Opinion
2019-054-004
02-07-2019
J.D., Claimant, v. The STATE of New York, Defendant.
Claimant's attorney: DEBEVOISE & PLIMPTON LLP, By: Maeve L. O'Connor, Esq. and Amanda M. Bartlett, Esq., THE LEGAL AID SOCIETY PRISONERS' RIGHTS PROJECT, By: Dori A. Lewis, Esq. and Veronica Vela, Esq. Defendant's attorney: HON. LETITIA JAMES, Attorney General for the State of New York, By: Dian Kerr McCullough, Assistant Attorney General
Claimant's attorney: DEBEVOISE & PLIMPTON LLP, By: Maeve L. O'Connor, Esq. and Amanda M. Bartlett, Esq., THE LEGAL AID SOCIETY PRISONERS' RIGHTS PROJECT, By: Dori A. Lewis, Esq. and Veronica Vela, Esq.
Defendant's attorney: HON. LETITIA JAMES, Attorney General for the State of New York, By: Dian Kerr McCullough, Assistant Attorney General
Walter Rivera, J.
Movant seeks leave to serve and file a late claim alleging that she was sexually abused on numerous occasions by a number of correction officers, including a sergeant, who were employed by the New York State Department of Corrections and Community Supervision (DOCCS) at Bedford Hills Correctional Facility. The alleged abuse occurred from December 2017 until the end of July 2018 while movant was in protective custody in the special housing unit (SHU). Movant contends that because the State knew of her previous history of being victimized by the State's correction officers and her history of sexual abuse prior to her incarceration, it was foreseeable to the State that movant was at a heightened risk of being sexually abused (Proposed Claim ¶¶ 2, 11).
Movant is a named plaintiff in a class action lawsuit pending in federal court alleging, in part, that the State failed to protect movant during 2014 and 2015 from sexual abuse and retaliation from the DOCCS staff, including correction officers not named in the proposed claim (id. at 11-15; Jones v. Annucci , SD NY [Feb. 25, 2016, No. 1:16-CV-01473] ).
As to movant's previous history of being sexually abused by State correction officers, the proposed claim alleges that "between 2013 and 2015" movant had intercourse on several occasions with a correction officer at Bedford Hills and that the Office of Special Investigations (OSI), formerly the Inspector General's Office, had obtained a video of movant with this correction officer in unauthorized locations (id. at 13). Movant did not cooperate with the investigation of this officer "because of her feelings for this officer" (id. ). OSI later informed movant that the correction officer had been transferred out of Bedford Hills. Additionally, the proposed claim alleges that from November 2014 through April 2015, movant was sexually and physically abused by another correction officer at Bedford Hills. Movant reported the abuse and OSI later informed movant that the correction officer was no longer employed at Bedford Hills (id. at 14). In August 2016, another officer was terminated by the State because of his sexual abuse of movant (id. at 15). Movant initially refused to cooperate with that investigation and then subsequently gave a written statement that was substantiated by DOCCS (id. ).
Movant further alleges that the State was aware that several of the correction officers assigned to SHU during movant's placement in protective custody from December 2017 through July 2018 knew of movant's prior sexual encounters with DOCCS staff and that, to their knowledge, movant had not cooperated with any OSI investigations of the staff. Movant alleges that these circumstances made her an even more vulnerable target for abuse by correction officers. Thus, movant contends that the State should have been aware of the foreseeability that movant could again be subjected to sexual abuse by DOCCS staff; yet, the State failed to adequately supervise its SHU staff (id. at 16, 26). More specifically, movant alleges that the State failed to require body cameras on all SHU staff and failed to maintain any video footage obtained for "sufficiently long periods of time" (id. at 33, 37-39). Movant also alleges that numerous correction officers in SHU knew of the ongoing sexual abuse that movant endured for the seven months from December 2017 through July 2018; but they did not report it (id. at 2). Thus, despite being housed in protective custody in SHU, the State allegedly failed to protect movant from being sexually abused by its own correctional staff who were charged with securing her safety.
With regard to the allegations which form the basis of the proposed claim, the Court finds that the following allegations were pled with sufficient specificity to satisfy the jurisdictional pleading requirements of Court of Claims Act § 11 (b) as to the time when and the place where such claims arose. On or about December 14, 2017, Correction Officer Xabiel Schindler kissed movant while on the landing outside the door to the recreation area. On or about December 26, 2017, Schindler had movant perform oral sex on him in the visitors' bathroom adjacent to the visiting room (Proposed Claim, ¶ 20). On or about April 4, 2018, movant performed oral sex on Correction Officer Golatz in a SHU supply closet (id. at 22). On or about April 16, 2018, Correction Officer Russo had intercourse with movant in the strip-frisk area (id. at 23). On or about May 8, 2018, Correction Officer Wellington had intercourse with movant in a stairwell near the Regional Medical Unit (RMU) (id. at 24). On or about June 19, 2018, Wellington physically threatened movant with his fists and had intercourse with movant in a Staff Only room in the RMU (id. at 25).
The remaining allegations of the proposed claim do not allege specific dates of accrual. They allege wrongdoing by Correction Officer Alvarez "[o]n April 2017" (Proposed Claim, ¶ 19); wrongdoing by Sergeant McDaniels "[i]n the fall of 2017, "[i]n January 2018," "[i]n late January;" "on a Sunday in Mid-March 2018," "in late June 2018" (id. at 21); wrongdoing by Correction Officer Russo "[a] week or two later" (id. at 23); and wrongdoing by Correction Officer Wellington "in Mid-December, 2017" (id. at 24). The failure to allege a specific date of accrual is a jurisdictional defect which precludes the Court from considering those allegations (see Court of Claim Act § 11 [b] ; Clark v. State of New York , 165 AD3d 1371 [3d Dept 2018] ; Morra v. State of New York , 107 AD3d 1115 [3d Dept 2013] ; Robin BB. v. State of New York , 56 AD3d 932 [3d Dept 2008] ).
The proposed claim further alleges that Officer Schindler was terminated from his probationary employment with DOCCS at the end of February 2018 due to his unauthorized contact with movant; however he continued to have contact with movant by telephone and in writing until May 15, 2018 (id. at 20, 40 [a] ). On April 4, 2018, movant's cell was searched and pictures of Officer Schindler were confiscated by OSI pursuant to OSI's investigation of Schindler's misconduct (id. at 40 [b] ). On April 16, 2018, movant reported Schindler's abuse to OSI and was told that there was already an open investigation (id. at 40 [c] ). On April 24, 2018, "Schindler's visiting privileges were cutoff by DOCCS" and a memorandum was circulated among Bedford Hills staff indicating that movant had been involved in an unauthorized relationship with Schindler (id. at 40 [d] ). On May 2, 2018, OSI Investigator Fischera told movant that OSI was aware that other SHU officers knew of the abuse by Schindler (id. at 40 [e] ). Movant also told OSI Investigator Fischera that Schindler was not the only SHU officer that had abused her (id. ).
On May 10, 2018, Deputy Superintendent Velez of Bedford Hills ordered that movant have a "sexual assault work-up" and be examined by a nurse in connection with the investigation of Schindler (id. at 40 [f], [h] ). On May 25, 2018, OSI Investigator Fischera told movant that a video of Schindler kissing movant had been obtained (id. at 40 [g] ). On June 6, 2018, an administrative directive was issued for movant to undergo a pregnancy test (id. at 40 [h] ). The pregnancy test was administered on June 7, 2018 (id. at 40 [I] ).
On June 10, 2018, Deputy Superintendent Velez told movant that Velez was looking for an opportunity to interview movant privately because Velez knew that movant "had been through a lot" (id. at 41). Movant then told Velez about the sexual abuse by Correction Officer Russo and that movant was "terrified" of reporting anything to OSI and meeting with OSI in SHU because her abusers worked in SHU (id. ). Velez set up a meeting for movant with OSI on June 11, 2018 (id. ). Movant refused to go to the meeting (id. ). On June 14, 2018, Velez spoke with movant, who again expressed her fear of reporting sexual abuse (id. at 42).
On June 20, 2018, movant called the OSI hotline and met with OSI Investigator Fischera to report that on June 19, 2018 Officer Wellington had sexually abused movant on May 8, 2018 and June 19, 2018 and that Officer Golatz had sexually abused movant on April 4, 2018 (id. at 43). Movant was then sent to the emergency room at Westchester County Medical Center where she was examined for sexual abuse (id. at 43). Movant was thereafter moved to isolated confinement in the RMU (id. at 44). On or about July 25, 2018, movant was transferred to Albion Correctional Facility.
As a result of the alleged repeated sexual abuse that movant endured for seven months before being transferred to Albion Correctional Facility, movant continues to suffer from anxiety, post-traumatic stress disorder, flashbacks, difficulty sleeping and fear of men (Proposed Claim, ¶¶ 1, 2, 48).
Based on the aforenoted, the proposed claim alleges a cause of action for intentional and negligent infliction of emotional distress ( id. at 52-54, 63, 65, 66), and that the State should be held vicariously liable for the alleged conduct of the correction officers because they were acting within the scope of their employment by the State and in the discharge of their duties as correction officers (id. at 49). The proposed claim also alleges that the State was negligent in its training and supervision of Correction Officers Schindler, Golatz, Russo and Wellington (id. at 34, 37, 38, 57, 59). Additionally, the proposed claim may be read to allege a cause of action for negligent hiring by the State of the aforenamed correction officers.
The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act : (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v. New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys. , 55 NY2d 979 [1982] ).
The Court has considered all the relevant factors. Movant's purported excuse for the delay is that she feared retaliation from the correction officers who were supervising her and her limited access to counsel "given counsel's difficulty in traveling to Albion" and "the logistical difficulties counsel had communicating with [movant] by phone and in person" (Reply, p 4). The Court finds that movant's fear of retaliation is a more compelling excuse than her counsel's difficulties with travel and communicating with movant. In any event, a reasonable excuse for delay is but one factor considered and is not determinative of movant's application (see Borawski v. State of New York , 128 AD3d 628, 629 [2d Dept 2015] ).
Indeed, while no single factor is controlling, it would be futile to grant a late claim application where the proposed claim is of questionable merit or would be subject to dismissal "even if other factors in Court of Claims Act § 10 (6) supported the granting" of the late claim application ( Ortiz v. State of New York , 78 AD3d 1314, 1314 [3d Dept 2010] ; see Barnes v. State of New York , 158 AD3d 961 [3d Dept 2018] ; Savino v. State of New York , 199 AD2d 254 [2d Dept 1993] ).
Unlike a party who has timely filed a claim, a party seeking to file a late claim has the burden of demonstrating that the claim appears to be meritorious (see Matter of Brown v. State of New York , 6 AD3d 756 [3d Dept 2004] [late claim application denied where excuse was inadequate and proposed claim was of questionable merit]; Nyberg v. State of New York , 154 Misc 2d 199 [Ct Cl 1992] ; Matter of Santana v. New York State Thruway Auth. , 92 Misc 2d 1 [Ct Cl 1977] ).
The Court will first address the causes of action of the proposed claim alleging that the State was negligent in its supervision of Correction Officers Schindler, Golatz, Russo and Wellington and the cause of action of negligent infliction of emotional distress caused by the alleged negligent supervision of the aforenamed correction officers by the State.
The Court finds that a liberal reading of the sum and substance of the totality of the allegations of the proposed claim is sufficiently specific to allege a cause of action of negligent supervision by the State of Correction Officers Schindler, Golatz, Russo and Wellington and a cause of action of negligent infliction of emotional distress caused by the alleged negligent supervision of the aforenamed correction officers by the State which caused movant to fear for her physical safety, endangered her physical safety and resulted in emotional harm accompanied by physical manifestations (see Ornstein v. New York City Health & Hosps. Corp. , 10 NY3d 1, 6 [2008] [to recover for negligently-caused psychological trauma, it must be accompanied by residual physical manifestations] ; Johnson v. State of New York , 37 NY2d 378, 381 [1975] ; Borrerro v. Haks Group, Inc. , 165 AD3d 1216 [2d Dept 2018] [negligent infliction of emotional distress must be based upon an allegation of negligence]; Santana v. Leith , 117 AD3d 711, 712 [2d Dept 2014] [negligent infliction of emotional distress must be based upon an allegation of negligence and not on intentional conduct]; Tatta v. State of New York , 20 AD3d 825 [3d Dept 2005] ; Johnson v. New York City Bd. of Educ. , 270 AD2d 310, 312 [2d Dept 2000] [negligent infliction of emotional distress must be premised on conduct that unreasonably endangers plaintiff's physical safety or causes plaintiff to fear for physical safety]; Losquadro v. Winthrop Univ. Hosp. , 216 AD2d 533 [2d Dept 1995] ). In that regard, the Court notes that paragraphs 17 and 59 (c) of the proposed claim are vague, conclusory and fail to set forth any date as to when the State obtained the alleged "actual knowledge" that Correction Officers Wellington and Russo "posed a foreseeable risk of harm to incarcerated women like (movant) based on prior notice of their misconduct" (Proposed Claim ¶ 59 [c] ). However, the proposed claim does allege the State's knowledge of movant's previous history of being victimized by State correction officers who were subsequently terminated by the State due to movant's allegations of sexual abuse (Proposed Claim, ¶¶ 2, 14, 15). Additionally, with regard to the allegations of sexual abuse which are the subject of the proposed claim, Correction Officer Schindler was allegedly terminated by the State at the end of February 2018 due to his unauthorized contact with movant (id. at 20, 40 [a] ). Nonetheless, movant remained housed in protective custody for five additional months before being transferred out of SHU, a housing unit where Schindler was allegedly found by the State to have had unauthorized contact with movant and where movant alleges that she continued to be victimized by an ongoing pattern and practice of sexual abuse by SHU correction officers. The Court finds that the proposed claim is sufficiently fact specific to allege that the State was, or should have been, on notice of a lack of adequate supervision of its SHU staff. Additionally, movant alleged that the other SHU correction officers knew of Schindler's abuse and failed to report it. Thus, the Court finds that movant has established an appearance of merit regarding the causes of action alleging that the State was negligent in its supervision of Correction Officers Schindler, Golatz, Russo and Wellington and the cause of action of negligent infliction of emotional distress caused by the alleged negligent supervision of the aforenamed correction officers by the State.
It is noted that movant bears the burden of proof at trial in order to prevail on these causes of action. It is further noted that movant's arguments made in reply, which focus upon paragraphs 8, 9, 17, 59 (b), (c) of the proposed claim as a basis for the cause of action of negligent supervision, are not compelling. Specifically, movant's reliance upon the State's generalized awareness that staff-on-inmate sexual abuse occurs in State prisons and the State's awareness of the foreseeability of sexual abuse by male officers assigned to a facility housing female inmates, are not sufficiently fact specific in pleading a basis for the allegation that the State either knew or should have known that the correction officers named in the proposed claim had a propensity to commit the acts of sexual abuse alleged by movant (see Shu Yuan Huang v. St. John's Evangelical Lutheran Church , 129 AD3d 1053 [2d Dept 2015] ; Hicks v. Berkshire Farm Ctr. & Servs. for Youth , 123 AD3d 1319 [3d Dept 2014] ). Nor is the correction officers' gender alone legally sufficient for the allegation that the State had notice of the propensity for sexual abuse by the named correction officers.
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In considering the other factors set forth in Court of Claims Act § 10 (6), the Court finds that movant's fear of retaliation from the SHU correction officers has admittedly delayed the timely investigation of some of her allegations of sexual abuse and may have impacted the State's ability to obtain potential DNA evidence. However, it is unrefuted by the State that the State conducted an investigation which led to the termination of Correction Officer Schindler in February 2018 and that OSI's investigation was ongoing. Although the scope of the investigation is not apparent and the State's opposition papers do not address this issue, the investigation necessarily continued through movant's transfer out of Bedford Hills on July 25, 2018. OSI Investigator Fischera and Deputy Superintendent Velez were also allegedly aware that movant claimed that she had allegedly been sexually abused by more than one correction officer in SHU. Deputy Superintendent Velez was also allegedly aware that movant was afraid of reporting and meeting with OSI while movant was housed in SHU. Thus, the Court finds that the State had notice and an opportunity to investigate movant's claims of ongoing sexual abuse in SHU. The Court further finds that the State would not suffer substantial prejudice by a granting of movant's late claim application as to the causes of action of negligent supervision and negligent infliction of emotional distress caused by the alleged negligent supervision by the State (see Matter of Newcomb v. Middle Country Cent. Sch. Dist. , 28 NY3d 455 [2016] ).
The Court also notes that movant has other available remedies by way of a federal civil-rights action pursuant to 42 USC § 1983 and an action against the individual officers. On balance, however, the Court finds in favor of granting movant's late claim application as to the causes of action of negligent supervision and negligent infliction of emotional distress.
Accordingly, movant's application is GRANTED as to the causes of action alleging that the State was negligent in its supervision of Correction Officers Schindler, Golatz, Russo and Wellington and the cause of action of negligent infliction of emotional distress caused by the alleged negligent supervision of the aforenamed correction officers by the State.
The Court will now address the other causes of action alleged in the proposed claim.
A cause of action for intentional infliction of emotional distress cannot be maintained against the State because public policy prohibits maintenance of this cause of action against governmental entities such as the State (see Ball v. Miller , 164 AD3d 728 [2d Dept 2018] ). Accordingly, movant's application is DENIED as to the cause of action of intentional infliction of emotional distress.
A cause of action alleging that the State should be held vicariously liable for the tortious acts of its correction officers is applicable only if the acts of the correction officers were committed in furtherance of the State's business and within the scope of the correction officers' employment (see N.X. v. Cabrini Med. Ctr. , 97 NY2d 247, 251-252 [2002] ). In this matter, the allegations of wrongdoing by the correction officers were not in furtherance of, or related to, the State's business purpose of operating, managing and maintaining a correctional facility. Rather, the alleged wrongdoing was done solely for the personal motives of the correction officers. Thus, the proposed claim does not allege a basis for holding the State vicariously liable for the intentional acts of the correction officers (see N.X. , 97 NY2d at 251 [sexual assault by hospital employee was not in furtherance of hospital business, was a clear departure from the scope of his employment and committed for wholly personal motives]; Bowman v. State of New York , 10 AD3d 315, 317 [1st Dept 2004] [State could not be held liable for court officer's conduct which was a clear departure from his duties, unrelated to the furtherance of Court business and for solely personal motives] ). Accordingly, movant's application is DENIED as to the cause of action alleging that the State should be held vicariously liable for the tortious acts of its correction officers.
To the extent that the proposed claim may be read to allege a cause of action of negligent hiring, there is no allegation in the proposed claim that, prior to hiring Correction Officers Schindler, Golatz, Russo and Wellington, the State knew or should have known that the aforenamed correction officers had a propensity to commit the alleged wrongful conduct; therefore the proposed claim fails to state a cause of action for negligent hiring (see Mason v. Ben Roy Das, Inc. , 34 AD3d 768 2d Dept 2006] ). Accordingly, movant's application is DENIED as to the cause of action of negligent hiring.
The cause of action alleging that the State negligently trained its correction officers is conclusory and has not been shown to have an appearance of merit. In that regard, movant has not alleged that her injuries were proximately related to a specific deficiency in the correction officers' training that led the correction officers to either engage in the alleged misconduct or their failure to detect sexual abuse and report the misconduct of other correction officers (see Barr v. County of Albany , 50 NY2d 247 [1980] ; Timothy Mc. v. Beacon City Sch. Dist. , 127 AD3d 826 [2d Dept 2015] ; Richardson v. New York Univ. , 202 AD2d 295, 296-297 [1st Dept 1994] [conclusory allegations of deficient training were insufficient to establish a question of fact precluding summary judgment dismissing the cause of action]; Shantelle S. v. State of New York , 11 Misc 3d 1088[A] [Ct Cl 2006] [no specific deficiency in training shown to have led correction officer to engage in sexual assault]; Colon v. Wal-Mart Stores , 182 Misc 2d 927, [Sup Ct, Montgomery County 1999] ["conclusory allegation (of negligent training) falls far short of establishing this cause of action"]; Vippolis v. Village of Haverstraw , 768 F2d 40, 44-45 [2d Cir 1985] [no showing of causal connection between specific deficiencies in training which led police officer to engage in alleged misconduct] ). Accordingly, movant's application is DENIED as to the cause of action of negligent training.
In sum, movant's application is GRANTED in part and DENIED in part. In accordance with the foregoing, movant shall serve and file a claim, limited to the causes of action of negligent supervision by the State of Correction Officers Schindler, Golatz, Russo and Wellington and negligent infliction of emotional distress caused by the alleged negligent supervision of the aforenamed correction officers by the State, in accordance with the mandates for the service and filing set forth in the Court of Claims Act, within 45 days of the filed-stamped date of this Decision and Order.