R.F. v. State

• Docket Number: Claim No. 135463
• Decision Date: 21 August 2023
• Citation: 2023 NY Slip Op 23260
• Parties: R.F., Claimant, v. The State of New York, Defendant.
• Court: New York Court of Claims

2023 NY Slip Op 23260

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

Claim No. 135463

Court of Claims

August 21, 2023

For Claimant: Certain & Zilberg, PLLC By: Douglas Herring, Esq.

For Defendant: Hon. Letitia A. James, Attorney General of the State of New York By: Antonella Papaleo, Esq., Assistant Attorney General

Javier E. Vargas, J.

Papers Considered:

Notice of Motion to Renew, Affirmation & Exhibits Annexed........................................... 1-9

Affirmation in Opposition........................................... 10

Reply Affirmation in Further Support........................................... 11

Upon the foregoing papers and for the following reasons, the Motion by Claimant R.F. (hereinafter "claimant"), for leave to renew his opposition to a prior Motion to Dismiss filed by Defendant State of New York (hereinafter "State"), is granted and, upon renewal, the State's Motion to Dismiss is hereby denied as provided hereinbelow.

On October 9, 2020, by personal injury Claim brought pursuant to the Child Victims Act ("CVA"), embodied in CPLR 214-g, the claimant alleges that in or about 1979 through 1981, he was sexually assaulted by one Jim McArdle, an employee at Sagamore Children's Psychiatric Center, a State-run mental health and educational facility for children located in Suffolk County, New York (see Claim at 3, 5, ¶¶ 13, 14, 29-33, 36). Thereafter, by Motion to Dismiss filed January 5, 2022, the State moved pre-answer to dismiss the Claim pursuant to CPLR 3211(a)(2), arguing that the claimant failed to comply with Court of Claims Act § 11(b) as to the time of the alleged incident, and failed to plead sufficient details regarding the place where the Claim arose as well as its nature. In a Decision and Order dated May 11, 2022, the Court of Claims (Soto J.) dismissed the Claim for lack of subject matter jurisdiction, finding that the Claim did not adequately state the "time when" it arose as required by Court of Claims Act § 11(b) (see R.F. v. State of New York, Ct Cl, June 17, 2022, Soto, J., Claim No. 136847, M-97708). Judge Soto acknowledged that the State raised other grounds for dismissal, but found those additional arguments to be academic (see id.).

Commencing June 30, 2022, following the retirement of Judge Soto, all matters and motions currently pending before her were reassigned to the Undersigned. On July 29, 2022, the claimant filed a Notice of Appeal with respect to Judge Soto's May 11, 2022 Decision and Order, which appears to be currently sub judice.

By Notice of Motion filed February 17, 2023, the claimant moves for leave to renew his opposition to the prior Motion to Dismiss pursuant to CPLR 2221(e), arguing that the Appellate Division, Second Department, issued two recent decisions within the CVA context, Fenton v State of New York (213 A.D.3d 737 [2d Dept 2023]) and Meyer v State of New York (213 A.D.3d 753 [2d Dept 2023]), which changed and/or clarified previous decisional law to unambiguously hold that the Court of Claims Act does not require specific or exact dates for allegations of sexual abuse under the CVA. According to the claimant, both Fenton and Meyer were CVA claims where the Appellate Division held that as both cases involved child sexual abuse that occurred more than forty years ago, when those claimants were children, the date ranges of 1982 through 1983 and 1978 through 1982, respectively, were sufficient to meet the minimal pleading requirement of Court of Claims Act § 11(b).

By Affirmation in Opposition filed March 8, 2023, the State opposes the claimant's Motion, arguing that the holdings in Fenton and Meyer do not demonstrate that there is a sufficient "change of law" to warrant a renewal of this deficient Claim. According to the State, the Appellate Division found the particular claims in Fenton and Meyer sufficiently pled because there were additional factual allegations which permitted the State to investigate promptly and ascertain its liability. Unlike in Fenton and Meyer, the State contends that there is no allegation that the claimant here reported the abuse contemporaneously with its happening, or that there was information about Mr. McArdle that the State was on notice of or should have been aware of. Thus, the State concludes that the allegations in Fenton and Meyer do not exist in the instant Claim, and the claimant cannot successfully argue that those cases bear any resemblance or that the decisions would lead to a different result here.

Thereafter, the claimant filed a Reply Affirmation in Further Support arguing that the Fenton and Meyer decisions were clearly issued to provide guidance to lower courts regarding this issue given the conflicting decisions that had been issued by the Court of Claims, resulting in inconsistent outcomes. The claimant maintains that the Appellate Division's finding that the Court should not have granted the State's motion to dismiss for failing to comply with...