Motion to serve and file a claim late pursuant to CCA § 10(6) denied.
|Claimant short name:||G.C.|
|Footnote (claimant name) :||Because this proposed claim involves a victim of a sexual offense, the caption has been amended to give the Movant a fictitious name in order to protect her identity. The Chief Clerk is directed to seal the file in Motion No. M-91793 pursuant to Civil Rights Law § 50-b (see, Civil Rights Law §§ 50-b , 50-c [private right of action for wrongful disclosure of victim of sexual offense]).|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Frank Zappala, Esq.|
|Defendant's attorney:||BARBARA D. UNDERWOOD
Acting Attorney General of the State of New York
By: William E. Arnold, IV, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||May 10, 2018|
|See also (multicaptioned case)|
For the reasons set forth below, the application of Movant, G.C., to serve and file a late Claim pursuant to Court of Claims Act § 10(6) is denied.
The proposed Claim attached to her Motion papers filed with the Clerk of the Court on January 31, 2018 asserts that Movant was a patient at the St. Lawrence Psychiatric Center in Ogdensburg, New York, and was sexually abused by a named male employee from July 16, 2012 until May 7, 2013. Movant asserts that, as a result of the sexual assaults, she suffers emotional distress, posttraumatic stress disorder, and depression. In addition, the Notice of Motion asserts that the action is for intentional tort and negligence.
Pursuant to Court of Claims Act § 10(6), it is within the Court's discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely.
In support of her Motion, Movant has submitted the Affidavit of Alyson Curry (hereinafter, "Curry Affidavit"), a Licensed Clinical Social Worker, who states that she was the primary mental health professional providing counseling services to Movant from July 2016 until June 2017 (Curry Affidavit, ¶ 3). It is asserted that Movant has always suffered from a number of mental health issues which affect her ability to function on a daily basis (id., ¶ 4). Ms. Curry avers that, as part of her counseling, she worked with Movant to explore issues she had developed to suppress negative actions she experienced in her past. After many sessions with her, Movant disclosed that she was sexually assaulted by an employee at the St. Lawrence Psychiatric Center (id., ¶ 5).
Ms. Curry concludes that it is her professional opinion that, due to her mental health issues, Movant was mentally incapacitated until she was able to report the sexual assault to the City of Ogdensburg Police Department because she was suppressing the repeated sexual assaults at the St. Lawrence Psychiatric Center between July 2012 and May 2013 (Curry Affidavit, ¶ 6). Thus, it appears that Movant is seeking to invoke the tolling provisions of Court of Claims Act § 10(5) and CPLR 208.
Since the proposed Claim asserts causes of action for intentional tort (CPLR § 215, a one-year Statute of Limitations) and negligence (CPLR § 214, a three-year Statute of Limitations), and it is asserted that the sexual assaults occurred from July 16, 2012 until May 7, 2013, it appears such tolling is required to enable Movant to file a Claim. However, the Court need not address that issue at this point. Assuming, arguendo, that the Motion is timely made, next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Claimant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 ). However, the burden rests with Claimant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
Perhaps the most important factor to be considered is whether the proposed Claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], lv granted 16 NY3d 703 , affd sub nom. Donald v State of New York, 17 NY3d 389 , quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]). It is Movant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).
The doctrine of respondeat superior makes an employer vicariously liable for the torts committed by its employees acting within the scope of his/her employment (Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 ). Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, as long as the employee's tortious conduct is generally foreseeable and a natural incident of the employment (id., Riviello v Waldron, 47 NY2d 297, 304 ). "If, however, an employee 'for purposes of his [or her] own departs from the line of his [or her] duty so that for the time being his [or her] acts constitute an abandonment of his [or her] service, the [employer] is not liable' " (Judith M. v Sisters of Charity Hosp., supra).
Movant's proposed Claim is based upon an allegation of sexual assault allegedly committed by a named employee of St. Lawrence Psychiatric Center, however, a sexual assault perpetrated by an employee is not an act in furtherance of the employer's business "and is a clear departure from the scope of employment, having been committed for wholly personal motives" (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 ; see Judith M. v Sisters of Charity Hosp., supra at 933; Cornell v State of New York, 46 NY2d 1032 ; Kunz v New Netherlands Routes, Inc., 64 AD3d 956, 958 [3d Dept 2009]; Dia CC v Ithaca City School Dist., 304 AD2d 955, 956 [3d Dept 2003], lv denied 100 NY2d 506 ). Insofar as Movant's proposed Claim is based on the contention that the State is vicariously liable for an alleged sexual assault and battery committed by the employee, it lacks merit as a matter of law.
As the proposed Claim lacks the appearance of merit, the Motion for permission to serve and file a Claim late, is denied.
May 10, 2018
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Movant's Motion to file a late claim pursuant to Section 10(6) of the Court of Claims Act:
Notice of Motion, proposed Claim,
Affidavit in Support & Exhibits Attached 1
Affirmation in Opposition 2