Court of Claims, August 30, 2022

Letitia James, Attorney General (Cheryl Rameau of counsel), for defendant.

Herman Law (Jeff Herman, Jenny Rossman, Stuart Mermelstein and Vanessa Neal of counsel) for claimant.

For the following reasons, the motion by defendant State of New York to dismiss the claim filed by claimant J.F. is denied and the claimant's cross motion to amend his claim is granted in accordance with the following decision.

By revival claim filed on June 17, 2021, claimant commenced the instant proceeding against the State pursuant to the Child Victims Act, embodied in CPLR 214-g, alleging that he [*2]was sexually abused and assaulted at the Kingsboro Psychiatric Center in Brooklyn, New York (hereinafter Kingsboro), an institution owned, operated and controlled by the State. Specifically, the claim alleges that "[i]n approximately 1992, when he was approximately fourteen (14) years old, Claimant was admitted to KINGSBORO" for inpatient psychiatric treatment under the custody and legal guardianship of the State, where he was sexually abused and assaulted several times a week by one Alvin Smith, the then Chief of Children and Youth Services at Kingsboro. He affirms that Mr. Smith took him to his office where he illegally performed fellatio and masturbated each other during the first week of his inpatient placement and for approximately six months thereafter. Within three weeks of his stay at Kingsboro, claimant allegedly reported the sexual abuse and assault to his psychiatrist, Dr. Owen; and to his counselor, Mr. King, within three months. Despite his complaints, the State was allegedly negligent in failing to take any action to protect the claimant from Smith, who continued to abuse him until his discharge later that year.

The State filed its verified answer on August 13, 2021, denying all allegations of negligence or culpability and asserting several affirmative defenses, including the tenth affirmative defense stating "[t]he claim fails to comply with Court of Claims Act Section 11(b) by failing to include the dates or any adequate description of the manner in which the incident occurred, and therefore, there is no proper claim over which the Court [of Claims] has jurisdiction." Thereafter, on February 8, 2022, the parties entered into a preliminary conference stipulation{**76 Misc 3d at 1084} and order with respect to a discovery schedule, so ordered by then Court of Claims Judge Faviola A. Soto. Counsel appeared for a subsequent conference on April 14, 2022, where discovery and deposition deadlines were discussed and extended on agreement by the court and counsel, and the matter was adjourned to June 13, 2022, for further conference. On June 13, 2022, the court further extended disclosure proceedings and scheduled a conference to be held on September 28, 2022.

In the meantime, by notice of motion filed on May 10, 2022, the State moves for the dismissal of the claim, pursuant to CPLR 3211 (a) (2), on the grounds that it fails to satisfy the jurisdictional pleading requirements of Court of Claims Act § 11 (b) in that the claimant does not sufficiently particularize "the date, time, and place of the complained incident[s]" of sexual abuse. The State argues that although claimant affirmed that the sexual abuse occurred in 1992, further examination and discovery uncovered that he was in fact hospitalized from May to September 1994. The State contends that since the claim alleges an incorrect date and year for the sexual abuse, then the claim against the State is jurisdictionally defective and unamendable pursuant to Court of Claims Act § 11 (b).

In opposition, on June 24, 2022, the claimant filed a notice of cross motion, as well as a memorandum of law in opposition, arguing that the claim under the Child Victims Act's revival statute need not allege a precise date when the claim arose as it merely requires "a time when" the incident happened as opposed to the more stringent "precise" or "actual date" requirement advocated by the State. In support of his cross motion, the claimant also argues that the claim provided "substantial compliance" with the notice and factual pleading threshold requirements to enable the State to investigate and locate his records and dates of admission to Kingsboro without suffering any prejudice or surprise. The claimant also relies on the legislative history surrounding the enactment of the Child Victims Act and its remedial [*3]purposes to buttress his arguments for the relaxation of the threshold standards.

On June 30, 2022, following the retirement of the Honorable Faviola A. Soto, who was presiding over this case, all matters and motions currently pending before her were reassigned to the undersigned. Upon reading the papers herein, this court agrees with the claimant.

The Child Victims Act revived the time to commence civil actions based upon certain "conduct which would constitute a {**76 Misc 3d at 1085}sexual offense" committed against children less than 18 years of age (CPLR 214-g; see S.H. v Diocese of Brooklyn, 205 AD3d 180, 186 [2d Dept 2022]; Pisula v Roman Catholic Archdiocese of N.Y., 201 AD3d 88, 98-99 [2d Dept 2021]). The rule creates a revival or "window" period running from the effective date of the Act (Feb. 14, 2019) to two years and six months for civil actions for which the statute of limitations has already expired (see CPLR 214-g). In addition to enacting CPLR 214-g, the New York State Legislature amended Court of Claims Act § 10 to specify that the time limitations contained therein did not apply to claims brought pursuant to the Child Victims Act (see L 2019, ch 11, § 7 [codifying Court of Claims Act § 10 (10)]). However, the legislature did not amend the substantive pleading requirements of Court of Claims Act § 11 (b) as it relates to Child Victims Act claims (see González v State of New York, Ct Cl, Jan. 10, 2022, Leahy-Scott, J., claim No. 136780, mot No. M-97259, UID No. 2022-058-012; see generally L 2019, ch 11; L 2020, ch 130).

A claimant's failure to strictly comply with the filing requirements of the Court of Claims Act may deprive the Court of Claims of subject matter jurisdiction (see Court of Claims Act § 8; Criscuola v State of New York, 188 AD3d 645 [2d Dept 2020]), and be subject to dismissal pursuant to CPLR 3211 (a) (2). Specifically, Court of Claims Act § 11 (b)

"places five specific substantive conditions upon the State's waiver of sovereign immunity by requiring the 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 NY3d 201, 207 [2003]; see Kolnacki v State of New York, 8 NY3d 277, 280 [2007]; González v State, claim No. 136780).

"Although absolute exactness is not required, 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 v State of New York, 107 AD3d 1115, 1115-1116 [3d Dept 2013] [internal quotation marks and citations omitted]; see Criscuola v State, 188 AD3d at 645; Sharief v State of New York, 164 AD3d 851 [2d Dept 2018]; Sinski v State of New York, 265 AD2d 319 [2d Dept 1999]). The sufficiency of a claim rests solely upon the assertions contained therein, and the State is not{**76 Misc 3d at 1086} required to ferret out or assemble information that section 11 (b) obligates the claimant to allege (see Pressley v State of New York, 74 Misc 3d 1233[A], 2022 NY Slip Op 50319[U] [Ct Cl 2022]).

Applying these principles to the matter at bar, the State has not sufficiently established an entitlement to the dismissal of the claim. The record reflects that claimant timely filed the instant claim seeking relief against the State for sexual abuse and assault committed by a state employee at a state institution. Particularly, the original claim alleged that "in approximately 1992, when he was approximately fourteen (14) years old," claimant was sexually abused and assaulted by Mr. Smith, despite his repeated complaints to Kingsboro personnel. During the process of discovery of medical records, the claimant discovered that he was in fact admitted to Kingsboro on May 26, 1994, and that he was discharged on September 12, 1994. Despite this discrepancy, this court notes that the Child Victims Act revival claims—"recognizing the [*4]justifiable delay often associated with coming to terms with and reporting such abuse"—are sometimes brought well over 20 or 30 years after the childhood abuse or trauma occurred, as is the case here after 27 years (S.H. v Diocese of Brooklyn, 205 AD3d at 194). These claims are distinguishable from personal injury cases involving a slip and fall on state property, or an accident with a state vehicle where the date of the occurrence should be precisely pleaded, as there are usually accident reports, or other reports reflecting the same (see e.g. Criscuola v State of New York, 188 AD3d 645, 646 [2d Dept 2020] [trip and fall case dismissal]; Sinski v State of New York, 265 AD2d 319 [2d Dept 1999] [dismissed motor vehicle case reinstated]). Here, the claim as originally pleaded cannot be declared defectively insufficient for failure to set forth a precise date and time.

As recently expressed by the Second Department in the context of the Child Victims Act, "We recognize that in matters of sexual abuse involving minors, as recounted by survivors years after the fact, dates and times are sometimes approximate and incapable of calendrical exactitude" (Pisula v Roman Catholic, 201 AD3d at 104). By providing a period of occurrence in 1992 and that the sexual abuse occurred at the hands of a named individual at his office during the first week of his admission, and continuing for six months thereafter, the claimant appears to satisfy the "nature," "time when" and place requirement or "where" the claim arose (Court of Claims Act{**76 Misc 3d at 1087}§ 11 [b]; see Lepkowski, 1 NY3d at 207). Indeed, the claim's allegations were detailed enough to provide the State with sufficient details of the abuse allegedly committed by Mr. Smith "to investigate the claim promptly and ascertain its potential liability" (see Aguilar v State of New York, Ct Cl, Mar. 11, 2022, Leahy-Scott, J., claim No. 136893, mot No. M-97352, UID No. 2022-058-043), as they in fact did here with their discovery of the claimant's actual medical records from 1994. Under the particular circumstances of this case, the court finds that the original claim was sufficiently pleaded to comply with Court of Claims Act § 11 (b) (see id.).

Contrary to the State's arguments, the instant claim does not require dismissal as jurisdictionally defective pursuant to the current Child Victims Act jurisprudence. Other similar claims have been dismissed for, among other things, only providing a range of years when the sexual assaults allegedly occurred (see Morra v State, 107 AD3d at 1116; Kaiser v State of New York, Ct Cl, May 26, 2022, Leahy-Scott, J., claim No. 136885, mot No. M-97702, UID No. 2022-058-082; Wimbush-Burkett v State of New York, Ct Cl, Dec. 22, 2021, Leahy-Scott, J., claim No. 136559, mot No. M-97122, UID No. 2021-058-073; Doe v State of New York, Ct Cl, Dec. 19, 2013, Bruening, J., UID No. 2013-048-125); or by failing to specify the particular location of the assaults (see Robin BB. v State of New York, 56 AD3d 932, 933 [3d Dept 2008]); or others by failing to provide the full name of an actual perpetrator or state employee (see Works v State of New York, Ct Cl, Nov. 2, 2020, Sampson, J., UID No. 2020-053-542; C.C. v State of New York, Ct Cl, Apr. 26, 2016, Martin, J., UID No. 2016-051-011). The claimant here has asserted all of those details and more in his claim (compare Norton v State of New York, Ct Cl, Jan. 21, 2022, Leahy-Scott, J., claim No. 136734, mot No. M-97246, UID No. 2022-058-024, with Williams v State of New York, Ct Cl, July 1, 2022, Leahy-Scott, J., claim No. 136471, mot No. M-97939, UID No. 2022-058-110).

However, almost a year after filing the claim, the parties discovered that claimant had mistaken the date of his admission into Kingsboro, and the claimant appropriately moves to amend his claim pursuant to CPLR 3025 (b), which provides that "[a] party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at [*5]any time by leave of court or by stipulation of all parties." Applications for leave to amend pleadings lie within{**76 Misc 3d at 1088} the discretion of the trial court (see Nelson v State of New York, 67 AD3d 1142 [3d Dept 2009]), and should be freely granted except when the delay in seeking the leave to amend would directly cause undue prejudice or surprise to the opposing party, or when the proposed amendment is "palpably insufficient or patently devoid of merit" (Edwards v 1234 Pac. Mgt., LLC, 139 AD3d 658, 659 [2d Dept 2016]; see Favia v Harley-Davidson Motor Co., Inc., 119 AD3d 836 [2d Dept 2014]; Gomez v State of New York, 106 AD3d 870, 871 [2d Dept 2013]).

Here, the claimant has appropriately sought to amend his claim prior to the filing of the note of issue, and predicated upon additional information obtained during discovery. His delay in seeking the leave to amend would not cause any undue prejudice or surprise to the State because they are the ones who discovered the actual range of dates of the claimant's hospitalization when the abuse allegedly occurred. Nor is the proposed amended claim "palpably insufficient or patently devoid of merit" as this court has elucidated above. Indeed, in some instances, an error or mistake can be readily curable by the submission of an amended pleading (see Kolnacki v State, 8 NY3d at 281; Harris v State of New York, 38 AD3d 144 [2d Dept 2007]), as precisely done here.

Because the court has determined that the original claim as it relates to the allegations complied with Court of Claims Act § 11 (b) and that the amended claim provides further needed detail, the amended claim supersedes the original claim and becomes the operative pleading going forward (see Keating v State of New York, Ct Cl, Mar. 19, 2021, Liccione, J., UID No. 2021-059-027; see also Stella v Stella, 92 AD2d 589, 589 [2d Dept 1983] [amended pleading supersedes original pleading]).

Based on the foregoing, this court denies the State's motion to dismiss the instant claim and grants the claimant's cross motion to amend the claim, which amended claim is deemed filed nunc pro tunc. Accordingly, it is ordered that the State's motion No. M-98466 is denied, and the claimant's cross motion No. CM-98467 to amend is granted.