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TO STATE A MERITORIOUS CLAIM AGAINST THE STATE IN THE COURT OF CLAIMS, CLAIMANT NEED NOT MAKE OUT A PRIMA FACIE CASE; IT IS ENOUGH THAT THE CLAIM HAS THE APPEARANCE OF MERIT; HERE CLAIMANT’S APPLICATION FOR PERMISSION TO FILE A LATE CLAIM SHOULD HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department, reversing the Court of Claims, determined claimant’s application for permission to file a late claim should have been granted. The Court of Claims found that claimant did not demonstrate a meritorious claim. The Fourth Department explained that a claimant need not make out a prima facie case at this stage. If the claim is not patently groundless, frivolous or legally defective it should be deemed meritorious:

… [W]hile being treated in the inpatient psychiatric unit at Upstate, she was restrained by security officers and nurses because she was engaging in self-harm or had refused medication and injection. According to claimant, security officers escorted her to a seclusion room and forcefully pinned her down, with several security officers lying on top of her while her left arm was underneath her body. Claimant’s medical records confirmed that four security officers and two nurses were involved in the restraining incident. Claimant allegedly screamed out in pain, and a nurse told the security officers to get off of her. Consistent with claimant’s allegations, the medical records establish that, as a result of the incident, claimant suffered a dislocated left elbow, which first required a closed reduction under sedation and placement of a cast and later required surgery under general anesthesia to correct the recurrent instability in her elbow and a complete tear of the ligament complex.

… [T]he evidence presented by claimant in support of the application demonstrates that the security officers and nurses may have caused her injuries, as she alleges, by negligently applying excessive force while attempting to restrain her … . Further, contrary to the State’s assertion, to the extent that Upstate’s account of the incident in the medical records suggests that claimant somehow dislocated her own elbow, that notation created at most a factual issue with respect to causation … . Consequently, on this record, it cannot be said that “the claim raised is patently groundless, frivolous or legally defective” … . … [C]aimant’s submissions on the application are sufficient, at this stage in the proceedings, to demonstrate that there appears to be merit to her claim within the meaning of Court of Claims Act § 10 (6) … . Viola v SUNY Upstate Univ. Hosp., 2026 NY Slip Op 04604, Fourth Dept 7-24-26

Practice Point: In seeking permission to make a late claim in the Court of Claims, claimant need not make out a prima facie case. It is enough that the claim has the appearance of merit, i.e., that it is not patently groundless, frivolous or legally defective.

 

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THE STATE’S SNOWPLOW DRIVER WAS NOT DRIVING ON A PLOW ROUTE WHEN HE MADE AN ILLEGAL RIGHT TURN AND STRUCK PLAINTIFF’S CAR; THE VEHICLE AND TRAFFIC LAW 1103(B) “RECKLESS DISREGARD” STANDARD, THEREFORE, DID NOT APPLY; CLAIMANT’S CLAIM SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the Court of Claims, determined the State’s snowplow driver was not engaged in work on the highway when it made an illegal right turn on a city street, striking claimant’s car. Therefore the “reckless disregard” negligence standard in Vehicle and Traffic Law 1103(b) was not applicable. The Fourth Department granted the claim and sent the action back for a trial on damages only:

Here, the evidence at trial established that the snowplow driver’s route consisted of a series of exits on I-190 in Buffalo, including the on-ramps and off-ramps, and that he would routinely travel on city streets, including the street on which the accident occurred, to access the next ramp on his route. Inasmuch as the testimony reflects that the snowplow driver did not have the authority to plow or salt city streets such as the one where the accident occurred, we conclude that, at the time of the accident, he “was not driving on part of his plow route but instead was traveling from one part of his route to another by way of a [municipal] road that he was not responsible for plowing” … .

Inasmuch as the snowplow driver admitted that he was aware that he was not permitted to make a right turn against a red light at the subject intersection, admitted that he was aware that other drivers treated that portion of road as having two northbound lanes, and nonetheless elected to make an illegal right turn on red from the left-hand lane, we conclude that the evidence established that the snowplow driver was negligent … . We further conclude that claimant was not contributorily negligent inasmuch as he was lawfully on the roadway and stopped at a red light when struck … . Bushley v New York State Thruway Auth., 2026 NY Slip Op 04686, Fourth Dept 7-24-26

Practice Point: Here the State’s snowplow driver was not driving on a plow route when he made an illegal right turn and struck plaintiff’s car. The “reckless disregard” standard, which would have applied if the snowplow were engaged in work on a plow route, did not apply. Ordinary negligence is the applicable standard.

 

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THERE IS AN EXCEPTION TO THE PERSONAL-SERVICE-OF-A-CLAIM REQUIREMENT IN THE COURT OF CLAIMS ACT FOR ACTIONS SEEKING DAMAGES FOR THE STATE’S APPROPRIATION OF PROPERTY; HERE SERVICE BY REGULAR FIRST-CLASS MAIL WAS NOT A JURIDICTIONAL DEFECT (SECOND DEPT).

The Second Department, reversing the Court of Claims in the property-appropriation-by-the-state action, determined an exception to the usual service requirements applies. Failure to serve the State with a copy of the claim by personal service or by certified mail is not a jurisdictional defect. Therefore the State’s motion for summary judgment should not have been granted:

The claimants served the claim upon the Office of the Attorney General by regular first-class mail. * * *

… [W]here the claim sought only to recover damages for the State’s appropriation of the claimants’ property, service upon the Attorney General by personal service or certified mail was not required … .

Court of Claims Act § 10 reflects a similar unique exception for appropriation claims. While most types of claims must be both “filed and served upon the attorney general” to be properly commenced within the time prescribed by the statute … , a “claim for the appropriation by the state of lands” does not require service upon the Attorney General within the statutory time limit … . Port Grove Assoc. v State of New York, 2026 NY Slip Op 03990, Second Dept 6-24-26

Practice Point: Consult this decision for a detailed discussion of the service requirements for a Court of Claims action seeking damages for the State’s appropriation of claimant’s property. Failure to effect personal service on the Attorney General is not a jurisdictional defect.

 

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THE “RECTAL INTRUSION” BY CORRECTION OFFICERS SEEKING TO FORCE CLAIMANT-INMATE TO COMPLY WITH THEIR ORDERS SHOULD HAVE BEEN CONSIDERED AS AN ELEMENT OF DAMAGES IN THIS BATTERY ACTION AGAINST THE STATE; THE CONDUCT WAS WITHIN THE SCOPE OF THE CORRECTION OFFICERS’ EMPLOYMENT; THE STATE CAN BE HELD VICARIOUSLY LIABLE (THIRD DEPT).

The Third Department, reversing the Court of Claims, in a full-fledged opinion by Justice Mackey, determined the court should have considered the insertion of an object in claimant’s rectum as an element of damages in this suit by claimant-inmate against the State. The Court of Claims determined the State could not be vicariously liable because the conduct was outside the scope of the correction-officers’ employment. The Third Department disagreed, noting that the officers were attempting to force claimant to comply with their orders and the conduct was not motivated by sexual gratification:

There is no evidence that the rectal intrusion here was for any of the officers’ personal sexual gratification. Rather, the officers’ statements made during and immediately following the incident, as reported by claimant and credited by the Court of Claims, reflect that the sexually related conduct here was part of an overall — albeit objectively excessive — use of force to compel claimant’s compliance with a directive and, thus, was part of the officers’ employment-related function to enforce discipline within the correctional facility (see Correction Law § 137 [5]; 7 NYCRR 251-1.2 [d] …). … [T]he potential for such abuse of authority, if not the precise vile conduct engaged in here, is expressly addressed in the applicable instructions to correction officers in performing their employment-related disciplinary duties (see generally Correction Law § 137; 7 NYCRR 251-1.2). The record thus establishes defendant’s liability as to that part of the claim for damages related to the rectal intrusion … . Accordingly, we reverse the judgment to the extent that it excluded the same and remit for a new determination of claimant’s damages not inconsistent with this Court’s decision … . C.J. v State of New York, 2026 NY Slip Op 02699, Third Dept 4-30-26

Practice Point: Here the “rectal intrusion” inflicted by correction officers upon claimant-inmate was part of an attempt to force claimant to comply with their orders. Therefore the conduct was withing the scope of the officers’ employment for which the State can be vicariously liable.

 

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THE AMOUNT OF DAMAGES FOR PAST PAIN AND SUFFERING SHOULD BE BASED UPON THE EVIDENCE; THE AWARD SHOULD NOT HAVE BEEN LIMITED TO THE AMOUNT IN THE AD DAMNUM CLAUSE (SECOND DEPT).

The Second Department, reversing the Court of Claims and remitting the matter for a new determination of damages for past pain and suffering. The Court of Claims interpreted the ad damnum clause which read “!0.000.000” to mean $10,000 and awarded that amount. The Second Department noted that the amount of damages should be based on the evidence, not on the ad damnum clause:​

… [A]lthough the Court of Claims found that the claimant’s evidence could support a “substantial recovery for past and future pain and suffering,” it limited the award of damages to $10,000 based on its interpretation of the ad damnum clause. The court should have granted “any type of relief within its jurisdiction appropriate to the proof whether or not demanded” (CPLR 3017[a] …). Although the trier of fact’s “determination is entitled to great deference, it may be set aside if the award deviates materially from what would be reasonable compensation” … . An award of $10,000 deviates materially from awards for similar injuries … . Consequently, the court should have awarded an amount for past pain and suffering that was supported by the evidence submitted by the claimant … . Bonneau v State of New York, 2025 NY Slip Op 03699, Second Dept 6-18-25

Practice Point: The damages awarded for past pain and suffering should be based on the evidence. The award is not limited to the amount in the ad damnum clause of the claim.​

 

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SUPREME COURT HAS SUBJECT MATTER JURISDICTION OVER THIS PROCEEDING UNDER CPLR ARTICLE 52 TO ENFORCE A MONEY JUDGMENT AGAINST THE STATE INSURANCE FUND TO THE EXTENT THE STATE IS A GARNISHEE (SECOND DEPT)

The Second Department, in a full-fledged opinion by Justice Dillon, determined Supreme Court had subject matter jurisdiction over this CPLR article 52 action to enforce a money judgment against New York State Insurance Fund. Ordinarily an action for money damages against a state agency is litigated in the Court of Claims:

In this proceeding, the State Insurance Fund is postured not as a judgment debtor but as a garnishee. As such, under CPLR 5207, all procedures for the enforcement of money judgments against other judgment debtors are applicable to it, as a garnishee, “except where otherwise prescribed by law” and except that an order “shall only provide for the payment of moneys not claimed by the [S]tate” and that no judgment may be entered against the State in such a procedure.

The State Insurance Fund has not shown that this proceeding is otherwise prescribed by law. To the contrary, CPLR 5221(a)(4) provides that the Supreme Court or a County Court has authority to hear enforcement proceedings “authorized by this article,” meaning the entirety of CPLR article 52, which, of course, includes CPLR 5207 garnishment proceedings against the State. … The petition seeks entry of an order, not a judgment. Thus, contrary to the State Insurance Fund’s contention, we hold that the Supreme Court possessed subject matter jurisdiction over this proceeding pursuant to CPLR article 52 to enforce a money judgment as against the State Insurance Fund to the extent that the State’s role in this instance is that of a garnishee. Matter of Doran Constr. Corp. v New York State Ins. Fund, 2025 NY Slip Op 03716, Second Dept 6-18-25

Practice Point: Here, under very complicated facts, Supreme Court was deemed to have subject matter jurisdiction over an action to enforce a money judgment against a state agency where the state’s role is that of a garnishee.

 

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CLAIMANT’S SEXUAL ABUSE CONVICTION WAS VACATED AFTER THE ALLEGED VICTIM RECANTED; CLAIMANT BROUGHT AN ACTION AGAINST THE STATE PURSUANT TO COURT OF CLAIMS ACT SECTION 8-B FOR UNJUST CONVICTION AND IMPRISONMENT; THE COURT OF CLAIMS PROPERLY FOUND CLAIMANT DID NOT PROVE HIS INNOCENCE BY CLEAR AND CONVINCING EVIDENCE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a dissenting opinion, affirming the dismissal of claimant’s action for unjust conviction and imprisonment, determined claimant, whose sexual abuse conviction was vacated after the alleged victim recanted, did not prove his innocence by clear and convincing evidence. The opinion is fact-specific and cannot be fairly summarized here:

Tuckett filed this claim against the State, seeking damages for unjust conviction and imprisonment pursuant to Court of Claims Act § 8-b. Tuckett needed to “prove by clear and convincing evidence” the remaining two elements of his claim: that “he did not commit any of the acts charged in the accusatory instrument” and that “he did not by his own conduct cause or bring about his conviction” (Court of Claims Act § 8-b [5] [c], [d]). * * *

A claimant who asserts a damages claim against the State under section 8-b must prove their innocence by clear and convincing evidence. That task “is certainly not a simple one” … . After hearing from and observing Tuckett and N.M. (the alleged victim), the Court of Claims determined that the accusations were credible and the recantation was not, and that Tuckett therefore failed to carry his burden. We see no reversible error in that decision. Tuckett v State of New York, 2025 NY Slip Op 03099, CtApp 5-20-25

Practice Point: An action against the state for unjust conviction and imprisonment pursuant to Court of Claims Act section 8-b requires that the claimant prove his or her innocence by clear and convincing evidence. Here the testimony of the alleged victim, who had recanted his allegations of sexual abuse, was not enough.

 

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THERE IS A QUESTION OF FACT WHETHER DECEDENT’S STATE UNIVERSITY OWED DECEDENT A DUTY TO WARN HIM OF THE HOSTILITY HARBORED BY ANOTHER STUDENT WHO ULTIMATELY MURDERED DECEDENT (THIRD DEPT).

The Third Department, reversing the Court of Claims, in a full-fledged opinion by Justice Lynch, determined there exists a question of fact whether decedent’s university (Binghamton) owed decedent a duty to warn decedent of the hostility toward decedent harbored by another student (Roque), a former friend of the decedent, who murdered decedent:

To hold defendant liable for negligence, claimant must establish that the University owed decedent a duty, breached that duty, and that the breach was a proximate cause of decedent’s death … . The threshold issue in any negligence action is whether the defendant owed the plaintiff a legally recognized duty of care … . The existence and scope of a duty are legal questions for the courts to resolve in the first instance … .

… Claimant … is not seeking to hold the University liable for failing to protect decedent simply by virtue of his status as a student on campus … . The crux of claimant’s argument, as we understand it, is that counselors employed by the University’s Counseling Center were negligent in failing to make a threat assessment referral to the Dean of Students’ office upon learning of Roque’s hostility toward decedent in the months before the attack and in failing to warn decedent of Roque’s threats against him. Since the specific acts of negligence occurred during the University’s provision of mental health services — a proprietary function … — we conclude that no special duty need be established to hold the University liable and it is “held to the same duty of care as private individuals and institutions engaging in the same activity” … . * * *

Given that the University had threat assessment and referral procedures in place governing actions to take when faced with a distressed student, we conclude that the University owed decedent a duty to reasonably comply with those policies, if applicable … . Cuomo v State of New York, 2025 NY Slip Op 01991, Third Dept 4-3-25

Practice Point: Here the Third Department held a state university may have a “general” (not a “special”) duty to warn a student of hostility harbored by another student.

 

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THE INFORMATION IN THE CHILD-VICTIMS-ACT CLAIM WAS NOT SPECIFIC ENOUGH TO ALLOW THE STATE TO INVESTIGATE THE ALLEGATIONS OF SEXUAL ABUSE BETWEEN 1986 AND 1990; CLAIM DISMISSED (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Halligan,, determined the Child Victims Act claim did not provide sufficient information to allow the State to investigate the allegations of sexual abuse between 1986 and 1990:

… [W]e conclude that Wright’s [claimant’s] claim lacks the specificity section [Court of Claims Act] 11 (b) requires. Because the allegations are too spare to enable the State promptly to investigate and ascertain the existence and extent of its liability, the claim suffers a jurisdictional defect and therefore must be dismissed.

The claim lacks critical information about the abusers. It alleges that the perpetrators included teachers, coaches, counselors, and perhaps other employees of the State, but it does not explain whether those employees were Wright’s teachers, coaches, and counselors, or why, as a child, he was in their company multiple times between 1986 and 1990. The claim also alleges that members of the public were responsible for some of the abuse he suffered, but it does not explain why Wright came into contact with those persons as a child, the context in which adult supervision of any particular activity allegedly should have been provided, or the extent to which the State bore responsibility for Wright’s contact with the abusers. Nor does the claim adequately allege what repeatedly brought Wright to The Egg [a State performing arts center] over a four-year period in the late 1980s, or why, once on the premises, he frequently engaged with both members of the public and State employees.

In the absence of such information, the State cannot promptly investigate the claim and determine its liability under Wright’s theories of negligence. … The State is left to “guess” whether at any point during the four-year period alleged in the claim it owed some duty to Wright and, if so, whether it breached that obligation … . But it “is not the State’s burden . . . to assemble information” not included in a claim so that it may promptly investigate and assess its liability … . Section 11 (b) places that burden on the claimant. Wright v State of New York, 2025 NY Slip Op 01564, CtApp 3-18-25

Practice Point: If the claim in a Child Victims Act suit against the State does not provide enough information to allow the State to investigate, it will be deemed to lack the specificity required by Court of Claims Act section 11 (b) and will be dismissed.​

 

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ALTHOUGH THE DEFENDANT STATE PAROLE OFFICER WAS DRIVING A STATE-OWNED VEHICLE AND ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN THE TRAFFIC ACCIDENT OCCURRED, PLAINTIFF PROPERLY BROUGHT SUIT IN SUPREME COURT AS OPPOSED TO THE COURT OF CLAIMS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the Correction Law did not require that plaintiff bring this traffic accident case involving a Department of Corrections and Community Supervision (DOCCS) parole officer in the Court of Claims. Although the defendant officer was driving a State-owned vehicle and was acting within the scope of her employment at the time of the accident, the lawsuit was properly brought in Supreme Court:

“Not every suit against an officer of the State, however, is a suit against the State” … . “A suit against a State officer will be held to be one which is really asserted against the State when it arises from actions or determinations of the officer made in his or her official role and involves rights asserted, not against the officer individually, but solely against the State” … . If, however, “the suit against the State agent or officer is in tort for damages arising from the breach of a duty owed individually by such agent or officer directly to the injured party, the State is not the real party in interest—even though it could be held secondarily liable for the tortious acts under respondeat superior” … .

Correction Law § 24 (2) provides that claims for damages “arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties” of any State employee shall be brought in the Court of Claims as claims against the State. Thus, Correction Law § 24 “places actions for money damages against [DOCCS] employees within the jurisdiction of the Court of Claims only where the conduct alleged is within the scope of the officer’s employment and in the discharge of his or her official duties” … .

Here, the complaint asserts a single cause of action based on allegations that defendant operated the vehicle in a negligent manner, i.e., that defendant’s alleged negligence arises from her violation of a duty she owed plaintiff as a fellow driver, and not as a DOCCS employee. Thus, plaintiff’s action is “against . . . defendant individually for an alleged breach of a duty of care owed by the defendant directly to [plaintiff], and not one against State officers as representatives of the State in their official capacity which had to be brought in the Court of Claims pursuant to Correction Law § 24” … . Maiorana v Green, 2025 NY Slip Op 01518, Fourth Dept 12-14-25

Practice Point: Although the defendant parole officer was acting within the scope of her employment when she was driving the state-owned vehicle, the traffic accident allegedly breached a duty of care owed directly to the plaintiff by the defendant as a fellow driver, not as a state employee.

 

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