J.J. v. State

• Decision Date: 10 November 2021
• Docket Number: Claim No. 136670
• Citation: 73 Misc.3d 1003,158 N.Y.S.3d 780
• Parties: J.J., Claimant, v. STATE of New York, Defendant.
• Court: New York Court of Claims

73 Misc.3d 1003
158 N.Y.S.3d 780

J.J.,¹ Claimant,
v.
STATE of New York, Defendant.

Claim No. 136670

Court of Claims of New York.

Decided on November 10, 2021

158 N.Y.S.3d 781

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, J.

73 Misc.3d 1004

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

158 N.Y.S.3d 782

for the oversight and monitoring

73 Misc.3d 1005

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, 915 N.Y.S.2d 661 [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, 49 N.Y.S.3d 362, 71 N.E.3d 950 [2017], quoting Applewhite v. Accuhealth, Inc. , 21 N.Y.3d 420, 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 [2013] ; see Turturro v. City of New York , 28 N.Y.3d 469, 477, 45 N.Y.S.3d 874, 68 N.E.3d 693 [2016] ; T.T. v. State of New York , 151 A.D.3d 1345, 1346, 58 N.Y.S.3d 187 [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, 58 N.Y.S.3d 187, quoting Sebastian v. State of New York , 93 N.Y.2d 790, 793, 698 N.Y.S.2d 601, 720 N.E.2d 878 [1999] ; see Riss v. City of New York , 22 N.Y.2d 579, 581, 293 N.Y.S.2d 897, 240 N.E.2d 860 [1968] ; Drever v. State of New York , 134 A.D.3d 19, 22, 18 N.Y.S.3d 207 [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, 972 N.Y.S.2d 169, 995 N.E.2d 131, quoting Sebastian , 93 N.Y.2d at 793, 698 N.Y.S.2d 601, 720 N.E.2d 878 ; see Tara N.P. , 28 N.Y.3d at 713, 49 N.Y.S.3d 362, 71 N.E.3d 950 ; T.T. , 151 A.D.3d at 1346, 58 N.Y.S.3d 187 ). "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, 698 N.Y.S.2d 601, 720 N.E.2d 878 ; see T.T. , 151 A.D.3d at 1346, 58 N.Y.S.3d 187 ).

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, 70 N.Y.S.3d 909, 94 N.E.3d 471 [2018] [Rivera, J., Concurring]; see Applewhite , 21 N.Y.3d at 425-426, 972 N.Y.S.2d 169, 995 N.E.2d 131 [providing examples of governmental functions,

73 Misc.3d 1006

including "oversight of juvenile delinquents"]; Sebastian , 93 N.Y.2d at 795, 698 N.Y.S.2d 601, 720 N.E.2d 878 ["(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 provisions regarding same (see

158 N.Y.S.3d 783

Vongphakdy v. State of New York , UID No. 2018-040-024 [Ct Cl, McCarthy, J., Mar. 13, 2018]; see also T.T. , 151 A.D.3d at 1346-1347, 58 N.Y.S.3d 187 [State acts in a governmental capacity in its oversight of care and treatment provided to developmentally disabled individuals at private, not-for-profit facility as well as in its enforcement of regulatory provisions]).

Here, the claim for negligence is premised upon the manner in which Defendant oversaw the care and treatment provided to Claimant at McQuade and its enforcement of regulations governing juvenile detention centers (see e.g. Claim ¶¶ 25, 48, 61). Accordingly, the Court concludes that the actions, or inactions, at issue were governmental in nature (see Vongphakdy , UID...