The following electronically filed papers were read upon this motion: Notice of Motion 14-17 Answering Papers 21-22 Reply 24-25 DECISION AND ORDER Claimant brings this action pursuant to the Adult Survivors Act (ASA) (CPLR 214-j). The claim was filed on October 11, 2023, and the defendant interposed its answer on December 4, 2023. In its Sixth Affirmative Defense, the defendant asserts that the claim fails to comply with Court of Claims Act (CCA) §11(b) “by failing to include an adequate description of the location of the incident(s) alleged in the claim.” The defendant now moves for dismissal of the claim on this ground, pursuant to CPLR §3211 (a)(2) and CCA §11 (b), for lack of subject matter jurisdiction. Defendant asserts that the claimant has failed to adhere to the jurisdictional pleading requirements of CCA §11(b) because the claim lacks specificity as to the location in the Arthur Kill Correctional Facility (AKCF) where the alleged incidents of abuse occurred. Claimant argues that the description in the verified claim is adequate, and that the movant’s attorney’s affirmation is “difficient” (sic). Sufficiency of the State’s Affirmation in Support of the Motion to Dismiss Claimant’s assertion that defendant’s affirmation is “difficient” (sic) is spurious. Claimant argues that because the affirmation of defendant’s counsel, Assistant Attorney General Joshua Lee, does not track verbatim the language of CPLR §2106 (as amended by L 2023, ch 559), it should be disregarded by this Court. As amended, CPLR §2106 now reads as follows: “The statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in New York in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form: I affirm this ___ day of ___, ___, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law” (emphasis added). The State’s affirmation in support of the instant motion executed by Joshua Lee, an Assistant Attorney General representing the State of New York, affirms that he is an attorney duly admitted to practice law in the State of New York, and that his statements made therein are “under penalty of perjury, as defined in CPLR 2106…” Inasmuch as Mr. Lee’s sole capacity and authority in this action is as the legal representative for the State of New York in the New York State Court of Claims, it is not fatal to his affirmation that he did not include the specific language signifying his understanding that the document may be filed in an action or proceeding in a court of law, and/or that perjury would be pursued “under the laws of New York.” In fact, according to the Committee Comments accompanying the then-proposed legislation, the purpose of including the language “under the laws of New York” is “[b]ecause the affirmation authorized by the amendment would be used by a much larger group than the limited classes of professionals now permitted, and such may not be familiar with the particulars of the law of perjury…” This contemplated circumstance does not apply to Mr. Lee. Moreover, in his reply affirmation, Mr. Lee recites verbatim the language of CPLR §2106 as amended, and he attaches as an exhibit a copy of his Affirmation in Support that includes the precise language of the newly amended statute that he identifies as “Amended Affirmation in Support of Defendant’s Motion to Dismiss the Claim.” This Court determines that it is proper to permit the correction pursuant to CPLR §2001, although it must be re-emphasized that the new version of CPLR §2106 requires substantial, not exact, compliance therewith, which renders the original Affirmation wholly sufficient in this Court’s view. Sufficiency of the Claim The relevant portions of the verified claim as they pertain to the location of the alleged sexual abuse allege that claimant was incarcerated at AKCF2 “from about 2002 to 2004.” that he “was housed on the ‘Honor Dorm C1′ and the ‘Veteran Dorm D1,’” that the sexual abuse began in “approximately February of 2003,” “until approximately the winter of 2004,” and that he was sexually abused “on approximately 10 occasions.” Claimant further identifies the Correction Officer who abused him as Inyonesia Brewster a/k/a Inyonesia McCoy. Claimant describes that he “was forced to perform cunnilingus and anilingus on her. On one occasion another prisoner was forced to take photographs of the acts.” The Claimant states that he does not know what became of the photographs. Claimant further alleges that the Correction Officer “told Claimant not to tell anyone about the sexual abuse,” and that she “threatened Claimant that she can make sure he does not receive parole by framing him. Claimant did not report the abuse because he was afraid that CO would retaliate.” The Claimant also states that he believes that the same Correction Officer “continued to sexually abuse other prisoners and was eventually terminated from employment,” but he does not know when she was terminated. Court of Claims Act (CCA) §11(b) requires that a notice of intention or a claim “shall state the time when and place where such claim arose [and] the nature of same.” Sufficiency under Section 11(b) is subject to strict scrutiny as sections 10 and 11 of the Act are jurisdictional (see Lepkowski v. State of New York, 1 NY3d 201, 207 [2003]; see also Dreger v. New York State Thruway Authority, 81 NY2d 721, 724 [1992]). Defendant “is not required to go beyond the claim or notice of intention in order to be able to investigate an occurrence or to obtain information necessary for such an investigation to occur” (Lepkowski, supra at 208; Kimball Brooklands Corp. v. State of New York, 180 AD3d 1031, 1033 [2d Dept 2020]). While the statute does not require “absolute exactness,” it does require a statement made “with sufficient specificity to enable the State to investigate the claim promptly and to ascertain its liability under the circumstances” (Lepkowski, supra at 207, quoting Heisler v. State of New York, 78 AD2d 767 [4th Dept 1980]). “[T]here must be enough specific details about the time, location, and nature of the claim to enable the State to easily conduct an investigation and, through such investigation, assess its risk of being found liable” (Gonzalez v. State of New York, 25 Misc3d 1216[A] [Ct Claims 2006 Sise, PJ]; c.f. Yanus v. State of New York, 35 Misc3d 361 [Ct Claims 2011] [dismissal warranted where claimant misidentified the municipality where claim arose and failed to identify intersection where incident occurred]). The guiding principle of CCA §11 (b) is always to determine whether the claim provides sufficient information to permit a prompt investigation by the State to ascertain its liability (Lepkowski, supra at 207; Smith v. State of New York, 25 Misc3d 1216 [A] [Ct Claims 2006 Midey, J.] [claim found sufficient where claimant provided range of dates of alleged malpractice including acts and omissions and names of correctional facilities where he was treated]). “When a defendant contends that a claim falls short of this standard, it is incumbent upon the defendant to demonstrate that it was unable to conduct an investigation based upon the information that was provided” (Smith, supra, citing Cannon v. State of New York, 163 Misc2d 623 [Ct Claims 1994]). Here, the claim does not suffer from a lack of specificity. The Claimant has identified the locations in the AKCF in which he was housed, the period of the alleged sexual abuse, the number of times he was allegedly abused, and most importantly, in paragraph 9 thereof, the identity of the Corrections Officer who allegedly abused him. Although the defendant lists paragraph 9 as one of the paragraphs in the verified claim that is “germane to the present motion,” the defendant seemingly ignores the specific identification of the Officer in its argument that the claim should be dismissed, instead focusing solely on the location where the claim accrued. The claim provides not only the range of dates of the abuse, Claimant’s housing locations, and the specific nature of the alleged abuse, but also the first and last names of the Officer; therefore, it is reasonable for this Court to conclude that the State is capable of easily investigating the claims advanced by the Claimant (Rhodes v. State of New York, 245 AD2d 791 [3d Dept 1997 [sufficient details in notice of intention although claimant did not specify precise location where incident occurred within the correctional facility or identify the correction officer who allegedly left his assigned post]; see also Mattaway v. State of New York, UID No. 2018-049-012 [Ct Claims 2018] [no requirement that an assailant and court officers be named for claimant to sufficiently plead negligence claim]). Notably, the State does not assert that it has attempted to investigate the allegations but has been unable to do so, or that it will be prejudiced. Instead, the State has engaged in the discovery process by serving demands, been directed by this Court to respond to Claimant’s demands, and has requested the named Correction Officer’s personnel records (Gonzalez, supra; Brown v. State of New York, UID No. 2021-058-048 [Ct Claims 2021] [defendant fails to assert that it has attempted to conduct investigation but is unable to do so]; Pittman v. State of New York, UID No. 2021-040-030 [Ct Claims 2021][affirmation of defendant's counsel does not assert that defendant attempted to conduct an investigation into allegations and has been unable to do so]). Having requested the named Officer’s personnel records, the defendant will be able to ascertain where she was assigned within the AKCF, the time periods when she was so assigned, and whether her duties included direct contact with inmates. Accordingly, the Court finds and concludes that the Claim meets the particularity requirements of CCA §11(b), and the defendant’s motion to dismiss the claim is denied in its entirety. Dated: July 23, 2024
