State's Motion to Dismiss portions of Claim granted. Claimant's Motion to Strike two Affirmative Defenses denied, as is Claimant's Motion to File a Late Claim pursuant to Court of Claims Act § 10(6).
|Claimant short name:||J.K.F.|
|Footnote (claimant name) :||Because this proposed claim involves a victim of a sexual offense, the caption has been amended to give Claimant a fictitious name in order to protect her identity. The Chief Clerk is directed to seal the file in Motion Nos. M-90247 and M-90400 pursuant to Civil Rights Law § 50-b (see Civil Rights Law §§ 50-b , 50-c [private right of action for wrongful disclosure of victim of sexual offense]).|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||Caption amended to reflect the State of New York as the proper defendant.|
|Motion number(s):||M-90247, M-90400|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Devon M. Wilt, Esq.|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Sean B. Virkler, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||September 14, 2017|
|See also (multicaptioned case)|
For the reasons set forth below, Claimant's Motion (M-90247) to: (1) serve and file a late claim pursuant to Court of Claims Act § 10(6) is denied; and (2) to Dismiss Defendant's Tenth and Eleventh Affirmative Defenses raised in its Answer is denied. Defendant's Motion (M-90400) to dismiss portions of the Claim, pursuant to CPLR 3211(a)(2), (7) and (8), on the basis that the Court lacks subject matter jurisdiction over the Claim and personal jurisdiction over Defendant, as a result of Claimant's failure to timely serve the Claim as required by Court of Claims Act §§ 10(3) and 11(a)(i), and for failure to state a cause of action for harassment, is granted.
The Court will deal with the State's Motion (M-90400) first. This Claim, which was filed with the office of the Clerk of the Court on October 12, 2016, asserts that Claimant is a transgender individual who is transitioning from male to female and arrived at Marcy Correctional Facility (hereinafter, "Marcy") on June 17, 2016. Claimant asserts that she suffered personal and psychological injuries as a result of Defendant's negligent supervision of Correction Officers (each, hereinafter, a "CO"), including CO Rogers. Specifically, Claimant alleges that, on June 17, 2016 and June 27, 2016, CO Rogers harassed her to the point that she feared for her safety (Claim, p. 2). In addition, it is alleged that, on July 13, 2016, CO Rogers escorted Claimant to the Laundry Room, so she could wash some of her personal property; that the CO entered the room with her, locked the door and proceeded to grab the back of Claimant's head, forcing his mouth on hers and groping her. Claimant slapped the CO's hand away from her, the CO then "aggressively grabbed and pulled" Claimant toward him, causing her to slip on water that had accumulated on the floor of the Laundry Room, causing her to hit her neck and back on the dryer (id., p. 3). It is further asserted that CO Rogers then exited the room leaving Claimant on the floor. It is further asserted that CO Rogers gave Claimant two money orders, on July 18 and July 27, 2016, in an attempt to keep her from reporting the incident (id., p. 4). Claimant asserts that she was informed on September 1, 2016, by a State investigator that CO Rogers employment was terminated because of his actions towards her (id.). Finally, Claimant asserts that she was harassed by other COs, who blamed her for CO Rogers' termination (id.). The Court notes that the Claim also states:
6. This claim is not served and filed within 90 days of accrual. [emphasis in original]
(Claim, p. 5)
Pursuant to the Court of Claims Act provisions applicable to personal injury actions, Claimant was required to file and serve her Claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim (to the extent Claimant asserts injuries caused by negligence or unintentional torts) or within one year (to the extent he asserts intentional torts of State employees) (Court of Claims Act §§ 10, 10[3-b]). In either case, Claimant was required to initiate action within 90 days of the Claim's accrual.
Court of Claims Act § 11(a)(i) provides that the Claim shall be filed with the Clerk of the Court and that a copy shall be served upon the Attorney General within the time period provided in Section 10 of the Court of Claims Act, either personally or by certified mail, return receipt requested. The statute further provides that service by certified mail, return receipt requested, is not complete until the Claim or Notice of Intention to File a Claim is received by the Attorney General. It is well established that failure to timely serve the Attorney General in strict compliance with Court of Claims Act § 11 gives rise to a jurisdictional defect (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 ; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 ; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]).
Pursuant to Court of Claims Act § 11(c), however, any such defect is waived unless it is raised with particularity as an affirmative defense either by motion to dismiss prior to service of the responsive pleading, or in the responsive pleading itself (see Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
In its Answer, filed with the office of the Clerk of the Court on November 15, 2016, Defendant asserted as its Eleventh Affirmative Defense that "[t]his Court lacks subject matter jurisdiction over the [C]laim and personal jurisdiction over the [D]efendant, the State of New York, as the [C]laim is untimely in that neither the [C]laim nor a [N]otice of [I]ntention was served within ninety (90) days of the accrual of the [C]laim as required by Court of Claims Act § 11 and Court of Claims Act §§ 10 (3) and 10 (3-b)."
In his affirmation submitted in support of the State's Motion, Defense counsel asserts that the sexual assault cause of action accrued on July 13, 2016 and, thus, a Notice of Intention to File a Claim, or Claim, was required to be served upon Defendant on or before October 11, 2016 (Affirmation of Sean B. Virkler, Esq., Assistant Attorney General [hereinafter, "Virkler Affirmation"], ¶ 5). Counsel further states that Claimant served a Claim upon Defendant on October 12, 2016, and filed it with the office of the Clerk of the Court on the same date (id.., ¶ 3, and Ex. A attached thereto). Claimant has not contested that the Claim was served and filed late, and, in fact, as set forth above, stated it was not served and filed within 90 days of accrual of the Claim.
Court of Claims Act § 10 is more than a statute of limitations; it is a jurisdictional prerequisite to bringing and maintaining an action in this Court (Mallory v State of New York, 196 AD2d 925, 926 [3d Dept 1993]; DeMarco v State of New York, 43 AD2d 786 [4th Dept 1973], affd 37 NY2d 735 ; Antoine v State of New York, 103 Misc 2d 664 [Ct Cl 1980]). Failure to timely comply with the statutory service and filing requirements of the Court of Claims Act constitutes a fatal jurisdictional defect requiring dismissal (Lyles v State of New York, 3 NY3d 396, 400-401 ; Buckles v State of New York, 221 NY 418 ; Langner v State of New York, 65 AD3d 780, 781 [3d Dept 2009]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]). The Court cannot waive a defect in jurisdiction that has been timely raised (see Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). The defect asserted was timely and properly raised with particularity in Defendant's Verified Answer as set forth above, in accordance with Court of Claims Act § 11(c) (Czynski v State of New York, 53 AD3d 881, 882 [3d Dept 2008], lv denied 11 NY3d 715 ; Villa v State of New York, 228 AD2d 930, 931 [3d Dept 1996], lv denied 88 NY2d 815 ).
Thus, the sexual assault cause of action is dismissed for failure to timely serve and file it in accordance with Court of Claims Act §§ 10 (3-b), and 11(a)(i).
In his affirmation submitted in support of the State's Motion, Defense counsel also asserts that the Court lacks jurisdiction over the named Defendants, Department of Corrections and Community Supervision (hereinafter, "DOCCS"), which Claimant refers to as the New York State Department of Correctional Services, and CO Rogers. The Court of Claims is a court of limited jurisdiction with power to hear claims against the State and certain public authorities (NY Const, art VI; Court of Claims Act § 9). Individual departments or agencies of New York State cannot be sued in their own names in this Court. The proper Defendant is the State of New York, and the caption of this Claim has been amended accordingly (Alestra v State of New York, UID No. 2008-040-068 [Ct Cl, McCarthy, J., Oct. 14, 2008]). In addition, this Court does not have jurisdiction over any individual, including employees of New York State (Matteson v State of New York, UID No. 2017-040-085 [Ct Cl, McCarthy, J., July 7, 2017]. Therefore, Defendant's Motion to dismiss any Claim asserted against CO Rogers or any other COs, individually, is granted.
In addition, Defendant states that, to the extent the Claim asserts causes of action for harassment by DOCCS' employees, those causes of action must be dismissed as New York does not recognize a common law cause of action to recover damages for harassment (Affirmation, ¶ 9). Claimant, in her opposition papers, does not contest this statement. The Court concludes that it is well settled that New York does not recognize a common law cause of action to recover damages for harassment (Wells v Town of Lenox, 110 AD3d 1192, 1193-1194 [3d Dept 2013; Monreal v New York State Dept. of Health, 38 AD3d 1118, 1119 [3d Dept 2007]; Daulat v Helms Bros., Inc., 18 AD3d 802, 803 [3d Dept 2005]). Thus, the causes of action for harassment are dismissed.
The Court further notes that "the allegation of harassment is the functional equivalent of an action alleging intentional infliction of emotional harm" (Warren v State of New York, UID No. 2012-039-299 [Ct Cl, Ferreira, J., Apr. 29, 2012]). Claims of intentional infliction of emotional distress against governmental bodies are barred as a matter of public policy (Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 ; Brown v State of New York, 125 AD2d 750, 752 [3d Dept 1986], lv dismissed 70 NY2d 747 ). However, negligently-inflicted emotional damages are recoverable in a proper case (Martinez v Long Is. Jewish Hillside Med. Ctr., 70 NY2d 697 ; Topor v State of New York, 176 Misc 2d 177 [Ct Cl 1997]).
The Court next turns to Claimant's Motion (M-90247) for permission to serve and file a Claim late pursuant to Court of Claims Act § 10(6). Attached to the affirmation of Claimant's counsel as Exhibit 1is a copy of the Claim that the Court has just dismissed. While it is not labeled as a proposed Claim, the Court will consider it as the proposed Claim.
Pursuant to Court of Claims Act § 10(6), it is within the Court's discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. The proposed Claim asserts causes of action for sexual assault, harassment, and negligent supervision of COs, as set forth above. Causes of action for negligence (CPLR § 214) have a three-year Statute of Limitations and causes of action for intentional torts (CPLR § 215) have a one-year Statute of Limitations. The alleged sexual assault accrued on July 13, 2016. Thus, at the time this Motion was served and filed the Statute of Limitations had not yet expired with respect to any of the causes of action and, thus, the Motion is timely.
Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Claimant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 ). However, the burden rests with Claimant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
Perhaps the most important factor to be considered is whether the proposed Claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], lv granted 16 NY3d 703 , affd sub nom. Donald v State of New York, 17 NY3d 389 , quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]). It is Claimant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Claimant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Claimant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).
Claimant asserts causes of action for harassment. As set forth above, New York does not recognize a common law cause of action to recover damages for harassment (Wells v Town of Lenox, supra; Monreal v New York State Dept. of Health, supra; Daulat v Helms Bros., Inc., supra). Thus, the causes of action for harassment lack the appearance of merit.
The doctrine of respondeat superior makes an employer vicariously liable for the torts committed by its employees acting within the scope of his/her employment (Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 ). Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, as long as the employee's tortious conduct is generally foreseeable and a natural incident of the employment (id., Riviello v Waldron, 47 NY2d 297, 304 ). "If, however, an employee 'for purposes of his own departs from the line of his duty so that for the time being his acts constitute an abandonment of his service, the [employer] is not liable' " (Judith M. v Sisters of Charity Hosp., supra).
Claimant's proposed Claim is based upon an allegation of sexual assault allegedly committed by CO Rogers, however, a sexual assault perpetrated by an employee is not an act in furtherance of the employer's business "and is a clear departure from the scope of employment, having been committed for wholly personal motives" (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 ; see Judith M. v Sisters of Charity Hosp., supra at 933; Cornell v State of New York, 46 NY2d 1032 ; Kunz v New Netherlands Routes, Inc., 64 AD3d 956, 958 [3d Dept 2009]; Dia CC v Ithaca City School Dist., 304 AD2d 955, 956 [3d Dept 2003], lv denied 100 NY2d 506 ). Insofar as Claimant's proposed Claim is based on the contention that the State is vicariously liable for an alleged sexual assault and battery committed by CO Rogers, it lacks merit as a matter of law.
The cause of action in the proposed Claim based upon allegations that Defendant was negligent in its hiring and supervision, or retention, of certain COs is denied as moot as that same cause of action has not been dismissed in the existing Claim that is the subject of these Motions.
As the proposed Claim lacks the appearance of merit, the Motion for permission to serve and file a Claim late, is denied. The portion of Claimant's motion to dismiss the State's Tenth and Eleventh Affirmative Defenses is denied as moot.
September 14, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on and Claimant's Motion for permission to serve and file a claim late, and to dismiss two affirmative defenses and Defendant's Motion to dismiss:
Notice of Motion (M-90247), Affirmation
& Exhibits Attached 1
Notice of Motion (M-90400), Affirmation in Support
& Exhibits attached 2
Claimant's Affirmation in Opposition to Defendant's
Motion & in Support of Claimant's Motion &
Exhibits Attached 3
Defendant's Reply Affirmation 4
Filed Papers: Claim, Answer