J.R. v. State of New York

The following papers numbered 1-3 were read and considered by the Court on movant’s application for leave to serve and file a late claim: Notice of Motion, Memorandum of Law, Attorney’s Supporting Affirmation, Movant’s Affidavit and Proposed Claim       1 State’s Attorney’s Affirmation in Opposition       2 Attorney’s Reply Affirmation               3 The motion seeks permission pursuant to Court of Claims Act §10 (6) to file a late claim pleading negligent hiring, screening, training, supervision, retention and discipline of two correction officers at Bedford Hills Correctional Facility (Bedford). The proposed claim (Ex. A) seeks damages for injuries movant sustained from sexual assault, sexual abuse, harassment and retaliation by the two correction officers from November of 2012 to on or about July 23,2018, while movant was incarcerated at Bedford and while she was out on parole.¹ Defendant opposes the motion. Court of Claims Act §10 (3) requires that claims for negligence be filed and served within 90 days following accrual of the claim unless a notice of intention to file a claim is served within that time period “in which event the claim shall be filed and served upon the attorney general within two years after the accrual of” a claim for negligence (Lyles v. State of New York, 3 NY3d 396, 400 [2004]). Where a claimant has failed to meet the statutory prerequisites, the claim must be dismissed for lack of jurisdiction (see Kolnacki v. State of New York, 8 NY3d 277, 281 [2007] ["(t)he failure to satisfy any of the (statutory) conditions is a jurisdictional defect"]). Movant has not filed and served a claim or served a notice of intention to file a claim. She filed the instant motion on November 12, 2021, more than three years after July 23, 2018, the date alleged in the proposed claim to be when the claim accrued(Ex. A, 3). Court of Claims Act §10 (6) provides the procedure for seeking leave to file and serve a late claim, over which the Court would otherwise lack subject matter jurisdiction (see Kolnacki, 8 NY3d at 281]). A late claim motion must be accompanied by “[t]he claim proposed to be filed, containing all of the information set forth in section eleven of this act, “and the motion must be brought “before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules.” If the motion is timely and the proposed claim meets the pleading requirements of Court of Claims Act §11 (b), then the Court will proceed to consider, among other 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 delay resulted in substantial prejudice to the state; and whether the claimant has any other available remedy” (Court of Claims Act §10 [6]). “No one factor is deemed controlling, nor is the presence or absence of any one factor determinative” (Qing Liu v. City Univ. of NY, 262AD2d 473, 474 [2d Dept 1999]; see Morris v. Doe, 104 AD3d 921 [2d Dept 2013]). The decision whether to grant a late claim motion is within the Court’s discretion (see Matter of E.K. v. State of New York, 235 AD2d 540, 541 [2d Dept 1997], app denied, 89NY2d 815 [1997]). For the purpose of deciding this motion, “[f]acts stated in a motion for leave to file a late claim…are deemed true for purpose of [the] motion, when not denied or contradicted in opposing affidavits” (Sessa v. State of New York, 63 AD2d 334 [3d Dept 1978], affd 47 NY2d 976 [1979]: see Cole v. State of New York, 64 AD2d 1023, 1024 [4th Dept1978]). In support of the motion, movant has submitted a proposed claim (Ex. A), her separate affidavit (Ex. B), an affirmation by her attorney, Rob Rickner, Esq., and a Memorandum of Law. In opposition to the motion, defendant has submitted an attorney’s affirmation. Movant has also submitted a reply affirmation from her attorney. The proposed claim alleges the following facts. In 2012, around Thanksgiving, Correction Officer St. Clair A. Munnlyn sexually assaulted movant in the intake dorm at Bedford. Until movant was transferred to Albion Correctional Facility, movant endured unwanted touching from Munnlyn, including his grabbing her breasts and shoving his hand down her pants. After movant was transferred back to Bedford on or about January 18, 2015, she was placed in the Therapeutic Behavior Unit(TBU), which is for incarcerated individuals “who are at a higher risk of or are experiencing complicated or severe mental health diagnoses” (Ex. A, 7, n 2). Throughout the six or seven months movant was in the TBU, another correction officer, John W. Ward, sexually assaulted her, starting with grabbing her crotch and then escalating to digital penetration. He also watched her while she was undressing and naked. Once after an argument, Ward retaliated against movant by citing her for an infraction she did not commit. Munnlyn also sexually assaulted movant while she was in the TBU, “making similar advances [as] Ward, and digitally penetrating [her] through the bars of the unit” (id. at 12). After movant was released from the TBU, Munnlyn offered to help movant “get off of parole if she would give him oral sex,” and she complied (id. at 13). During the “years of abuse, [movant] feared retaliation from the guards, who had also assaulted other women in the facility. She made frequent trips to the medical unit complaining of heartburn, an inability to breathe, and tightness in her chest, likely from the panic and anxiety she was experiencing as a result of the assaults. [She] frequently asked for mental health intervention, but did not disclose the assaults while they were ongoing out of a continued fear that she would suffer consequences — either from the men or others in the facility” (id. at 14-15). After movant’s release from Bedford on parole, Munnlyn and Ward contacted her by text and through social media, and promised to help her with parole if she engaged in sex with them, which she did “over the course of her time on parole in late 2016, most of 2017, and into the early months of 2018″ (id. at 19). When movant told Munnlyn she would not engage in further sex with him, he threatened to send her back to jail and said he “knew where her family lived” (id. at 22). Movant was sent back to Bedford due to a parole violation after being paroled for a little over one year. The abuse continued and Munnlyn threatened her with violence if she told anyone what happened. On July 23, 2018, shortly after Munnlyn grabbed movant’s crotch and warned her not to tell anyone, movant “felt desperate” and attempted suicide by ingesting germicide. She told the staff about the attempt, and she reported the sexual assault to them and to “her medical team” at Westchester Medical Center (id. at 26-27).Movant was diagnosed with Post Traumatic Stress Disorder (PTSD). Movant was transferred to Albion Correctional Facility and an OSI investigation ensued.² An OSI investigator purportedly told movant that it was not the first time both officers had been accused of sexual misconduct at Bedford, and they were known by the incarcerated population to be inappropriate and abusive, behavior that was hidden “to minimize the rampant abusive culture at the women’s correctional facility” (id. at 30). On March 9, 2017, a class action was filed challenging the abusive conditions at Bedford during the period that movant was being assaulted. Munnlyn and Ward are no longer employed by the New York State Department of Corrections and Community Supervision (DOCCS). Movant adds the following facts in her affidavit (Ex. B). Munnlyn first assaulted movant by groping and touching her around Thanks giving, shortly after she was sent to Bedford on or about November 7, 2012. After movant’s parole was revoked, she reentered DOCCS on April 16, 2018. Munnlyn last assaulted movant “[a]couple of months later” at Bedford (id. at 15 and 16). Movant “cannot recall the exact dates that these assaults occurred, and did not write them down because this kind of behavior was ‘normal’ in Bedford Hills and [she] did not think [she] could do anything to stop it” (id. at 4).In 2019, a female correction officer contacted movant on social media and told her that Munnlyn and Ward had been fired because of what movant did “to them” (Ex. B, 21). The OSI investigator assigned to movant’s case, Ms. Fichera, told movant that hers was not the first complaint against the officers, but it was the first time allegations against them could be proven because movant had text messages, photos and calls from her time on parole. Analysis The Court will first address whether the relevant statute of limitations had expired when the instant motion for late claim relief was filed. Three years is the applicable statute of limitations for claims arising from negligent hiring, training and supervision (See CPLR 214[5]). Movant argues that the limitations period was tolled by then Governor Cuomo’s Executive Orders concerning the Covid-19 pandemic, by a related class action pending in Federal court, and by the continuing nature of the related wrongful acts. Before addressing the issue of tolling, the Court must determine when the proposed claim accrued. “The statute of limitations begins to run on the date of injury or when all of the elements of the tort could be truthfully alleged” (Sapienza v. Notaro, 172 AD3d 1418, 1420[2d Dept 2019]). Movant contends that the sexual abuse, retaliation and harassment propagated by Bedford Correction Officers St. Clair A. Munnlyn and John W. Ward amounted to a continuing wrong that did not accrue for purposes of both the statute of limitations and the Court of Claims Act until her attempted suicide on July 23, 2018, shortly after the last act of alleged sexual abuse by Munnlyn (Memo of Law, p 4, n1). Defendant argues that a claim for each alleged wrongful act accrued when movant sustained an injury, and that the proposed claim seeks continuing damages from preexisting tortious acts, which does not render the action timely. The Court finds that the proposed claim alleges a series of related and continuing acts of sexual abuse that amount to a continuing wrong that ended, for purposes of the statute of limitations and of the Court of Claims Act, when movant was allegedly assaulted by Munnlyn for the last time shortly before her attempted suicide on July 23, 2018. Unlike the cases cited by defendant, which concern continuing damages from a previous wrongful act of some kind, in the instant case, there were multiple acts of abuse allegedly committed by two of defendant’s employees throughout a period of six years. Under these circumstances, the courts have found the alleged negligent supervision and retention to have continued until the last act of abuse (see Pichardo v. New York City Dept. of Educ., 99 AD3d 606, 607 [1st Dept 2012][teacher's negligent supervision claims accrued on the date of the last alleged harassing act]; John Doe No. 6 v. Yeshiva & Mesivta Torah Temimah, Inc., 21 Misc 3d 443, 444 [Sup Ct, Kings County 2008] [former student's negligence claims against operator of school for personal injuries from sexual abuse by teacher accrued on the last date of abuse]).³ Here, the last alleged act of abuse was a “couple of months” after April 16, 2018, and “shortly before” July 23, 2018, which the claim alleges was the accrual date. The motion was filed more than three years later, on November 12, 2021. Unless tolling applies, the statute of limitations has expired. On March 20, 2020, then Governor Andrew Cuomo signed Executive Order 202.8 extending by 30 days the “time limit for the commencement, filing, or service of any legal action.” The extension was continued monthly by subsequent executive orders for additional 30-day increments until November 3, 2020 (see Executive Orders 202.14, 202.28, 202.38,202.48, 202.55.1, 202.60, 202.67). The executive orders, which were in effect for a total of 228 days, have been interpreted as a toll (see Brash v. Richards, 195 AD3d 582 [2d Dept 2021]; Foy v. State of New York, 71 Misc 3d 605 [Ct Cl 2021]). A toll operates by adding the days remaining before the deadline to the date after the toll ceases to be in effect. For purposes of this analysis, the Court will use July 23, 2018, the date movant attempted suicide, as the date when her abusive treatment ended and the date her claim accrued.⁴ On March 20, 2020, when the first Executive Order was signed, there were 490 days remaining until July 23, 2021, the date the three-year statute of limitation was to expire. Since the toll expired on November 3, 2020, the three-year statute of limitations was extended to 490 days after that date, or March 8, 2022. The motion was timely filed on November 12,2021, nearly four months earlier, well before expiration of the statute of limitations. Claimant’s additional arguments on tolling need not be addressed. Before turning to the factors delineated in Court of Claims §10 (6), the Court will address defendant’s assertion that the proposed claim fails to comply with Court of Claims Act §11 (b). Section 11 (b) requires a claim to specify: “(1) the nature of [the claim]; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed” (Lepkowski v. State of New York, 1 NY3d201, 207 [2003]). “[B]ecause suits against the State are allowed only by the State’s waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed” (Lichtenstein v. State of New York, 93 NY2d 911,913 [1999], quoting Dreger v. New York State Thruway Auth., 81 NY2d 721, 724 [1992]; see Kolnacki, 8 NY3d at 281 [2007]). “[A]bsolute exactness is not required” (Morra v. State of New York, 107 AD3d 1115, 1115 [3d Dept 2013] [internal quotation marks omitted]).However, “the claim must provide a sufficiently detailed description of the particulars of the claim to enable [the State] to investigate and promptly ascertain the existence and extent of its liability” (Morra, 107 AD3d at 1115-1116). The State “is not required ‘to ferret out or assemble information that section 11(b) obligates the claimant to allege’” (Davila v. State of New York, 140 AD3d 1415, 1416 [3d Dept 2016], quoting Lepkowski, 1 NY3d at 208). Defendant argues that the instant proposed claim does not allege the “time when” the claim arose because it alleges a range of dates. Claimant argues more accurately that” substantial compliance” is what Section 11 (b) requires, that is, a statement “specific enough so as not to mislead, deceive or prejudice the rights of the State” (Matter of M.C. v. State of New York, 2022 NY Misc LEXIS 430 [Ct Cl 2022], quoting Heisler v. State of New York, 78AD2d 767, 767 [4th Dept 1980]). Alleging a range of dates has been found sufficient to meet the “time when” requirement under section 11 (b) (see M.C., 2022 NY Misc LEXIS 430[claim alleging sexual abuse of a minor student by a music teacher at a school for the blind between December 1966 and October 1967]; Doe v. State of New York, UID No. 2021-059-043 [Ct Cl, Liccione, J., July 13, 2021] [claim alleging sexual abuse between May 2018 and late July 2018]). Defendant misreads Matter of Geneva Foundry Litig. (173 AD3d 1812, 1813 [4th Dept 2019]) to hold that claims alleging a range of dates are deficient. In Geneva Foundry Litig.,the Fourth Department held that the broad range of dates alleged in that action was deficient. However, whether a particular range of dates satisfies the “time when” requirement “depends on the facts alleged in the claim” (Anekwe v. State of New York, UID No. 2017-038-575 [Ct Cl, DeBow, J., Oct. 10, 2017]). In Geneva Foundry Litig., there were 97 claimants and allegations of property damage as to each claimant. The decision is inapposite to the instant proposed claim by a single claimant, which specifies the perpetrators, the sexual conduct, the locations, ranges of dates, and that the State conducted an OSI investigation into claimant’s allegations, after which both officers’ employment by DOCCS was terminated. Indeed, as movant’s attorney observes, “the purpose of notice, as contemplated by the §11 (b), is to facilitate the very type of investigation that the State has already engaged in here” (Reply Aff., 16). The claims in cases defendant relies on are distinguishable (see Morra, 107 AD3d at1116 [claim omitted facts regarding conduct and referred to a nine-county wide location]; Robin BB. v. State of New York, 56 AD3d 932 [3d Dept 2008] [claim alleged only that law enforcement officer engaged in numerous acts of sexual misconduct at unspecified locations in St. Lawrence County over the course of an eight-year period]; C.B. and R.B. v. State of New York, UID No. 2020-040-019 [Ct Cl, McCarthy, J., Apr 29, 2020] [movant failed to state an excuse for the delay, claim did not have the appearance of merit, and movant failed to state specific dates of alleged rapes]; Jane Doe v. State of New York, UID No. 2013-048-125 [Ct Cl, Bruening, J., Dec 19, 2013] [claim failed to identify assailants, their connection to the State, and contained vague time frame]). The Court will now address the six factors to be considered under Section 10 (6). The first factor is whether the delay in filing the claim was excusable. Movant asserts that her delay resulted from threats of retaliation and physical harm, symptoms of PTSD, her focus on mental health therapy, uncertainty about how to go about finding an attorney during the Covid-19 pandemic, OSI’s failure to provide records of the investigation, and movant’s re-incarceration until the last week of September 2021 (J. R. Aff. [Ex. B]). The allegation that movant was suffering from memory loss and other symptoms of PTSD as a result of the sexual abuse has not been corroborated with medical evidence (see Quilliam v. State of New York, 282 AD2d 590 [2d Dept 2001] [excuse based on incapacity required medical proof]).Movant’s uncertainty about finding an attorney during the Covid-19 pandemic is also not a reasonable excuse. Movant could have retained an attorney online during her release, she could have filed a claim pro se, and both attorneys and pro se litigants have continued to timely commence claims during the pandemic. Movant’s fear of retaliation is a more compelling excuse under the circumstances. Movant substantiates this excuse with allegations in the proposed claim and movant’s affidavit that both Munnlyn and Ward contacted movant and coerced her into continuing asexual relationship after she was first released on parole, and Munnlyn threatened to have movant sent back to prison and to harm her and (impliedly) her family if she disclosed the sexual relationship. This factor weighs in movant’s favor. The next three factors — whether defendant had notice of the essential facts constituting the claim, an opportunity to investigate the circumstances underlying the claim, and whether defendant was substantially prejudiced by the delay — are interrelated and therefore frequently considered together. Movant asserts that the OSI investigation shows defendant had notice of the essential facts and an opportunity to investigate. Movant’s failure to report the abuse earlier delayed a more timely investigation into her allegations, but allegations in the proposed claim and movant’s affidavit, construed by the Court as true, establish that defendant had prior notice of sexual abuse allegations against the two officers by other individuals incarcerated at Bedford. Defendant does not refute these facts, or that an OSI investigation substantiated movant’s allegations. Defendant makes conclusory statements that it will be prejudiced by the delay, but it does not state how it will be prejudiced. Moreover, as movant alleges, a related Federal class action was filed in 2016 on behalf of all women at risk of sexual abuse in the State’s three women’s correctional facilities — Bedford Hills, Albion and Taconic (see Jane Jones 1, et al. v. Annucci, et al., 1:16-cv-01473-RA [SDNY 2016]). Movant does not represent that Munnlyn and Ward were named in that action as perpetrators of the alleged abuse, but she refers to allegations in the action of rampant abuse by correction officers, and inadequate supervision and discipline at the named facilities (see Rickner Aff, pp 5-6).⁵ Thus, based on the unrefuted allegations of fact, the Court finds that movant has met the initial burden of showing that the State has not been substantially prejudiced by the delayed claim because the State had actual notice and an adequate opportunity to conduct an investigation into the incident.⁶ The State has not refuted such showing (see Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 NY3d 455, 456 [2016]; Wolf v. State of New York, 140 AD2d 692, 693 [2d Dept 1988]). Viewed in its totality, the instant motion establishes that defendant had notice, an opportunity to investigate, and will not be prejudiced by the delay. These factors, therefore, weigh in movant’s favor. The next factor to be considered is whether movant has another remedy available. Movant has an alternative remedy. She can commence a civil action in New York State Supreme Court against Munnlyn and Ward for damages from injuries resulting from their alleged sexual abuse.⁷ This factor weighs against movant. The last and perhaps 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 (see 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. It is well settled that the State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risk of harm (see Sanchez v. State of New York, 99NY2d 247, 252-253 [2002]; Flaherty v. State of New York, 296 NY 342 [1947]). That duty, however, does not render the State an insurer of inmate safety (see Sanchez, 99 NY2d at 253)and, rather, the State has a duty to exercise reasonable care in light of what the State actually knew, and “what the State reasonably should have known” (id. at 254). The State, as an employer, will generally not be found liable for the intentional acts of employees who perpetrate acts for their own purposes and outside the course of their employment (see Johnson v. State of New York, UID No. 2008-030-025 [Ct Cl, Scuccimarra, J., Nov. 25, 2008]). The State may still be held liable in such cases, however, under theories of negligent hiring, supervision, retention and/or training, all of which require proof that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury. With respect to negligent hiring, there is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee’” (Doe v. Whitney, 8AD3d 610, 612 [2d Dept 2004], quoting Kenneth R. v. Roman Catholic Diocese of Brooklyn,229 AD2d 159, 161, 163 [2d Dept 1997], cert denied 522 US 967 [1997], app dismissed 91 NY2d 848 [1997]). A claimant must also demonstrate that deficient supervision or training was a substantial factor in causing the alleged injury (see Hicks v. Berkshire Farm Ctr. & Servs. for Youth, 123 AD3d 1319, 1320 [3d Dept 2014]). Additionally, “[i]n a negligent retention cause of action, the employer’s negligence arises from its ‘…having placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the…retention of his employees’” (Anna O. v. State of New York, 34 Misc 3d1206 [A] [Ct Cl 2011], quoting Detone v. Bullit Courier Serv., 140 AD2d 278, 279 [1st Dept1988], lv denied 73 NY2d 702 [1988]). The Court finds that the totality of the papers supporting the motion set forth sufficient factual detail to demonstrate that at some point prior to the OSI investigation of movant’s allegations, the State knew or should have known of Munnlyn’s and Ward’s propensity for such alleged conduct. Movant’s allegations of negligent supervision and retention are mostly conclusory, but movant also alleges there were prior complaints against the two officers made by other incarcerated women, which defendant does not dispute.⁸ Moreover, it is reasonable to infer that the State knew about the officers’ sexual abuse of movant because it went on for six years, and it occurred in areas where the conduct would have been observable by others or that were likely monitored. For instance, movant alleges that both officers digitally penetrated her through the gate of the TBU, and that she performed oral sex on Munnlyn in the gym. Furthermore, after the class action was filed in 2016, the State would have conducted an investigation and should have engaged in diligent monitoring in light of the potential liability. The Court finds that movant’s claim of negligent supervision and retention has the appearance of merit. As for negligent hiring, screening and training, movant does not allege any facts showing the circumstances of the two officers’ hiring, defendant’s screening and training practices, or any connection between alleged deficiencies in those practices and the officers’ sexual abuse of movant. Accordingly, to the extent the proposed claim alleges negligent hiring, screening and training, movant has not met her burden to establish the appearance of merit. In sum, movant’s application is GRANTED in part and DENIED in part. Therefore, within forty-five (45) days of the filing date of this Decision and Order, movant shall file with the Clerk of the Court her Claim against the State of New York, limited to the causes of action of negligent supervision and retention of Correction Officers Munnlyn and Ward, and serve a copy of the Claim upon the Attorney General personally or by certified mail, return receipt requested. In serving and filing her Claim, movant is directed to follow all of the requirements of the Court of Claims Act, including §11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims. Dated: April 20, 2022