R.A. v. State, 2021-51275

CourtNew York Court of Claims
Writing for the CourtW. BROOKS DEBOW, J.
Decision Date12 November 2021
PartiesR.A., [1] Claimant, v. The State of New York, Defendant.
Docket NumberMotion M-97097,2021-51275

R.A., [1] Claimant,
v.

The State of New York, Defendant.

No. 2021-51275

Motion No. M-97097

Court of Claims

November 12, 2021


Unpublished Opinion

By: Alexander R. Klein, Esq. For Defendant: LETITIA JAMES, Attorney General of the State of New York

By: Douglas R. Kemp, Assistant Attorney General

W. BROOKS DEBOW, J.

Claimant, an individual currently incarcerated in a State correctional facility, moves for permission to file and serve a late claim pursuant to Court of Claims Act § 10 (6). The proposed claim alleges that claimant was the victim of repeated sexual assaults by a prison chaplain at Altona Correctional Facility (CF) from September 2020 through January 2021. Defendant opposes the late claim motion.

The proposed claim alleges that in August 2020, an incarcerated person in claimant's housing unit at Altona CF recommended that he attend a bible study class (see Proposed Claim, ¶¶ 5-7), and that after the bible study class, Chaplain Tamra Murphy approached claimant and invited him "to attend weekly one-on-one sessions with her" (id. at ¶ 8). The proposed claim alleges that during their first one-on-one session approximately ten days later, claimant discussed with Murphy "many of the difficulties in his life" and the sexual abuse he suffered at the hands of multiple adults, including his aunt and mother (id. at ¶ 11). The proposed claim alleges that during their second one-on-one session approximately a week later, Murphy "had [claimant] go into even further detail about his troubled life and the sexual exploitation he had suffered as a child," and she complimented him "on his looks" (id. at ¶ 15). The proposed claim alleges that during their third one-on-one session the next week - in September 2020 - Murphy held claimant's hand

"and told him she was going to tell him something that he could not tell to anyone else. She proceeded to tell him that he was going to come into her office and perform [a sexual act] on her the way he did for his elders when he was younger - using far more sexually explicit terminology"

(id. at ¶ 18). The proposed claim further alleges that claimant and Murphy then "engaged in sexual activity to which, by law, [claimant] was incapable of consenting" (id. at ¶ 19). The proposed claim alleges that during their fourth one-on-one session, Murphy and claimant "engaged in sexual intercourse again in such a dramatic power differential that [claimant] was incapable of consenting," that Murphy continued this pattern of sexual assaults "every week from September 2020 into at least January of 2021", spanning at least eighteen instances of rape (id. at ¶ 20), and that all of the incidents occurred in Murphy's office at Altona CF (see id. at ¶ 23). The proposed claim further alleges that Murphy occasionally used rags to clean herself and claimant after their encounters, and that she kept the unwashed rags in her office (see id. at ¶ 32).

The proposed claim alleges that although correction officers (COs) at Altona CF were required to "mak[e] 'rounds' across the facility every thirty minutes to check on, inter alia, the facility's order and the safety of staff and inmates," the COs "tasked with this responsibility regularly skipped... Murphy's office when making the rounds," and that their "tendency to skip... Murphy's office was so regular that [she] knew that she could commit the [sexual assaults] without being discovered" (id. at ¶¶ 24-26 [emphasis in original]). The proposed claim alleges that Murphy "began bribing [claimant] to buy his silence," including sending him food and clothes "on a regular basis," and that "employees of [Altona CF] opened the packages... and were put on notice of the pattern of gifts... Murphy was sending him" (id. at ¶¶ 27-28). The proposed claim further alleges that Murphy also sent claimant money via" 'JPay' - an inmate tablet system through which money can be transferred" (id. at ¶ 29), and that although she used the alias "Terry Birdson" to do so, Murphy used her own name, bank account, and address to fund the account (see id. at ¶ 30). The proposed claim alleges that Murphy's use of JPay and her use of the Terry Birdson alter ego were "expressly available for review" by defendant's agents and employees at Altona CF (id. at ¶ 31).

The proposed claim alleges that an investigation of Murphy was commenced in March 2021, and that claimant cooperated with the investigation by "engag[ing] in controlled telephone calls with... Murphy during which she made highly inculpatory statements" (id. at ¶ 34). The proposed claim alleges that the investigation revealed "financial records... that corroborated [claimant's] allegations of having been repeatedly bribed by... Murphy in exchange for his silence" and "rags from [Murphy's] office that tested positive for semen" (id. at ¶¶ 35-36). The proposed claim alleges that in June 2021, Murphy was charged in a twenty-three count indictment in Clinton County Court (see id. at ¶ 37, Exhibit A [Indictment No. 31-1-212935]). [2] The proposed claim alleges four causes of action sounding in battery (see id. at ¶¶ 38-47), intentional infliction of emotional distress (see id. at ¶¶ 48-56), negligent supervision (see id. at ¶¶ 57-70), and negligent retention (see id. at ¶¶ 71-84).

In deciding a motion to file a late claim, the Court is required to consider the following 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 failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state, and whether the claimant has any other available remedy"

(Court of Claims Act § 10 [6]). The presence or absence of any particular factor is not controlling (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 N.Y.2d 979, 981 [1982]), and the weight accorded the various factors is a matter within the discretion of the Court. Although "[t]he movant need not satisfy every statutory element[, ]... the burden rests with the movant to persuade the court to grant his or her late claim motion" (Frederick v State of New York, 23 Misc.3d 1008, 1011 [Ct Cl 2009]).

In support of the application for late claim relief, claimant argues that the delay in filing the claim is excusable because neither the one-year statute of limitations for an intentional tort nor the three-year statute of limitations for a claim sounding in negligence set forth in the CPLR has yet expired, and thus "from a purely temporal perspective," there has been "little 'delay'" (Klein Affirmation, ¶ 19, citing CPLR 215 [8]). Claimant further argues that the delay is excusable because claimant was "assisting law enforcement [to] bring an indictment against a prison chaplain engaging in repeated acts of sexual and official misconduct," and that "[l]aw enforcement typically prefers that civil suits of this nature be withheld until after the termination of the criminal proceedings" (id. at ¶ 20 [emphasis in original]). Defendant does not address this factor in its opposition to the motion. [3]

Claimant's reliance on the statutes of limitations set forth in the CPLR to excuse the failure to timely file this claim is misplaced, inasmuch as the timeliness of a claim before the Court of Claims is governed by the filing and service requirements set forth in the Court of Claims Act (see Court of Claims Act §§ 10 [3] and 10 [3-b]). To be sure, the statutes of limitations set forth in the CPLR are relevant to the determination of whether the motion for late claim relief itself is timely (see Court of Claims Act § 10 [6]), but those provisions have no bearing on the issue of whether the delay in filing the claim is excusable. Although claimant's counsel states that law enforcement "typically prefers" that civil actions be held in abeyance pending the results of an investigation (see Klein Affirmation, ¶ 20), claimant does not aver that law enforcement specifically requested that he refrain from filing a claim. Accordingly, the Court concludes that claimant has not demonstrated that the delay in filing this claim is excusable, and this factor weighs against granting the late claim application.

The next three factors - whether the State had notice of the essential facts constituting the claim and an opportunity to investigate the circumstances underlying the claim, and whether claimant's failure to file or serve upon the attorney general a timely claim or notice of intention resulted in substantial prejudice to the State - are closely related, and may be considered together (see Conroy v State of New York, 192 Misc.2d 71, 72 [Ct Cl 2002]; Brewer v State of New York, 176 Misc.2d 337, 342 [Ct Cl 1998]). In support of his late claim motion, claimant argues that considering the investigation of Murphy that led to a criminal indictment, the State had notice of the essential facts constituting this claim and an opportunity to investigate (see Klein Affirmation, ¶ 21). Claimant further argues that the delay in filing the claim has not substantially prejudiced the State but rather has benefitted the State by bringing the operative facts to light and allowing it the opportunity to evaluate the merits of the claim and the State's potential liability at this early stage of litigation (see id. at ¶¶ 24-25). Defendant has not addressed any of these factors in its opposition to the instant motion, and thus they weigh in favor of granting claimant's late claim application.

Turning next to the appearance of merit of the proposed claim, this factor is often decisive because, although Court of Claims Act § 10 (6) reflects a legislative determination...

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