Motion to dismiss Claim commenced pursuant to Child Victims Act dismissed; Claim failed to comply with the pleading requirements of Court of Claims Act § 11 (b) as it did not state, with specificity, the time when the Claim arose.
|Claimant short name:||FENTON|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK(1)|
|Footnote (defendant name) :|
|Judge:||Catherine E. Leahy-Scott|
|Claimant's attorney:||Phillips & Paolicelli, LLP
By: Michael DeRuve, Esq.
|Defendant's attorney:||Letitia James, New York State Attorney General
By: Rachel Zaffrann, Esq., Deputy Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 23, 2021|
|See also (multicaptioned case)|
On August 5, 2021, Claimant Debra Fenton filed this Claim pursuant to the Child Victims Act to recover damages for alleged sexual misconduct perpetrated at Ramapo Community Workshop ("the Workshop") in Spring Valley, New York by Curtis West ("West"), an employee of the Workshop (see Affirmation of Rachel Zaffrann, Esq., Deputy Assistant Attorney General [Zaffrann Aff], Ex A [Claim] ¶ 2). Claimant maintains that the Workshop "was funded, owned, operated, and supervised" by the State of New York through the New York State Division of Addiction Services and Supports, formerly known as, the New York State Division of Substance Abuse Services (id.).(2) According to Claimant, the purpose of the Workshop was "to provide a safe environment and counseling to vulnerable minors" (id. ¶ 12) and she was referred to the Workshop by the Ramapo Justice Court Divisionary Project (see id. ¶ 17).
The Claim alleges that, "[s]tarting in approximately 1982, when Claimant was about 17 years old, West repeatedly engaged in unpermitted, forcible, harmful, and unlawful sexual contact with Claimant on the premises of the Workshop, and elsewhere" (id. ¶ 33). Claimant explains "[t]he sexual abuse occurred multiple times from approximately 1982 to 1983" (id. ¶ 34). Claimant alleges causes of action for (1) negligent hiring, retention, supervision, and direction; (2) negligent, reckless, and willful misconduct; (3) premises liability; and (4) breach of the statutory duty to report.
Defendant moves to dismiss the Claim pursuant to CPLR 3211 on, among other grounds, that the Claim fails to satisfy the jurisdictional pleading requirements of Court of Claims Act § 11 (b). In particular, Defendant argues that the Claim fails to specify the date(s) of the alleged sexual abuse. Claimant opposes the motion.
"The State's waiver of immunity from suits for money damages is not absolute, but rather is contingent upon a claimant's compliance with specific conditions placed on the waiver by the Legislature" (Lepkowski v State of New York, 1 NY3d 201, 206 ; see Court of Claims Act § 8; Alston v State of New York, 97 NY2d 159, 163 ). Moreover, "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Lepkowski, 1 NY3d at 206-207 [internal quotation marks and citations omitted]).
In 2019, the Legislature amended Court of Claims Act § 10 to specify that the time limitations contained therein did not apply to claims brought pursuant to the Child Victims Act revival statute (see L 2019, ch 11, § 7 [codifying Court of Claims Act § 10 (10)]). Any claims brought pursuant to the Child Victims Act are governed by the time limitations set forth in CPLR 214-g. Notably, however, the Legislature did not amend the substantive pleading requirements in Court of Claims Act § 11 (b) as it relates to Child Victims Act claims brought in this Court (see generally L 2019, ch 11; L 2020, ch 130).
"[S]ection 11(b) places five specific substantive conditions upon the State's waiver of sovereign immunity by requiring the claim to specify (1) 'the nature of [the claim]'; (2) 'the time when' it arose; (3) the 'place where' it arose; (4) 'the items of damage or injuries claimed to have been sustained'; and (5) 'the total sum claimed'" (Lepkowski, 1 NY3d at 207; see Kolnacki v State of New York, 8 NY3d 277, 280 , rearg denied 8 NY3d 994 ). "Although absolute exactness is not required, the claim must provide a sufficiently detailed description of the particulars of the claim to enable [the defendant] to investigate and promptly ascertain the existence and extent of its liability" (Morra v State of New York, 107 AD3d 1115, 1115-1116 [3d Dept 2013] [internal quotation marks and citation omitted]; see Lepkowski, 1 NY3d at 207). "[T]he State is not required to go beyond a claim or notice of intention in order to investigate an occurrence or ascertain information which should be provided pursuant to Court of Claims Act § 11" (Matter of DeMairo v State of New York, 172 AD3d 856, 857 [2d Dept 2019] [internal quotation marks and citation omitted]). The failure to comply with the pleading requirements of Court of Claims Act § 11 (b) is a jurisdictional defect mandating dismissal of the Claim (see Lepkowski, 1 NY3d at 209).
"To adequately plead when the claim arose, the claimant must allege the date of the tort or other claim, as the case may be, with sufficient definiteness to enable the State to investigate the claim promptly and ascertain its potential liability" (Matter of Geneva Foundry Litig., 173 AD3d 1812, 1813 [4th Dept 2019]). Thus, "[i]f the claimant fails to specify the dates relevant to the elements of the claim or provides only a broad range of dates, the claim is jurisdictionally defective and properly dismissed (id. at 1813-1814).
For example, in claims alleging negligent hiring, supervision, training, and/or retention of a State employee who committed acts of sexual assault against a claimant, courts have held that the failure to plead the specific date(s) when the assault(s) occurred violates Court of Claims Act § 11(b) and mandates dismissal of the Claim (see e.g. Robin BB. v State of New York, 56 AD3d 932, 933 [3d Dept 2008] [allegation that a State employee "engaged in numerous acts of sexual misconduct at various locations in St. Lawrence County over the course of an eight-year period" was insufficient to satisfy Court of Claims Act § 11 [b]; D.G. v State of New York, Claim No. 125975, Motion Nos. M-92928, CM-93574, [Ct Cl, Lopez-Summa, J., Oct. 7, 2019] [holding the claimant's allegation that she was sexually assaulted "during the period of June 5, 2013 through and including September 16, 2013" at Sagamore Children's Psychiatric Center did not satisfy Court of Claims Act § 11 (b)]; C.C. v State of New York, UID No. 2016-051-011 [Ct Cl, Martin, J., Apr. 26, 2011] ["general allegations of numerous acts of sexual misconduct at unnamed locations over the course of four months do not meet the pleading requirements of section 11 (b)]; Doe v State of New York, UID No. 2013-048-125 [Ct Cl, Bruening, J., Dec. 19, 2013] ["(t)he proposed Claim alleges that the assaults and/or sexual offenses occurred sometime after (the) Claimant arrived at the (State psychiatric center) in November 2010. (The) (c)laimant does not identify the date, or even the month, she was assaulted the first time, and the Court is left to assume that the second assault and/or sexual offense occurred four to six weeks later [before the claimant left the psychiatric center]").
Claimant's reliance on Matter of New York City Asbestos Litig. (24 NY3d 275 ) (see Affirmation of Michael DeRuve, Esq., in Opposition [DeRuve Aff], ¶ 7) in support of the contention that the Claim sufficiently describes the time when the claim arose is misplaced. Matter of New York City Asbestos Litig. involved a case against the Port Authority of New York and New Jersey that required the Court of Appeals to grapple with conflicting statutes from New York and New Jersey regarding the service of a notice of claim. The Port Authority, relying upon the Court of Claims Act, argued that the waiver of sovereign immunity is conditioned upon strict compliance with statutes governing notice (Matter of New York City Asbestos Litig, 24 NY3d at 281). However, the Court observed that, under New Jersey law, a plaintiff need only substantially comply with the notice of claim requirements (see id.). The Court of Appeals held that, because "consistency between the two states' interpretations, where possible, is desirable," substantial compliance with the notice of claims requirement as mandated by New Jersey law should govern (id.). In so holding, the Court of Appeals cautioned it was "not retreat[ing]" from the holdings of Kolnacki and Lepkowski requiring strict compliance with the statutory mandates of the Court of Claims Act (id.). Additionally, the Court of Appeals noted that the New York State statute at issue was McKinney's Unconsolidated Laws of N.Y. § 7108, not Court of Claims Act § 11 (see id. at 281-282). Thus, Matter of New York City Asbestos Litig. is not relevant.
Claimant also argues that Defendant is not prejudiced by any alleged pleading deficiencies because it investigated the allegations of sexual abuse committed by West in 1983 (see DeRuve Aff ¶¶ 16-22). The Third Department has held:
"Where an agency of [the] defendant has performed the internal investigation of an incident and is therefore the primary or, perhaps, even the sole source of information upon which a claim is based, it cannot be readily found that a lack of specificity has interfered with [the] defendant's ability to investigate a claim, or that [the] defendant has been improperly required to assemble information regarding a claim"
(Davila v State of New York, 140 AD3d 1415, 1417 [3d Dept 2016] [internal quotation marks and citations omitted]; see Brooks v State of New York, 2017-049-018 [Ct Cl, Weinstein, J., July 17, 2017] [holding that the claimant's failure to describe the precise location of the slip-and-fall accident at the Department of Motor Vehicles did not render the notice of intention deficient because state employees immediately investigated the accident after it occurred]).
Claimant attempts to buttress this contention by including several newspaper articles from 1984 (see DeRuve Aff Ex B). The articles relied upon by Claimant do not establish that the State of New York investigated the acts of sexual abuse set forth in this Claim. These articles, which are largely illegible, specifically indicate the New York State Division of Substance Abuse Services investigated "administrative problems," including "poor record-keeping, staff vacancies and under-utilization [of the program]" (e.g. Hilary Waldman, Suffern Mayor Wants Workshop Abolished, The Journal-News Local, Feb. 3, 1984 at 11 [reproduced at DeRuve Aff, Ex B at 1). Although one of these articles references "a January 1983 review of the program by investigators for [the Division of Substance Abuse Services]," which allegedly "found the program suffered from a lack of proper supervision of staff, poor record-keeping and staff vacancies" (Naedine Hazell, Town Ignored Trouble Signs, The Journal-News Local, Feb. 5, 1984, at 16) [reproduced at DeRuve Aff Ex B at 5]), this newspaper article constitutes double hearsay and, thus, does not qualify as evidentiary material that could be submitted or considered in opposition to a motion to dismiss (see Bakery Salvage Corp. v Maple Leaf Foods, 195 AD2d 954, 955 [4th Dept 1993]).
In sum, Claimant alleges she was sexually assaulted by West during a one-year period she was at the Workshop (see Claim ¶¶ 2, 33-34). Claimant's failure to set forth any specific date(s) of the alleged abuse violates Court of Claims Act § 11 (b) and mandates dismissal of this Claim. In light of the foregoing, the Court need not address Defendant's other argument(s) for dismissal.
Accordingly, it is hereby:
ORDERED Motion No. M-97244 is GRANTED and Claim No. 136746 is DISMISSED.
November 23, 2021
Albany , New York
Catherine E. Leahy-Scott
Judge of the Court of Claims
The Court considered the following papers in deciding this motion:
(1) Notice of Motion, dated September 20, 2021.
(2) Affirmation of Rachel Zaffrann, Esq., Deputy Assistant Attorney General, dated September 20, 2021, with attachments.
(3) Affirmation of Michael DeRuve, Esq., in Opposition to Motion to Dismiss, dated October 21, 2021, with attachments.
(4) Reply Affirmation of Rachel Zaffrann, Esq., Deputy Assistant Attorney General in Further Support of Motion to Dismiss, dated November 16, 2021, with attachments.
1. The caption is amended sua sponte to reflect the State of New York as the only proper Defendant.
2. For the purposes of this motion, the Court will refer to the Defendant agency as the "New York State Division of Substance Abuse Services" as that was the name of the agency at the time the Claim arose.