J.J. v. State, 2021-21313

CourtNew York Court of Claims
Writing for the CourtCATHERINE E. LEAHY-SCOTT Judge of the Court of Claims
PartiesJ.J., Claimant, v. State of New York, Defendant.
Decision Date10 November 2021
Docket NumberClaim 136670,2021-21313

J.J., Claimant,
v.

State of New York, Defendant.

No. 2021-21313

Claim No. 136670

Court of Claims

November 10, 2021


For Claimant:

Herman Law

By: Jeff Herman and Scott Michael Duquin, Esq.

For Defendant:

Letitia James, New York State Attorney General

By: Heather R. Rubinstein, Esq., Assistant Attorney General

CATHERINE E. LEAHY-SCOTT Judge of the Court of Claims

On July 27, 2021, Claimant J.J. filed this Claim pursuant to the Child Victims Act to recover damages for alleged sexual misconduct perpetrated against him at McQuade Foundation Boarding School f/k/a McQuade Home for Children (McQuade) (see Affirmation of Heather R. Rubinstein, Esq., Assistant Attorney General, Ex A [Claim] ¶ 1). The Claim alleges McQuade "was a not-for-profit corporation organized under the laws of the State of New York" that was "an approved residential school for children with special needs or in need of supervision" (id. ¶ 4).

The Claim alleges that "[i]n or about 1971, when he was approximately eleven (11) years old, Claimant was placed by [the Division for Youth] at [McQuade]... for residential juvenile detention and/or supervision" (id. ¶ 28). Claimant contends that he was sexually assaulted by "Hayes" who is described as "a male staff member of [McQuade] and was the employee and/or agent of [McQuade]" (id. ¶ 29). The alleged sexual assault committed against Claimant at McQuade began when he was 12 years old and continued until he was discharged at approximately 13 or 14 years old (id. ¶ 28-34). Moreover, the Claim alleges that Hayes sexually abused Claimant for three years after Claimant was discharged from McQuade (see id. ¶ 34).

Claimant purports to set forth a cause of action of negligence against the State of New York based upon the alleged sexual assault committed by Hayes. In particular, Claimant contends that the State "was responsible for the oversight and monitoring of juvenile detention centers to ensure compliance with applicable New York Law" (id. ¶13) and breached, among other duties, the duty "[t]o investigate all relevant conditions of the juvenile detention centers that might affect the child" and, more specifically, "[t]o report and investigate all known incidents of sexual abuse or aggression occurring in the juvenile detention center" (id. ¶ 25 [b], [d]). Defendant State of New York now moves pursuant to CPLR 3211 to dismiss the claim.

"In determining a motion to dismiss, the Court of Claims must afford a liberal construction to the claimant's pleadings, accept the allegations as true, and accord the benefit of every possible favorable inference to the claimant" (Garofolo v State of New York, 80 A.D.3d 858, 860 [3d Dept 2011]).

The first issue for the Court to decide in a negligence claim asserted against the State of New York is whether the State "'was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose'" (Tara N.P. v Western Suffolk Bd. of Coop. Educ. Servs., 28 N.Y.3d 709, 713 [2017], quoting Applewhite v Accuhealth, Inc., 21 N.Y.3d 420, 425 [2013]; see Turturro v City of New York, 28 N.Y.3d 469, 477 [2016]; T.T. v State of New York, 151 A.D.3d 1345, 1346 [3d Dept 2017]). "If [the State] was engaged in a proprietary function-that is, activities that 'essentially substitute for or supplement traditionally private enterprises'-it is subject to suit under ordinary negligence principles applicable to nongovernmental actors" (T.T., 151 A.D.3d at 1346, quoting Sebastian v State of New York, 93 N.Y.2d 790, 793 [1999]; see Riss v City of New York, 22 N.Y.2d 579, 581 [1968]; Drever v State of New York, 134 A.D.3d 19, 22 [3d Dept 2015]). Conversely, the State engages in a governmental function where its actions were "'undertaken for the protection and safety of the public pursuant to the general police powers'" (Applewhite, 21 N.Y.3d at 425, quoting Sebastian, 93 N.Y.2d at 793; see Tara N.P., 28 N.Y.3d at 713; T.T., 151 A.D.3d at 1346). "In this category, the State remains generally immune from negligence claims, absent a special relationship between the injured party and the State" (Sebastian, 93 N.Y.2d at 793; see T.T., 151 A.D.3d at 1346).

The Court of Appeals has held the government function attributed to the general police power includes "the oversight of juvenile delinquents" (Connolly v Long Is. Power Auth., 30 N.Y.3d 719, 733 [2018] [Rivera, J., Concurring]; see Applewhite, 21 N.Y.3d at 425-426 [providing examples of governmental functions, including "oversight of juvenile delinquents"]; Sebastian, 93 N.Y.2d at 795 ["(t)he removal of juveniles from the community by court order and their placement in public confinement-at least in part for the protection of the society as a whole-denotes a quintessentially governmental activity"]). Thus, courts have held that the State engages in a governmental function in its oversight of care and treatment provided at private juvenile detention facilities and its enforcement of regulatory...

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