Motion for reargument granted and, upon reargument, prior Decision modified and Claim dismissed.
|Claimant short name:||J.K.F.|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Devon M. Wilt, Esq.|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Sean B. Virkler, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||February 9, 2018|
|See also (multicaptioned case)|
For the reasons set forth below, the State's Motion pursuant to CPLR 2221(a), for reargument of this Court's prior Decision and Order (J.K.F. v State of New York, UID No. 2017-040-121 [Ct Cl, McCarthy, J., Sep. 14, 2017]), is granted and, upon reargument, that prior Decision and Order is modified as set forth below, Defendant's Motion to dismiss (M-90400) is granted, and the Claim is dismissed.
This Claim, which was filed with the office of the Clerk of the Court on October 12, 2016, asserts that Claimant is a transgender individual who is transitioning from male to female and arrived at Marcy Correctional Facility (hereinafter, "Marcy") on June 17, 2016. Claimant asserts that she suffered personal and psychological injuries as a result of Defendant's negligent supervision of Correction Officers (each, hereinafter, a "CO"), including CO Rogers. Specifically, Claimant alleges that, on June 17, 2016 and June 27, 2016, CO Rogers harassed her to the point that she feared for her safety (Claim, p. 2). In addition, it is alleged that, on July 13, 2016, CO Rogers escorted Claimant to the Laundry Room, so she could wash some of her personal property; that the CO entered the room with her, locked the door, and proceeded to grab the back of Claimant's head, forcing his mouth on hers and groping her. Claimant slapped the CO's hand away from her, the CO then "aggressively grabbed and pulled" Claimant toward him, causing her to slip on water that had accumulated on the floor of the Laundry Room, causing her to hit her neck and back on the dryer (id., p. 3). It is further asserted that CO Rogers then exited the room, leaving Claimant on the floor. It is further asserted that CO Rogers gave Claimant two money orders, on July 18 and July 27, 2016, in an attempt to keep her from reporting the incident (id., p. 4). Claimant asserts that she was informed on September 1, 2016 by a State investigator that CO Rogers' employment was terminated because of his actions toward her (id.). Finally, Claimant asserts that she was harassed by other COs, who blamed her for CO Rogers' termination (id.). The Court notes that the Claim also states:
6. This claim is not served and filed within 90 days of accrual [emphasis in original].
(Claim, p. 5)
The Court granted, in part, Defendant's Motion to dismiss the Claim. The Court dismissed: the sexual assault cause of action as untimely; any Claim asserted against CO Rogers or any other COs, individually for lack of jurisdiction; and the causes of action for harassment by DOCCS' employees, as New York does not recognize a common law cause of action to recover damages for harassment. The Court did not dismiss the cause of action in the Claim based upon allegations that Defendant was negligent in its hiring and supervision, or retention of certain COs.
A motion for reargument, addressed to the discretion of the Court, is designed to afford a party an opportunity to establish that the Court overlooked or misapprehended the relevant facts or misapplied the controlling principle of law (Matter of Anthony J. Carter, DDS, P.C. v Carter, 81 AD3d 819, 820 [2d Dept 2011]; Adderley v State of New York, 35 AD3d 1043, 1043 [3d Dept 2006]). Its purpose is not to serve as a vehicle to permit an unsuccessful party to argue once again the very questions previously decided (Fosdick v Town of Hempstead, 126 NY 651, 652 ; Matter of Anthony J. Carter, DDS, P.C. v Carter, supra at 820). If such a motion contains new proof, it is a "renewal" motion, rather than a "reargument" motion, and should be treated as such (Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2221:7 at 282; CPLR C2221:9 at 287). An application for leave to renew must be based upon newly discovered material that existed at the time the prior motion was made but which were not then known to the party seeking leave to renew, as well as a justifiable excuse for failing to present such facts to the Court in connection with the initial motion (Trump on the Ocean, LLC v State of New York, 79 AD3d 1325, 1326-1327 [3d Dept 2010]; Tibbits v Verizon N.Y., Inc., 40 AD3d 1300, 1302-1303 [3d Dept 2007]).
As Defendant's Motion contains no new proof, the Court considers the Motion to be one for reargument rather than renewal.
Upon a review of Defendant's Motion papers, counsel's affirmation in support of the Motion, the Claim, and the Court's Decision upon the original motion, and upon due deliberation, Defendant's Motion for reargument is granted and, upon such reargument, the Court's prior Decision and Order is modified as set forth below.
Defendant, in its original Motion, sought dismissal of the entire Claim on the basis that it was untimely served and filed. Defendant asserted in its original Motion papers, that the Claim states it accrued on July 13, 2016 (Affirmation in Support [of Motion No. M-90400] of Sean B. Virkler, Esq., Assistant Attorney General, ¶ 5 [Ex. C attached to Motion Papers]; see also, Affirmation in Support [of Motion No. M-91432] of Sean B. Virkler, Esq., Assistant Attorney General, ¶ 5). However, the Claim actually states:
"The [C]laim accrued as follows:
Date: June 17, 2016, July 13, 2016 and intermittent days to date," (Claim, ¶¶ 3 & 4, Ex. A attached to Motion papers).
As to the cause of action alleging negligent supervision of COs, upon review of the Claim, the Court concludes that any alleged negligent supervision of CO Rogers occurred on or before July 13, 2016, the date of the alleged assault. Thus, this cause of action was not timely served and filed within 90 days of accrual.
Claimant specifically sets forth in the Claim a number of events which allegedly occurred up until September 1, 2016. However, other than the allegation against CO Rogers, Claimant does not assert any specific act by any specific CO or other employee of Defendant alleging that the employee was negligently supervised. Moreover, the Claim clearly states, in ¶ 6, that, "[t]his [C]laim is not served and filed within 90 days of accrual [emphasis in original]. This was noted by the Court in its original Decision and Order (supra, p. 2). In addition, neither Claimant nor her counsel has submitted any papers in opposition to the State's Motion seeking reargument of the prior motion and dismissal of the Claim, either contesting Defendant's assertion that the Claim accrued on July 13, 2016 or asserting any date of accrual after July 13, 2016.
Based upon the foregoing, therefore, Defendant's Motion is granted and the Court's prior Decision and Order is modified only to the extent set forth above and the Claim hereby is dismissed.
February 9, 2018
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Defendant's Motion for reargument:
Notice of Motion, Affirmation in Support
& Exhibits Attached 1
Filed Papers: Claim, Answer