Opinion
Claim Nos. 136395, 136916
01-20-2022
In the Matter of M.C., Claimant, v. The STATE of New York, Defendant.
For Claimant: PHILLIPS & PAOLICELLI, LLP, BY: Aryeh L. Taub, Esq. For Defendant: HON. LETITIA JAMES, New York State Attorney General, BY: Tamara B. Christie, Esq., Assistant Attorney General
For Claimant: PHILLIPS & PAOLICELLI, LLP, BY: Aryeh L. Taub, Esq.
For Defendant: HON. LETITIA JAMES, New York State Attorney General, BY: 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 abused her on numerous occasions during that time period.
The alleged abuser's name is spelled Monighan and Monaghan in the claim.
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 (motion No. M-97077) directing claimant to demonstrate service of claim No. 136395. In response to the order to show cause, claimant provided an affidavit of service from a process server indicating that the claim was personally served upon the Attorney General's New York City Office on July 13, 2021. Defendant does not contest service of claim No. 136395. Based upon the affidavit of service, the Court will vacate its 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, 770 N.Y.S.2d 696, 802 N.E.2d 1094 [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). 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.
The rejection letter contains the electronic signature of Katharine S. Brooks, in her capacity as the Bureau Chief of the Claims Bureau of the New York City Attorney General's Office (Lantigua affidavit, exhibit 1 [July 13, 2021 letter rejecting unverified claim]). Ms. Lantigua's initials "dl" appear in the lower left hand corner of the letter indicating that she typed the letter.
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] ). "By statute, service is complete upon mailing" ( Engel v. Lichterman , 62 N.Y.2d 943, 944-945, 479 N.Y.S.2d 188, 468 N.E.2d 26 [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, 465 N.Y.S.2d 777 [2nd Dept. 1983] ).
Pursuant to CPLR 2103 (b) (7), parties may serve their opponent by email in electronically filed cases.
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. 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.
The Court accepts the sworn statements submitted in support of and in opposition to the motion at face value and does not deem it necessary to conduct a traverse hearing. Moreover, counsel for the parties participated in oral argument of these motions, during which service of the rejection letter was addressed. The Court does not find the sworn statements submitted on behalf of the parties to be inconsistent with one another and instead believes that it is likely that the letter was lost in the mail in the midst of a global pandemic.
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, 433 N.Y.S.2d 646 (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 finding that the allegations in the claim were "insufficiently definite ‘to enable the State ... to investigate the claim[s] promptly and to ascertain its liability under the circumstances, which is the guiding principal informing section 11 (b)" ( Lepkowski, supra at 207, 770 N.Y.S.2d 696, 802 N.E.2d 1094, citing Heisler, supra at 767, 433 N.Y.S.2d 646 ).
In support of its motion to dismiss, the defendant cites to a recent Appellate Division, Fourth Department decision in Matter of Geneva Foundry Litig. , 173 A.D.3d 1812, 1813, 105 N.Y.S.3d 648 (4th Dept. 2019) [ Geneva Foundry ], for its reliance on Lepkowski in holding that "[i]f the claimant fails to specify the dates relevant to the elements of the claim or provides only a broad range of dates, the claim is jurisdictionally defective and properly dismissed" ( id. at 1813-1814, 105 N.Y.S.3d 648 ). In Geneva Foundry there were 97 claimants who alleged personal injury and property damages arising out of the State's alleged failure to warn them of the dangers of soil, air and water contamination in the vicinity of their homes that were adjacent to a long-closed Geneva foundry. The claims did not plead a date when the individual claimants’ injuries occurred and the broad range of dates referenced by the Fourth Department were two dates, October 5, 2016 when the claimants received notification of potential soil contamination from the State or October 12, 2016 when a local newspaper published an expose (Geneva Foundry v. State of New York , UID No. 2017-051-055, M-90320 [Ct Cl, Martin, J., Sept. 29, 2017]). On appeal, the Fourth Department affirmed the decision of Court of Claims Judge Debra A. Martin granting the State's motion to dismiss.
Unreported decision and orders may be found on the Court of Claims website at http://www.nycourts.gov/courts/nyscourtofclaims/.
Defendant's reliance upon Geneva Foundry in support of its motion to dismiss is misplaced. The applicability of the holding in Geneva Foundry , like that in Lepkowski is limited to motions to dismiss under section 11 (b) in which the claim represents multiple claimants with differing accrual dates for the negligent acts and injuries. The present claim is distinguishable as it involves one claimant, not 97 claimants as in Geneva Foundry or 767 claimants as in Lepkowski with differing accrual dates for negligent acts and injuries. Secondly, in the present action the claim pleads a specific range of dates between December 1966 and October 8, 1967, when claimant alleges that as a blind minor she was sexually assaulted dozens of times while placed as a resident in the New York State School for the Blind in Batavia, New York. As stated above, the claimants in Geneva Foundry alleged no date when they discovered their injuries other than the two dates in October 2016 and the claimants in Lepkowski alleged a range of dates beginning with a specific month and year but then extending to the present and not specifying when each of the 767 claimants was alleged to have worked overtime. The final distinction is that unlike in Geneva Foundry or Lepkowski , the specific date range alleged in the present claim is the same for the negligent acts and the attendant injury.
In addition, the Fourth Department in Geneva Foundry appears to cite to its decision in Heisler as authority for the notion that in order to satisfy section 11 (b), "the claimant must allege the ‘date, time and place of the mishap’ " (Geneva Foundry, supra at 1813, 105 N.Y.S.3d 648 ). This is a misstatement of the law. Upon examining the notice of intention to file a claim at issue in Heisler , the Fourth Department then noted "that it states the date, time and place of the mishap", which the court held "substantially complied with the statute because it states the time, place, [and] nature of the claim" (Heisler, supra at 768, 433 N.Y.S.2d 646 ). The Fourth Department then went on to hold in Heisler that substantial compliance with section 11 (b) did not require absolute exactness, but rather a statement made with sufficient definiteness to enable the State to investigate and that it be specific enough so as not to mislead, deceive or prejudice the rights of the State. As such, the Fourth Department determined in Heisler that the statement in the notice of intention provided was adequate to enable the State to investigate (id. ). The Fourth Department did not hold in Heisler that a claim must state the ‘date, time and place of the mishap’, nor has that ever been required to satisfy section 11 (b).
Lepkowski and Heisler make clear that the reason for the specificity required by section 11 (b) is to enable the State to investigate (see Cannon v. State of New York , 163 Misc. 2d 623, 626, 622 N.Y.S.2d 177 [Ct. Cl. 1994] ["When interpreting ( sections 10 and 11 ) we should not lose sight of their purpose which is to give the State prompt notice of an occurrence and an opportunity to investigate the facts to determine its potential liability"]).
"When evaluating a claim against an assertion, as here, that it fails to comply with these requirements of § 11 (b), the guiding principle is always whether the claim provides sufficient information to allow for a prompt investigation by the defendant aimed at ascertaining its potential liability ( Lepkowski v. State of New York , 1 N.Y.3d 201, 770 N.Y.S.2d 696, 802 N.E.2d 1094 ; Heisler v. State of New York , 78 A.D.2d 767, 433 N.Y.S.2d 646 ). When a defendant contends that a claim falls short of this standard, it is incumbent upon the defendant to demonstrate that it was unable to conduct an investigation based upon the information that was provided " (emphasis added).
( Smith v. State of New York , 25 Misc. 3d 1216 [A], *2, 2006 WL 6365522 [2006] ). The claimant in Smith alleged that the State was negligent in failing to diagnose his medical condition at two correctional facilities "commencing in about 2002 and continuing through 2005" ( id. ) (internal quotation marks omitted). The Court of Claims Judge in Smith found that claimant had satisfied the section 11 (b) "time when" requirement by providing a range of dates, which enabled the State to investigate ( id. at *3 ).
In support of its motion to dismiss, the State has not alleged that claimant's provision of a specific date range, as opposed to specific dates, has prevented it from being able to investigate her allegations. "Defendant is obligated to investigate, or attempt to investigate, the [incident] before it claims it cannot conduct an investigation" ( Cannon,supra at 627, 622 N.Y.S.2d 177 ). In the present motion, the State has not even alleged that it attempted to conduct a pre-answer investigation.
Section 11 (b) does not require that a claim set forth a specific date of accrual (Foreman v. City University of New York , UID No. 2006-036-534 [Ct Cl, Schweitzer, J., May 30, 2006]). The Court finds that by providing a specific date range of less than a year with an end date, claimant has satisfied the "time when" requirement of section 11 (b). The Court is mindful that during this time, claimant was a blind minor residing at the State school where the abuse allegedly occurred (see Davila v. State of New York , 140 A.D.3d 1415, 34 N.Y.S.3d 508 [3d Dept. 2016] [allegations that negligent construction, operation and maintenance of facility caused the death of a developmentally disabled resident following a fire satisfied section 11 (b) requirements]). Given these constraints, and the amount of time that has passed since the alleged abuse, it is not reasonable to expect claimant to be able to provide exact dates when each instance of abuse occurred, nor is it required. There is no representation that the provision of a date range of less than a year has in any way inhibited the State's ability to investigate the allegations of sexual abuse. The Court finds that the date range provided satisfies the "time when" requirement of section 11 (b) (see Doe v. State of New York , UID No. 2021-059-043 [Ct Cl, Liccione, J., July 13, 2021] [claim alleging that sexual abuse occurred between May 2018 and late July 2018 satisfied "time when" requirement of section 11 (b) ]).
Surviving a motion to dismiss based upon a finding that a claim satisfies the "time when" requirements of section 11 (b) does not necessarily mean that a claimant will succeed in proving the elements of her claim by a preponderance of the evidence at trial.
It has been recognized that former Court of Claims Presiding Judge Susan Read "made clear that the State has to conduct a pre-motion inquiry even when the claim arose on premises it did not own or control" (Partridge v. State of New York , UID No. 2001-013-001 [Ct Cl, Patti, J., Mar. 2001]).
This Court is aware of other Court of Claims decisions granting prejoinder motions to dismiss CVA claims based upon the determination that a claimant fails to satisfy "the time when" requirement of section 11 (b) by alleging a range of dates of alleged abuse without specific dates. These decisions all cite to Geneva Foundry and its holding that providing only a broad range of dates is jurisdictionally defective. For the reasons stated above, the holding in Geneva Foundry does not apply to claims filed under the CVA in which one claimant alleges a specific range of dates as "the time when" component of section 11 (b). There are four other decisions that have routinely been relied upon in these decisions in support of the finding that a CVA claimant has failed to satisfy "the time when" requirement of section 11 (b) that this Court finds distinguishable. This Court finds the first, Robin BB. v. State of New York , 56 A.D.3d 932, 867 N.Y.S.2d 284 (3d Dept. 2008), to be distinguishable because there it was alleged that the sexual misconduct occurred over a much longer time period - eight years - in the Town of Massena and at various other locations in St. Lawrence County. This Court declines to consider another decision relied upon, D.G. v. State of New York , Claim No. 125975, Motion Nos. M-92928, CM-93574 [Ct Cl, Lopez-Summa, J., Oct. 7, 2019], to have precedential value because it is an unpublished decision and is not reported on the Court of Claims website. Finally, this Court finds the two remaining decisions routinely relied upon, C.C. v. State of New York , UID No. 2016-051-011 [Ct Cl, Martin, J., Apr. 26, 2016] and Doe v. State of New York , UID No. 2013-048-125 [Ct Cl, Bruening, J., Dec. 19, 2013], to be distinguishable because they were both motions seeking to file late claims under Court of Claims Act Section 10, not CPLR 3211 motions to dismiss. Late claim applications are subject to a higher burden of proof than a motion to dismiss because one of the factors the Court evaluates in determining whether to grant relief is the appearance of merit (see Nyberg v. State of New York , 154 Misc. 2d 199, 202-203, 585 N.Y.S.2d 147 [1992] ).
The decisions referenced include Harris v. State of New York , UID No. 2022-058-011 [Ct Cl, Leahy-Scott, J., Jan. 10, 2022]; Marin v. State of New York , UID No. 2022-058-007 [Ct Cl, Leahy-Scott, J., Jan. 7, 2022]; Aiken v. State of New York , UID No. 2022-058-006 [Ct Cl, Leahy-Scott, J., Jan. 6, 2022]; T.R. v. State of New York , UID No. 2022-058-005 [Ct Cl, Leahy-Scott, J., Jan. 6, 2022]; Perri v. State of New York , UID No. 2022-058-004 [Ct Cl, Leahy-Scott, J., Jan. 6, 2022]; Fluker v. State of New York, UID No, 2022-058-003 [Ct Cl, Leahy-Scott, J. Jan. 5, 2022]; Johnson v. State of New York , UID No. 2022-058-077 [Ct Cl, Leahy-Scott, J., Jan. 4, 2022]; Ford v. State of New York , UID No. 2022-058-076 [Ct Cl, Leahy-Scott, J., Jan. 3, 2022]; Nelson v. State of New York , UID No. 2021-058-075 [Ct Cl, Leahy-Scott, J., Dec. 22, 2021]; Wimbush-Burkett v. State of New York, UID No. 2021-058-073 [Ct Cl, Leahy-Scott, J., Dec. 22, 2021]; Bowden v. State of New York , UID No. 2021-058-070 [Ct Cl, Leahy-Scott, J., Dec. 21, 2021]; and Fenton v. State of New York , UID No. 2021-058-067 [Ct Cl, Leahy-Scott, J., Nov. 23, 2021].
In a motion to dismiss pursuant to CPLR 3211, the court must give the pleading a liberal construction, accept the facts alleged in the complaint to be true and afford the claimant "the benefit of every possible favorable inference" (AG Capital Funding Partners, L.P. v. State St. Bank & Trust Co., 5 N.Y.3d 582, 591, 808 N.Y.S.2d 573, 842 N.E.2d 471 [2005] ).
The Court will next examine whether the claim satisfies the "place where" requirement of section 11 (b). The claim alleges that the abuse "occurred on school premises", but it does not specify where on the school premises the abuse occurred (claim No. 136395, para 6). Again, at the time of the alleged sexual abuse, claimant was a blind minor residing at the school. The Court finds that the allegation that the abuse occurred on school premises is sufficient to satisfy the "place where" requirement of Court of Claims Act § 11 (b). It is not necessary to allege in the claim the location(s) at the school where the abuse allegedly occurred (see Rhodes v. State of New York , 245 A.D.2d 791, 792, 665 N.Y.S.2d 763 [3d Dept. 1997] [notice of intention did not need to specify where at the correctional facility the incident occurred to satisfy section 11 (b) ]). The Court finds that the allegation that the abuse occurred on school premises at the New York State School for the Blind is sufficient to enable the State to know where to investigate. Additional details about the place(s) at the school where the abuse allegedly occurred may be requested through pretrial discovery. Defendant also argues that the claim fails to satisfy section 11 (b) in that it fails to adequately allege "the nature of same" or what specifically occurred that constitutes sexual abuse or sexual assault. According to defendant, due to the failure of the claim to either describe in some detail what allegedly occurred or what sections of the penal law were allegedly violated, it is not clear that claimant has a cause of action pursuant to CPLR 214-g.
The claim alleges that Mr. Monighan "engaged in unpermitted, forcible, and harmful, sexual assault, sexual abuse and/or sexual contact with Claimant" (claim No. 136395, para 25). The claim describes the sexual abuse as "extreme" (claim No. 136395, para 6), but no additional details about the alleged abuse are provided.
The sexual abuse for which a claimant may seek redress pursuant to CPLR 214-g is encompassed primarily in article 130 of the Penal Law. The term "sexual contact", which is alleged in the claim, is defined in Penal Law § 130.00 (3). "Forcible touching", which is also alleged in the claim, is governed by Penal Law § 130.52. Article 130 of the Penal Law also defines different degrees of sexual abuse (see Penal Law §§ 130.53 - 130.70 ). In the claim, claimant identifies her alleged abuser, the time frame for the alleged abuse, and the location where it occurred. The Court finds that claimant has identified the nature of the alleged sexual abuse with sufficient particularity to enable the State to investigate. As such, the allegations in the claim satisfy the section 11 (b) "nature of same" requirement. Additional details about specifically what the alleged sexual abuse entailed may be requested during the pretrial discovery process.
A claimant may also seek redress pursuant to CPLR 214-g based upon four sections of the Penal Law outside article 130 that govern incest and the use of a child in a sexual performance.
Finally, defendant seeks dismissal of each cause of action in claim No. 136395 as either inadequately pled, duplicative of other causes of action, or for failure to state a cause of action. The Court will proceed to examine the grounds offered in support of dismissal of each cause action.
Claimant does not oppose defendant's motion to the extent it seeks dismissal of the cause of action for in loco parentis. In response to defendant's motion to dismiss (M-97291) the later filed claim, No. 136916, which asserts the same causes of action as claim No. 136395, claimant agreed to withdraw the causes of action for negligent infliction of emotional distress and premises liability based upon Fay v. Troy City Sch. Dist. , 197 A.D.3d 1423, 151 N.Y.S.3d 642 (3d Dept. 2021). As such, the Court will grant defendant's request to dismiss these causes of action from both claims.
Defendant alleges that the negligent hiring, retention, supervision and direction cause of action is inadequately pled because claimant has alleged that Mr. Monighan was "acting in the course and scope of his employment" (claim No. 136395, para 23; see also para 51) and to state a cause of action for negligent hiring, a claimant must allege that the tortfeasor was acting outside the scope of his employment.
"[T]he State may be liable for its own negligence in hiring, supervising or retaining an employee which it knew or should have known had a propensity for the conduct allegedly causing the injury" (J.A.B. v. State of New York , UID No. 2016-015-135 [Ct Cl, Collins, J., May 17, 2016]). "[A] necessary element of such causes of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury" ( Kenneth R. v. Roman Catholic Diocese of Brooklyn , 229 A.D.2d 159, 161, 654 N.Y.S.2d 791 [2d Dept. 1997] ). The claim alleges that the State knew or should have known that Mr. Monighan had sexually abused other minor female students at the school before he began abusing claimant (claim No. 136395, paras 34-35).
In opposition to defendant's motion, claimant argues that the allegation that Mr. Monighan was acting within the scope of his employment is limited to mean that he interacted with claimant at the school in his capacity as a music teacher. Claimant argues further that the claim cannot be read to allege that Mr. Monighan was acting within the scope of his employment when the abuse occurred. The Court agrees and finds that the claim adequately pleads a cause of action for negligent hiring, retention, supervision and direction. Defendant's motion to dismiss this cause of action will be denied.
Defendant alleges that the second cause of action for negligent, reckless and willful misconduct is duplicative of other causes of action pled. This cause of action alleges in essence gross negligence, which is different than ordinary negligence. If the Court were to dismiss each cause of action requested in defendant's motion papers, including those identified as duplicative, there would be no causes of action remaining, resulting in dismissal of the entire claim. Pleading in the alternative is permitted (see CPLR 3014 ). The Court declines to dismiss the cause of action for negligent, reckless and willful misconduct as duplicative.
Defendant seeks dismissal of the breach of fiduciary duty, non-delegable and statutory duty causes of action for failure to state a cause of action. "[I]n a motion made under CPLR 3211 (subd [a], par 7) the inquiry is whether the plaintiff actually has a cause of action, not whether he has properly stated one" ( Hawkins v. McCluskey , 79 A.D.2d 853, 854, 434 N.Y.S.2d 493 [4th Dept. 1980] ). In assessing a motion to dismiss, the Court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Leon v. Martinez , 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" ( EBC I, Inc. v. Goldman, Sachs & Co. , 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26 [2005] ).
The Court is mindful that this is not a summary judgment motion and that all claimant needs to demonstrate is that she has a cause of action.
Defendant seeks dismissal of the breach of fiduciary duty cause of action based upon claimant's purported failure to allege that a fiduciary relationship existed between her and the State. The claim alleges that "[a]t all relevant times, there existed a fiduciary relationship of trust, confidence and reliance between Claimant and Defendant" (claim No. 136395, para 79). "The elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant's misconduct" ( Baldeo v. Majeed , 150 A.D.3d 942, 945, 55 N.Y.S.3d 340 [2d Dept. 2017] ). "A fiduciary relationship ‘exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation’ " (EBC I, Inc. v. Goldman, Sachs & Co. , 5 N.Y.3d at 19, 799 N.Y.S.2d 170, 832 N.E.2d 26, citing Restatement [Second] of Torts § 874, Comment a ). Fiduciary relationships are often created based upon employment status or financial obligations that are undertaken. A school and a student do not have a traditional fiduciary relationship (see Blair v. Union Free School Dist. No. 6, Hauppauge , 67 Misc. 2d 248, 253, 324 N.Y.S.2d 222 [Suffolk Dist. Ct., 1971] [relationship between student and school is probably not a fiduciary relationship]). The claim alleges the elements of a breach of a fiduciary duty cause of action, including the existence of a fiduciary relationship. As such, the Court finds that the claim states a cause of action for breach of fiduciary duty.
To the extent the claim seeks redress for other non-delegable and statutory duties, those causes of action will be dismissed as inapplicable or insufficiently pled. As defendant notes, the only specific statute referenced, Education Law § 4314, was not enacted until well after the events alleged in the claim.
Claimant's Cross-Motion for Leave to Amend or Supplement Claim No. 136395 (CM-97157)
Claimant seeks leave to amend or supplement claim No. 136395. The CPLR requires that "[a]ny motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading" ( CPLR 3025 [b] ). Thus, a request for leave to amend or supplement a pleading must include a copy of the proposed amended or supplemental pleading (see Cherry v. State of New York , UID No. 2021-032-025 [Ct Cl, Hard, J., Mar. 15, 2021]).Claimant failed to include a copy of her proposed amended claim. The Court cannot grant such relief in a vacuum. As such, the Court must deny the request for leave to amend or supplement claim No. 136395. Defendant's Motion to Dismiss Claim No. 136916 (M-97291)
Leave to file and serve a supplemental claim is not an appropriate remedy here. CPLR 3025 (b) permits a party to supplement a pleading "by setting forth additional or subsequent transactions or occurrences". There is no indication that claimant intends to submit a proposed claim that contains additional dates of alleged abuse or assault.
Defendant seeks dismissal of claim No. 136916 on multiple grounds. Defendant's first argument in support of dismissal is that the Court lacks subject matter jurisdiction over the claim because it was not timely filed and served. Claim No 136916 was filed on August 16, 2021 and served on August 17, 2021.
Claim No. 136916 is brought pursuant to CPLR 214-g, which permits childhood victims of sexual abuse to commence civil actions "not later than two years and six months after the effective date of this section". The section's effective date is February 14, 2019 (see CPLR 214-g ). Thus, the deadline for commencing CVA cases was August 14, 2021. CPLR 214-g waived the requirement to serve either a claim or a notice of intention to file a claim upon the State within 90 days of accrual (see also Court of Claims Act § 10 [10] ). As such, CVA actions are commenced in the Court of Claims by filing a claim with the Clerk of the Court and serving the Attorney General's Office personally or by certified mail, return receipt requested. Service upon the Attorney General's Office is not complete until the claim has been received (see Court of Claims Act § 11 [a] [i] ).
The statutory deadline for filing and serving CVA claims, August 14, 2021, was a Saturday. Because the deadline fell on a Saturday, claimants had until the following Monday, August 16, 2021, to file and serve CVA claims (see General Construction Law § 25-a [1] ). As such, the Court finds that the claim was timely filed on August 16, 2021, but it was not timely served on August 17, 2021.
In opposition to defendant's motion, claimant argues that the deadline to serve claim No. 136916 was extended by executive orders issued by Governor Cuomo during the global COVID-19 pandemic. Thus, the Court will explore whether the executive orders extending deadlines for the commencement of actions apply to CVA claims.
On March 20, 2020, Governor Cuomo signed Executive Order 202.8 suspending or modifying for 30 days "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to ... the civil practice law and rules, [and] the court of claims act". Executive Order 202.8 noted that State court operations at the time were limited to essential matters and that earlier that month, on March 7, 2020, Governor Cuomo had declared a disaster emergency for the State due to the COVID-19 pandemic. The toll of the "time limit for the commencement, filing, or service of any legal action" was continued monthly by subsequent executive orders for additional 30 day increments until November 3, 2020 (see Executive Orders 202.14, 202.28, 202.38, 202.48, 202.55.1, 202.60, 202.67). As of November 4, 2020, the toll is no longer in effect (see Executive Order 202.72). The executive orders, which were in effect for a total of 228 days, have been interpreted as a toll, not a suspension ( Brash v. Richards , 195 A.D.3d 582, 149 N.Y.S.3d 560 [2d Dept. 2021] ; Foy v. State of New York , 71 Misc. 3d 605, 144 N.Y.S.3d 285 [2021] ). A toll operates by adding the days remaining before the deadline to the date after the toll ceases to be in effect.
On May 8, 2020, Governor Cuomo signed Executive Order 202.29, which specifically addressed the CVA. Executive Order 202.29 sought to modify CPLR 214-g by extending the deadline for commencing CVA claims from one year and six months from the effective date of the law (February 14, 2019) to one year and eleven months. Thus, Executive Order 202.29 sought to extend the deadline for commencing CVA claims from August 14, 2020 to January 14, 2021.
The initial CVA opened a one-year window for commencing civil actions based upon alleged childhood sexual abuse.
In the spring of 2020, when Governor Cuomo began issuing executive orders due to the COVID-19 pandemic, there was legal debate about whether he had authority to modify, suspend or toll statutory provisions for more than 30 days at time. Executive Law 29-a (1) and (2) (a) grant the Governor authority to issue executive orders suspending statutes for no more than 30 days during state disaster emergencies. As such, Executive Law 29-a does not appear to confer authority to toll the deadline for the commencement of CVA claims for five months at once as provided for in Executive Order 202.29.
See, for example, a memorandum questioning the validity of Executive Order 202.29 at https://www.jamesmarshalllaw.com/wp-content/uploads/2020/05/NY-CVA-SOL-Extension.pdf.
On March 22, 2020, an administrative order issued by the Chief Administrative Judge of the New York State Courts directed that no papers be accepted for filing by court clerks except those deemed to be essential matters (see Administrative Order 78/20). CVA cases were not designated as essential matters (id. ). An administrative order issued on April 8, 2020 reconfirmed that "[n]o new nonessential matters may be filed until further notice" (see Administrative Order 85/20). Effective June 10, 2020, claimants were permitted to file new claims by mail in those counties or courts where electronic filing was not yet available (see Administrative Order 121/20). Effective November 4, 2020, parties were able to file new claims "by any means of filing and service normally permitted under statute and court rule" (see Administrative Order 267/20).
The New York State School for the Blind in Batavia, New York, is in Genesee County, which is in the Rochester District of the Court of Claims (see 22 NYCRR 206.4 [a]). Consensual electronic filing was not approved for all Court of Claims Districts until February 16, 2021 by order issued by Acting Presiding Judge of the Court of Claims, Hon. Richard E. Sise. Before that time, electronic filing was only permitted in the Albany and New York City Districts.
On January 8, 2020, before the COVID-19 pandemic began, New York State Senator Hoylman introduced senate bill 7082/assembly bill 9036, which sought to amend the CPLR to extend the CVA deadline (see Bill Jacket, L. 2020, ch. 130). The memorandum submitted in support of the bill noted that in the first four months that the CVA had been in effect, more than 1,300 civil lawsuits had been filed in New York on behalf of alleged victims of childhood sexual abuse (id. at 5). The memorandum noted further that several states which had enacted similar revival statutes, including New Jersey, had windows of longer than one year for survivors to commence actions (id. ). On May 27, 2020, the senate and assembly passed senate bill 7082/assembly bill 9036, which extended the CVA deadline for one additional year from August 14, 2020 to August 14, 2021 (id. at 2). The bill was sent to Governor Cuomo on July 31, 2020 and signed into law on August 3, 2020, thereby extending the deadline for filing CVA claims to August 14, 2021 (id. at 1). Claimant argues that the statute of limitations toll authorized by the executive orders issued during the pandemic applies to the commencement of CVA actions, such that claim No. 136916 was timely served. Defendant argues that tolls to the time limits for commencing actions do not apply because the CVA is a revival statute, not a statute of limitations. Defendant argues further that because the CVA had its own specific executive order, 202.29, it is not covered by the other executive orders (beginning with 202.8) tolling the deadlines for the commencement of actions.
The one-year CVA extension was signed into law before the initial CVA expired, and it extended the deadline for filing CVA claims beyond the deadline in Executive Order 202.29. As such, the validity of Executive Order 202.29 need not be decided.
The Court finds that the revival statute for CVA claims is a statute of limitations. CPLR 214-g is codified in article 2 of the CPLR, titled limitations of time. The Court can identify no basis upon which to exclude CVA claims from the series of monthly executive orders tolling the deadline to commence legal actions. The language in executive order 202.8 tolling the commencement of legal actions is clear and unambiguous - it applies to "any specific time limit for the commencement, filing, or service of any legal action". Moreover, Executive Order 202.8 expressly states that it applies to the civil practice law and rules and the Court of Claims. The Court finds that this particular group of potential claimants, childhood victims of sexual abuse, was so important, that Governor Cuomo singled them out by attempting to ensure that they would have additional time to commence legal actions, in light of the ongoing pandemic, and after executive and administrative orders halted all but essential court filings, before it was clear that the extension of the CVA would become law.
Matter of Echevarria v. Board of Elections in the City of N.Y. , 183 A.D.3d 857, 858, 122 N.Y.S.3d 904 (2d Dept. 2020), cited by defendant, is distinguishable as that case involved an Election Law proceeding. Election Law applications were deemed essential pursuant to administrative orders issued and, thus, could be filed when CVA claims could not.
The bill extending the CVA was signed into law on August 3, 2020. The next executive order extending the deadline for the commencement of legal actions was signed on August 6, 2020 (see Executive Order 202.55.1). Two additional executive orders issued in the fall of 2020 further tolled the statutory deadline to commence legal actions to October 4, 2020 and November 3, 2020 (see Executive Orders 202.60, 202.67). The Court finds that the executive orders issued by Governor Cuomo after the CVA extension was passed apply and toll the deadline for the commencement of CVA claims for 90 days. In light of the toll, the Court finds that claim No. 136916 was timely served. As such, to the extent defendant's motion to dismiss is based upon untimely service it will be denied.
The 90 day tolling period runs from August 6, 2020 to November 3, 2020. The Court finds that the tolls to deadlines to commence legal actions created by executive orders issued before the CVA extension was passed do not apply to the CVA extension because it was not yet law. The Court finds further that in passing the CVA extension, the Legislature halted the effect of any tolling of the deadline to commence CVA actions based upon the prior executive orders, which applied only to the initial CVA.
Defendant's motion also seeks dismissal of the claim based upon its alleged failure to satisfy Court of Claims Act § 11 (b) ("time when", "place where" and "nature of same"), as well as dismissal of each cause of action pled. The arguments offered in support of defendant's two motions to dismiss on substantive grounds are nearly identical. Based upon the same rationale articulated above, the Court will grant defendant's motion, in part. The causes of action for negligent infliction of emotional distress, premises liability, and for alleged violations of non-delegable and statutory duties, and in loco parentis, will be dismissed.
Claimant's Cross-Motion for Leave to Amend or Supplement Claim No. 136916 (CM-97342)
Claimant's cross-motion for leave to amend or supplement claim No. 136916 must be denied for the same reasons articulated above pertaining to claim No. 136395. Claimant has failed to submit a proposed amended claim with her motion papers and, as such, the Court may not grant claimant leave to serve an amended or supplemental claim.
Based upon the above, it is hereby
ORDERED, that the Court's order to show cause (motion No. M-97077) is vacated; and it is further
ORDERED, that defendant's motion to dismiss (motion No. M-97099) claim No. 136395 is granted in part such that the causes of action for negligent infliction of emotional distress, premises liability, and for alleged violations of non-delegable and statutory duties, and in loco parentis are dismissed, and defendant's motion is denied in all other respects; and it is further;
ORDERED, that claimant's cross-motion for leave to amend or supplement (cross-motion No. CM-97157) claim No. 136395 is denied; and it is further
ORDERED, that defendant's motion to dismiss (motion No. M-97291) claim No. 136916 is granted in part, such that the causes of action for negligent infliction of emotional distress, premises liability, and for alleged violations of non-delegable and statutory duties, and in loco parentis are dismissed, and defendant's motion is denied in all other respects; and it is further
ORDERED, that claimant's cross-motion for leave to amend or supplement (cross-motion No. CM-97342) claim No. 136916 is denied.