Court of Claims, October 28, 2021

Letitia James, Attorney General (Cheryl M. Rameau of counsel), for defendant.

Merson Law, PLLC (Jordan Rutsky of counsel) for claimant.

Claimant filed this claim on August 13, 2020, pursuant to the Child Victims Act to recover damages for alleged sexual misconduct perpetrated by Jeffrey Bernstein, an attorney assigned by Bronx County Family Court pursuant to County Law article 18-B to represent claimant in a custody proceeding (see affirmation of Cheryl Rameau, Esq., Assistant Attorney General [Rameau aff], exhibit A [amended claim] ¶ 2). An amended claim was filed on October 28, 2020. The amended claim alleges Mr. Bernstein sexually abused claimant on several occasions in 1989 in a conference room at the Bronx County Family Courthouse (see id.).

Defendant now moves pursuant to CPLR 3211 (a) (7) to dismiss the amended claim on the ground that it fails to state a cause of action upon which relief can be granted. Specifically, defendant contends that Mr. Bernstein, an attorney assigned to represent claimant pursuant to County Law article 18-B, is not an employee or agent of the State and, as such, the State cannot be held liable for any wrongdoing committed by him (see Rameau aff ¶ 8; see also reply affirmation of Cheryl M. Rameau, Esq., Assistant Attorney General ¶¶ 5-6). Claimant counters that the State can be held liable for Mr. Bernstein's wrongdoing regardless of whether he was a State agent or employee based upon theories of negligent supervision and retention (see affirmation of Jordan Rutsky, Esq. ¶ 24). Additionally, claimant argues that the State may be held liable under a theory of premises liability for permitting the sexual abuse of [*2]claimant to occur on its premises (see id. ¶ 25).

"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]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). "When a party moves to dismiss a complaint pursuant to CPLR 3211 (a) (7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action" (Sokol v Leader, 74 AD3d 1180, 1180-1181 [2d Dept 2010]). However, the court should not "twist[ ] the complaint in an attempt to read in theories that it does not support" (Nomura {**73 Misc 3d at 1023}Home Equity Loan, Inc., Series 2006-FM2 v Nomura Credit & Capital, Inc., 30 NY3d 572, 583-584 [2017]; see Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142 [2017] ["(d)ismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery"]).

Here, the gravamen of the amended claim is that the State was negligent "in the hiring, vetting, supervising, retention, and control of the New York Unified Court System, their 18b attorneys, and, more specifically, . . . Jeffrey Bernstein" (amended claim ¶ 3). However, the State cannot be held liable for negligence committed by assigned counsel (see Swain v State of New York, 294 AD2d 956, 957, 2002 NY Slip Op 03693 [4th Dept 2002], lv denied 99 NY2d 501 [2002]; Herbin v NYPD P.O. Albert Castillo, Ct Cl, July 13, 2017, Sampson, J., claim No. 128635, UID No. 2017-053-526; Allen v State of New York, Ct Cl, Oct. 23, 2014, Ruderman, J., claim No. 121835, UID No. 2014-010-065). Consequently, to the extent the amended claim seeks to impart liability on the State for the alleged sexual misconduct committed by Mr. Bernstein, it must be dismissed.

Additionally, the State cannot be held liable for a state court's alleged negligence "in failing to furnish competent and diligent [assigned] counsel, monitor and supervise counsel's activity or replace counsel promptly" (Swain, 294 AD2d at 957). Thus, to the extent the amended claim is premised upon the State court system's failures in hiring, vetting, retaining, or supervising Mr. Bernstein, it must be dismissed.

Although claimant contends the State may still be liable under a theory of premises liability, no such theory can be liberally construed from the facts alleged in the amended claim. The amended claim specifically alleges defendant "owed a duty to Claimant to use reasonable care to keep their minor clients safe from sexual abuse and to exercise such care in their hiring, retention and supervision of their agents, officers, attorneys, servants and employees" (amended claim ¶ 5). Affording claimant every favorable inference as this court must on a motion to dismiss, the court concludes that the duty alleged in the amended claim is limited to the appointment, retention, and supervision of assigned counsel (compare Torres v State of New York, Ct Cl, June 28, 2006, Mignano, J., claim No. 102400, UID No. 2006-029-587 ["(the claim) asserts that the State was negligent in carrying out 'the minimal security measures' of {**73 Misc 3d at 1024}operating magnetometers, hand-held scanners or x-ray devices in allowing a person to enter the Courthouse with a razor [*3]blade"]; see also Nomura, 30 NY3d at 582-584 [on a motion to dismiss for failure to state a claim, the court must focus on the specific allegations in the complaint and avoid reading into the claim theories that are not expressly advanced]). Stated differently, the duty as alleged in the amended claim is specifically centered around the State's administration of the assigned counsel program, not the State's duty to provide security measures, as a general matter, to occupants of the courthouse (see generally Nomura, 30 NY3d at 595 [Feinman, J., dissenting in part] [recognizing that under the majority's rule, if the plaintiffs "plead too much, they will have boxed themselves out of an otherwise valid claim"]).

This conclusion is buttressed by the sole allegation relative to breach of the duty owed to claimant. In particular, the amended claim alleges defendant breached its "duty to supervise and prevent known risks of harm to its minor children by its attorneys" (id. ¶ 6 [emphasis added]). Thus, the amended claim expressly alleges a breach of a duty to supervise attorneys appointed to represent indigent clients. In short, there is no allegation in the amended claim relative to the breach of a duty to maintain its premises. Consequently, the claim fails to state a cause of action for premises liability.

In sum, affording the amended claim a liberal construction, accepting the allegations as true, and according claimant the benefit of every possible favorable inference, claimant has failed to state a cause of action against the State of New York upon which relief can be granted.

Accordingly, it is hereby ordered defendant's motion No. M-97158 is granted and claim No. 135200 is hereby dismissed.