Emma T. v. State

77 Misc.3d 858

180 N.Y.S.3d 825

EMMA T., Claimant,

v.The STATE of New York, Defendant.

Claim No. 136018

Court of Claims of New York.

Decided on November 16, 2022

For Claimant: Bruce A. Young, and Amy J. Fricano, Esqs.

For Defendant: Hon. Letitia A. James, Attorney General of the State of New York, By: Antonella Papaleo, Esq., Assistant Attorney General

Javier E. Vargas, J.

For the following reasons, the Motion by Defendant State of New York (hereinafter "State"), to dismiss the Claim filed by Claimant Emma T. (hereinafter "Claimant"), is granted, and the Claimant's Cross Motion to amend his Claim, is denied in accordance with the following decision.

By Claim filed on February 22, 2021, Claimant commenced the instant action against the State in the Court of Claims pursuant to the Child Victims Act, embodied in CPLR 214-g, alleging that she, as a minor and ward of the State, was placed by the State in various foster care facilities and homes, including at the Brentwood Residential Center for Girls ("Brentwood") "from approximately 1997 to 1999" (Claim at 3, ¶¶ 12). At all times, the Claim states that a State's supervisory employee serving as Brentwood's Director, Randy S., "used the tasks, premises, and instrumentalities of his position with the [State] to isolate and sexually abuse Claimant when she was approximately 15 to 16 years old" (id. ¶¶ 16-18). "The sexual abuse included fondling, masturbation, and forced oral sex and vaginal intercourse, among other sexual acts," in violation of New York Penal Law Article 130 (id. ). Brentwood, which is located in the central Long Island Community of Dix Hills, New York, is owned, operated and controlled by the New York State Office of Children and Family Services ("OCFS").

"From approximately 1997 through her discharge in 1999, Director S. utilized the trust and authority vested in him by the [State] to groom and gain Claimant's trust and to obtain control over her as part of his plan to sexually abuse her" (Claim at 4, ¶ 23). According to the Claim, the sexual abuse of Claimant "occurred at locations that were owned, operated, and/or controlled by the [State], including in the offices and isolated quarters at Brentwood, in her room, and elsewhere on the Brentwood premises" on "at least ten times" (id. ¶ 26, 29). Based on those allegations, the Claim concludes that the State had both general and specific notice of the sexual abuse of its residents by Brentwood's staff members, could foresee the damage but negligently permitted it to continue unabated (id. at 5, ¶¶ 31-35).

On April 15, 2021, the State filed its Verified Answer, denying Claimant's allegations of negligence or culpability, and asserting 16 Affirmative Defenses, including that "the claim fails to comply with Court of Claims Act § 11(b) by failing to include "an adequate description of the location of the incidents alleged," "an adequate particularization of the nature of the cause(s) of action," or "the specific time when and date" of the alleged sexual abuse, and therefore, there is no proper claim over which the Court of Claims has subject matter jurisdiction. That same day, the State also filed and served Claimant with a Demand for a Verified Bill of Particulars, Combined Demands, Medicare Demand and Notice for Examination before Trial. Claimant complied with some of these disclosure requests and has served her own discovery instruments upon the State pursuant to CPLR 3101 and 3107.¹

On January 11, 2022, the State filed the instant Notice of Motion to Dismiss the Claim, seeking summary judgment dismissal pursuant to CPLR 3212, arguing that the Claim fails to comport with the jurisdictional requirements regarding a specific location, nature, time and date of the Claim as required by Court of Claims Act § 11(b), and is subject to dismissal. The State argues that Claimant must allege the dates and times of the abuse with sufficient specificity to enable it to investigate the Claim promptly and ascertain its potential liability. Namely, the State maintains that Claimant simply provides a broad period of over two years when the alleged abuse occurred. In Paragraph 13 of the Claim, Claimant alleges that she resided in Brentwood from 1997 to 1998; however, she inconsistently alleges in other parts of the Claim that the abuse occurred between 1997 to 1999.

In addition, the States argues that, although the Claim provides a general description of an unknown number of sexual assaults by Mr. S., it fails to provide more detailed information concerning the nature of the alleged incidents. There is a complete lack of specificity in the Claim as to how the State's negligence contributed to the alleged abuse or how the State was to reasonably foresee that the alleged conduct would constitute a basis for the lawsuit. According to the State, the Claim is essentially about its alleged negligence in the hiring, training, and supervision of the alleged perpetrator, but to the extent that Claimant views her Claim as one directly against the State for the alleged sexual assault under a respondeat superior legal theory, such a cause of action is not cognizable.

Thereafter, on February 7, 2022, the parties entered into a Preliminary Conference Stipulation and Order with respect to a discovery schedule, so ordered by then Court of Claims Judge Faviola A. Soto. Counsels appeared for a subsequent conference with Judge Soto on May 2, 2022, where the Court made further rulings and permitted extensions of time to comply with each party's discovery requests.

On February 22, 2022, Claimant opposed the Motion and filed her own Notice of Cross Motion to Amend the Claim and Strike Affirmative Defenses,² arguing, inter alia, that summary judgment is inappropriate because the State acknowledged that more discovery was necessary when it provided responses, that child sexual abuse cases require some latitude in specifying times and dates, and that the Claim sufficiently alleges several incidents occurring from 1997 to 1999 when Claimant was a child in State's custody. Incongruously, Claimant's asserts that the first incident of abuse occurred in "approximately September 2004" (sic) and that the particular behavior was repeated at least but not limited to nine or ten times with the last incident occurring approximately three weeks before "her release on March 16, 2005"³ (Claimant's Affirmation in Opposition to Defendant's Motion and in Support of Claimant's Cross Motion at para. 80). Claimant maintains that the abuse she suffered from Mr. S. occurred at the facility, but does not state the exact number of incidents of abuse Claimant is alleging nor precisely when these incidents occurred. Also, according to Claimant, the Claim adequately states a factual basis before any discovery of a valid claim for negligence based upon inadequate supervision, failure to report pursuant to Social Services Law §§ 413 and 420, negligent hiring and retention, and adequate prior notice of the risk of harm to Claimant who was in the State's protective custody.

Separately, Claimant cross-moves for leave to amend the Claim pursuant to Court of Claims Act § 602.7(b) and CPLR 3025(b), arguing that her Affidavit and proposed Amended Claim satisfy any perceived deficiencies as to the particularized detail required under Court of Claims Act § 11(b), and the State has not been surprised or prejudiced because there was a significant amount of information concerning the events involving Claimant within a few months of the incident including police reports which provided various details of the abuse. Furthermore, Claimant cross-moves to strike the State's Court of Claims Act § 11 affirmative defenses, contending that the original Claim and the proposed amended Claim present sufficient facts to satisfy the Act. She contends that Court of Claims Act § 11 was raised without regard to the applicability to the nature of the Claims or the State's special duty, as the State is presently not entitled to summary dismissal and unable to explain or justify its affirmative defenses.

The Court is in receipt of the State's Affirmation in Further Support of the Motion to Dismiss the Claim and in Opposition to the Cross Motion filed on April 13, 2022, where the State maintains that the Claim fails to provide any details as to when or where the abuse took place in either the two-year period or one-year period between 1997 and 1999, other than generalized statements such as in "numerous times in various ways and locations on and off the Brentwood premises" (Claim at 3, ¶ 25). The State also argues that CPLR 3025(b) does not apply to amend the Claim in this instance because the Claim is substantially insufficient under Court of Claims Act § 11, and the fatal jurisdictional defects preclude any amendment. In response, Claimant's Affirmation in Reply which was filed in this Court on April 27, 2022, asks for the Court to Stay the CPLR 3212 Motion to Dismiss until further discovery, and that this Court deem the proposed amended Claim to be filed and direct the State to answer the Amended Claim within 20 days.

On May 2, 2022, Judge Soto held a conference with counsel for Claimant and the State. As per the recordings for that day, Claimant's counsel complained about a lack of discovery responses from the State, and that the State is in control of those relevant documents. Counsel conducted independent discovery via authorizations and Freedom of Information Law ("FOIL") requests, and received a FOIL response from the Suffolk County District Attorney's Office, which had prosecuted one of Brentwood's employees. One of the documents referenced seven State Central Registry complaints against that employee, and Claimant made a FOIL request for those reports. However, counsel was advised that he could not obtain direct access to those reports outside the purview of this action, without a so-ordered subpoena, giving notice to the State. Judge Soto then directed Claimant's counsel to submit the subpoenas...