Augat v. StateAugat v. State
Aрpeal from an order of the Court of Claims (McNamara, J.), entered July 15, 1996, which, inter alia, granted the State’s motion to dismiss the claim.
Laurel Manor Home for Adults is a small adult care facility located in the Town of Clarkstown, Rockland County. After a series of inspections was conducted by the Department of Social Services (hereinafter Department), a report was issued on December 1, 1993 charging Laurel Manor with 55 violations of statutory and regulatory prоvisions. The issues on this appeal arise out of the Department’s conduct in immediately removing claimant Robert Augat as the facility’s administrator and banning his presence there upon a finding that he had physically abused a resident. On March 2, 1994 claimants filed a notice of intention to file a claim and, thereafter, a claim seeking damages for defamation, intentional or negligent infliction of emotional distress, and deprivation of certain statutory and constitutional rights. In its answer the State asserted four affirmative defenses, including failure to state a cause of action and failure to serve the notice of claim or the notice of intention to file a claim within 90 days оf the time that the claim arose. The State thereafter moved to dismiss on these two grounds. Claimants cross-moved for, inter alia, permission to file a late notice of claim.
The record reveals that at a meeting with Department personnel on December 1, 1993, claimant Agatha Augat, the owner and operator of Laurel Manor, was informed of the allegations against Robert Augat and the corrective action to be taken. Agatha Augat received a copy of the report at the meeting and again on December 3, 1993 via certified mail. Although
Based on these facts, the Court of Claims concluded that the notice of intention was not timely filed as the causes of action accrued on Deсember 1, 1993, when Agatha Augat was presented with the inspection report which rescinded her son’s certification to act as administratоr. In doing so the court rejected claimants’ assertion that the State had not pleaded its timeliness issue with particularity as required by Court оf Claims Act § 11 (c). With respect to claimants’ cross motion for permission to file a late claim, the court found that it was without authority to grаnt permission with regard to the defamation cause of action inasmuch as the Statute of Limitations had expired (see, Court of Claims Act § 10 [6]). Permissiоn was denied with respect to the remaining causes of action due to lack of merit and no excuse for the delay.
We initially find that thе State adequately pleaded the timeliness defense with sufficient particularity to meet the requirement of Court of Claims Act § 11 (c) (see, Flushing Natl. Bank v State of New York,
The report is clear, and Agаtha Augat was specifically made aware, that her son’s approval to act as administrator was being withdrawn on December 1, 1993. On thаt date, claimants’ damages, if any, could be reasonably ascertained. In an affidavit in support of claimants’ cross motion, Robert Augat admitted that, although he was not in attendance at the December 1, 1993 meeting, his mother immediately informed him that he had to cease acting as the administrator and together, that
Having so concluded, we next consider the propriety of the Court of Claims’ denial of claimants’ cross motion for permission to file a late notice of claim. Upon weighing the factors in Court of Claims Act § 10 (6) to be considered in determining such a motion, we find that denial of the cross motion was appropriate. Although the State was not substantially prejudiced by the short delay, claimants have failed to set forth a reasonable excuse therefor. Furthermore, their causes оf action for intentional and negligent infliction of emotional distress have no merit. Where, as here, “the act complained of сonstituted official conduct, public policy prohibits the maintenance of a suit against the State for intentional infliction of emоtional distress” (Brown v State of New York,
With regard to the causes of action claiming a violation of due process or freedom of association rights, we recognize that actions for money damages exist against the State for the actions of its emplоyees based upon alleged violations of the State Constitution (see, Brown v State of New York,
Mikoll, J. P., Crew III, Yesawich Jr. and Spain, JJ., concur. Ordered that the order is affirmed, without costs.
Notes
Claimants do not dispute the conclusion that the notice of intention was untimely with respect to their defamation cause of action.