J.F. v. State
| Docket Number | Claim No. 136487 |
| Decision Date | 30 August 2022 |
| Citation | 76 Misc.3d 1082,176 N.Y.S.3d 436 |
| Parties | J.F., Claimant, v. The STATE of New York, Defendant. |
| Court | New York Court of Claims |
For Claimant: Herman Law, By: Jeff Herman, Esq., Jenny Rossman, Esq., Stuart Mermelstein, Esq., and Vanessa Neal, Esq.
For Defendant: Hon. Letitia A. James, Attorney General of the State of New York, By: Cheryl Rameau, Esq., Assistant Attorney General
For the following reasons, the Motion by Defendant State of New York (hereinafter "State"), to dismiss the Claim filed by Claimant J.F. (hereinafter "Claimant"), is denied, and the Claimant's Cross Motion to amend his Claim, is granted in accordance with the following decision.
By revival Claim filed on June 17, 2021, Claimant commenced the instant proceeding against the State pursuant to the Child Victims Act, embodied in CPLR 214-g, alleging that he was sexually abused and assaulted at the Kingsboro Psychiatric Center in Brooklyn, New York (hereinafter "Kingsboro"), an institution owned, operated and controlled by the State. Specifically, the Claim alleges that "[i]n approximately 1992, when he was approximately fourteen (14) years old, Claimant was admitted to KINGSBORO" for inpatient psychiatric treatment under the custody and legal guardianship of the State, where he was sexually abused and assaulted several times a week by one Alvin Smith, the then Director of Children and Youth Services at Kingsboro. He affirms that Mr. Smith took him to his office where he illegally performed fellatio and masturbated each other during the first week of his inpatient placement and for approximately six months thereafter. Within three weeks of his stay at Kingsboro, Claimant allegedly reported the sexual abuse and assault to his psychiatrist, Dr. Owens; and to his counselor, Mr. King, within three months. Despite his complaints, the State was allegedly negligent in failing to take any action to protect the Claimant from Smith, who continued to abuse him until his discharge later that year.
The State filed its Verified Answer on August 13, 2021, denying all allegations of negligence or culpability and asserting several affirmative defenses, including the tenth affirmative defense stating "[t]he claim fails the comply with Court of Claims Act Section 11(b) by failing to include the dates or any adequate description of the manner in which the incident occurred, and therefore, there is no proper claim over which the Court [of Claims] has jurisdiction." Thereafter, on February 8, 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 on April 14, 2022, where discovery and deposition deadlines were discussed and extended on agreement by the Court and counsel, and the matter was adjourned to June 13, 2022, for further conference. On June 13, 2022, the Court further extended disclosure proceedings and scheduled a conference to be held on September 28, 2022.
In the meantime, by Notice of Motion filed on May 10, 2022, the State moves for the dismissal of the Claim, pursuant to CPLR 3211(a)(2), on the grounds that it fails to satisfy the jurisdictional pleading requirements of Claim Court of Claims Act § 11 (b) in that the Claimant does not sufficiently particularize "the date, time and place of the complained incidents" of sexual abuse. The States argues that although Claimant affirmed that the sexual abuse occurred in 1992, further examination and discovery uncovered that he was in fact hospitalized from May to September 1994. The State contends that since the Claim alleges an incorrect date and year for the sexual abuse, then the Claim against the State is jurisdictionally defective and unamendable pursuant to Court of Claims Act § 11(b).
In opposition, on June 24, 2022, the Claimant filed a Notice of Cross Motion, as well as a Memorandum of Law in Opposition, arguing that the Claim under the Child Victims Act's revival statute needs not allege a precise date when the claim arose as it merely requires "a time when" the incident happened as opposed to the more stringent "precise" or "actual date" requirement advocated by the State. In support of his Cross Motion, the Claimant also argues that the Claim provided "substantial compliance" with the notice and factual pleading threshold requirements to enable the State to investigate and locate his records and dates of admission to Kingsboro without suffering any prejudice or surprise. The Claimant also relies on the legislative history surrounding the enactment of the Child Victims Act and its remedial purposes to buttress his arguments for the relaxation of the threshold standards.
On June 30, 2022, following the retirement of the Hon. Faviola A. Soto, who was presiding over this case, all matters and motions currently pending before her were reassigned to the Undersigned. Upon reading the papers herein, this Court agrees with the Claimant.
The Child Victims Act revived the time to commence civil actions based upon certain "conduct which would constitute a sexual offense" committed against children less than 18 years of age ( CPLR 214-g ; see S.H. v. Diocese of Brooklyn, 205 A.D.3d 180, 186, 167 N.Y.S.3d 171 [2nd Dept. 2022] ; Pisula v. Roman Cath. Archdiocese of N.Y. , 201 A.D.3d 88, 98-99, 159 N.Y.S.3d 458 [2nd Dept. 2021] ). The rule creates a revival or "window" period running from the effective date of the Act (February 14, 2019) to two years and six months for civil actions for which the statute of limitations has already expired (see CPLR 214-g ). In addition to enacting CPLR 214-g, the New York 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 (see L 2019, ch 11 § 7 [codifying Court of Claims Act § 10[10] ]). However, the Legislature did not amend the substantive pleading requirements of Court of Claims Act § 11(b) as it relates to Child Victims Act claims (see González v. State of New York , Claim No. 136780, Motion No. M-97259 [Ct. Cl., Leahy-Scott, J. January 10, 2022]; see generally L 2019, ch 11; L 2020, ch 130).
A claimant's failure to strictly comply with the filing requirements of the Court of Claims Act may deprive the Court of Claims of subject matter jurisdiction (see Court of Claims Act § 8 ; Criscuola v. State of New York , 188 A.D.3d 645, 134 N.Y.S.3d 67 [2nd Dept. 2020] ), and be subject to dismissal pursuant to CPLR 3211(a)(2). Specifically, Court of Claims Act § 11(b) "places five 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; [and] (4) ‘the items of damage of injuries claimed to have been sustained’ " ( Lepkowski v. State of New York , 1 N.Y.3d 201, 207, 770 N.Y.S.2d 696, 802 N.E.2d 1094 [2003] ; see Kolnacki v. State of New York , 8 N.Y.3d 277, 280, 832 N.Y.S.2d 481, 864 N.E.2d 611 [2007] ; González v. State , supra, Claim No. 136780). "Although absolute exactness is not required, the claim must provide a sufficiently detailed description of the particulars of the claim to enable [the State] to investigate and promptly ascertain the existence and extent of liability" ( Morra v. State of New York, 107 A.D.3d 1115, 1116, 967 N.Y.S.2d 169 [3rd Dept. 2013] ; see Criscuola v. State , 188 A.D.3d at 645, 134 N.Y.S.3d 67 ; Sharief v. State of New York , 164 A.D.3d 851, 83 N.Y.S.3d 139 [2nd Dept. 2018] ; Sinski v. State of New York , 265 A.D.2d 319, 696 N.Y.S.2d 70 [2nd Dept. 1999] ). The sufficiency of a claim rests solely upon the assertions contained therein, and the State is not required to ferret out or assemble information that section 11(b) obligates the Claimant to allege (see Pressley v. State of New York , 74 Misc.3d 1233[A], 2022 WL 1183276, 2022 N.Y. Slip Op. 50319[U] [Ct. Cl., N.Y. 2022] ).
Applying these principles to the matter at bar, the State has not sufficiently established an entitlement to the dismissal of the Claim. The record reflects that Claimant timely filed the instant Claim seeking relief against the State for sexual abuse and assault committed by a State employee at a State institution. Particularly, the original Claim alleged that "in approximately 1992, when he was approximately fourteen (14) years old," Claimant was sexually abused and assaulted by Mr. Smith, despite his repeated complaints to Kingsboro personnel. During the process of discovery of medical records, the Claimant discovered that he was in fact admitted to Kingsboro on May 26, 1994, and that he was discharged on September 12, 1994. Despite this discrepancy, this Court notes that the Child Victims Act revival claims - "recognizing the justifiable delay often associated with coming to terms with and reporting such abuse" - are sometimes brought well over twenty or thirty years after the childhood abuse or trauma occurred, as is the case here after 27 years ( S.H. v. Diocese of Brooklyn, 205 A.D.3d at 194, 167 N.Y.S.3d 171 ). These Claims are distinguishable from personal injury cases involving a slip and fall on State property, or an accident with a State vehicle where the date of the occurrence should be precisely pled, as there are usually accident reports, or other reports reflecting the same (see e.g. Criscuola v. State of New York, 188 A.D.3d 645, 646, 134 N.Y.S.3d 67 [2nd Dept. 2020] []; Sinski v. State of New York , 265 A.D.2d 319, 696 N.Y.S.2d 70 [2nd Dept. 1999] []). Here, the Claim as originally pleaded cannot be declared defectively insufficient for failure to set forth a precise date and time.
As recently expressed by the Second Department in the context of the Child Victims Act, "We recognize that in matters of sexual abuse involving minors, as recounted by...
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...to two years and six months for civil actions for which the statute of limitations has already expired" (see J.F. v State of New York, 76 Misc.3d 1082 [Ct Cl, Vargas, J., August 30, 2022]; CPLR 214-g). In addition to enacting CPLR 214-g, the New York State Legislature amended Court of Claim......