Motion to dismiss Claim brought pursuant to Child Victims Act granted; Claimant failed to establish a special relationship to impose tort liability upon the State for its oversight of a not-for-profit juvenile detention center.
|Claimant short name:||NEWMAN|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Catherine E. Leahy-Scott|
|Claimant's attorney:||Herman Law
By: Jeff Herman, Esq. and Scott Michael Duquin, Esq. (no appearance)
|Defendant's attorney:||Letitia James, New York State Attorney General
By: Heather R. Rubinstein, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 13, 2021|
|See also (multicaptioned case)|
On July 27, 2021, Claimant Ralph Newman filed this Claim pursuant to the Child Victims Act to recover damages for alleged sexual misconduct perpetrated against him at McQuade Foundation Boarding School f/k/a McQuade Home for Children (McQuade) (see Affirmation of Heather R. Rubinstein, Esq., Assistant Attorney General, Ex A [Claim] ¶ 1). The Claim alleges McQuade "was a not-for-profit corporation organized under the laws of the State of New York" that was "an approved residential school for children with special needs or in need of supervision" (id. ¶ 4).
The Claim further alleges that "[i]n or about 1960, when he was approximately seven (7) years old, Claimant was placed by [the Division for Youth] at [McQuade] . . . for residential juvenile detention and/or supervision" (id. ¶ 28). Claimant contends that he was sexually assaulted by "Coyle" who is described as "a male staff member of [McQuade] and was the employee and/or agent of [McQuade]" (id. ¶ 29). The alleged sexual assault committed against Claimant began shortly after Claimant was placed at McQuade and continued until 1971 (see id. ¶ 28-32).
Claimant purports to set forth a Claim of negligence against the State of New York based upon the alleged sexual assault committed by Coyle. In particular, Claimant contends that the State, and more specifically, the Division for Youth, "was responsible for oversight and monitoring of juvenile detention centers to ensure compliance with applicable New York Law" (id. ¶13). Claimant posits the State breached, among other duties, the duty "[t]o investigate all relevant conditions of the juvenile detention centers that might affect the child" and "[t]o report and investigate all known incidents of sexual abuse or aggression occurring in the juvenile detention center" (id. ¶ 25 [b], [d]). Defendant State of New York now moves pursuant to CPLR 3211 to dismiss the claim. Claimant has not responded to the motion.
"In determining a motion to dismiss, the Court of Claims must afford a liberal construction to the claimant's pleadings, accept the allegations as true, and accord the benefit of every possible favorable inference to the claimant" (Garofolo v State of New York, 80 AD3d 858, 860 [3d Dept 2011]; see Leon v Martinez, 84 NY2d 83, 87-88 ).
The first issue for the Court to decide in a negligence claim asserted against the State of New York is whether the State "'was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose'" (Tara N.P. v Western Suffolk Bd. of Coop. Educ. Servs., 28 NY3d 709, 713 , quoting Applewhite v Accuhealth, Inc., 21 NY3d 420, 425 ; see Turturro v City of New York, 28 NY3d 469, 477 ; T.T. v State of New York, 151 AD3d 1345, 1346 [3d Dept 2017]). "If [the State] was engaged in a proprietary function--that is, activities that 'essentially substitute for or supplement traditionally private enterprises'--it is subject to suit under ordinary negligence principles applicable to nongovernmental actors" (T.T., 151 AD3d at 1346, quoting Sebastian v State of New York, 93 NY2d 790, 793 ; see Riss v City of New York, 22 NY2d 579, 581 ; Drever v State of New York, 134 AD3d 19, 22 [3d Dept 2015]). Conversely, the State engages in a governmental function where its actions were "'undertaken for the protection and safety of the public pursuant to the general police powers'" (Applewhite, 21 NY3d at 425, quoting Sebastian, 93 NY2d at 793; Tara N.P., 28 NY3d at 713; T.T., 151 AD3d at 1346). "In this category, the State remains generally immune from negligence claims, absent a special relationship between the injured party and the State" (Sebastian, 93 NY2d at 793; see T.T., 151 AD3d at 1346).
The Court of Appeals has held the government function attributed to the general police power includes the "oversight of juvenile delinquents" (see Applewhite, 21 NY3d at 425-426 [providing examples of governmental functions, including "oversight of juvenile delinquents"]; Sebastian, 93 NY2d at 795 ["(t)he removal of juveniles from the community by court order and their placement in public confinement--at least in part for the protection of the society as a whole--denotes a quintessentially governmental activity"]; see also Connolly v Long Is. Power Auth., 30 NY3d 719, 733  [Rivera, J., Concurring]). Thus, courts have held that the State engages in a governmental function in its oversight of care and treatment provided at private juvenile detention facilities and its enforcement of regulatory provisions regarding same (see Vongphakdy v State of New York, UID No. 2018-040-024 [Ct Cl, McCarthy, J., Mar. 13, 2018]; see also T.T., 151 AD3d at 1346-1347 [State acts in a governmental capacity in its oversight of care and treatment provided to developmentally disabled individuals at private, not-for-profit facility as well as in its enforcement of regulatory provisions]).
Here, the claim for negligence is premised upon the manner in which Defendant oversaw the care and treatment provided to Claimant at McQuade and its enforcement of regulations governing juvenile detention centers (see e.g. Claim ¶¶ 25, 48). Accordingly, the Court concludes that the actions, or inactions, at issue were governmental in nature (see Vongphakdy, UID No. 2018-040-024; see also T.T., 151 AD3d at 1347).
Because Defendant was acting in a governmental function in overseeing and/or regulating McQuade, the Court must evaluate whether the State "owed a 'special duty' to [Claimant]" (Tara N.P., 28 NY3d at 714, quoting Applewhite, 21 NY3d at 426).
"[A] special duty can arise in three situations: (1) the [claimant] belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the [State] took positive control of a known and dangerous safety condition"
(id., quoting Applewhite, 21 NY3d at 426). Only the first circumstance, the "statutory duty," is applicable here.
"To form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action" (Pelaez v Seide, 2 NY3d 186, 200 ). A private right of action may be implied where "(1) the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme. If one of these prerequisites is lacking, the claim will fail" (id.; see Signature Health Ctr., LLC v State of New York, 28 Misc 3d 543, 550 [Ct Cl 2010], affd 92 AD3d 11 [3d Dept 2011], lv denied 19 NY3d 811 ).
Claimant alleges the State owed a duty "[t]o investigate all relevant conditions of the juvenile detention centers that might affect the child" and, more specifically, "[t]o report and investigate all known incidents of sexual abuse or aggression occurring in the juvenile detention center" (Claim ¶ 25 [b], [d]). Claimant contends the State breached these duties by "fail[ing] . . . to exercise reasonable oversight, or to advance policies, procedures and/or training to prevent foreseeable sexual abuse in juvenile detention centers, including [McQuade]" (id. ¶ 48; see id. ¶ 49).
Executive Law article 19-G sets forth the powers and duties of the Office of Children and Family Services (OCFS) (also known as the "Division for Youth," [see Executive Law § 500 (3)]). Title 2 of article 19-G specifically addresses OCFS' responsibility over "facilities" (see Executive Law §§ 502-509). Pursuant to Executive Law § 503 (1), OCFS "shall establish regulations for the operation of secure and non-secure detention facilities." The statute also provides that OCFS "may contract for or establish, operate, maintain and certify secure and non-secure detention facilities" (id. § 503 ) and "[e]ach social services district may establish, operate and maintain secure and non-secure detention facilities" (id. § 503 ). Moreover, OCFS "shall visit and inspect all facilities used for detention and make periodic reports of the operation and the adequacy of such facilities, and the need for provision for such facilities" to the appropriate County, family court judges in such County, and the Office of Court Administration (id. § 503 ). Further, the detention facility may only operate with a certificate from OCFS (id. § 503  [a]; see also 9 NYCRR Part 180).
Courts have held "that Article 19-G of the Executive Law neither provides, nor fairly implies, that a private right of action is available" (Vongphakdy, UID No. 2018-040-024). Consequently, Claimant has failed to plead a special duty and, thus, tort liability cannot be attributed to the State (see id.; see also Matter of M.J.A v Division of Youth of the State of New York, UID No. 2008-030-572 [Ct Cl, Scuccimarra, J., Oct. 29, 2008] [dismissing claim alleging acts of sexual abuse committed by an employee of a private, not-for-profit residential facility under the supervision and accreditation of the State of New York "that alleg[ed] only very broadly that somehow the State of New York--in its capacity as a licensor with some associated investigatory capabilities--should have interceded"]).
Accordingly, it is hereby
ORDERED Motion M-97179 is GRANTED and Claim No. 136662 is DISMISSED.
October 13, 2021
Albany , New York
Catherine E. Leahy-Scott
Judge of the Court of Claims
The Court considered the following papers in deciding this motion:
(1) Notice of Motion, dated September 3, 2021.
(2) Affirmation of Heather R. Rubinstein, Esq., Assistant Attorney General, in Support, dated September 3, 2021, with attachment.