.

The allegations of defendant's alleged negligence in both claimant's Affidavit and the proposed claim concern conduct beyond the scope of the duty of a landowner to maintain its premises. Claimant specifically alleges that defendant was negligent in failing to provide adequate security on campus and at the dormitories thereon,1[6] and further avers that defendant “failed to take adequate measure[s] to protect [claimant] from being raped and assaulted.”1[7]

The courts have repeatedly confirmed that “the provision of security [including security on school or university grounds] against physical attacks by third parties . . . is a governmental function involving policymaking regarding the nature of the risks presented, and . . . no liability arises from the performance of such a function absent a special duty of protection” (Bonner v City of New York, 73 NY2d 930, 932 [1989]; see McEnaney v State of New York, 267 AD2d 748, 751 [1999]; Ruchalski v Schenectady County Community Coll., 239 AD2d 687 [1997]; Rashed v State of New York, 232 AD2d 394 [1996]; see also Vitale v City of New York, 60 NY2d 861 [1983]).

In its Decision and Order on the prior motion, the Court stated:
The duty to provide police protection is a duty owed to the public at large rather than to any one individual, and absent a special relationship between the injured party and the governmental entity, that entity is immune from claims of negligence in the performance of its governmental functions (see Cuffy v City of New York, 69 NY2d 255 [1987]; Miller v State of New York, 62 NY2d 506 [1984]). Claimant has failed to set forth any evidence that the State Police or University Police assumed an affirmative duty to protect her or that she justifiably relied on such an affirmative undertaking (McEnaney v State of New York, supra)


(D.R. v State of New York, supra at n 16).

In the current motion, claimant is apparently now attempting to assert the existence of an affirmative duty owed her by defendant, through her allegations concerning an encounter she had with Barravecchia on May 11, 2005, the evening before the incident in question. Claimant alleges that Barravecchia sexually assaulted her in his dormitory room. She says she “managed to escape and reported the incident to another student.”1[8] Claimant then states that a University Resident (dormitory) Director (Marney Buss) reported the May 11, 2005 incident to the University Police. Claimant appears to intimate that defendant must be imputed to have had knowledge of the May 11, 2005 “attack” prior to the May 12-13, 2005 incident in question, thus apparently creating the existence of a special duty on the part of defendant to protect claimant.

However, it is clear from a review of the police reports and the statements originally made by claimant to the police, as well as the Affidavit of Marney Buss, the Resident Director in question, that the occurrence of the May 11, 2005 incident was not revealed to University officials until after the incident in question, and that the report of the prior incident to those officials in fact occurred while claimant was reporting the May 12-13, 2005 occurrence. This after-the-fact report is obviously inadequate as a matter of law to create the assumption of an affirmative duty by defendant to protect claimant.

It is apparent that the specific acts (or omissions) of failing to provide security by defendant, which claimant alleges were negligent, occurred - if at all - in the fulfillment of a governmental function. The record does not support a finding that any special relationship existed between claimant and defendant which would have created an affirmative duty to protect claimant by defendant.

In conclusion, as unfortunate as this occurrence was, and as difficult as it undoubtedly has been for claimant to recover emotionally from the impact thereof, the cause of action as set forth in the proposed claim is legally defective, and claimant has not established the all-important factor that the claim has merit.

Upon reviewing and balancing the factors set forth in Court of Claims Act § 10 (6), the Court again finds that four of the six factors, including the crucial issue of merit, weigh against claimant. Accordingly, claimant's motion for permission to file a late claim is denied.


February 26, 2008
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on claimant’s motion:

1) Notice of Motion filed on August 10, 2007; Affirmation of Gary R. DeFilippo, Esq., dated June 18, 2007; Affidavit of Claimant sworn to on June 22, 2007, and attached exhibits.

2) Affirmation in Opposition of Carol A. Cocchiola, AAG, dated November 21, 2007, and attached Exhibit A.

Filed papers: DECISION AND ORDER, Schaewe, J., Claim No. 112620, Motion Nos. M-72317 and M-72422, filed on March 13, 2007.

Supporting and Opposition Papers filed in Motion Nos. M-72317 and M-72422:

3) Defendant’s Notice of Motion filed on September 25, 2006; Affirmation of Carol A. Cocchiola, AAG, dated September 22, 2006, and attached Exhibits A and B.

4) Affirmation in Opposition of Gary R. DeFilippo, Esq., dated October 2, 2006, and attached exhibits.

5) Claimant’s Notice of Motion filed on October 19, 2006; Affirmation of Gary R. DeFilippo, Esq., dated October 11, 2006, and attached exhibits.

6) Affirmation in Opposition of Carol A. Cocchiola, AAG, dated November 15, 2006, and attached Exhibit A.

7) Affirmation of Gary R. DeFilippo, Esq., dated November 24, 2006, in further support of motion to file a late claim.


Filed Papers: Claim (“Verified Complaint”) filed on August 9, 2006.



[1].In Claim No. 112620, the Court, sua sponte, amended the caption to reflect a fictitious name for claimant pursuant to Civil Rights Law § 50-b (1). Although that claim was dismissed (D.R. v State of New York, Ct Cl, Mar. 9, 2007, Schaewe, J., Claim No. 112620, Motion Nos. M-72317, M-72422 [UID # 2007-044-510]), the parties have appropriately retained use of that ficticious name on their respective papers in this motion for leave to file a late claim.
[2]. The extensive procedural history of the prior proceedings is set forth more fully in that Decision and Order.
[3]. In both the prior claim and the motion for permission to late file, claimant's counsel named these same defendants. In its Decision and Order, the Court granted defendant's motion to amend the caption to reflect the only properly named defendant in this case, the State of New York, a fact which claimant's counsel apparently failed to note (D.R. v State of New York, supra at n 4).
[4]. Claimant's counsel also apparently failed to appreciate the Court's instruction in the prior Decision and Order on this matter, as although the Court noted “claimant's counsel's misunderstandings regarding both the terminology and procedure set forth in the Court of Claims Act” (D.R. v State of New York, supra at 4), counsel has failed to correct those errors in his current submission.
[5]. In the prior motion papers, claimant's counsel contended that the one year and 90 day statute of limitations set forth in General Municipal Law § 50-i was somehow relevant. In these motion papers, claimant's counsel now incomprehensibly alleges a statutory limitations period of three years and 90 days, despite the Court's explicit discussion in the prior Decision and Order of the pertinent three-year limitations period (D.R. v State of New York, supra at 7).
[6]. In fact, claimant's counsel now alleges that “claimant was led to believe by employees, servants, or agents of the defendant University and the Broome County District Attorney's Office that she could not file a Claim until the criminal action . . . had been concluded” (Affirmation of Gary R. DeFilippo, Esq., in Support of Motion, ¶ 4). However, claimant's affidavit in support of the motion states: “I was also advised that I had to wait until after the Broome County District Attorney's Office prosecuted Barravecchia before I could file a complaint with the University to take action against Barravecchia” (Claimant's Affidavit in Support of Motion, ¶ 15). These two allegations are markedly different, as claimant nowhere alleges she was advised that she could not sue defendant until the criminal action had been concluded. Claimant's counsel's intimation that claimant was misled by agents of defendant is simply not supported by claimant's affidavit.
[7]. Claimant's counsel suggests that: “[l]aw office failure can be accepted as a reasonable excuse, in the exercise of the court's discretion, as long as the movant submits facts to explain and justify the default and neglect is not the excuse offered,” citing Cole-Hatchard v Grand Union (270 AD2d 447 [2000]) (Affirmation of Gary R. DeFilippo, Esq., In Support of Motion, ¶ 12) . However, as neglect is the precise excuse offered in this case of law office failure, counsel's argument is obviously inapplicable. Furthermore, whether the law office failure in issue in Cole-Hatchard was a reasonable excuse for the default was discussed within the context of a motion for leave to renew, rather than an application for late filing (Cole-Hatchard v Grand Union, supra).
[8]. Claimant's counsel states in his Affirmation: “[t]o say that the State did not have adequate notice and an opportunity to investigate this claim is both disingenuous and outrageous” (Affirmation of Gary R. DeFilippo, Esq., in Support of Motion, ¶ 7). However, in defendant's papers in response to both claimant's prior motion and this motion for permission to late file the claim, defendant appropriately concedes that the State had notice of the essential facts and an opportunity to investigate. Claimant's counsel's outrage is unnecessary.
[9]. Affirmation of Gary R. DeFilippo, Esq., in Support of Motion, ¶ 5.
1[0]. Affirmation of Gary R. DeFilippo, Esq., in Support of Motion, ¶ 9.
[1]1. Affirmation of Gary R. DeFilippo, Esq., in Support of Motion, ¶ 10.
1[2]. Claimant's Affidavit in Support of Motion, ¶ 29; Proposed Claim, p 3, unnumbered paragraph.
1[3]. Again, at the time of the incident, claimant was 19 years old.
1[4]. For the record, as set forth in paragraph 4 of the Affidavit of Marney L. Buss, a Hall Director at Binghamton University at the time of the incident, “[t]he University's policies prohibiting underage drinking were well-known and enforced at the dormitories . . . and underage drinking was not 'sanctioned' or 'permitted' by the University or the staff.” Further, an affidavit was submitted in the prior motion (incorporated by reference in defendant's papers in opposition to this motion) by Rodger Summers, Vice President for Student Affairs, which clearly sets forth the University's numerous policies and prohibitions regarding alcohol on campus, as well as the many programs and activities designed to promote awareness and alternative options (Summers Affidavit, ¶¶ 9 - 14).
1[5]. Although claimant may be attempting to allege that the University encouraged and took affirmative steps to supervise students participating in the “Pub Crawl” (see Hores v Sargent, 230 AD2d 712 [1996]), the Court gives this intimation no credence whatsoever, in light of the Summers Affidavit referenced at n 15, supra. The Summers Affidavit stated that the BU Student Association, rather than the University itself, sponsored the “Pub Crawl” event, which occurs off-campus (Summers Affidavit, ¶¶ 7, 14, 17 and 18). Summers further stated that the Student Association is a separate, independent, student-run organization, and that the event was not sponsored, promoted, encouraged, authorized, or otherwise sanctioned by Binghamton University” (Summers Affidavit, ¶ 7).
1[6]. Claimant's Affidavit in Support of Motion, ¶ 26; Proposed Claim, p 3, unnumbered paragraph.
1[7]. Claimant's Affidavit in Support of Motion, ¶ 27; Proposed Claim, p 3, unnumbered paragraph.
1[8]. Claimant's Affidavit in Support of Motion, ¶ 10.