Motion to dismiss Claim commenced pursuant to Child Victims Act revival statute granted; In enacting the Child Victims Act, Legislature did not amend and/or abrogate the strict pleadings requirements of Court of Claims Act § 11 (b) and Claimant's failure to plead specific date(s) when the Claim arose mandated dismissal.
|Claimant short name:||BOWDEN|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Catherine E. Leahy-Scott|
|Claimant's attorney:||Herman Law
By: Jeff Herman, Esq., Stuart Mermelstein, Esq., and Eric C. Goldman, Esq.
|Defendant's attorney:||Letitia James, New York State Attorney General
By: Terrance K. DeRosa, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 21, 2021|
|See also (multicaptioned case)|
On August 3, 2021, Claimant Richard Bowden filed this Claim pursuant to the Child Victims Act to recover damages for alleged sexual misconduct perpetrated at Children's Village, a juvenile residential care facility, located in Dobbs Ferry, New York (see Affirmation of Terrance K. DeRosa, Esq., Assistant Attorney General [DeRosa Aff], Ex A [Claim] ¶ 1).
The Claim alleges that, "[i]n or about 1975, when he was approximately twelve (12) years old, Claimant was placed by the [Division for Youth] at [Children's Village] in Dobbs Ferry, New York" (Claim ¶ 29). Claimant alleges that "[f]rom approximately 1975 until approximately 1979, . . . Claimant was sexually abused and assaulted" by Mary Harrison, a counselor; "Mr. Mann," a teacher and counselor; and Father William "Bill" Mayhan (id. ¶¶ 8, 30). As to Harrison and Mann, Claimant alleges he was sexually assaulted "approximately fifty (50) to sixty (60) times" (id. ¶¶ 33, 38). With respect to Father Mayhan, Claimant contends he was sexually assaulted "over one hundred (100) times" (id. ¶ 44).
Defendant moves to dismiss the Claim pursuant to CPLR 3211 (a) (2) on the ground that itfails to satisfy the jurisdictional pleading requirements of Claim Court of Claims Act § 11 (b). In particular, Defendant argues, among other things, that the Claim fails to specify the date(s) of the alleged sexual abuse (see Affirmation of Terrance K. DeRosa, Esq., Assistant Attorney General ¶ 2).
Claimant opposes the motion, arguing that a claim brought pursuant to the Child Victims Act revival statute need not allege a precise date when the claim arose (see Cl's Memo of Law in Opp at 9-20). Claimant appears to suggest that the substantive, jurisdictional pleading requirements of Court of Claims Act § 11 (b) do not apply to claims brought under the Child Victims Act (see id. at 14). Claimant contends that by enacting Court of Claims Act § 10 (10) and removing the time limitations for claims brought pursuant to the Child Victims Act, the Legislature intended to relax the substantive pleading requirements set forth in Court of Claims Act (see id.). Indeed, Claimant goes so far as to state that "the question of when a claim filed under the [Child Victims Act] arose is now jurisdictionally irrelevant" (id.). In support of this argument, Claimant relies on legislative history surrounding the enactment of the Child Victims Act (see Affirmation of Jeff Herman, Esq. in Opposition to the Motion [Herman Aff], Exs A-D).
The clearest indicator of legislative intent is the plain language of a statute (see Matter of T-Mobile Northeast, LLC v DeBellis, 32 NY3d 594, 607 , rearg denied 32 NY3d 1197 ; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 ; Matter of Estate of Marin v Bell, 137 AD3d 783, 783 [2d Dept 2016]). Thus, "the starting point in any case of [statutory] interpretation must always be the language itself, giving effect to the plain meaning thereof" (Majewski, 91 NY2d at 583). "As a general rule, unambiguous language of a statute is alone determinative" (Riley v County of Broome, 95 NY2d 455, 463 ; see Kimmel v State of New York, 76 AD3d 188, 193 [4th Dept 2010]) and "resort to extrinsic evidence, such as the legislative history of the statute, is inappropriate" (People v Cypress Hill Cemetery, 208 AD2d 247, 251 [2d Dept 1995]).
"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 ). Specifically, the State's waiver of immunity '"is conditioned upon a claimant's compliance with the limitations set forth in article 2 of the Court of Claims Act, which includes section 11 (b)"' (Moreland v State of New York, -- AD3d --, 2021 NY Slip Op 07042, at * 1 [3d Dept 2021], quoting Weaver v State of New York, 82 AD3d 878, 879 [2d Dept 2011], lv dismissed 17 NY3d 778 , lv denied 19 NY3d 804 ). 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" (Matter of New York City Asbestos Litig., 24 NY3d 275, 281  [internal quotation marks and citations omitted]). "Although it may be difficult to comply with the terms of [Court of Claims Act § 11 (b)], it is for the Legislature to set and modify those terms, not this Court" (Moreland, 2021 NY Slip Op 07042, at * 2).
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). Thus, the Court concludes that the plain language of the Child Victims Act is unambiguous in that it did not amend the pleading requirements of Court of Claims Act § 11 (b).
The legislative history relied upon by Claimant does not evince a contrary intent as it relates to Court of Claims Act § 11 (b) (see People v Badji, 36 NY3d 393, 399  ["the legislative history of an enactment may also be relevant and is not to be ignored, even if words be clear" (internal quotation marks and citation omitted)]). Specifically, Claimant relies upon, among other things, the Sponsor's Memorandum of the initial legislative bill enacting the Child Victims Act, a statement made by New York State Assembly Speaker Carl E. Heastie regarding the passage of the Child Victims Act, and the Governor's Executive Budget Memo for the 2020 Fiscal Year. In particular, the Sponsor's Memorandum states the Child Victims Act will
"[r]emove notice of claim requirements in actions alleging damages resulting from the commission of certain sexual offenses against government entities, thus putting governmental and non-governmental defendants on an equal footing for any civil actions brought after the effective date of this act, including during the one year revival window. Current law, which requires that a notice of claim must first be served prior to commencing such actions, would not apply to these types of actions."
(Sponsor's Mem at 2 [reproduced at Herman Aff, Ex A at 2]). Similarly, Speaker Heastie stated the Child Victims Act "would treat public and private entities equally by removing the current notice of claim provisions for public entities, and further clarify that public and private entities are subject to the look-back window" (see News Release of Assembly Speaker Carl E. Heastie [reproduced at Herman Aff, Ex B]). The Governor's Executive Budget Memo stated
"there are needless statutory hurdles that make it difficult for these victims to bring lawsuits against those entities that have harbored these abusers. By eliminating the need to file a notice of claim in these child sex abuse cases, this bill removes those hurdles and ensures that these victims are not denied their day in court"
(FY 2020 New York State Executive Budget Public Protection & General Government Article VII Legislation, at 31 [reproduced at Herman Aff, Ex D at 4]).
None of these statements demonstrate an intention to amend and/or abrogate the substantive, jurisdictional pleadings requirements set forth in Court of Claims Act § 11 (b) for Child Victims Act claims brought in the Court of Claims. Rather, these statements demonstrate the legislature's intent of removing the time restrictions and/or notice of claim requirements before commencing a claim against a governmental entity. Stated differently, these statements merely clarify that to commence an action pursuant to the Child Victims Act, an aggrieved party must simply file the lawsuit against the defendant within the revival window regardless of whether the defendant is a governmental entity or a private party. This reading is consistent with Court of Claims Act § 10 (10) which removes the time limitations for claims and notices of intention to file claims brought pursuant to the Child Victims Act.
In sum, the plain language of the Child Victims Act and the legislative history relied upon by Claimant do not support Claimant's contention that the strict pleading requirements of Court of Claims Act § 11 (b) do not apply to claims commenced pursuant to the Child Victim's Act. Indeed, had the Legislature intended to amend or abrogate section 11 (b) as it relates to claims brought pursuant to the Child Victims Act, or specify that such claims should be treated differently than other claims brought before this Court it could have easily done so (see generally Court of Claims Act § 8-b [setting forth specific rules for claims for unjust conviction and imprisonment]). Consequently, the Court concludes that the strict pleading requirements of Court of Claims Act § 11 (b) applies to claims commenced pursuant to the Child Victims Act.
"[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 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, 2016] ["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]"). Although these cases were not commenced pursuant to the Child Victims Act revival statute, the Fourth Department has specified that "[t]he case law that has developed in non-Child Victims Act cases applies equally to Child Victims Act cases" (PB-7 Doe v Amherst Cent. Sch. Dist., 196 AD3d 9, 12 [4th Dept 2021], quoting Doe v MacFarland, 66 Misc. 3d 604, 614, [Sup Ct, Rockland County 2019]).
Here, Claimant alleges he was sexually assaulted by three individuals on multiple occasions during a four-year period while residing at Children's Village. 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.
Accordingly, it is hereby:
ORDERED Motion No. M-97236 is GRANTED and Claim No. 136716 is DISMISSED.
December 21, 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 August 31, 2021.
(2) Affirmation of Terrance K. DeRosa, Esq., Assistant Attorney General, dated August 31, 2021, with attachment.
(3) Affirmation of Jeff Herman, Esq., in Opposition to Motion, dated December 8, 2021, with attachments.
(4) Claimant's Memorandum of Law in Opposition to Motion, dated December 8, 2021.
(5) Reply Affirmation of Terrance K. DeRosa, Esq., Assistant Attorney General, dated December 14, 2021, with attachment.