Opinion
Motion No. M-97097
11-12-2021
R.A., Claimant, v. The STATE of New York, Defendant.
For Claimant: BARKET EPSTEIN KEARON ALDEA & LOTURCO, LLP, By: Alexander R. Klein, Esq. For Defendant: LETITIA JAMES, Attorney General of the State of New York, By: Douglas R. Kemp, Assistant Attorney General
For Claimant: BARKET EPSTEIN KEARON ALDEA & LOTURCO, LLP, 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]). 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 his reply submission, claimant submitted the Clinton County Court transcript establishing that Murphy pleaded guilty to one count of rape in the third degree (see Penal Law § 130.25 [3] ) and one count of official misconduct as a misdemeanor (see Penal Law § 195.00 [1] ) on August 11, 2021, in Clinton County Court (see Klein Reply Affirmation, ¶ 3, Exhibit D [Plea Transcript, dated Aug. 11, 2021]; see also Proposed Claim, Exhibit A [Indictment No. 31-1-212935, First Count, Twenty-Third Count]).
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 NY2d 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.
Defendant does take issue, however, with claimant's argument that the statute of limitations with respect to the intentional tort causes of action is tolled pursuant to CPLR 215 (8) (see Klein Affirmation, ¶ 19) inasmuch as that provision applies only to extend the time to commence a civil action "against a defendant who is also the subject of a criminal action" and does not apply to a claim against the State in the Court of Claims (Kemp Affirmation, ¶ 8).
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 that "litigants with meritorious claims [should] be afforded their day in court" ( Plate v State of New York , 92 Misc 2d 1033, 1036 [Ct Cl 1978] ; see Calzada v State of New York , 121 AD2d 988, 989 [1st Dept 1986] ), the courts have recognized that a late claim application should not be granted where a claim is "legally deficient ... [and] would be subject to immediate dismissal, even if the other factors tend to favor the granting of the request" ( Prusack v State of New York , 117 AD2d 729, 730 [2d Dept 1986] ; Matter of Santana v New York State Thruway Auth. , 92 Misc 2d 1, 10 [Ct Cl 1977] ). In general, a party seeking to establish the merit of a proposed late claim need not demonstrate a likelihood that he or she will prevail on the claim. Rather, a proposed claim has the appearance of merit within the meaning of Court of Claims Act § 10 (6) if: (1) the proposed claim is not "patently groundless, frivolous, or legally defective," and (2) all of the evidence submitted on the motion establishes "reasonable cause to believe that a valid cause of action exists" ( Matter of Santana , 92 Misc 2d at 11 ).
Claimant argues that the proposed claim has the appearance of merit because it is supported by the criminal indictment against Murphy, as well as the evidence obtained during the investigation of Murphy that corroborates the allegations of sexual assault and bribery, including physical evidence, financial records reflecting gifts of money from Murphy to claimant through the JPay system, and Altona CF records that "if properly reviewed, would have demonstrated a highly unusual frequency of visits between ... Murphy and [claimant] that would have prompted a reasonable ... supervisor to investigate the nature of their relationship" (Klein Affirmation, ¶¶ 22-23).
In opposition to the motion, defendant argues that claimant has not met his burden of establishing the appearance of merit of the proposed claim because the proposed claim was verified by claimant's counsel and supported by an affirmation of claimant's counsel, who lacks personal knowledge, and thus both the proposed claim and affirmation are without evidentiary value (see Kemp Affirmation in Opposition, ¶¶ 15-20). Defendant further argues that claimant has failed to submit evidence to support the proposed claim inasmuch as the indictment, which is the only exhibit attached to the proposed claim, "is ... not evidence of a crime, but is rather an accusatory instrument" (id. at ¶ 21). Defendant argues that it cannot be held vicariously liable for the alleged sexual assault(s) under the doctrine of respondeat superior because those acts were outside the scope of Murphy's employment (see id. at ¶¶ 23-25). Defendant also argues that claimant has failed to establish the appearance of merit of the negligent supervision claim because the allegations regarding Murphy's conduct are vague and conclusory and are not based on personal knowledge inasmuch as they are set forth in the affirmation of claimant's counsel (see id. at ¶¶ 29-32). Specifically, defendant argues that claimant offers no evidence to support his claims that the frequency of his visits with Murphy was unusual "or at what point visits become so unusual as to trigger further review by defendant" (id. at ¶ 36), that the practice of corrections staff at Altona CF of omitting Murphy's office from their regular rounds was contrary to facility requirements or "any penological standards or practices" (id. at ¶ 37), or that defendant's employees and agents were able to access information in the JPay system that would have caused them to realize that Murphy was sending claimant gifts in connection with sexual abuse (see id. at ¶ 41). Finally, defendant argues that claimant has failed to establish the appearance of merit of the negligent retention cause of action inasmuch as he has not provided any facts to support that claim and relies solely on the conclusory allegation that "Murphy had prior inappropriate relationships" (id. at ¶ 46).
In reply, claimant argues that the State cannot contest the allegations of sexual assault that form the basis of this claim, and that as a result, the allegations must be deemed true (see Klein Reply Affirmation, ¶¶ 10-11). Claimant states that a portion of the investigative records related to this claim have been made available since Murphy's guilty plea, and he appends those records — including the Office of Special Investigations (OSI) Investigative Report (see id. , Exhibit A), the Altona CF "Facility Callouts" records from August 22, 2020, through January 19, 2021, reflecting claimant's presence at bible study sessions and his one-on-one meetings with Murphy (see id. , Exhibit B), JPay records reflecting payments to claimant from Terri Birdson to claimant between December 2020 and March 2021 using Murphy's credit card (see id. , Exhibit C), and the transcript of Murphy's guilty plea in Clinton County Court on August 11, 2021 (see id. , Exhibit D) — to his reply submission in further support of the late claim application. Claimant argues that considering the "liberal" definition of the appearance of merit for purposes of late claim motions, together with the newly produced investigative records, the Court should reject defendant's argument that the negligence claims asserted in the proposed claim lack merit, and that claimant should not be denied the opportunity to bring his claim against the State because he delayed filing the claim in order to assist with the investigation of Murphy, particularly given the seriousness of the allegations (see id. at ¶¶ 17-21).
As an initial matter, to the extent claimant seeks to assert claims against Murphy and certain "John Doe" corrections officers in the proposed claim, it is well settled that the Court of Claims is a court of limited jurisdiction to adjudicate claims for money damages against the State of New York, including claims against the State "for the torts of its officers or employees while acting as such officers or employees" ( Court of Claims Act § 9 [2] ; see Woodward v State of New York , 23 AD3d 852, 856 [3d Dept 2005], lv dismissed 6 NY3d 807 [2006] ["the State (of New York) is the real party in interest where an action against a state officer is for conduct undertaken in an official capacity and in the exercise of an official governmental function"]). Because this claim may not be brought against individual employees of the State in the Court of Claims (see Powell v State of New York , 60 Misc 3d 1214[A], 2018 NY Slip Op 51104[U], *1 n 1 (Ct Cl 2018]; Crespo v State of New York , 41 Misc 3d 807, 808 [Ct Cl 2013] ), the State is the only proper defendant with respect to this claim, and the Court cannot grant late claim relief with respect to the claims against the individual defendants.
With respect to defendant's argument that the late claim motion must be denied on the ground that the proposed claim was verified by claimant's counsel and supported by an affirmation of claimant's counsel, who lacks personal knowledge, the CPLR provides that a claim may be verified by claimant's counsel where the claimant "is not in the county where the attorney has his office" ( CPLR 3020 [d] [3] ). However, a claim verified by counsel who lacks personal knowledge "may not be considered as proof of the facts constituting" the claim ( Ritzer v 6 E. 43rd St. Corp. , 47 AD3d 464, 464 [1st Dept 2008] ; see Beltre v Babu , 32 AD3d 722, 723 [1st Dept 2006] ["a complaint verified by counsel is purely hearsay" and "devoid of evidentiary value"]; Nevling v Chrysler Corp. , 170 AD2d 817, 818 [3d Dept 1991] [complaint was "unavailing since it was verified by (the plaintiffs’) attorney and was not based on personal knowledge"]). Similarly, an attorney affirmation that is not based on an attorney's personal knowledge lacks probative value and cannot provide evidentiary support for this late claim motion (see Hernandez v State of New York , UID No. 2015-038-503 at n 1 [Ct Cl, DeBow, J., Jan. 22, 2015]; see also 2 N. St. Corp. v Getty Saugerties Corp. , 68 AD3d 1392, 1395 [3d Dept 2009], lv denied 14 NY3d 706 [2010] [affirmations of attorney "who had no personal knowledge of the operative facts" lacked "probative value and consequently (were) insufficient to defeat" plaintiff's summary judgment motion]; Teddy's Drive-In v State of New York , 63 AD2d 1070, 1072 [3d Dept 1978] [attorney affirmation "containing conclusory allegations, unsupported by personal knowledge" insufficient to support the State's position on summary judgment motion (internal quotation marks omitted)]).
Here, the proposed claim is verified by claimant's counsel on the basis that claimant does not reside in the county where his attorney's office is located (see Proposed Claim [Attorney Verification, dated Aug. 17, 2021]), and based upon the foregoing, it lacks evidentiary value, as does the attorney affirmation submitted on the motion. However, claimant has appended to his reply submission evidence to corroborate the allegations set forth in the proposed claim, including the detailed OSI Investigative Report, records from Altona CF that corroborate the frequency of claimant's meetings with Murphy and the gifts that she sent to him, and Murphy's guilty plea. The Court thus concludes that claimant has made a sufficient evidentiary showing with respect to the allegations set forth in the proposed late claim, and his application for late claim relief will not be denied for lack of evidentiary support.
Turning now to the appearance of merit of the cause of action alleging battery, under the doctrine of respondeat superior, the State may be held liable for a battery committed by one of its employees if the battery was "committed in the furtherance of the employer's business and within the scope of employment" ( N.X. v Cabrini Med. Ctr. , 97 NY2d 247, 251 [2002] ; see also Jones v State of New York , 33 NY2d 275, 279-280 [1973], rearg dismissed 55 NY2d 878 [1982] ), "so long as the tortious conduct [was] generally foreseeable and a natural incident of the employment" ( Judith M. v Sisters of Charity Hosp. , 93 NY2d 932, 933 [1999] ). However, when "an employee for purposes of his own departs from the line of his duty so that for the time being his acts constitute an abandonment of his service, the master is not liable" (id. [internal quotation marks omitted]). It is well settled that "[a]n act of sexual assault by an employee is a clear departure from the scope of employment, committed solely for personal reasons, and unrelated to the furtherance of the employer's business" ( Dia CC. v Ithaca City School Dist. , 304 AD2d 955, 956 [3d Dept 2003], lv denied 100 NY2d 506 [2003] ; see Doe v Heckeroth Plumbing & Heating of Woodstock, Inc. , 192 AD3d 1236, 1238 [3d Dept 2021] ["it has long been recognized that (s)exual assault is a clear departure from the scope of employment" (internal quotation marks omitted)]; Shantelle S. v State of New York , 11 Misc 3d 1088[A], 2006 NY Slip Op 50768[U], *3 [Ct Cl 2006] ["sexual assaults are not the kind of intentional torts that may render the employer liable under the doctrine (of respondeat superior) because they are clearly perpetrated for the employee's own purposes, and are a departure from service to the employer"]). Inasmuch as the State may not be held liable under the doctrine of respondeat superior for Murphy's battery because it was a sexual assault, the claim lacks the appearance of merit as a matter of law (see B.K. v State of New York , UID No. 2018-045-027 [Ct Cl, Lopez-Summa, J., July 16, 2018]).
With respect to the cause of action for intentional infliction of emotional distress (see Proposed Claim, ¶¶ 48-56), it is well settled that claims for intentional infliction of emotional distress against the State of New York are barred as a matter of public policy (see Brown v State of New York , 125 AD2d 750, 752 [3d Dept 1986], appeal dismissed 70 NY2d 747 [1987] ; Dillon v City of New York , 261 AD2d 34, 41 [1st Dept 1999], order issued 1999 NY Slip Op 10615 [1st Dept 1999] ; Lauer v City of New York , 240 AD2d 543, 544 [2d Dept 1997], lv denied 91 NY2d 807 [1998] ; Wheeler v State of New York , 104 AD2d 496, 498 [2d Dept 1984] ; Drayton v State of New York , UID No. 2019-038-574 [Ct Cl, DeBow, J., Aug. 1, 2019]). Thus, the cause of action for intentional infliction of emotional distress lacks the appearance of merit as a matter of law.
Turning to the negligence claims asserted in the proposed claim, although the State may not be held vicariously liable for a sexual assault perpetrated by its employee, it may be held liable under the theories of negligent supervision and retention, as alleged here in the proposed claim (see Proposed Claim, ¶¶ 57-70 [negligent supervision], ¶¶ 71-84 [negligent retention]; see also Kenneth R. v Roman Catholic Diocese of Brooklyn , 229 AD2d 159, 161 [2d Dept 1997], cert denied 522 US 967 [1997], lv dismissed 91 NY2d 848 [1997] [employer may be held liable under theories of negligent hiring, retention, and supervision in situations where it cannot be held vicariously liable for an employee's intentional torts]; J.A.B. v State of New York , UID No. 2016-015-135 [Ct Cl, Collins, J., May 17, 2016]). Both of those causes of action "require allegations that the defendant knew or should have known of its employee's propensity to engage in the conduct that caused the [claimant's] injuries, and that the alleged negligent supervision or retention was a proximate cause of those injuries" ( Gray v Schenectady City School Dist. , 86 AD3d 771, 773-774 [3d Dept 2011] ; see Timothy Mc. v Beacon City Sch. Dist. , 127 AD3d 826, 828 [2d Dept 2015] ; Honohan v Martin's Food of S. Burlington , 255 AD2d 627, 628 [3d Dept 1998], quoting Ray v County of Delaware , 239 AD2d 755, 757 [3d Dept 1997] ). In order for a defendant employer to be held liable under these theories, "[t]he employee ... must not be acting within the scope of his or her employment" ( Gray , 86 AD3d at 773-774 ; see Rossetti v Board of Educ. of Schalmont Cent. School Dist. , 277 AD2d 668, 670 [3d Dept 2000] ["Where an employee is acting within the scope of his or her employment, the employer is liable under the theory of respondeat superior and no claim may proceed against the employer for negligent hiring or retention"]), and, as discussed above, it is well established that a sexual assault constitutes a departure from the scope of employment.
As noted above, the allegations set forth in the proposed claim and affirmation of claimant's counsel lack evidentiary value. Further, the evidence submitted on the motion fails to establish that defendant "knew, or should have known, that ... Murphy had maintained inappropriate relationships with other [incarcerated persons] in the past" (Proposed Claim, ¶ 63), and therefore that defendant had actual or constructive notice that Murphy had a propensity to engage in sexual assault. While claimant has submitted documentary evidence demonstrating that claimant met one-on-one with Murphy on at least eight occasions between September 8 and December 15, 2020, during the time that the sexual assaults allegedly occurred (see Klein Reply Affirmation, Exhibit B), as well as documentary evidence that Murphy — as "Terri Birdson" — provided claimant with monetary gifts via the JPay system (see id. , Exhibit C), this does not constitute evidence that defendant had notice that Murphy had a history of sexual assault prior to the sexual assaults on claimant and that defendant was aware of Murphy's propensity to commit sexual assault. To the extent that claimant argues that his claim is supported by the failure of defendant's agents to monitor Murphy's office during the one-on-one sessions with claimant (see Klein Affirmation, ¶ 23), it lacks evidentiary support, and further, any proof of a breach of supervision by defendant's agents would be germane only if there was threshold proof that defendant's agents were aware of Murphy's propensity for committing sexual assault, which, as discussed above, is lacking. Finally, although claimant argues that defendant's agents should have conducted an investigation into the nature of the relationship between claimant and Murphy based upon the "highly unusual frequency of visits" between the two (see id. , ¶ 23), a claim for negligent investigation is not a cognizable cause of action (see Juerss v Millbrook Cent. Sch. Dist. , 161AD3d 967, 968-969 [2d Dept 2018], lv denied 32 NY3d 903 [2018] ), and the lack of investigation would have bearing only to the extent that there was threshold proof that defendant had notice of Murphy's propensity to engage in sexual assault. Therefore, in the Court's view, the evidence submitted on the motion does not establish a reasonable cause to believe that valid causes of action sounding in negligent supervision and retention exist, and therefore these causes of action lack the appearance of merit.
While the evidence demonstrates that defendant knew that claimant received money from "Terri Birdson" on seven different occasions from December 18, 2020 through March 9, 2021 (see Klein Reply Affirmation, Exhibit C [Report of All Transactions for Claimant]), claimant has not submitted evidence that defendant's agents had access to the JPay records that linked "Terri Birdson" to Murphy (see id. [Jpay Records for Terri Birdson]), other than counsel's assertions, which, as noted above, lack evidentiary value.
The Court would note that claimant attended bible study on thirteen occasions between August 23, 2020 and January 17, 2021 and Catholic Sacramental class on two occasions on January 5 and January 14, 2021 (see Klein Reply Affirmation, Exhibit B), so the Court is not convinced that the record necessarily reflects that claimant's visits were "highly unusual," as claimant argues (Klein Affirmation, ¶ 23).
In sum, the appearance of merit factor weighs against the granting of the late application with regard to all four causes of action alleged in the proposed claim.
With respect to the final factor, claimant does not directly address whether he has any other remedy available to him, but he does argue that if this late claim application is not granted, his "remedies could be limited to suits against ... Murphy herself, whose resources are unlikely to match the extraordinary damages associated with" the months of sexual abuse alleged here (Klein Affirmation, ¶ 26; see Klein Reply Affirmation, ¶ 21 ["Given the size of the judgment that would be appropriate under such circumstances, the notion that suing ... Murphy alone is an adequate alternative to suing New York State is deeply naïve"]). Defendant argues in opposition that claimant has acknowledged that he has an alternative remedy available to him, namely, an action against Murphy individually, inasmuch the time within which to commence such an action has not yet expired (see Kemp Affirmation in Opposition, ¶¶ 48-49). Notwithstanding claimant's argument that he is unlikely to recover sufficient damages, if any, from Murphy in order to compensate him for the acts of sexual assault allegedly perpetrated against him, he has conceded that he has another remedy available to him, and thus, this factor weighs against granting late claim relief.
Having considered and weighed all of the factors set forth in Court of Claims Act § 10 (6), the Court finds that while three factors weigh in support of the claim, the three remaining factors, including the crucial factor of the appearance of merit, weigh against granting the application for late claim relief. Thus, the Court concludes that claimant should not be granted permission to file and serve a late claim.
Accordingly, it is
ORDERED, that claimant's motion number M-97097 is hereby DENIED.
Papers considered :
1. Notice of Motion, dated August 17, 2021;
2. Affirmation of Alexander R. Klein, Esq., in Support of Motion to File Proposed Claim More Than Ninety Days After Claims Accrued, dated August 17, 2021;
3. Proposed Verified Claim, dated August 17, 2021, with Exhibit A;
4. Affirmation of Douglas R. Kemp, AAG, in Opposition to Motion to File a Late Claim, dated September 23, 2021;
5. Reply Affirmation of Alexander R. Klein, Esq., dated October 18, 2021, with Exhibits A-D.