J.R. v. State, Motion No. M-97701

CourtNew York Court of Claims
Writing for the CourtWALTER RIVERA JUDGE
Citation2022 NY Slip Op 50499 (U)
Docket NumberMotion No. M-97701
Decision Date20 April 2022
PartiesJ.R., Claimant, v. The State of New York, Defendant.

2022 NY Slip Op 50499(U)

J.R., Claimant,
v.
The State of New York, Defendant.

Motion No. M-97701

Court of Claims

April 20, 2022


Unpublished Opinion

FOR CLAIMANT

RICKNER, PLLC

BY: ROB RICKNER, ESQ.

FOR DEFENDANT

LETITIA JAMES

ATTORNEY GENERAL OF THE STATE OF NEW YORK

BY: DIAN KERR MCCULLOUGH, ASSISTANT ATTORNEY GENERAL

WALTER RIVERA JUDGE

The following papers numbered 1-3 were read and considered by the Court on movant's application for leave to serve and file a late claim:

Notice of Motion, Memorandum of Law, Attorney's Supporting Affirmation, Movant's Affidavit and Proposed Claim 1

State's Attorney's Affirmation in Opposition 2

Attorney's Reply Affirmation 3

The motion seeks permission pursuant to Court of Claims Act § 10 (6) to file a late claim pleading negligent hiring, screening, training, supervision, retention and discipline of two correction officers at Bedford Hills Correctional Facility (Bedford). The proposed claim (Ex. A) seeks damages for injuries movant sustained from sexual assault, sexual abuse, harassment and retaliation by the two correction officers from November of 2012 to on or about July 23, 2018, while movant was incarcerated at Bedford and while she was out on parole. [1] Defendant opposes the motion.

Court of Claims Act § 10 (3) requires that claims for negligence be filed and served within 90 days following accrual of the claim unless a notice of intention to file a claim is served within that time period "in which event the claim shall be filed and served upon the attorney general within two years after the accrual of" a claim for negligence (Lyles v State of New York, 3 N.Y.3d 396, 400 [2004]). Where a claimant has failed to meet the statutory prerequisites, the claim must be dismissed for lack of jurisdiction (see Kolnacki v State of New York, 8 N.Y.3d 277, 281 [2007] ["(t)he failure to satisfy any of the (statutory) conditions is a jurisdictional defect"]). Movant has not filed and served a claim or served a notice of intention to file a claim. She filed the instant motion on November 12, 2021, more than three years after July 23, 2018, the date alleged in the proposed claim to be when the claim accrued (Ex. A, ¶ 3).

Court of Claims Act §10 (6) provides the procedure for seeking leave to file and serve a late claim, over which the Court would otherwise lack subject matter jurisdiction (see Kolnacki, 8 N.Y.3d at 281]). A late claim motion must be accompanied by "[t]he claim proposed to be filed, containing all of the information set forth in section eleven of this act," and the motion must be brought "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." If the motion is timely and the proposed claim meets the pleading requirements of Court of Claims Act § 11 (b), then the Court will proceed to consider, among other factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the delay resulted in substantial prejudice to the state; and whether the claimant has any other available remedy" (Court of Claims Act § 10 [6]). "No one factor is deemed controlling, nor is the presence or absence of any one factor determinative" (Qing Liu v City Univ. of NY, 262 A.D.2d 473, 474 [2d Dept 1999]; see Morris v Doe, 104 A.D.3d 921 [2d Dept 2013]).

The decision whether to grant a late claim motion is within the Court's discretion (see Matter of E.K. v State of New York, 235 A.D.2d 540, 541 [2d Dept 1997], app denied, 89 N.Y.2d 815 [1997]). For the purpose of deciding this motion, "[f]acts stated in a motion for leave to file a late claim... are deemed true for purpose of [the] motion, when not denied or contradicted in opposing affidavits" (Sessa v State of New York, 63 A.D.2d 334 [3d Dept 1978], affd 47 N.Y.2d 976 [1979]: see Cole v State of New York, 64 A.D.2d 1023, 1024 [4th Dept 1978]). In support of the motion, movant has submitted a proposed claim (Ex. A), her separate affidavit (Ex. B), an affirmation by her attorney, Rob Rickner, Esq., and a Memorandum of Law. In opposition to the motion, defendant has submitted an attorney's affirmation. Movant has also submitted a reply affirmation from her attorney.

The proposed claim alleges the following facts.

In 2012, around Thanksgiving, Correction Officer St. Clair A. Munnlyn sexually assaulted movant in the intake dorm at Bedford. Until movant was transferred to Albion Correctional Facility, movant endured unwanted touching from Munnlyn, including his grabbing her breasts and shoving his hand down her pants. After movant was transferred back to Bedford on or about January 18, 2015, she was placed in the Therapeutic Behavior Unit (TBU), which is for incarcerated individuals "who are at a higher risk of or are experiencing complicated or severe mental health diagnoses" (Ex. A, ¶ 7, n 2). Throughout the six or seven months movant was in the TBU, another correction officer, John W. Ward, sexually assaulted her, starting with grabbing her crotch and then escalating to digital penetration. He also watched her while she was undressing and naked. Once after an argument, Ward retaliated against movant by citing her for an infraction she did not commit. Munnlyn also sexually assaulted movant while she was in the TBU, "making similar advances [as] Ward, and digitally penetrating [her] through the bars of the unit" (id. at 12).

After movant was released from the TBU, Munnlyn offered to help movant "get off of parole if she would give him oral sex," and she complied (id. at 13). During the "years of abuse, [movant] feared retaliation from the guards, who had also assaulted other women in the facility. She made frequent trips to the medical unit complaining of heartburn, an inability to breathe, and tightness in her chest, likely from the panic and anxiety she was experiencing as a result of the assaults. [She] frequently asked for mental health intervention, but did not disclose the assaults while they were ongoing out of a continued fear that she would suffer consequences - either from the men or others in the facility" (id. at 14-15).

After movant's release from Bedford on parole, Munnlyn and Ward contacted her by text and through social media, and promised to help her with parole if she engaged in sex with them, which she did "over the course of her time on parole in late 2016, most of 2017, and into the early months of 2018" (id. at 19). When movant told Munnlyn she would not engage in further sex with him, he threatened to send her back to jail and said he "knew where her family lived" (id. at 22). Movant was sent back to Bedford due to a parole violation after being paroled for a little over one year. The abuse continued and Munnlyn threatened her with violence if she told anyone what happened. On July 23, 2018, shortly after Munnlyn grabbed movant's crotch and warned her not to tell anyone, movant "felt desperate" and attempted suicide by ingesting germicide. She told the staff about the attempt, and she reported the sexual assault to them and to "her medical team" at Westchester Medical Center (id. at 26-27). Movant was diagnosed with Post Traumatic Stress Disorder (PTSD).

Movant was transferred to Albion Correctional Facility and an OSI investigation ensued. [2] An OSI investigator purportedly told movant that it was not the first time both officers had been accused of sexual misconduct at Bedford, and they were known by the incarcerated population to be inappropriate and abusive, behavior that was hidden "to minimize the rampant abusive culture at the women's correctional facility" (id. at 30). On March 9, 2017, a class action was filed challenging the abusive conditions at Bedford during the period that movant was being assaulted. Munnlyn and Ward are no longer employed by the New York State Department of Corrections and Community Supervision (DOCCS).

Movant adds the following facts in her affidavit (Ex. B).

Munnlyn first assaulted movant by groping and touching her around Thanksgiving, shortly after she was sent to Bedford on or about November 7, 2012. After movant's parole was revoked, she reentered DOCCS on April 16, 2018. Munnlyn last assaulted movant "[a] couple of months later" at Bedford (id. at 15 and 16). Movant "cannot recall the exact dates that these assaults occurred, and did not write them down because this kind of behavior was 'normal' in Bedford Hills and [she] did not think [she] could do anything to stop it" (id. at 4). In 2019, a female correction officer contacted movant on social media and told her that Munnlyn and Ward had been fired because of what movant did "to them" (Ex. B, ¶ 21). The OSI investigator assigned to movant's case, Ms. Fichera, told movant that hers was not the first complaint against the officers, but it was the first time allegations against them could be proven because movant had text messages, photos and calls from her time on parole.

Analysis

The Court will first address whether the relevant statute of limitations had expired when the instant motion for late claim relief was filed. Three years is the applicable statute of limitations for claims arising from negligent hiring, training and supervision (see CPLR 214 [5]). Movant argues that the limitations period was tolled by then Governor Cuomo's Executive Orders concerning the Covid-19 pandemic, by a related class action pending in Federal court, and by the continuing nature of the related wrongful acts.

Before addressing the issue of tolling, the Court must determine when the proposed claim accrued. "The statute of limitations begins to run on the date of injury or when all of the elements of the tort could be truthfully alleged" (...

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