Client Advisory

In a unanimous decision, the New York Court of Appeals established that Plaintiffs wishing to bring suit against the State of New York under the claim-revival provision of New York’s Child Victims Act of 2019 must meet the “substantive pleading requirement” detailed in Section 11(b) of the Court of Claims Act (Section 11(b)). Section 11(b) requires Plaintiffs, inter alia, to, “state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained,” and provide a verified notice of intention to file a claim which must “set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated.” The Court noted Section 11(b)’s “guiding principle” that a claim “must be sufficiently definite to enable the State to investigate the claim promptly and to ascertain its liability under the circumstances.” (internal quotation marks, punctuation, and citations omitted).

Plaintiff alleged that he was subjected to various types of sexual abuse at a State-owned performing arts center by numerous male perpetrators during the years of 1986 through 1990. The complaint did not state the number of instances or the frequency of the alleged abuse, nor the identities of the alleged abusers beyond alleging they were State-employed teachers, coaches, and counselors as well as members of the public. Plaintiff alleged the abusers were known among the community as sexual predators.

The State moved to dismiss the claim for failure to comply with Section 11(b). The Court of Claims granted the State’s motion, holding that the CVA does not relax the requirements of Section 11(b) and that Plaintiff’s claim did not meet Section 11(b)’s standard. The Appellate Division, Third Department reversed, holding similarly that the CVA did not relax the requirements of Section 11(b), but that Plaintiff’s claim did meet Section 11(b)’s requirements in that the time period alleged was sufficient in light of the length of time, over four decades, that had passed since the alleged conduct, and that the allegations were otherwise sufficient to provide the State with the information necessary to conduct an investigation of the claim.

The Court of Appeals reversed the Third Department’s decision. The Court held, consistent with both lower courts, that the CVA did not relax the requirements of Section 11(b), but held that the allegations in Plaintiff’s claim did not meet the requisite specificity. The Court found that Plaintiff’s claim lacked information about the alleged abusers and whether they were Plaintiff’s teachers, coaches, or counselors; about whether adult supervision should have been provided and the extent to which the State was responsible for Plaintiff’s contact with the abusers; and about what brought Plaintiff repeatedly to the performing arts center during the time period in question or why he was frequently in the company of both members of the public and state employees while there. The Court held, “the allegations are too spare to enable the State promptly to investigate and ascertain the existence and extent of its liability…”

The Court noted the Appellate Division’s concern that, “it may still be difficult for victims of abuse that occurred decades ago to plead their claim with the specificity section 11(b) requires,” but stated it, “do[es] not have the leeway to exempt claims brought under the CVA from the limitations the [Court of Claims Act] imposes on the State’s waiver of immunity.” The Court found that, “[t]he CVA lacks any indication, let alone a clear expression, that the Legislature intended to exempt CVA claims from section 11(b)’s conditions; indeed, it does not amend or even mention the [Court of Claims Act’s] pleading requirements.”

Key Takeaway: State entities should scrutinize complaints filed against them under the CVA, and pursue pre-discovery motion practice for those complaints that do not comply with section 11(b).