New York State Court of Claims

New York State Court of Claims
DOE v. STATE OF NEW YORK, # 2010-042-503, Claim No. 111417, Motion No. M-77111


This is a motion brought by claimant for summary judgment on liability on the negligent retention and supervision causes of action. Defendant submits only an attorney's affirmation in opposition to claimant's motion stating that there are issues of fact which preclude summary judgment. The court finds that defendant had notice of the negligent supervision and retention of its employee and the court grants claimant's motion for summary judgment of liability.

Case information

UID: 2010-042-503
Claimant short name: DOE
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 111417
Motion number(s): M-77111
Cross-motion number(s):
Claimant's attorney: PHILLIPS LYTLE, LLP
Defendant's attorney: HON. ANDREW M. CUOMO
Attorney General of the State of New York
Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 15, 2010
City: Utica
Official citation:
Appellate results:
See also (multicaptioned case)


The court has considered the following papers on claimant's motion for summary judgment:

  1. Notice of Motion, filed August 21, 2009
  2. Affirmation of Chad W. Flansburg, Esq., dated August 19, 2009
  3. Affidavit of Paul DeMuro, sworn to January 9, 2007
  4. Affidavit of Jane Doe, sworn to January 22, 2007
  5. Exhibits A - Y, annexed to the moving papers
  6. Opposition affirmation of G. Lawrence Dillon, Esq., dated October 1, 2009
  7. Reply affirmation of Chad W. Flansburg, Esq., dated October 6, 2009

According to the filed claim, during the period of December 19, 2002 through December 31, 2002 while Jane Doe(1) was a resident of the defendant's Tryon Residential Center she was repeatedly raped and/or sexually assaulted by a Tryon employee, John Smith. John Smith, employed as a Youth Division Aide by the New York State Office of Children and Family Services (hereinafter referred to as "OCFS"), which operated the Tryon facility, was an agent, servant and employee of OCFS.

This matter comes before the court on a motion by claimant Ann Doe, as parent and natural guardian of infant Jane Doe (Jane Doe is hereinafter referred to as "claimant"), seeking summary judgment of liability on the negligent retention and supervision causes of action. Claimant contends the facts establish that the State negligently retained and supervised John Smith as a Youth Division Aide in the "Girls Reception" housing area of Tryon after it knew or should have known of his propensity to engage in sexual misconduct with the residents at Girls Reception.

The State submitted only an attorney's affirmation in opposition to claimant's motion for summary judgment. The State's position in opposition to this motion is that there are issues of fact which preclude summary judgment, to wit: despite the voluminous history of its employee's improper behavior prior to his rape and assault of the claimant, that such knowledge does not equate to "knowledge of the [this] employee's propensity for the sort of behavior which caused [this] injured party harm" (affirmation of Assistant Attorney General G. Lawrence Dillon, Esq.). It is clear that defendant reads the relevant case law to require that other instances of prior inappropriate behavior would have to be instances of rape to constitute notice to the employer of an employee's propensity to rape. As to the underlying facts however, the defense does not dispute any of the facts as alleged in the claimant's motion. Rather, counsel argues that the acts of employee Smith, as alleged, and as will be recapped herein, would not reasonably by seen as sexual or a prelude to inappropriate sexual behavior and thus defendant had no notice of Smith's propensity for the wrongful behavior alleged in his interactions with claimant.


Before proceeding to a consideration of the merits of the motion, it is worthwhile to explain the organization of the Tryon Residential Center, as explained by defendant's supervising employees in their depositions. The Tryon Residential Center has a Tryon Girls Center and a separate Tryon Boys Center. Tryon also operates the Tryon Girls Reception Center. The Girls Reception Center is not a long-term residential center. Rather, it is a screening facility where girls stay up to fourteen days for evaluation prior to long-term placement elsewhere. So the population of the Girls Reception Center is in constant flux. Most interestingly, the Girls Reception Center is not located at the Tryon Girls Center. It is located on the campus of the Tryon Boys Center and is staffed by employees of the Tryon Boys facility.

It is the contention of claimants that the defendant had sufficient notice of John Smith's inadequacies as an employee and inappropriate behavior as an employee to have compelled it to either closely supervise John Smith or, more properly, to act to remove John Smith from the Girls Reception Center prior to his attacks upon claimant. And, had the state acted properly in its supervisory capacity, John Smith would not have had the opportunity to rape and sexually assault the infant claimant.

It should be noted that there is no dispute as to John Smith's improper sexual contact with the infant. In its response to claimant's Notice to Admit, defendant admits that Jane Doe, who was 15 years old at the time, arrived at the Tryon Reception Center on December 19, 2002 and remained there for approximately two weeks. During her stay at the center, defendant's employee, John Smith, had vaginal intercourse with the infant claimant on two separate occasions. It was also conceded that John Smith gave Jane Doe Chinese food and soda after the other residents were in their rooms contrary to Tryon's rules and procedures.

Claimant asserts that Smith's work history at Tryon is littered with instances prior to the attacks upon claimant which should have prompted discipline, transfer and/or ultimately termination from employment prior to any harm coming to claimant. Again, the defendant does not dispute a single factual allegation offered in the moving papers, nor does defendant dispute the statements of its own supervising employees from the Tryon Boys facility.

Claimant offers the particulars of a number of instances which should have prompted intervention by the state and/or termination of Smith's employment prior to his harm to claimant.

Prior to his employment at the Tryon Boys facility, Smith was terminated from employment at the Tryon Girls Residential Center. He commenced an Article 78 proceeding and the defendant settled that proceeding with a Stipulation of Settlement, dated January 29, 2002, which reinstated Smith's employment at Tryon, but provided that he would be employed at the Tryon Boys Residential Center, rather than the Girls Center. Smith was then employed at Tryon Boys, commencing in early 2002, but assigned to the Tryon Girls Reception Center. The supervisor of Girls Reception, Lucy Jones, said that no information was made available to her about the reasons for the prior termination, though she knew from his supervisor at Tryon Girls and the director of Tryon Boys that he was "troublesome" and needed "different supervision" (Claimant's Exhibit W, p. 104). As Jones stated at her deposition, "I found it disturbing. Because if he was such a problem over there how come there wasn't any documentation on his behavior and what he had done over there" (Claimant's Exhibit W, p. 105). Claimant cannot prove this termination was prompted by any improper sexual activity on Smith's part, but appears to argue that this, coupled with other behavior problems, should have resulted in his termination prior to the incidents with claimant. From the outset of his employment at the Girls Reception Center, Smith received critical job reviews.

For example, the memorandum of an April 3, 2002 supervisory conference with his supervisor, Lucy Jones, which memorandum was signed by John Smith, states that he was told of the concern that he was improperly making and receiving personal calls while on duty at the reception center. He admitted to receiving many calls from the Tryon Girls Residential Center.

On April 17, 2002 a memorandum was issued criticizing Smith for improperly smoking in a non-designated smoking area. This was not the first time such reprimand had occurred, and more importantly, the improper smoking, away from an area Smith was supervising, resulted in inadequate staffing at the outdoor site. As the memo to Smith noted, "your actions compromised the safety and security of our supervision as a team" (Claimant's Exhibit P).

On July 17, 2002 Smith was again the subject of a "supervisory conference", which resulted in a memorandum documenting his failure to follow proper policies, procedures and directives.

It is in this context that further disciplinary problems arose for defendant's employee Smith with incidents on August 11, 2002 and August 19, 2002. The defendant, through the reception center supervisor, and later, the supervisor or director of Tryon Boys Residential Center, learned that Smith had conducted himself in an improper manner with the girl residents of the reception center and investigations ensued. However, there is little available information on the August 11, 2002 incident.

With regard to the investigation arising out of an incident on August 19, 2002 it is undisputed that Smith, on several occasions, had allowed resident April Coe to stay up past 11:00 p.m. and had brought in Chinese food for this resident. It was also undisputed that there was an incident of Smith throwing cold water on Coe when she was naked in the shower. Another resident reported witnessing Smith rubbing Coe's shoulders and touching her hair. There was another witness report of Smith touching Coe's buttocks and a report that Smith opened the shower curtain on another resident, Beth Foe, and threw cold water on her. Smith admitted the Coe shower incident to his supervisor, Lucy Jones. While he denied letting residents stay up past their 9:00 p.m. bedtime, the investigation results prompted Jones to determine that the preponderance of the evidence indicated he had allowed Coe and two other residents to stay up beyond their 9:00 p.m. bedtime. Once again, Smith was counseled by his supervisor, but he was not transferred, suspended or terminated from his position at the Girls Reception Center.

Claimant Jane Doe arrived at the Tryon Girls Reception Center on December 19, 2002. Claimant, in her supporting affidavit on this motion, states that Smith raped her on December 29, 2002 and December 31, 2002. On or before December 24, 2002 - days before the rapes - Smith's supervisor was made aware of an intercepted letter from Coe to Smith (Coe had left Tryon Girls Reception Center long before and was a resident of the Lansing Residential Center). In the letter Coe spoke of missing Smith, hoping he still had her home address and she stated "I miss you. I still hold onto that hug you gave me" (Claimant's Exhibit S). Jones met with Smith about the letter on December 24, 2002 and prepared a memorandum to Smith, dated December 27, 2002. Smith denied any impropriety and apparently Jones accepted Smith's explanation and called the letter an example of an "infatuation". Once again, Jones made a note to Smith's personnel file and no action was taken. Two days later claimant was raped by Smith.

Smith's supervisor, Lucy Jones, was the supervisor in charge of the Tryon Girls Reception Center, a part of the Tryon Boys Residential Center. The supervisor or director of Tryon Boys was Ronald Ash. Both employees, while now retired, testified in depositions in this case.

Jones testified as to the various incidents discussed above. And, as the supervisor, she was well aware of the various incidents prior to claimant's arrival at the Girls Reception Center. Her deposition was voluminous and proceeded over two days (Claimant's Exhibits W and X). Jones, who holds both bachelor's and master's degrees, testified that she also had extensive training in her position, including investigative training, counseling, etc. She stated that she did not receive any formal training in recognizing signs of sexual misconduct. However, they were informally trained on the issue at conferences and she was familiar with "sexual grooming" and could recognize signs of sexual grooming (by the staff). Jones stated that favoritism with the residents was a strong sign of sexual grooming; giving food to residents was a sign of sexual grooming; giving special privileges was a sign of sexual grooming; ignoring rules for certain residents was a sign of sexual grooming.

Jones testified further that if there was any evidence or report of sexual abuse, there would be an internal investigation by the Office of Children and Family Services, which oversees Tryon, and there would be a mandatory report to the child abuse hotline, which would investigate. She said that any allegations were "automatically" reported. Jones said that if she knew of any allegations of sexual misconduct, even the mere touching of a buttock, she would report it to the child abuse hotline, though she would probably report it to her supervisor first, and she would look for corroborating evidence of some sort. Nevertheless no reports were made of the many incidents involving Smith's behaviors until well after the claimant's rape, and even that was never reported to the hotline by Jones.

In one colloquy, Jones was asked and answered the following questions:

Q. You previously testified that on or about the time you became a supervising YDC that you were aware of what sexual grooming was the indices of what it is, correct?

A. Right. Yes.

Q. This incident of August 19, 2002, took place after you became a YDC, correct?

A. Supervising YDC. Yes.

Q. Supervising YDC. Because of that sexual grooming was in your vocabulary, correct?

A. Yes. I guess.

Q. Likewise you knew what the indices were because you attended seminars, you attended training?

A. Um-hmm.

Q. Correct?

A. Correct.

Q. My question merely is on August 19th, 2002 Mr. Smith was exhibiting the indices of sexual grooming, which you previously testified was special treatment, special attention, giving food, allowing to stay up at night, correct?

A. Yes.

Q. Separate and apart from this, additional allegations were made on August 19th, 2002, correct?

A. Correct.

(Claimant's Exhibit W, pages 186-187).

Jones testified that she was aware that Smith had acted out with sexual grooming behaviors on August 11, 2002 as well. In addition, at the time of the August investigation there had been an allegation by another resident that Smith had sex in the bathroom with a resident. Jones testified that these August incidents had been reported by her to her superior, Ronald Ash, but had not been reported to the child abuse hotline, which would have been appropriate to do. Jones testified that despite all of the incidents of August (not all of which are chronicled here), including allegations of sex, and despite the fact that Jones herself was a mandatory reporter (to the child abuse hotline) under law, she did not report the matter to the hotline, but only reported her investigations to her superior. Her investigation report revealed that there were other staff members, co-workers of Smith's, who were aware of some of the sexual grooming incidents, but had not reported them to her.

Jones discussed the incident of the Coe letter intercepted during claimant's stay at the facility and prior to her rape and acknowledged that the letter had sexual overtones to it. Jones also acknowledged that by the time of the receipt of the letter, Smith could be characterized as a predator who couldn't be involved with the direct care of the girls at that point, yet he was not immediately removed from the Reception Center and remained there through at least January 1, 2003 according to time records she reviewed, and, again, no report was made to the child abuse hotline, to legal authorities, or to anyone other than her superior, Ronald Ash.

Ash testified that he was the director of the Tryon facility. Ash too reviewed the mandatory reporting requirements for sexual incidents and testified that he too was familiar with sexual grooming behaviors, and stated that this was something to which particular attention was paid to with regard to the girl residents at Tryon. Ash testified that he had been aware of the July and August 2002 incidents and investigations concerning Smith. He said that reports of sexual assaults of residents are to be made within twenty-four hours to Child Protective Services. Ash testified that the incidents of August 2002, and in particular August 19, 2002 was inappropriate conduct and could be grounds for termination, though no action was taken.

Ash was then questioned about the shower incident (in which Smith threw cold water on a naked April Coe in the shower in August 2002) and the following colloquy occurred:

Q. This violation alone, was that sufficient to fire Mr. Smith?

A. It's a serious, serious violation.

Q. Okay. So if we go through our chain of events - First, I want you to assume that Mr. Smith is not on probation (in fact, he was still a probationary employee).

A. Okay.

Q. Assuming he's not on probation, and then knowing, as of July 17th, 2002, that Mr. Smith is engaging in apparent passive resistance to policies and supervision (already documented in discovery), along with the allegations that were made on August 11th, 2002, that he was playing favorites with residents that he was allowing certain residents to stay up later than other's and giving them special privileges; along with the allegations that were uncovered on August 19th of 2002 that he was throwing cold water on Resident April Coe while she was naked in the shower, should he have been terminated as of August 19th, 2002?

A. In my opinion, he should have been.

Q. And, obviously, that same opinion would hold if he was on probation, correct?

A. Yes.

Q. Now, with that opinion, why wasn't he fired in [sic] August 19th, 2002?

A. I don't know.

(Claimant's Exhibit V, pages 103-104).

Ash also explained that in addition to Tryon's policy of doing its own investigation of serious allegations or possible charges, there was a requirement not only to report to the child abuse hotline (Child Protective Services), but to a special investigations unit of the Office of Children and Family Services ("OCFS"), and that there could be an internal affairs investigation within OCFS. And yet, to his knowledge, no report was made by Tryon about any of these instances predating the attack upon claimant. Ash testified that even a report of a rumor of sex between a resident and a staff member should have resulted in an unusual incident report being filed and a child abuse call being made. In light of all of the incidents, Ash could not explain why, by December 24, 2002 Smith had not been put in a no-contact position so that he would have no contact whatsoever with girls at the Tryon facility.

In addition, Ash testified that John Smith should have been moved out of the Reception Center prior to the rape of claimant and that the reason that Smith had his opportunity to rape the claimant was because someone at Tryon did not follow the policies and procedures which would have put Smith in a "no-contact position". He noted that even the water throwing incident itself should have prompted mandatory reporting to Child Protective Services. And, further, that based upon the facts known to the administration as of August 11, 2002 John Smith should have been terminated as of that date.

Claimant also submitted an expert's affidavit in support of the motion. The expert, whose qualifications as an expert in this field are unchallenged by the defense, is the former Pennsylvania Commissioner of Children and Youth. Without going into detail, suffice it to say that the expert, who, among other credentials, directed his state's juvenile justice institutions, opined that:

the State of New York negligently retained Smith as a YDA in the Girls Reception Center in that the State of New York, through its employees, had actual notice and understanding of Smith's history and propensity for sexual misconduct against female infant residents at the Tryon Reception Center for Girls.

It is also my opinion that because the State of New York had actual notice of Smith's history and propensity for sexual misconduct with female infant residents, and because they failed to act in a responsible manner, the administers of Tryon unduly placed the plaintiff [sic] (and the rest of the girls at Tryon) directly in harm's way, thus directly contributing to the unfortunate rape of the plaintiff [sic] by Smith.

(Affidavit of Paul DeMuro).


As noted previously, defendant offered no opposition to the facts as posited in the moving papers, submitting only an attorney's affirmation, which asserted that the deposition statements of Jones and Ash were made with benefit of hindsight. While counsel appears to suggest that hindsight is inadmissible, no case law is offered in support of this argument. The court finds no reason to exclude "hindsight". Nevertheless, I find ample devastating testimony absent resort to the occasional hindsight comments of defendant's former employees.

As to defense counsel's assertion that each side should have the opportunity to present its own expert opinion, and to explore credentials, the claimant's counsel points out that an expert affidavit was submitted by this same expert in a 2007 motion in this same case. The defense has had over two years in which to explore credentials of the expert and could certainly have offered its own expert's affidavit in opposition to this motion. There is no proof whatsoever that defendant lacked the opportunity to retain an expert in this case, which was commenced over four years ago.

The law is well established that "[f]acts appearing in the movant's papers which the opposing party does not controvert, may be deemed to be admitted" (Kuehne & Nagel v Baiden, 36 NY2d 539, 544; Firth v State of New York, 287 AD2d 771). Defendant has offered no evidentiary facts which controvert the facts offered by claimant in support of this motion and thus those facts are deemed admitted. Neither claimant's expert's credentials or opinions, based upon the facts of this case, are controverted by defendant, despite defendant's ample notice of this expert and his opinion.

The standard for negligent retention was articulated in Detone v Bullit Courier Serv., 140 AD2d 278:

An employer may . . . be required to answer in damages for the tort of an employee against a third party when the employer has either hired or retained the employee with knowledge of the employee's propensity for the sort of behavior which caused the injured party's harm (citations omitted). The employer's negligence lies in his having placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the hiring and retention of his employees.

(Detone v Bullit Courier Serv., 140 AD2d 278, 279).

This standard does not require that the defendant have notice of the propensity of the employee to behave in the exact manner in which he behaved with claimant. Rather, it is sufficient that the defendant had notice of the employee's propensity to engage in the "sort of behavior" (Kirkman v Astoria Gen. Hosp., 204 AD2d 401, lv denied, 84 NY2d 811). The court in Gomez v City of New York, 304 AD2d 374, referred to the notice as notice to the employer of behavior "demonstrating a propensity for the type of conduct alleged" (Gomez v City of New York, 304 AD2d 374, 375). In Ray v County of Delaware, 239 AD2d 755, a case involving a sexual relationship between a social worker and his client, the court found that a claim of negligent hiring and supervision could be made if the defendant "knew of the employee's propensity to violate ethical conduct requirements between a treating therapist vis-a-vis the clients under his care" (Ray v County of Delaware, 239 AD2d 755, 757).

Another case involved a sexual assault of an infant at an athletic center by a custodian two years after the custodian was hired at the center. Plaintiffs claimed negligent hiring and supervision of the employee. The employee had a prior criminal history, including for assault. Defendant argued that a background check would not have revealed a propensity for the sexual attack. The court stated that:

[defendant's] argument that a background check would have revealed a propensity for violence, but not a propensity for sexual violence, is not dispositive, since it cannot be said that, as a matter of law, it is unforeseeable that a person with convictions for assault would commit a sexual assault when placed in a setting such as this [athletic center used by children].

(T.W. v City of New York, 286 AD2d 243, 245).

Defendant's own supervisory employees, who had control and oversight over Smith, were well aware of the signs of and dangers of "sexual grooming". Despite repeated notice of Smith's improper behavior, and despite repeated admonitions to Smith, the defendant failed to remove Smith from the Reception Center, even in the face of allegations of prior sexual relations with an infant resident. Defendant's own supervisors were well aware of the dangers expressed by claimant's expert; they themselves were trained in this area - yet they did nothing to protect the girls in their care, and this claimant in particular. Defendant had notice of Smith's propensity for this type of improper sexual conduct and its negligent supervision and retention of its employee was the proximate cause of the rapes and sexual assaults of Smith upon the infant claimant.

Claimant's motion for summary judgment of liability for defendant's negligent retention and supervision of its employee is granted.

January 15, 2010

Utica, New York


Judge of the Court of Claims

1. In order to protect the identity of the infant claimant, and in order to comply with a Stipulated Confidentiality Order entered into between the parties and previously approved by the court, which stipulation protects the claimant, other witnesses, and certain employees of the defendant, pseudonyms have been assigned to numerous persons. The attorneys for claimant and defendant shall be provided with a separate index to the pseudonyms (the attorneys are reminded that dissemination of this index is circumscribed by both applicable law and the Stipulated Confidentiality Order) . The index will not be otherwise distributed and will not be filed with the decision or otherwise filed with the Clerk of the Court of Claims. However, the pseudonyms will be printed in italics for the benefit of other readers. The Clerk of the Court is hereby directed to amend the caption of the claim to correspond with the caption of this Decision and Order.