Papers Considered:

Upon the foregoing papers, the Motion by Defendant, State of New York (hereinafter "State"), to renew and for summary judgment dismissal of a Claim filed by Claimant, K.W. (hereinafter "claimant"), is granted in accordance with the following decision.

On July 7, 2021, by personal injury Claim brought pursuant to the Child Victims Act ("CVA") (see CPLR 214-g), claimant alleges that in "1993 Brian 'Doe' last name fictitious and unknown at this time, sexually abused and raped the then fourteen (14) year old claimant in the theater at Sagamore Children's Psychiatric Center [hereinafter "Sagamore"] in Dix Hills, NY" (Claim, at 1, ¶¶ 5, 17). Claimant further alleges that upon information and belief, Brian "Doe" worked at Sagamore, a State facility, and was placed in positions where he had access and worked with children, without a chaperone or another adult in attendance (see id. at 2, ¶¶ 7, 11). Furthermore, Brian "Doe" "engaged in unpermitted sexual conduct with [claimant] in violation of at least one section of Article 130 and/or § 263.05 of the New York Penal Law" (id. at 3, ¶ 17), and that the State knew or should have known that he was not fit to work with children and had a propensity to commit sexual abuse (see id. at 3-4, ¶ 18). Claimant pleads five causes of [*2]action: negligent hiring, retention, supervision; negligence; breach of statutory duty; negligent infliction of emotional distress; and Respondeat Superior (see id. at 4-12, ¶¶ 19-58). As a result, claimant alleges, inter alia, that she suffered from serious personal injuries, emotional distress, conscious pain and suffering, mental anguish and loss of employment (see id. at 5-6, ¶¶ 26, 34).

Thereafter, on August 16, 2021, the State filed a pre-answer motion to dismiss the claim pursuant to CPLR 3211 and Court of Claims Act § 11 (b). In a Decision and Order filed June 16, 2022, the Court (Soto, J.) granted the State's motion to dismiss the Claim, finding that it did not meet the minimum pleading standards as to the "time when" under the strict interpretation of Court of Claims Act § 11 (b) (see K.W. v State of New York, Ct Cl, Soto, J., Apr. 1, 2022, Claim No. 136558, Motion No. M-97082). Subsequently, claimant appealed, and the Appellate Division, Second Department, reversed, finding that the Court of Claims incorrectly determined that claimant was required to allege the exact date on which the sexual abuse occurred as her allegations that the abuse occurred in 1993, while she was 14 and attending a gym at Sagamore, were sufficient to satisfy the time-when requirement of the Court of Claims Act (see K.W. v State of New York, 214 AD3d 930, 931-932 [2d Dept 2023]). The appellate court further found that the allegations set forth the nature of the Claim with sufficient particularity under Court of Claims Act § 11 (b) but found that the Respondeat Superior theory was not cognizable as a matter of law (see id. at 932)

On April 4, 2023, this matter was restored to the calendar and assigned to the instant Judge. Then, on June 15, 2023, the parties entered into a so-ordered Preliminary Conference Stipulation and Order with respect to a discovery schedule. The State filed a Verified Answer on June 20, 2023, denying a majority of the allegations, and raising 12 affirmative defenses, including that the Court lacks jurisdiction over the Claim for failure to comply with Court of Claims Act § 11 (b). Counsel appeared for subsequent status conferences, where discovery and deposition deadlines were scheduled. Upon discovery completion, this Court issued a Certification Order on January 17, 2025, directing claimant to file her Note of Issue by February 17, 2025, and deferred the Virtual Pre-Trial Conference in anticipation of the instant motion.

By Notice of Motion filed July 9, 2025, the State moves for summary judgment dismissal of the Claim, pursuant to CPLR 3212, and, in the alternative, for renewal of the prior dismissal, pursuant to CPLR 2221 (e) and Court of Claims Act § 11 (b). The State argues that it is entitled to summary judgment dismissal of the Claim since claimant has failed to provide any evidence of the identity of the alleged perpetrator; that he was on staff in Sagamore in 1993; and that the State knew or should have known that the unidentified State employee sexually assaulted her. In support, the State attached the Claim (Exh. A); the April 1, 2022, Decision and Order (Exh. B); claimant's deposition dated March 20, 2024 (Exh. C); her treating psychiatrist, Dr. Kanchan Bapat's deposition dated May 7, 2024 (Exh. D); hospital aide, Mirna Cabral a/k/a Zamorano's deposition dated September 5, 2024 (Exh. E); and claimant's psychiatric records (Exh. F).^[FN1]

Specifically, the State summarized the deposition testimonies of the claimant, Dr. Bapat and Ms. Cabral. The psychiatric chart establishes that claimant was admitted to Sagamore after [*3]running away from Madonna Heights on August 11, 1992, then eloped from the facility on March 10, 1993, and was readmitted on March 23, 1993 (see Exh. F at KW003; KW074-75; Exh. C at 52-53, 57). As per claimant's testimony, she corroborated being transferred to Sagamore at the age of 14 in August 1992, and lived there until her release in June 1993. When asked the name of the State employee who allegedly assaulted her, she indicated that his name was either Brian or Ryan and was not able to provide his last name (see Exh. C at 74). Furthermore, claimant was unable to recall when she first met Brian after her admission (see id. at 86-87); could not recall seeing Brian between August 1992 and March 1993 (see id. at 111); but recalled that he played no role in her day-to-day schedule at the facility during that time, and specifically remembered three interactions with Brian, all in March 1993 (see id. at 108-109).

Claimant further testified that Brian escorted her and a group of girls to the Sagamore auditorium, but upon leaving the auditorium, he asked her to stay back (see id. at 85-88). He led her to a booth in the auditorium where they engaged in oral sex and intercourse for about 15 minutes (see id at 89-90, 100, 124-125). She could not recall why a male staff member escorted them as opposed to a female staff which was the usual protocol at the facility; the day of the week or time of day the incident took place (see id. at 95); why the girls were brought to the auditorium (see id. at 98); or whether there were any staff members aside from Brian chaperoning the group (see id.). She remembered staff members that she had day to day contact with, such as Ms. Cabral, Nick, Nurse Sue, Dr. Bapat and Sal the gym teacher, but Brian was not one of them and could not recall seeing him prior to March (id. at 109-111). Claimant testified that she did not report what Brian did in the auditorium to any Sagamore staff, nor did she inform anyone about the incident, including other residents (see id. at 127). She absconded from Sagamore in March 1993 for 13 days allegedly because of what Brian did to her, but she did not report the incident to the authorities (see id. at 144). Upon re-admission, claimant testified that Dr. Bapat brought her into her office and spoke to her about Brian (see id. at 127).

For her part, Dr. Bapat, a psychiatric medical doctor, testified that she worked at Sagamore between 1989 to 2010 (see Exh. D at 14). She could not recall claimant, but reviewed claimant's Sagamore medical chart (see id. at 18). Referencing claimant's medical chart, Dr. Bapat testified that claimant left Sagamore without permission on March 10, 1993, and was readmitted on March 23, 1993 (see id. at 21, 29). In addition, claimant stated that she ran away from Sagamore because she had an interview at a different facility, Madonna Heights, the next day, and did not want to go there (see id. at 31-32). Dr. Bapat testified that she could not recall any staff member at Sagamore named Brian (see id. at 23). When asked specifically about the allegations of sexual abuse, Dr. Bapat testified that if it happened, it would have been on the chart, and that she would have never told claimant not to say anything about what happened between her and a staff member (see id. at 43).

Ms. Cabral testified that she worked at Sagamore as a Secure Treatment Aide during the relevant period from 1982 up until she retired in 2003, and remembered claimant as being a tall, thin African American girl with very short hair, but she could not recall a man named Brian or Ryan working at Sagamore in 1993 (Exh. E at 10, 12-15, 17, 34). She was the person in charge of the children in claimant's unit, she took care of them and took them to school or wherever they needed to go (see id. at 15). She testified that no male staff was assigned to the girls' unit (see id. at 18). If they were to need a male employee in the girls' unit, that person would not be permitted to interact with the girls, and she could not recall any occasion when a male staff member took the girls from their units to the auditorium (see id. at 18, 30). Ms. Cabral recalled [*4]that the auditorium had a door leading backstage, but could not recall any rooms, except a music room with equipment outside of the auditorium (see id. at 19-20). Under the foregoing facts, the State argues that the claims for negligence, negligent supervision, negligent hiring, retention and supervision should be dismissed because these causes of action require a showing that the State was on notice of the employee's identity and propensity for sexual assault or violence. By failing to identify the alleged perpetrator, the State argues that claimant cannot, as a matter of law, demonstrate notice to the State.

As for the renewal motion, the State argues that pursuant to CPLR 2221 (e), the State seeks leave to renew the arguments made in its August 16, 2021 motion to dismiss based on the recent decision of Wright v State of New York (43 NY3d 532 [2025]), which constitutes new decisional law that clarifies the application of the strict pleading requirements of Court of Claims Act § 11 (b) to CVA claims. The State cites two prior decisions issued by the instant Court where the Court applied the Wright's strict construction standard and dismissed the claims for failing to comply with the specificity requirements (see J.F. v State of New York, 2025 NY Slip Op 25101 [Ct Cl 2025]; Howard v State of New York, UID No. 2025-064-027 [Ct Cl, Vargas, J., Apr. 7, 2025]). Compared with Wright, the State argues that the instant Claim fails to identify the perpetrator and fails to specify when in 1993 or with what frequency claimant was assaulted. Based on these deficiencies, the State argues that the Claim fails to provide the critical information needed for the State to investigate the Claim.

By Affirmation in Opposition filed August 13, 2025, claimant argues that the Appellate Division's reversal and reinstatement of the Claim constitutes the law of the case and precludes renewal. Claimant further argues that the State's reliance on Wright is unavailing, as Wright addressed a claim lacking in temporal specificity beyond a broad multi-year range, unlike the focused allegations here. Furthermore, the State's summary judgment motion should fail, as claimant's deposition testimony creates triable issues of fact and the absence of corroboration from witnesses who lack independent recollection does not negate claimant's account but merely highlights the factual disputes. Claimant further argues that her inability to pinpoint the exact date or confirm the perpetrator's name ignores the CVA's purpose to provide redress for childhood sexual abuse survivors who often rely on imperfect recollections years later. Claimant attaches no exhibits to support her opposition.

The State filed a Reply Affirmation on August 20, 2025, reiterating its arguments and further arguing that a Court of original jurisdiction may entertain a motion for leave to renew or to vacate a prior order or judgment even after the appellate court has rendered a decision on that order or judgment. This Court agrees.

The Child Victims Act revived the time to commence civil actions against individuals and entities based upon certain "conduct which would constitute a sexual offense" committed by them against children less than 18 years of age (CPLR 214-g; S.H. v Diocese of Brooklyn, 205 AD3d 180, 184-185 [2d Dept 2022]). Although the New York State Legislature amended Court of Claims Act § 10 to specify that the time limitations contained therein did not apply to claims brought pursuant to the Child Victims Act (see Court of Claims Act § 10 [10]), the Legislature did not amend the substantive pleading requirements of Court of Claims Act § 11 (b) as it relates to Child Victims Act claims (Wright, 43 NY3d at 540; González v State of New York, UID No. 2022-058-012 [Ct Cl, Leahy-Scott, J. Jan. 10, 2022]).

Specifically, Court of Claims Act § 11 (b) "places five specific substantive conditions upon the State's waiver of sovereign immunity by requiring the claim to specify (1) 'the nature of [*5][the claim]'; (2) 'the time when' it arose; (3) the 'place where' it arose; (4) 'the items of damage or injuries claimed to have been sustained'; and (5) 'the total sum claimed'" (Lepkowski v State of New York, 1 NY3d 201, 207 [2003]; see Kolnacki v State of New York, 8 NY3d 277, 280 [2007]; González, UID No. 2022-058-012). "Although 'absolute exactness' is not required . . . , the claim must 'provide a sufficiently detailed description of the particulars of the claim to enable [the State] to investigate and promptly ascertain the existence and extent of its liability'" (Morra v State of New York, 107 AD3d 1115, 1115-1116 [3d Dept 2013] [internal quotations omitted]; see Criscuola v State of New York, 188 AD3d 645,646 [2d Dept 2020]; Sharief v State of New York, 164 AD3d 851,852 [2d Dept 2018]). "'[B]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed'" (Lichtenstein v State of New York, 93 NY2d 911, 913 [1999], quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). The Court of Appeals has recently held that the Court does not "have the leeway to exempt claims brought under the CVA from the limitations that the Act imposes on the State's waiver of immunity" (Wright, 43 NY3d at 540; see J.F., 2025 NY Slip Op 25101, *1; Howard, UID No. 2025-064-027).

Applying these principles to the matter at bar, the State has shown an entitlement to a dismissal of the Claim. The record reflects that, upon the State's motion, the instant Claim was dismissed by Judge Soto, and upon appeal, the Appellate Division reversed that dismissal, thereby remanding the Claim to the instant Court for further proceedings (see K.W. 214 AD3d at 932). Although claimant contends that the Appellate decision is binding and precludes renewal, there is no barrier to this Court's consideration of the instant motion to renew, especially since no final judgment has been entered and the Claim is still pending in the court system (see Glicksman v Board of Educ./Cent. School Bd. of Comsewogue Union Free School Dist., 278 AD2d 364, 366 [2d Dept 2000]). CPLR 2221 (e) imposes no time limitation for making a motion to renew; however, a motion to renew based on a change in the law must be made while the case is sub judice (see Odessa Medical Supply, Inc. v Government Employees Ins. Co., 18 Misc 3d 722, 725 [Civil Ct, Bronx County 2007]).

Wright represents precisely such a change in the decisional law surrounding CVA claims because the Court of Appeals resolved a longstanding dispute as to whether Court of Claims Act § 11 (b)'s strict pleading requirements applied to these claims in the same manner as any other claim against the State (see Wright, 43 NY3d at 541). Applying Wright here, the instant Claim lacks critical information about the abuser - merely referring to him as Brian "Doe," as well as the particular "time when" the abuse occurred (id.). It is clear here that the Claim lacks the specificity that Court of Claims Act § 11 (b) requires, as it only indicates the year of the abuse and fails to provide the full name of the actual perpetrator, his employment status with the State or even the details of the underlying sexual crime alleged. Under Wright's strict construction standards, the Claim suffers from a jurisdictional defect and therefore was properly dismissed at its inception (see id; J.F., 2025 NY Slip Op 25101, *1; Howard, UID No. 2025-064-027).

In any event, the State has successfully demonstrated an "entitlement to judgment as a matter of law by 'tendering sufficient evidence to demonstrate the absence of any material issues of fact'" from the case (Edwards v State of New York, 23 AD3d 710, 711 [3d Dept 2005], app dismissed 6 NY3d 772 [2006], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; To Encarnacion v State of New York, 49 AD3d 1038,1039, [3d Dept 2008]). To establish a prima facie case for negligent hiring, negligent retention or negligent supervision, the plaintiff/claimant [*6]must prove that the defendant employer hired the employee and knew or should have known at the time of hiring of the employee's propensity for the type of conduct which harmed the claimant (see Doe v Hauppauge Union Free Sch. Dist., 213 AD3d 809 [2d Dept 2023]; Doe v Intercontinental Hotels Group, PLC, 193 AD3d 410, 411 [1st Dept 2021]; Doe v Rohan, 17 AD3d 509,512 [2d Dept 2005]; KK v State of New York, UID No. 2013-032-008 [Ct Cl, Hard, J., Dec. 17, 2013]).

In support of its Motion, the State submitted claimant's Sagamore psychiatric records, as well as the deposition testimony of claimant, Dr. Bapat, and the aide, Ms. Cabral. The psychiatric chart establishes that claimant was admitted to Sagamore in August 1992, eloped from the facility on March 10, 1993, and was readmitted on March 23, 1993 (see Exh. F at KW003; KW074-75; Exh. C at 52-53, 57). As for the identity of the perpetrator, claimant vaguely identified him as Brian or Ryan and stated that he was a regular staff member who took the children to different places (see Exh. C at 75-76), but never flirted with her, nor say anything inappropriate to her (see id. at 120). Claimant candidly acknowledged that while she was away, she took drugs (crack cocaine) and had unprotected sexual intercourse with her prior boyfriend, Victor Delarosa, and others (see id. at 139-142). Upon her return, claimant became pregnant and had an abortion on May 5th, when she was about six weeks pregnant (see id. at 146-147). She did not report the alleged incident with Brian to any staff or discuss the incident with other residents but testified that Dr. Bapat blamed her for what happened because Brian lost his job (see id. at 128-129, 134, 150).

Nothing is this record supports a finding that a person named Brian worked at Sagamore during the relevant period, much less that the State knew or should have known about his propensity to commit sexual acts. Neither of the former Sagamore employees, Dr. Bapat nor Ms. Cabral, corroborated claimant's testimony that a Brian or Ryan worked at Sagamore in March 1993. Indeed, there is no mention of Brian in claimant's psychiatric chart. Claimant testifies that she only saw Brian twice in March before the incident, and it appears from her testimony that those encounters were less than meaningful. Claimant did not report the sexual abuse to anyone but claims rather inexplicably that Brain confessed to Dr. Bapat, who then confronted claimant and blamed her for his departure from Sagamore. Although claimant testifies that she ran away from Sagamore because she did not feel safe, her medical chart reflects that she ran away because she did not want to go to her appointment at Madonna Heights, which was precisely the school that claimant absconded from several months prior to being readmitted at Sagamore.

Where a defendant satisfies the initial burden of showing the absence of any material issues of fact, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Scott v Schwartz, 236 AD3d 1273, 1276 [3d Dept 2025]; Rivera v State of New York, 59 Misc 3d 1233[A], 2017 NY Slip Op 52002[U] , *4 [Ct Cl 2017]. Once the State demonstrated here the absence of any material fact that the State knew or should have known of Brian's propensity to commit sexual abuse, the burden shifted for the claimant to come forward with proof in admissible form that a genuine triable issue of fact exists (see Scott, 236 AD3d at 1276 ). The record reflects that claimant submitted no such proof in admissible form to counter the State's evidence, instead relying on her own testimony which falls short, as there is no evidence to corroborate the existence of a Brian or Ryan, or that claimant was sexually abused at Sagamore. With this record, the Court finds that there are no [*7]triable issues of fact outstanding to sustain any of claimant's five causes of action, therefore, the entirety of the Claim must be dismissed (see Nellenback v Madison County, — NY3d —, 2025 NY Slip Op 02263, *4 [2025]).

Based on the foregoing, it is ORDERED that the State's Motion for summary judgment dismissal, as well as renewal (Motion No. M-102451), is granted, and Claim No. 136558 is hereby dismissed. The status conference scheduled January 16, 2026, is hereby canceled.