New York State Court of Claims

New York State Court of Claims

DOES v. STATE OF NEW YORK, #2009-042-518, Claim No. 116495, Motion Nos. M-76537, CM-76732


Synopsis


This is a motion brought by defendant for a 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 claimants CB and EK cross-move for leave to file and serve a late claim pursuant to Court of Claims Act Section 10 (6). The Court grants defendant’s motion to dismiss as against claimants CB and EK as the claims are time-barred. Claimants’ cross-motion for leave to file a late claim is denied as moot. The Court also finds that the claimant SC’s claim fails to adequately describe the nature of the claim with sufficient particularity and defendant’s motion to dismiss the claim is granted.

Case Information

UID:
2009-042-518
Claimant(s):
SC, CB and EK
Claimant short name:
DOES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116495
Motion number(s):
M-76537
Cross-motion number(s):
CM-76732
Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
FISCHER, BESSETTE,
MULDOWNEY & HUNTER, LLPBy: JOHN J. MULDOWNEY, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQ. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 2, 2009
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The court has considered the following papers on defendant’s motion to dismiss the claim and on the cross-motion of claimants CB and EK for leave to file and serve a late claim:
  1. Notice of Motion, filed April 15, 2009
  2. Affirmation of G. Lawrence Dillon, Esq., dated April 14, 2009
  3. Exhibit A, annexed to the moving papers
  4. Notice of Cross-Motion, filed May 27, 2009
  5. Affidavit of John J. Muldowney, Esq., sworn to May 26, 2009
  6. Exhibits A - D, annexed to the cross-moving papers
  7. Affirmation of G. Lawrence Dillon, Esq., dated August 24, 2009

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 claimants CB and EK to file and serve a late claim pursuant to Court of Claims Act § 10 (6).

At the outset it should be noted that claimants and/or their guardians previously made substantially the same claim against the defendant. In that matter the defendant filed a 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 opposed that motion and cross-moved for leave to amend the claim and for leave to claimant, EK, to file a late claim pursuant to Court of Claims Act Section 10 (6). This court rendered a decision and order granting defendant’s motion and dismissing the claim and denying leave to file a late claim (Doe v State of New York, UID No. 2007-042-516, Claim No. 113167, Motion Nos. M-72970, CM-73098, July 23, 2007, Siegel, J.). The decision and order of this court was affirmed by the Appellate Division, Third Department, in Robin BB. v State of New York, 56 AD3d 932. Many of the same issues raised in the present motions were previously addressed by this court in its aforementioned decision and order.

According to the present 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.

Once again, this claim, like the previous 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.” The only incident for which both a specific date and location was given is contained in an allegation that “[o]n June 13, 2005, at 392 Browning Road in the Town of Louisville, County of St. Lawrence, State of New York, Stephen H. Kotzen subjected CB [name of claimant omitted] to sexual misconduct and forcibly compelled him to engage in oral sex”. As for the alleged negligence of the State, the claim essentially seeks to hold the State liable under four theories: 1) a “special relationship” between the claimants and defendant; 2) negligent retention of Trooper Kotzen; 3) Kotzen was acting within the scope of his employment, and therefore defendant is vicariously liable for the acts of its employee and 4) the intentional acts of the State’s agents and employees.

TIMELINESS OF CLAIMS OF CLAIMANTS CB AND EK
If the claims of claimants CB and EK are untimely, then the other issues involving these claimants are moot. For this reason, the timeliness issue shall be addressed first.

The claim (improperly titled a “Notice of Claim”) states that claimant CB was born on June 19, 1988 and that claimant EK was born on December 8, 1985. Thus any tolling for the disability of infancy of claimant CB ended on June 19, 2006 and the tolling for the disability of infancy of claimant EK ended on December 8, 2003. This claim was not filed until March 4, 2009.

As noted previously, the claim asserts that the cause of action accrued no later than June 22, 2005.

Defendant contends that these claims are subject to a two-year time limitation, pursuant to Court of Claims Act § 10 (5). This section of the Court of Claims Act provides that “[i]f the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed.” Thus, the defendant argues that claimant CB had only until June 19, 2008 in which to serve and file a claim and that claimant EK had only until December 8, 2005 in which to present a claim (parenthetically, the court would note that, in fact, claimant EK would have additional time - until two years following the accrual of the claim, rather than two years following attaining age of majority, since some claims allegedly accrued after EK attained adulthood [see Court of Claims Act § 10 (3)]).

Claimants’ counsel acknowledges that “the period of limitations set forth in Court of Claims Act § 10 (5) for the Claims of CB and EK have expired” but contends that the tolling provisions of CPLR 213-b, allowing a ten-year tolling of time limitations for crime victims, is applicable in this case, thus making the claims timely. Claimants’ counsel relies upon Vasquez v Wood, 190 Misc 2d 427, Cavanaugh v Watanabe, 10 Misc 3d 1043, and Elkin v Cassarino, 248 AD2d 35 in support of the application of this statutory extension to the facts of this claim.

CPLR Section 213-b provides:
[n]otwithstanding any other limitation set forth in this article or in article five of the estates, powers and trusts law, an action by a crime victim, or the representative of a crime victim, as defined in subdivision six of section six hundred twenty-one of the executive law, may be commenced to recover damages from a defendant: (1) convicted of a crime which is the subject of such action, for any injury or loss resulting therefrom within seven years of the date of the crime or (2) convicted of a specified crime as defined in paragraph (e) of subdivision one of section six hundred thirty-two-a of the executive law which is the subject of such action for any injury or loss resulting therefrom within ten years of the date the defendant was convicted of such specified crime.

While the defendant State of New York has not been convicted of any crime, claimants argue that the statute should be read expansively to apply to this defendant, relying upon Vasquez v Wood, 190 Misc 2d 427 (the court held that a claim against the owner of a motor vehicle, vicariously liable, under the Vehicle and Traffic Law, for the criminal operation of the vehicle by its driver, would be subject to the time extensions of CPLR 213-b), Cavanaugh v Watanabe, 10 Misc 3d 1043 (defendant contended that the claim did not relate to the specific crime for which he was convicted, but the court found that there was a clear causal connection between the crime and the alleged damages), and Elkin v Cassarino, 248 AD2d 35 (the court found that the statute provides a time extension to “victims of all crimes that occur in New York, whether or not the crimes are defined by New York law or are prosecuted in New York State courts.” Elkin v Cassarino, 248 AD2d 35, 41).

However, such purported expansive readings of the statutory language have no application here. The statutory language is clear and unambiguous that the extension applies only to a defendant “convicted of a . . . crime”. The State of New York is the defendant in this claim; it was neither charged with nor convicted of any crime. The Vasquez v Wood, 190 Misc 2d 427, decision cited by claimants was appealed and the Appellate Division modified the court below, effectively negating claimants’ argument. With regard to the plaintiff’s attempt to apply the time extension of CPLR 213-b to the vicariously liable vehicle owner, the appellate court stated:
[w]e agree with the appellant [the vehicle owner] that the terms of CPLR 213-b do not extend the statutes of limitations that are applicable . . . The appellant was not convicted of any crime as a result of the accident that gave rise to this action, and CPLR 213-b, by its plain terms, does not apply [citations omitted].

(Vasquez v Wood, 18 AD3d 645, 646 [2nd Dept 2005]).

Cavanaugh v Watanabe, 10 Misc 3d 1043, cited by claimants, found a causal connection between a crime for which the defendant was convicted and the damages sustained by plaintiff - it did not provide a time extension as against one who was neither charged nor convicted of a crime. So too in Elkin v Cassarino, 248 AD2d 35, the only “expansive” reading by the court was in its view of the crime encompassed by the provisions of CPLR 213-b, not in any expansive definition of the word “defendant.”

The Third Department has also emphasized that to invoke the statutory extension of CPLR 213-b, the victim must show that the defendant has been convicted of a crime and that the victim’s injury resulted from that crime (Boice v Burnett, 245 AD2d 980 [3d Dept 1997]).

The statutory language is plain and unambiguous - it is not for this court to stretch its meaning beyond any reasonable reading of the text. As the Court of Appeals has stated:
[t]his Court has long applied the well-respected plain meaning doctrine in fulfillment of its judicial role in deciding statutory construction appeals. We agree that “[i]t is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature,” but we have correspondingly and consistently emphasized that “where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used” (Patrolmen's Benevolent Assn. v City of New York, 41 NY2d 205, 208 [emphasis added] [citations omitted]; see, Doctors Council v New York City Employees' Retirement Sys., 71 NY2d 669, 674-675).
We have provided further clear teaching and guidance that “[a]bsent ambiguity the courts may not resort to rules of construction to broaden the scope and application of a statute,” because “no rule of construction gives the court discretion to declare the intent of the law when the words are unequivocal” (Bender v Jamaica Hosp., 40 NY2d 560, 562 [emphasis added] [citations omitted]). Lastly, “[t]he courts are not free to legislate and if any unsought consequences result, the Legislature is best suited to evaluate and resolve them” (id. [emphasis added]).

(Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98, 106-107).

Defendant’s motion to dismiss the claim as against claimants CB and EK is granted, as the claims are time-barred and CPLR 213-b is inapplicable as against this defendant. With regard to these claimants, the cross-motion for leave to file and serve a late claim is denied as moot. Since CPLR 213-b is inapplicable, and since the accrual dates used in the cross-motion are the same accrual dates utilized in the original claim, the proposed claim would also be time-barred.[2]
CLAIM OF CLAIMANT SC
The claim of SC is not time-barred, and the defendant makes no such argument. Rather, defendant asserts that the allegations of this claim are essentially the same allegations set forth in the prior claim, which was dismissed by this Court, with affirmance by the Appellate Division (Robin BB. v State of New York, 56 AD3d 932). In particular, defendant notes that the claim still fails to adequately describe the nature of the claim with sufficient particularity.

Unlike the prior claim, however, this claim does refer to one incident involving claimant SC with more particularity than in the past. The claim alleges that “[i]n June 2000, at 392 Browning Road in the Town of Louisville, County of St. Lawrence, State of New York, Stephen H. Kotzen subjected SC to sexual misconduct, and forcibly compelled SC to engage in deviant sexual intercourse.” Nevertheless, there is no allegation that the defendant was involved in this activity, or that such activity was performed by Kotzen in the course of his duties, or that there was any “special relationship” giving rise to a greater duty owed to this claimant.[3]

The only factual, rather than conclusory allegation offered by the claimants that the State had notice of Kotzen’s behavior, such that, under claimants’ position, it might arguably have owed a greater duty, is the allegation that “[i]n August 2001, the New York State Police and/or Bureau of Criminal Investigation became aware of allegations that Stephen H. Kotzen had molested, and was molesting, young boys from the Norwood Boys Home”. However, those molestation allegations, if true, post-dated the June 2000 molestation claim of SC. Otherwise, the claim repeats the general claim of molestations set forth in the prior claim, which were neither specific as to date or place. Such allegations have already been found to be deficient (Robin BB. v State of New York, 56 AD3d 932).

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 that 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 arguably 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 that the State knew about any improper sexual behavior of Kotzen prior to the alleged June 2000 attacks upon SC. There is not a scintilla of evidence that the acts of Kotzen were either authorized or within the scope of his employment.

Insofar as any other allegations or incidents involving SC, beyond the June 2000 incident (which this Court still questions as to specificity of date), once again, the allegations fail to meet the threshold requirements of the Court of Claims Act. As the Appellate Division held in its review of the facts as alleged in the prior claim arising out of these same incidents:
Court of Claims Act § 11 (b) provides, in relevant part, that a claim “shall state the time when and place where such claim arose.” The purpose of the pleading requirements contained therein “is to provide a sufficiently detailed description of the particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and extent of its liability” (Sinski v State of New York, 265 AD2d 319, 319 [1999]). To that end, defendant is not required “to ferret out or assemble information that section 11 (b) obligates the claimant to allege” (Lepkowski v State of New York, 1 NY3d 201, 208 [2003]), and the failure to comply with the statutory requirements mandates dismissal for lack of subject matter jurisdiction (see Czynski v State of New York, 53 AD3d 881, 882-883 [2008]; Rivera v State of New York, 52 AD3d 1075, 1076 [2008]; Signature Health Ctr., LLC v State of New York, 42 AD3d 678, 679 [2007]). Here, claimants have alleged only that Kotzen engaged in numerous acts of sexual misconduct at various locations in St. Lawrence County over the course of an eight-year period. Such allegations fall short of satisfying the pleading requirements of Court of Claims Act § 11 (b) and, as such, defendant's motion to dismiss was properly granted.

(Robin BB. v State of New York, 56 AD3d 932, 932-933).

Defendant’s motion to dismiss the claim is granted. Claimants’ motion to grant claimants CB and EK leave to file and serve a late claim is denied.



November 2, 2009
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].Claimants failed to provide a proposed claim in support of their cross-motion. The Court surmises the dates based upon statements made in the moving papers. Additionally, as defense counsel correctly notes, the provisions of Court of Claims Act § 10 (6) require that a proposed claim accompany an application to file a late claim.
[3].The original claim, at paragraph 8(a) does allege a “special relationship” arising as a result of a traffic stop of Kotzen with children in a vehicle “[o]n a date and time and at a location within the sole and exclusive possession of the State of New York.” This allegation is so vague and so non-specific as to time, place or actions by defendant, as to be insufficient to set forth a claim.