New York State Court of Claims

New York State Court of Claims

FERRAN v. THE STATE OF NEW YORK, #2000-011-516, Claim No. 100460, Motion No. M-61047


Synopsis


Defendant has moved to dismiss the claim pursuant to CPLR 3211(a)(7) for failure to state a cause of action and for failure to comply with the order of the court scheduling disclosure.

Case Information

UID:
2000-011-516
Claimant(s):
NADIA FERRAN
Claimant short name:
FERRAN
Footnote (claimant name) :

Defendant(s):
THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, AND ENCON OFFICER STANIEWSKI
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100460
Motion number(s):
M-61047
Cross-motion number(s):

Judge:
Thomas J. McNamara
Claimant's attorney:
Nadia Ferran, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Paul F. Cagino, Esq., of counsel)
Third-party defendant's attorney:

Signature date:
April 10, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


Defendants have moved to dismiss the claim pursuant to CPLR 3211(a)(7) for failure to state a cause of action and for failure to comply with the order of the court scheduling disclosure. The claim arises in connection with an incident in which Claimant was issued three appearance tickets by an EnCon Officer for the burning of wood debris on her property. Defendants first assert that allegations of false arrest, malicious prosecution and negligence are insufficiently pleaded and that the claim should be dismissed.

Accepting the factual averments of the claim as true and according Claimant the benefit of all favorable inferences which may be drawn from the pleading, the test on a motion to dismiss pursuant to CPLR 3211(a)(7) is whether Claimant can succeed upon any reasonable view of the facts stated ( Fiscal Equity v State of New York, 86 NY2d 307). While allegations of false arrest and negligence may appear in the notice of intention served on the State, no such allegations are found in the claim and the factual averments in that pleading do not make out either cause of action. The claim does, however, allege malicious prosecution based on the three appearance tickets.

Among the essential elements of a cause of action for malicious prosecution is that the underlying criminal action was terminated in the Claimant's favor (Colon v City of New York, 60 NY2d 78). Here, as alleged in the claim, the charges were dropped by the Department of Environmental Conservation when Claimant appeared for trial of the matter. Because voluntary withdrawal of a charge is not a final disposition on the merits indicative of innocence, the prosecution was not terminated in Claimant's favor (Mondello v Mondello, 161 AD2d 690). Consequently, based on the facts as pleaded in the claim, Claimant could not succeed in establishing a cause of action for malicious prosecution. Accordingly, the motion is granted and the claim is dismissed.


April 10, 2000
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims




Papers Considered:

1. Notice of Motion dated January 10, 2000.
2. Affirmation of Paul F. Cagino, Esq. dated January 10, 2000 with exhibits attached.
3. Affidavit in Opposition of Nadia Ferran sworn to the 8th day of February, 2000 with exhibits attached.