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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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WITNESS TESTIMONY DEMONSTRATED CLAIMANT LOST CONTROL OF HIS MOTORCYCLE AFTER GETTING CAUGHT IN A RUT IN THE ROAD; THE STATE HAD TAKEN PICTURES A FEW MONTHS BEFORE WHICH DEPICTED THE ROAD DEFECT; DEFENSE VERDICT REVERSED (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined the state had actual or constructive notice of the road defect which caused claimant to lose control of his motorcycle. Photographs of the area, taken by the State a few months before claimant’s accident in connection with the clean-up of a fuel-truck-accident, depicted the road defect:

Anthony Monzillo testified that he was riding his own motorcycle approximately 15 to 20 feet behind the claimant, and he observed the front wheel of the claimant’s motorcycle go into a “rutted area” and “get caught and begin to wobble side to side” and saw the motorcycle fall over. * * *

Quadri [a State engineer] oversaw the clean-up and remedial work of the roadway in April and May 2017, following the truck accident, and photographs taken in April 2017 of the clean-up and remediation work depicted the defect in the roadway. Quadri testified that he was at the truck accident site at least six times during April and May 2017. While Quadri acknowledged during his testimony that he could see “a separation in the pavement” in a photograph taken in April or May 2017, he further testified that he could not remember seeing the separation in the pavement when he was at the site in April 2017. Quadri also testified that DOT maintenance crews would patrol Route 293 at least once a week looking for areas that require maintenance or repairs and would repair “potholes in the travel lanes . . . right away.” … . …

Based upon our review of the record, including the photographs and the witnesses’ testimony, we conclude that the claimant met his burden of proving by a preponderance of the evidence the existence of a dangerous condition of which the defendant was actually or constructively aware and which it failed to take reasonable measures to correct and that such failure was a proximate cause of the claimant’s accident … . Paci v State of New York, 2024 NY Slip Op 06569, Second Dept 12-24-24

Practice Point: A witness demonstrated the road defect caused claimant’s accident. Photographs demonstrated the State had constructive notice of the road defect. The defense verdict was not supported.

 

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AFTER SKIING ALL DAY AND RETURNING THE EQUIPMENT, CLAIMANT SLIPPED AND FELL ON ICE AND SNOW IN A PARKING LOT; THE ASSUMPTION OF THE RISK DOCTRINE DOES NOT APPLY; THE COURT NOTED THAT INADMISSIBLE HEARSAY, HERE AN INCIDENT REPORT, MAY BE CONSIDERED ON A SUMMARY JUDGMENT MOTION IF IT DUPLICATES NON-HEARSAY (THIRD DEPT). ​

The Third Department, reversing (modifying) the Court of Claims, determined that the assumption of the risk doctrine did not apply to claimant who had finished skiing for the day and was walking to his car in the parking lot when he sipped and fell on ice and snow. The court noted that inadmissible hearsay, here and incident report, may be considered on a summary judgment motion where it duplicates non-hearsay evidence:

… [I]t is undisputed that [claimant] fell at a time when he was finished skiing for the day, and he no longer had any ski equipment on or near his person. He was, instead, returning to his parked vehicle, intending to exit defendants’ property entirely. As a matter of law, [claimant] was not engaged in any facet of skiing at the time that he was injured, and the primary assumption of risk doctrine is therefore inapplicable … . * * *

To the extent that defendants argue that the incident report, as well as certain aspects of Weichsel’s testimony, is inadmissible hearsay and thus may not be relied upon by claimants, we first note that such evidence was proffered by defendants in support of their own motion. In any event, inadmissible hearsay may be considered at the summary judgment stage where it exists alongside admissible evidence in support of the same argument … . Weichsel v State of New York, 2024 NY Slip Op 05384, Third Dept 10-31-24

Practice Point: The assumption of the risk doctrine does not apply to a skier who, after skiing all day and returning the equipment, slips and falls in the parking lot.

Practice Point: Inadmissible hearsay, here an incident report, can be considered on a summary judgment motion it it duplicates non-hearsay.

 

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WHEN THE OFFICE OF CHILDREN AND FAMILY SERVICES (OCFS) ASSUMED CUSTODY OF CLAIMANT, IT OWED CLAIMANT A DUTY TO PROTECT HIM AGAINST FORESEEABLE HARM, INCLUDING SEXUAL ASSAULT; THIS CHILD VICTIMS ACT ACTION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THE STATE DID NOT OWE CLAIMANT A SPECIAL DUTY (THIRD DEPT). ​

The Third Department, reversing the Court of Claims, determined this Child Victims Act action against the Office of Children and Family Services (OCFS) should not have been dismissed on the ground the state did not owe plaintiff a special duty:

For the reasons set forth in our recent decision in A.J. v State of New York (___ AD3d ___, 2024 NY Slip Op 04231 [3d Dept 2024]), we reverse. As in that case, claimant was in OCFS’s custody at the time he was allegedly assaulted. “When a government entity assumes custody of a person, thus diminishing that person’s ability to self-protect or access those usually charged with such protection, that entity owes to that person a duty of protection against harms that are reasonably foreseeable under the circumstances”(A.J. v State of New York,2024 NY Slip Op 04231 at *2). Because defendant owed claimant a duty of care, the claim stated a cause of action and the motion to dismiss should have been denied. McTighe v State of New York, 2024 NY Slip Op 05251, Third Dept 10-24-24

Practice Point: In the Third Department, the claimant in a Child Victims Act case against the Office of Children and Family Services (OCFS) alleging sexual abuse while in its custody does need to demonstrate the state owed claimant a special duty. The state is deemed to have assumed a duty to protect children in its custody from foreseeable harm.

 

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CLAIMANT-INMATE WAS SEXUALLY ASSAULTED IN HER CUBICLE IN A DORMITORY WITHOUT DOORS WHILE THE CORRECTION OFFICER (CO) GUARDING THE DORMITORY WAS ASLEEP; CLAIMANT PRESENTED ADEQUATE PROOF THE ASSAULT WAS FORESEEABLE (THIRD DEPT).

The Third Department, reversing the Court of Claims, determined claimant-inmate in this negligent supervision action presented sufficient proof the sexual assault by another inmate was foreseeable. Claimant was in a dormitory with cubicles and no doors. A male inmate crawled into claimant’s cubicle when the correction officer (CO) guarding dormitory was asleep:

… [T]he question is not what the State actually knows, but what it should have known, i.e., whether defendant has constructive notice … . There was a preponderance of evidence that defendant was aware that this claimant was at risk of sexual assault because defendant’s own sexual victimization risk screening procedures, and placement in the 10-1 dorm’s PREA cube as a result of her complaints about harassment immediately before the sexual assault, identified her as being in a class of individuals vulnerable to the risk of sexual assault … . Moreover, placement in the PREA cube generally, and in this case specifically, is a tacit acknowledgement that individuals who are identified as vulnerable and live in a general population dormitory consisting of a communal sleeping area, must have more protection at night. A sleeping CO negates this added protection at this critical time. Thus, it was not necessary for defendant to have notice that COs generally, or this CO specifically, slept during shifts. It is not unreasonable to expect that COs are conscious, alert and attentive while on duty monitoring an open-floor-plan dormitory of incarcerated individuals in a maximum-security prison. R.S. v State of New York, 2024 NY Slip Op 05253, Third Dept 10-24-24

Practice Point: Here there was sufficient proof that the sexual assault by another inmate was foreseeable. Claimant was recognized as vulnerable to sexual assault, was placed in a dormitory cubicle with no door, and the correction officer assigned to guard the dormitory was asleep. The fact that the CO’s falling asleep may not have been foreseeable was not the determinative issue.​

 

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THE APPLICATION TO TREAT THE NOTICE OF INTENTION TO FILE A CLAIM (NOI) AS A TIMELY FILED CLAIM IN THIS PRISON STABBING CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing the Court of Claims, determined the notice of intention to file a claim (NOI) in this negligent supervision case met the requirements of a claim. Therefore the application to treat the NOI as a timely filed claim should have been granted. Claimant, a prison inmate, was stabbed in the eye:

Court of Claims Act § 10(8)(a) provides that a court may grant an application to treat an NOI as a claim if, among other things, the NOI “was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant.” Court of Claims Act § 11(b) requires a claim to specify: (1) the nature of the claim; (2) the time when it arose; (3) the place where the claim arose; (4) the items of damage or injuries claimed; and (5) the total sum claimed … . While section 11(b) does not require “absolute exactness,” the “guiding principle informing” section 11(b) pleading requirements is whether the State is “able to investigate the claim promptly and to ascertain its liability under the circumstances” … . “In describing the general nature of the claim, . . . or a notice of intention to file a claim, . . . [it] ‘should provide an indication of the manner in which the claimant was injured and how the State was negligent, or enough information so that how the State was negligent can be reasonably inferred'” … .

Here … the claimant provided sufficient details to meet the requirements outlined in Court of Claims Act § 11(b), including the nature of the claim and the alleged act of negligence by the State … . Johnson v State of New York, 2024 NY Slip Op 04949, Second Dept 10-9-24

Practice Point: Where a notice of intention to file a claim (NOI) includes sufficient information about the nature of the claim and the alleged negligence by the state, an application to treat the NOI as a timely filed claim should be granted.

 

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HERE THE COMPLAINT STATED A CHILD-VICTIMS-ACT CAUSE OF ACTION AGAINST THE STATE; THE STATE ASSUMES A DUTY OF PROTECTION AGAINST HARM FOR A CHILD IN ITS CUSTODY; THE COMPLAINT WAS NOT DEFECTIVE FOR FAILURE TO ALLEGE THE STATE OWED PLAINTIFF A SPECIAL DUTY, OVER AND ABOVE THAT OWED THE GENERAL PUBLIC (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Aarons, over a concurrence, determined the complaint in this Child Victims Act action alleging sexual abuse while under the care of the state should not have been dismissed. The issue was whether the complaint must allege a special duty owed by the government to the plaintiff. The Third Department found that a special duty need not be alleged to survive a motion to dismiss under the facts alleged:

A cause of action for negligence requires proof that defendant owed the claimant a legally recognized duty, that “defendant breached that duty and that such breach was a proximate cause of an injury suffered by the [claimant]” … . That said, “an agency of government is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public” … . “A special duty can arise in three situations: (1) the plaintiff 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 municipality took positive control of a known and dangerous safety condition” … . Claimant does not dispute that he has not pleaded one of those three bases for a special duty, instead contending that he was not required to so plead because he was in OCFS’s [Office of Children’s and Family Services’] custody.

We agree. Mindful that our review requires us to determine “whether the alleged facts fit within any cognizable legal theory” … , claimant’s failure to plead a special duty is not fatal to the extent his claim alleges negligence in the performance of obligations stemming from OCFS’s custody of him during his placement at the Schenectady facility … . When a government entity assumes custody of a person, thus diminishing that person’s ability to self-protect or access those usually charged with such protection, that entity owes to that person a duty of protection against harms that are reasonably foreseeable under the circumstances … . The duty of protection is coextensive with the entity’s “physical custody of and control” of the person, terminating at the point the person passes out of the “orbit of [the entity’s] authority” … . Thus, we have held that “[a] governmental foster care agency is under a duty to adequately supervise the children in its charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision,” including “negligence in the selection of foster parents and in supervision of the foster home” … . A.J. v State of New York, 2024 NY Slip Op 04231, Third Dept 8-15-24

Practice Point; When the state assumes custody of a child, it owes the child a duty of protection against harm. Under the facts of this case, the plaintiff was not required to alleged the state owed a special duty to the plaintiff.

 

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CLAIMANT FELL ATTEMPTING TO MOVE FROM AN UPPER WALKWAY TO A LOWER WALKWAY; CLAIMANT WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) AND LABOR LAW 241(6) CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined claimant construction-worker’s motions for summary judgment pursuant to Labor Law 240(1) and Labor Law 241(6) should have been granted. Claimant was attempting to move from a walkway on one level to a walkway on a lower level when the handrail swung away from him, the walkway shifted, and he fell. The defendant’s failure to provide a ladder warranted summary judgment on the Labor Law 240(1) cause of action. And the violation of two Industrial Code provisions warranted summary judgment on the Labor Law 241(6) cause of action:

Although the defendant contended that the sole proximate cause of the accident was the claimant’s decision to use the wooden pallet, rather than a readily available ladder, to descend from the upper walkway, the defendant failed to submit sufficient evidence to raise a triable issue of fact as to whether a proper ladder was readily available to the claimant or whether the claimant had been instructed to use a ladder rather than the wooden pallet installed between the walkway levels … . …

… [T]he defendant violated 12 NYCRR 23-1.7(f) by failing to provide “ladders or other safe means of access” from walkway levels on the work site and that this violation was a proximate cause of the accident. ,,, [T]he defendant violated 12 NYCRR 23-1.15(a) by failing to provide a safety railing that was “securely supported.” Chiarella v New York State Thruway Auth., 2024 NY Slip Op 04122, Second Dept 8-7-24

Practice Point: Defendant in the Labor Law 240(1) cause of action did not demonstrate a ladder was readily available. Therefore defendant did not demonstrate claimant’s failure to use a ladder to move from an upper walkway to a lower walkway was the sole proximate cause of claimant’s fall.

 

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THE CLAIM IN THIS CHILD VICTIMS ACT PROCEEDING DID NOT SET FORTH ANY FACTUAL BASIS FOR THE ALLEGATION THE STATE WAS OR SHOULD HAVE BEEN AWARE OF SEXUAL ABUSE BY ANOTHER CHILD IN A FOSTER HOME AND BY AN EMPLOYEE OF A CHILDREN’S FACILITY; THE CLAIM SHOULD HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing the Court of Claims in this Child Victims Act proceeding, determined the claim did not set forth any factual basis for the allegation defendants were or should have been aware of the abuse by a child in a foster home and by a staff member of a children’s facility. The claim, therefore, should have been dismissed:

Here, as to the abuse alleged at the foster home, the verified claim alleges only bare legal conclusions and lacks any factual specificity as to how defendant was put on notice of the danger posed by the minor perpetrator. As to the facility, the allegation that other staff members knew about the adult perpetrator’s participation in the off-campus overnight trips would not have put defendant on notice about the adult perpetrator’s propensity to sexually abuse children … . Although the allegation that a counselor discovered the sexual abuse may suffice to provide actual notice about the foreseeability of future abuse, the claim fails to allege that any such subsequent abuse took place … . Even granting the verified claim a liberal construction, presuming its allegations true and providing claimant the benefit of every possible inference, said claim failed to set forth any factual basis upon which defendant could have reasonably anticipated the perpetrators’ harmful conduct and, thus, it failed to “provide a sufficiently detailed description of the particulars of the claim to enable defendant to investigate and promptly ascertain the existence and extent of its liability” … . As such, the Court of Claims erred in denying defendant’s motion to dismiss … . Berg v State of New York, 2024 NY Slip Op 03206, Third Dept 6-13-24

Practice Point: Here the allegation that the state was aware or should have been aware of the sexual abuse of the claimant by another child in a foster home and by a staff member of a children’s facility were not supported by any facts which would allow the state to investigate. Therefore the claim should have been dismissed by the Court of Claims.

 

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CLAIMANT INITIALLY BELIEVED THE ROAD WHERE HE STEPPED IN A POTHOLE AND FELL WAS OWNED BY THE VILLAGE, BUT IN FACT IT WAS OWNED BY THE STATE; CLAIMANT’S LATE NOTICE OF CLAIM SHOULD HAVE BEEN ACCEPTED BY THE COURT OF CLAIMS (THIRD DEPT). ​

The Third Department, reversing the Court of Claims, determined claimant’s late notice of claim in this roadway defect case should not have been rejected. Plaintiff alleged he stepped in a depression in the road and fell. Plaintiff initially believed the road was owned by the village, when, in fact, it was owned by the state. The defect in the road was patched within a week of plaintiff’s fall:

The delay here was minimal, with defendant having received notice approximately three weeks after the 90-day deadline lapsed … . It is significant that when [claimant] returned to the accident scene … , he discovered that the pothole had been patched with blacktop, as shown in the photographs taken that day. Claimant further averred that the depression was “almost a foot wide and around ten feet long,” specifying that it was “about three to four inches deep where [his] foot ended up.” Given this postaccident development, claimant’s attorney argued that “[w]hile [defendant] may not have obtained notice of the . . . accident within 90 days of its occurrence, it is highly likely that it had notice of the condition of the pavement that caused the accident as it patched it within a week of when the accident happened,” emphasizing that defendant’s “records should indicate precisely when it was patched as well as when the decision to patch it occurred and why.” * * *

“A claim has the appearance of merit so long as it is not patently groundless, frivolous or legally defective, and the record as a whole gives reasonable cause to believe that a valid cause of action exists” … . To hold defendant liable for his injuries, claimant will need to prove that defendant either created the condition itself by affirmative acts of negligence, or had actual or constructive notice of a dangerous condition and failed to remedy such condition, thereby causing claimant’s injuries … . Constructive notice exists where a depression in the roadway was “visible and apparent and existed for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it” … . Grasse v State of New York, 2024 NY Slip Op 03110, Third Dept 6-6-24

Practice Point: The criteria for acceptance or rejection of a late notice of claim in the Court of Claims is explained.

 

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