New York State Court of Claims

New York State Court of Claims

RIVERS v. THE STATE OF NEW YORK, #2000-007-016, Claim No. 94730, Motion No. M-61517


Synopsis


Claimant sought permission to serve a second amended claim adding a cause of action for malicious prosecution. Motion granted.

Case Information

UID:
2000-007-016
Claimant(s):
TERRY RIVERS, SR.
Claimant short name:
RIVERS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
94730
Motion number(s):
M-61517
Cross-motion number(s):

Judge:
John L. Bell
Claimant's attorney:
Mark A. Schneider, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General
(Kevan J. Acton, Esq., Assistant Attorney General, of Counsel)
Third-party defendant's attorney:

Signature date:
May 22, 2000
City:
Plattsburgh
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant has made an application for an order permitting him to file and serve a second amended claim. The motion was returnable May 3, 2000. The following papers were read and considered by the court:

Notice of Motion, Affirmation of Mark Schneider,
Esq., Proposed Second Amended Verified Claim 1, 2, 3

Affirmation in Opposition of Kevan J. Acton, Esq. 4

Reply Affirmation of Mark Schneider, Esq. 5

Filed Papers: Claim, Answer, First Amended
Claim, Answer to Amended Claim 6, 7, 8, 9

On September 27, 1995, State Trooper Richard J. O'Brien went to claimant's house in the Town of AuSable, Clinton County, to arrest claimant's son pursuant to a warrant that had been issued by a Town Justice of the Town of AuSable. Claimant alleges that he directed his son to accompany the trooper. He further asserts, however, that O'Brien sprayed claimant with a noxious gas, forced him to the ground, handcuffed and arrested him. Claimant contends that in an effort to cover up his abusive conduct, the trooper charged him with resisting arrest and failing to assist a peace officer. In November 1995, claimant was acquitted of the charges.

In an order filed August 14, 1996, claimant was granted permission to late file a claim. The claim was filed in September 1996, asserting causes of action for (1) assault and battery and (2) false imprisonment.[1] In November 1996, the Court of Appeals recognized the existence of State Constitutional Tort in Brown v State of New York (89 NY2d 172). Thereafter, claimant added such a cause of action to his claim in a first amended claim that was filed December 19, 1996.[2]

Claimant also commenced an action in the United States District Court for the Northern District of New York. In order to permit claimant to initially pursue his action in Federal Court, the parties stipulated to a conditional dismissal and the court ordered such a dismissal. In March 2000, a Federal Court jury reportedly determined that Trooper O'Brien did not have probable cause to arrest claimant, but the jury further determined that O'Brien was entitled to qualified immunity regarding the action brought under 42 USC § 1983. Having failed to obtain a recovery in Federal Court, claimant reactivated his claim in this court. He now seeks permission to file and serve a second amended claim, which adds a cause of action for malicious prosecution.

The court is granted considerable discretion when faced with a motion to amend a pleading and is guided by the statutory instruction that leave to amend should be "freely given" (CPLR 3025[b]); Branch v Green, 265 AD2d 646). A delay in bringing a motion to amend, without proof of significant prejudice, is not a proper basis for denying the motion (Danise v Agway Energy Prods., 255 AD2d 731; Seaman Corp. v Binghamton Sav. Bank, 243 AD2d 1027). A request to assert a new legal theory that is based upon the same facts as set forth in the original pleading will generally be granted even if there has been a protracted delay (Matter of Trader v State of New York, 259 AD2d 951; Garrison v Clark Mun. Equip., 239 AD2d 742). If the original pleading was timely and gave notice of the occurrence upon which the new cause of action is based, the Statute of Limitations does not bar the new cause of action (see, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3025:12, at 361).

Here, claimant seeks to add a cause of action for malicious prosecution. The original claim included, among other things, a cause of action for false imprisonment. Malicious prosecution and false imprisonment, while distinct, have nevertheless been characterized as "kindred actions" (Broughton v State of New York, 37 NY2d 451, 456, cert den sub nom. Schanbarger v Kellogg, 423 US 929). The elements of malicious prosecution action are: (1)the initiation of a proceeding; (2) its termination favorably to claimant; (3) lack of probable cause; and (4) malice (Colon v City of New York, 60 NY2d 78, 82). The original claim alleges, inter alia, that claimant was falsely charged with crimes and eventually acquitted of such crimes. The original claim further alleges that criminal conduct was asserted by the trooper in an attempt to cover up his abuse of claimant. It is apparent that the original claim sets forth ample facts to support the legal theory claimant now seeks to add.

Accordingly, it is

ORDERED that claimant's motion is granted and he is directed to file and serve his second amended claim within 20 days of the filed-stamped date of this order.


May 22, 2000
Plattsburgh, New York

HON. JOHN L. BELL
Judge of the Court of Claims




[1]
The initial claim involved other claimants who are no longer part of the action.
[2]
The State Constitutional Tort cause of action is, in fact, of dubious validity in light of the availability of common law remedies (Remley v State of New York, 174 Misc 2d 523, 526-527).