M.C. v. The State, 2022-22027

CourtNew York Court of Claims
Writing for the CourtJ. DAVID SAMPSON, J.
PartiesIn the Matter of M.C., Claimant, v. The State of New York, Defendant.
Docket Number136916,Claim 136395,2022-22027
Decision Date20 January 2022

In the Matter of M.C., Claimant,
v.

The State of New York, Defendant.

No. 2022-22027

Claim Nos. 136395, 136916

Court of Claims

January 20, 2022


For Claimant:

PHILLIPS & PAOLICELLI, LLP

Aryeh L. Taub, Esq.

For Defendant:

HON. LETITIA JAMES, New York State Attorney General

Tamara B. Christie, Esq., Assistant Attorney General

J. DAVID SAMPSON, J.

Claimant M.C. seeks to recover against the State for childhood sexual abuse and assault that allegedly occurred while she was a student residing at the New York State School for the Blind in Batavia, New York. Claimant alleges that she was approximately 13 years old when the abuse began in or about December 1966, and that it continued until October 8, 1967. M.C., who is blind, alleges that school music teacher Robert Monighan [1] abused her on numerous occasions during that time period.

On May 24, 2021, claimant filed a Child Victims Act (CVA) claim with the Clerk of the Court, which was assigned claim No. 136395. On August 13, 2021, the Court issued an order to show cause (

On August 16, 2021, defendant filed a prejoinder motion to dismiss (motion No. M-97099) claim No. 136395. Claimant opposed defendant's motion and cross moved (cross-motion No. CM-97157) for leave to amend or supplement claim No. 136395.

On August 16, 2021, following receipt of defendant's motion to dismiss, claimant filed a second CVA claim pertaining to the same sexual abuse and assault allegations, which was assigned claim No. 136916. On September 21, 2021, defendant filed a prejoinder motion to dismiss (motion No. M-97291) claim No. 136916. Claimant opposed defendant's motion and cross-moved (cross- motion No. CM-97342) for leave to amend or supplement claim No. 136916. For reasons stated below, the Court will grant defendant's motions to dismiss in part, and deny claimant's cross- motions.

Defendant's Motion to Dismiss Claim No. 136395 (M-97099)

Defendant seeks dismissal of claim No. 136395 on multiple grounds. Defendant's first argument in support of dismissal is that the Court lacks subject matter jurisdiction over the claim because it is unverified. Claim No. 136395, which was filed on May 24, 2021 and served on July 13, 2021, is designated as a verified claim but it does not contain a verification page. Court of Claims Act § 11 (b) requires that a claim "shall be verified in the same manner as a complaint in an action in the supreme court."

In support of its motion, defendant submitted an affidavit from a clerk in the New York City Claims Bureau section of the Attorney General's Office indicating that on July 13, 2021, the same day the claim was served, she mailed a letter to claimant's counsel rejecting the claim as a nullity because it was unverified (Affidavit of Denise Lantigua, sworn to September 7, 2021 [Lantigua affidavit], exhibit 1 [July 13, 2021 letter rejecting unverified claim]). Claimant's counsel submitted numerous affidavits from employees of his law firm avowing that the July 13, 2021 rejection letter was never received by his office.

CPLR 3022 provides that if a pleading is not verified an adverse party "may treat it as a nullity, provided he gives notice with due diligence to the attorney of the adverse party that he elects so to do." This provision applies to practice in the Court of Claims (see Lepkowski v State of New York, 1 N.Y.3d 201, 209-210 [2003]). The verb "notify" is defined as "[t]o inform (a person or group) in writing or by any method that is understood" (Black's Law Dictionary [11th ed 2019]).

Claimant's counsel argues that because he never received the rejection letter, defendant failed to provide "notice with due diligence" that claim No. 136395 was being rejected and that, as such, defendant waived its right to treat the claim as a nullity. Thus, this Court must decide whether claimant's counsel's non-receipt of the July 13, 2021 rejection letter constitutes a failure by defendant to provide notice with due diligence that the claim was being rejected as a nullity because it was unverified. For reasons stated below, the Court finds that defendant failed to provide notice with due diligence that it was rejecting the claim because it was unverified.

As indicated above, in support of its motion to dismiss, defendant submitted the affidavit of Ms. Lantigua, who works as a clerk in the Attorney General's New York City Office. Ms. Lantigua affirms that incoming claims are screened by clerks upon receipt and, if they are not verified, the claim is returned to claimant's counsel by mail with a rejection letter within 24 hours (Lantigua affidavit at paras 2-6). Ms. Lantigua attests that she mailed the July 13, 2021 rejection letter at issue here to claimant's counsel on that same date, July 13, 2021, with the original unverified claim (id. at paras 7-8). [2] The address on the rejection letter matches the address for claimant's counsel on the claim. A copy of the July 13, 2021 rejection letter was stamped as being received on July 20, 2021 by the Attorney General's Office in Rochester, New York, which is defending claim No. 136395.

In opposition to defendant's motion, claimant submits affidavits from her attorney and six employees of her attorney's law firm who are responsible for opening the mail, all attesting that none of them received the July 13, 2021 letter rejecting and returning the unverified claim.

CPLR 2103 (b) governs the service of papers upon an attorney for a party in an action. Service must be accomplished personally, by mail or by overnight delivery service, unless an attorney consents to service by other means (see CPLR 2103 [b]). [3] "By statute, service is complete upon mailing" (Engel v Lichterman, 62 N.Y.2d 943, 944-945 [1984]). Moreover, "[s]ervice... is deemed complete upon mailing, regardless of whether or not the party for whom it is intended receives it" (Smith v Lefrak Org., 96 A.D.2d 859, 860 [2nd Dept 1983]).

Based upon the affidavits submitted in support of and in opposition to the motion, the Court finds that defendant has established that it sent the rejection letter to claimant's counsel via the mail on July 13, 2021. The Court finds further that claimant's counsel has established that his office did not receive the letter. [4] Claimant's counsel first learned that defendant had attempted to reject the claim as unverified on August 16, 2021, when defendant filed its motion to dismiss the claim on that basis. Upon learning that defendant had attempted to reject the claim as unverified, claimant's counsel acted with all due haste by filing a second claim based upon the same alleged abuse on that same date. The purpose of CPLR 3022 is to provide a claimant with a meaningful opportunity to remedy a claim that is not properly verified. The Court finds that because claimant's counsel did not receive the rejection letter, defendant failed to provide notice with due diligence that it was rejecting the claim as unverified. As such, defendant waived its opportunity to reject the claim as unverified. To the extent defendant's motion seeks dismissal of the claim on the basis that it was not verified it will be denied.

Defendant's motion also seeks dismissal of claim No. 136395 based upon its alleged failure to comply with the jurisdictional requirements of Court of Claims Act § 11 (b). This section provides in relevant part that "[t]he claim shall state the time when and place where such claim arose, [and] the nature of same" (Court of Claims Act § 11 [b]). Defendant argues that the allegations in the claim with regard to when and where the abuse occurred, and what the abuse entailed, are too vague to satisfy "the time when and place where" and "the nature of same" requirements of section 11 (b). The Court will first examine whether the claim satisfies the requirement to allege "the time when" the abuse occurred.

Claimant alleges that Mr. Monighan sexually abused her on multiple occasions "in or about December of 1966... through on or about October 8, 1967", when she was approximately 13 years old (claim No. 136395, para 3). The claim alleges further that the abuse occurred "[d]ozens of times" during this time period (id. at para 26).

A brief overview of the interpretation of section 11 (b)'s "time when" requirement is necessary. The degree of specificity that a claimant is required to meet in section 11 (b) was set forth by the Appellate Division, Fourth Department in Heisler v State of New York, 78 A.D.2d 767, 767 (4th Dept 1980), where it held that

"[w]hat is required is not absolute exactness, but simply a statement made with sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances. The statement must be specific enough so as not to mislead deceive or prejudice the rights of the State. In short substantial compliance with section 11 is what is required."

This standard was reiterated in 2003 by the Court of Appeals in Lepkowski, supra., where they were asked whether claims in a consolidated action complied with the substantive pleading requirement of section 11 (b). The claimants in Lepkowski were public employees working in State agencies who had filed an action in the Court of Claims against the State seeking overtime compensation pursuant to the Fair Labor Standards Act. As to "the time when" requirement of section 11 (b), the 377 Lepkowski claimants alleged that they worked over 40 hours in unspecified work weeks from July 1992 and continuing to the present. A second set of claimants in the Abelson claim were then consolidated into Lepkowski. These claimants, known as the Abelson claimants were 390 additional State employees, who also alleged that they worked over 40 hours in unspecified weeks beginning April 1994 and continuing to the present. In examining "the time when" requirement, Judge Susan Read, writing for a unanimous court cites to Heisler in...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT