J.J. v State of New York

[*1] J.J. v State of New York 2021 NY Slip Op 21313 Decided on November 10, 2021 Court Of Claims Leahy-Scott, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on November 10, 2021
Court of Claims

J.J., Claimant,

against

State of New York, Defendant.



Claim No. 136670



For Claimant:

Herman Law

By: Jeff Herman and Scott Michael Duquin, Esq.

For Defendant:

Letitia James, New York State Attorney General

By: Heather R. Rubinstein, Esq., Assistant Attorney General
Catherine E. Leahy-Scott, J.

On July 27, 2021, Claimant J.J. 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 alleges that "[i]n or about 1971, when he was approximately eleven (11) 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 "Hayes" who is described as "a male staff member of [McQuade] and was the employee and/or [*2]agent of [McQuade]" (id. ¶ 29). The alleged sexual assault committed against Claimant at McQuade began when he was 12 years old and continued until he was discharged at approximately 13 or 14 years old (id. ¶ 28-34). Moreover, the Claim alleges that Hayes sexually abused Claimant for three years after Claimant was discharged from McQuade (see id. ¶ 34).

Claimant purports to set forth a cause of action of negligence against the State of New York based upon the alleged sexual assault committed by Hayes. In particular, Claimant contends that the State "was responsible for the oversight and monitoring of juvenile detention centers to ensure compliance with applicable New York Law" (id. ¶13) and breached, among other duties, the 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" (id. ¶ 25 [b], [d]). Defendant State of New York now moves pursuant to CPLR 3211 to dismiss the claim.

"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]).

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 [2017], quoting Applewhite v Accuhealth, Inc., 21 NY3d 420, 425 [2013]; see Turturro v City of New York, 28 NY3d 469, 477 [2016]; 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 [1999]; see Riss v City of New York, 22 NY2d 579, 581 [1968]; 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; see 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" (Connolly v Long Is. Power Auth., 30 NY3d 719, 733 [2018] [Rivera, J., Concurring]; 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"]). 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 [*3]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, 61). 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 [government entity] 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 [2004]). 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 [2012]).

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 reasonably oversight, or to advance policies, procedures and/or training to prevent foreseeable sexual abuse in juvenile detention centers, including [McQuade]" (id. ¶ 51; see id. ¶ 52).

Executive Law article 19-G sets forth the powers and duties of the Office of Children and Family Services (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 [2]) and "[e]ach social services district may establish, operate and maintain secure and non-secure detention facilities" (id. § 503 [3]). 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 for Court Administration (id. § 503 [4]). Further, the detention facility may only operate with a certificate from OCFS (see Executive Law § 503 [5] [a]; see also 9 NYCRR Part 180). Courts have held "that Article 19-G of the [*4]Executive Law neither provides, nor fairly implies, that a private right of action is available" (Vongphakdy, UID No. 2018-040-024). Indeed, the remedy for violations of the law concerning the detention of juveniles is to petition for habeas corpus for such aggrieved child (see Executive Law § 503 [6]; Vongphakdy, UID No. 2018-040-024).

Claimant contends that he need not plead a special duty. Rather, Claimant asserts that the State can be liable on a theory of ordinary negligence for its placement and supervision of Claimant at McQuade (see Affirmation of Scott Michael Duquin, Esq. ["Duquin Aff"], ¶¶ 10, 17; Claim ¶ 61). In advancing this contention, Claimant relies upon Sean M. v City of New York (20 AD3d 146 [1st Dept 2005]) and Barnes v County of Nassau (108 AD2d 50 [2d Dept 1985]) and seeks to analogize the statutory scheme for juvenile detention centers set forth in Executive Law article 19-G with the statutory scheme for the placement of children in foster care as set forth in article 6 of the Social Services Law (see Duquin Aff ¶¶ 10-11). This argument is misguided.

Both Sean M. and Barnes effectively held that a municipality is not entitled to immunity for negligent supervision and placement of a child in foster care (see Sean M., 20 AD3d at 160; Barnes, 108 AD2d at 55). However, both Sean M. and Barnes were decided prior to the Court of Appeals decision in McLean v City of New York (12 NY3d 194, 203 [2009]), which held "[g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general." Decisions involving the supervision of children in foster care decided after McLean, follow that decision in determining the parameters of governmental liability in this area (see e.g. Rivera v City of New York, 82 AD3d 647, 648 [1st Dept 2011]; Albino v New York City Hous. Auth., 78 AD3d 485, 487-492 [1st Dept 2010]; Kochanski v City of New York, 76 AD3d 1050, 1051-1052 [2d Dept 2010]; see also Avila v State of New York, UID No. 2013-028-500 [Ct Cl, Sise, P.J., Jan. 8, 2013] [recognizing Sean M. to be implicitly overruled by the Court of Appeals decision in McLean]). Thus, contrary to Claimant's contention (see Duquin Aff ¶ 17), he must establish a special duty. Although Claimant appears to advance a statutory duty (see id. ¶ 9, 12), he fails to demonstrate a private right of action. Notably, the statutory scheme for foster care placement and supervision upon which Claimant relies is no different than Article 19-G of the Executive Law relating to juvenile detention centers in that both do not create nor imply a private right of action (see Social Services Law art 6; Mark G. v Sabol, 93 NY2d 710, 718-722 [1999]; Albino, 78 AD3d at 488-489).

In sum, Claimant has failed to plead a special duty and, thus, tort liability cannot be attributed to the State (see 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-97178 is GRANTED and Claim No. 136670 is DISMISSED.

Albany , New York

November 10, 2021

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 2, 2021.

(2) Affirmation of Heather R. Rubinstein, Esq., Assistant Attorney General, in Support, dated September 2, 2021, with attachment.

(3) Affirmation of Scott Michael Duquin, Esq., in Opposition to Motion to Dismiss, dated October 27, 2021.