Court of Claims, August 21, 2023

Certain & Zilberg, PLLC (Douglas Herring of counsel) for claimant.

Letitia A. James, Attorney General (Antonella Papaleo of counsel), for defendant.

For the following reasons, the motion by claimant R.F. (hereinafter claimant), for leave to renew his opposition to a prior motion to dismiss filed by defendant State of New York (hereinafter State), is granted and, upon renewal, the State's motion to dismiss is hereby denied as provided hereinbelow.

On October 9, 2020, by personal injury claim brought pursuant to the Child Victims Act (CVA), embodied in CPLR 214-g, the claimant alleges that in or about 1979 through 1981, he was sexually assaulted by one Jim McArdle, an employee at Sagamore Children's Psychiatric Center, a State-run mental health and educational facility for children located in Suffolk County, New York (see claim at 3, 5 ¶¶ 13, 14, 29-33, 36). Thereafter, by motion to dismiss filed January 5, 2022, the State moved pre-answer to dismiss the claim pursuant to CPLR 3211 (a) (2), arguing that the claimant failed to comply with Court {**81 Misc 3d at 203} of Claims Act § 11 (b) as to the time of the alleged incident, and failed to plead sufficient details regarding the place where the claim arose as well as its nature. In a decision and order dated May 11, 2022, the Court of Claims (Soto, J.) dismissed the claim for lack of subject matter jurisdiction, finding that the claim did not adequately state the "time when" it arose as required by Court of Claims Act § 11 (b) (see R.F. v [*2]State of New York, Ct Cl, June 17, 2022, Soto, J., claim No. 136847, M-97708). Judge Soto acknowledged that the State raised other grounds for dismissal, but found those additional arguments to be academic (see id.).

Commencing June 30, 2022, following the retirement of Judge Soto, all matters and motions currently pending before her were reassigned to the undersigned. On July 29, 2022, the claimant filed a notice of appeal with respect to Judge Soto's May 11, 2022 decision and order, which appears to be currently sub judice.

By notice of motion filed February 17, 2023, the claimant moves for leave to renew his opposition to the prior motion to dismiss pursuant to CPLR 2221 (e), arguing that the Appellate Division, Second Department, issued two recent decisions within the CVA context, Fenton v State of New York (213 AD3d 737 [2d Dept 2023]) and Meyer v State of New York (213 AD3d 753 [2d Dept 2023]), which changed and/or clarified previous decisional law to unambiguously hold that the Court of Claims Act does not require specific or exact dates for allegations of sexual abuse under the CVA. According to the claimant, both Fenton and Meyer were CVA claims where the Appellate Division held that as both cases involved child sexual abuse that occurred more than 40 years ago, when those claimants were children, the date ranges of 1982 through 1983 and 1978 through 1982, respectively, were sufficient to meet the minimal pleading requirement of Court of Claims Act § 11 (b).

By affirmation in opposition filed March 8, 2023, the State opposes the claimant's motion, arguing that the holdings in Fenton and Meyer do not demonstrate that there is a sufficient "change of law" to warrant a renewal of this deficient claim. According to the State, the Appellate Division found the particular claims in Fenton and Meyer sufficiently pleaded because there were additional factual allegations which permitted the State to investigate promptly and ascertain its liability. Unlike in Fenton and Meyer, the State contends that there is no allegation that the claimant here reported the abuse contemporaneously{**81 Misc 3d at 204} with its happening, or that there was information about Mr. McArdle that the State was on notice of or should have been aware of. Thus, the State concludes that the allegations in Fenton and Meyer do not exist in the instant claim, and the claimant cannot successfully argue that those cases bear any resemblance or that the decisions would lead to a different result here.

Thereafter, the claimant filed a reply affirmation in further support arguing that the Fenton and Meyer decisions were clearly issued to provide guidance to lower courts regarding this issue given the conflicting decisions that had been issued by the Court of Claims, resulting in inconsistent outcomes. The claimant maintains that the Appellate Division's finding that the court should not have granted the State's motion to dismiss for failing to comply with Court of Claims Act § 11 (b) because it did not specify the exact date on which the alleged abuse occurred is directly applicable to the instant case. Upon reading all the papers herein, this court agrees with the claimant.

The Child Victims Act revived the time to commence civil actions against individuals and entities based upon certain "conduct which would constitute a sexual offense" committed by them against children less than 18 years of age (CPLR 214-g; see Fenton v State of New York, 213 AD3d at 739; Meyer v State of New York, 213 AD3d at 754; 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[*3][in 2019] to two years and six months for civil actions for which the statute of limitations has already expired" (see J.F. v State of New York, 76 Misc 3d 1082, 1085 [Ct Cl, Aug. 30, 2022, Vargas, J.]; 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, UID No. 2022-058-012; J.F. v State of New York, 76 Misc 3d at 1085).

" '[B]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the{**81 Misc 3d at 205} 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]). 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]). 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 of New York, 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] [citation omitted]; see Criscuola v State of New York, 188 AD3d at 645; Sharief v State of New York, 164 AD3d 851 [2d Dept 2018]). The sufficiency of a claim rests solely upon the assertions contained therein, and the State is not required "to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski at 208; see Triani v State of New York, 44 AD3d 1032 [2d Dept 2007]; Pressley v State of New York, 74 Misc 3d 1233[A], 2022 NY Slip Op 50319[U] [Ct Cl 2022]).

A motion to renew must be based upon new facts, not offered on the prior motion, that would change the prior determination or shall demonstrate that "there has been a change in the law that would change the prior determination" (CPLR 2221[e] [2]; see Johnson v State of New York, 95 AD3d 1455 [3d Dept 2012]). " '[C]larification of the decisional law is a sufficient change in the law to support renewal' " (McLaughlin v Snowlift, Inc., 214 AD3d 720, 721 [2d Dept 2023]; Dinallo v DAL Elec., 60 AD3d 620 [2d Dept 2009]).

Applying these principles to the matter at bar, the claimant has sufficiently established grounds for renewal of the prior decision{**81 Misc 3d at 206} and order dated May 11, 2022. Although the Court of Claims granted the State's prior motion because the claimant did not adequately plead the "time when" the claim arose (see R.F. v State of New York), the Appellate Division's decisions in Fenton and Meyer clearly permitted "date ranges" allegations as sufficient for jurisdictional pleading purposes under Court of Claims Act § 11. Specifically, the Appellate Division found in both cases that "given that the alleged sexual abuse occurred more than 40 years ago, when the [*4]claimant was a child, 'it is not reasonable to expect [the] claimant to be able to provide exact dates when each instance of abuse occurred, nor is it required' " (Fenton v State of New York, 213 AD3d at 740, quoting Matter of M.C. v State of New York, 74 Misc 3d 682, 692 [Ct Cl 2022]; Meyer v State of New York, 213 AD3d at 756).

In Fenton, the Court explained that

"the date ranges provided in the claim stating that the sexual abuse . . . occurred 'repeatedly' and 'multiple times' from approximately 1982 to 1983, . . . along with other information contained in the claim including, inter alia, that there was a criminal investigation, prosecution, and conviction of [the abuser] based upon the claimant's complaints of sexual abuse, were sufficient to satisfy the 'time when' requirement of Court of Claims Act § 11 (b)" (Fenton v State of New York at 740-741).

The Court provided a similar analysis in Meyer for sexual abuse occurring from approximately 1978 to 1982 (see Meyer v State of New York at 756). The Appellate Division noted "that the CVA allows claimants to bring civil actions decades after the alleged sexual abuse occurred, [so] it is not clear how providing exact dates, as opposed to the time periods set forth in the instant claim, would better enable the State to conduct a prompt investigation" (id.; see Wagner v State of New York, 214 AD3d 930 [2d Dept 2023]).

[1] Here, the claimant alleges that in or about 1979, he was taken to Sagamore where he was sexually assaulted by an employee, Mr. McArdle, when he was between the ages of 11 and 13, and that the assaults continued until 1981 (see claim at 5-6 ¶¶ 30-36). Essentially, the Fenton and Meyer holdings have set the standard that a CVA claimant is not required to allege an exact date of abuse, but may provide a range of dates. Thus, the claimant's reliance on these cases to support the instant motion is correct, as there is a sufficient change in the decisional law to support a renewal of his opposition to the motion{**81 Misc 3d at 207} to dismiss. In consideration of new decisional law, the court finds that the claimant has pleaded a date range in compliance with the recent Second Department's rulings, and the claim thus satisfies the "time when" requirement of Court of Claims Act § 11 (b).

Turning next to the "place where" the claim arose, it is clear from the claim that the alleged assaults occurred at Sagamore while the claimant was in its legal care and custody. This satisfies the "place where" requirement of Court of Claims Act § 11 (b) (see e.g. Rhodes v State of New York, 245 AD2d 791 [3d Dept 1997]).

[2] As for "the nature of the claim," the State contends there is no allegation that the claimant reported the abuse contemporaneously with its happening, or that there was information about McArdle that the State was on notice of or should have been aware of. Causes of action alleging negligence based upon negligent hiring, retention or supervision are not statutorily required to be pleaded with specificity (see Martinez v State of New York, 215 AD3d 815 [2d Dept 2023]). Moreover, "[t]he manner in which the [State] acquired actual or constructive notice of the alleged abuse is an evidentiary fact, to be proved by the claimant at trial. In a pleading, the '[claimant] need not allege his [or her] evidence' " (id. at 819). A detailed explanation of how the State received notice of the alleged abuses does not constitute information that must be supplied to enable an investigation (id.).

Here, the claim alleges in pertinent part that while the claimant was a minor, McArdle, while acting as a counselor, teacher, trustee, director, and officer, sexually abused him on numerous occasions (see claim at 5 ¶ 33). Specifically, the claim alleges that McArdle would force the [*5]infant claimant to sit on his lap, fondle his genitals, masturbate him and perform oral sex on him (see claim at 5 ¶ 34). As a result of the State's conduct, constituting negligence or gross negligence, the claimant maintains that he has and will continue to suffer personal physical and psychological injuries (see claim at 6 ¶ 39). Per the claimant, at all relevant times the State knew or should have known that McArdle was unfit, dangerous and a threat to the health, safety and welfare of the minor entrusted in his care and protection (see claim at 7 ¶ 42).

Upon review, it is apparent here that the claim's allegations were detailed enough to provide the State with sufficient details of the abuse allegedly committed by McArdle to{**81 Misc 3d at 208} investigate the claim promptly and ascertain its potential liability (see Aguilar v State of New York, Ct Cl, Mar. 11, 2022, Leahy-Scott, J., UID No. 2022-058-043). Having fully examined the record, the court finds that claimant's allegations set forth the nature of his claim with sufficient particularity in compliance with Court of Claims Act § 11 (b), since he adequately stated the manner in which he was injured and how the State was negligent (see Wagner v State of New York at 932).

Based on the foregoing, the court grants the claimant's motion to renew (mot No. M-99094) and Judge Soto's prior decision and order filed June 17, 2022, dismissing the underlying claim is vacated. Upon renewal, the State's motion to dismiss (mot No. M-99708) is denied, and claim No. 135463 is hereby restored to the calendar.