New York State Court of Claims

New York State Court of Claims

BALDWIN RESEARCH v. THE STATE OF NEW YORK, #2000-015-053, Claim No. 101764, Motion No. M-61563


Synopsis


A claimant who failed to meet the pleading requirements of Court of Claims Act § 11(b) will not be permitted to correct that failure by the service of an amended claim more than 90 days after the claim accrued

Case Information

UID:
2000-015-053
Claimant(s):
BALDWIN RESEARCH INSTITUTE, INC. and THE HAGAMAN GUEST HOUSE (a division of Baldwin Research Institute, Inc.)
Claimant short name:
BALDWIN RESEARCH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101764
Motion number(s):
M-61563
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Martin C. Prinner, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Resnick, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 21, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision


The motion of the defendant for an order dismissing the claim for failure to state a cause of action in that it fails to comply with the pleading requirements of Court of Claims Act § 11 (b) is granted and the cross-motion of the claimants for an order permitting them to serve an amended claim is denied. Court of Claims Act § 11 (b) provides, in pertinent part, that the "claim shall state the time when and the place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed." The pleading requirements of Court of Claims Act § 11 (b) are jurisdictional in nature and must be strictly construed (Park v State of New York, 226 AD2d 153). The claim must set forth information sufficient to enable the State to investigate the incident and its potential liability and conclusory allegations of tortious conduct will not suffice (Heisler v State of New York, 78 AD2d 767). A claim fails to comply with Court of Claims Act § 11 and will be dismissed where it does not set forth the elements of a valid cause of action including the manner in which the claimant was injured and the conduct alleged to be tortious (Patterson v State of New York, 54 AD2d 147, affd 45 NY2d 885; Cannon v State of New York, 163 Misc 2d 623; Glassman v Letchworth Village Dev. Center, 104 Misc 2d 755, 760, 761). The instant claim was filed on January 13, 2000 and alleges as follows:
2. The nature of the claim is as and for negligence and intentional tort as against the Respondents/Defendants, NEW YORK STATE OFFICE OF ALCOHOL AND SUBSTANCE ABUSE SERVICES, for intentional interference with a business relationship; defamation; libel; slander; abuse of power; abuse of process; malicious prosecution; nonfeasance; malfeasance; negligence in the initiation of the investigation/alleged inquiry into requirement for certification and state approval for/of Claimant by said Agency/Respondent/Defendant; abuse of its power in the undertaking of its duties on behalf of protecting the public and disseminating incorrect, misleading, libelous and slanderous information and failing to supervise the activities of its agency employees thereof in appropriately adhering to the purposes for which they were ostensibly established and rules and regulations they are empowered to enact.

3. The time when, the place and manner in which the claim arose: On or about December 8, 1999, and continuing, uninterrupted through the present, as a continuing course of conduct and acts directed against the Claimant and Claimants' businesses, all designed to cause extensive and irreparable damage to the business and program of the Claimant without just cause, legal bases or any type of rational justification. Said undertaking has been initiated notwithstanding a prior determination made less than one year ago by said Agency/Respondent/Defendant State Agency named herein.

4. The items of damage or injuries claimed are: Loss of business; loss of reputation; loss of credibility of business and program intended to assist the public; harassment in the daily conducting of its business due to the abuse of power and abuse of process by said Agency and incurring of inordinate legal fees.
It appears to be claimants' position that all of the defendant's wrongful conduct occurred on December 8, 1999 and continued through December 22, 1999, the date the claim was verified.

The cause of action for intentional interference with a business relationship is not adequately pleaded as that theory of recovery requires the injured party to plead facts showing how it has been damaged in the form of lost opportunities for profit resulting from business diversions (Dobies v Brefka, 263 AD2d 721, 723). This claim does not contain any such facts.

The defamation, libel and slander causes of action must be dismissed in that the claim fails to meet the mandate of CPLR 3016 (a) which requires that the particular words complained of must be set forth in a libel or slander cause of action (Dazzo v Meyers, 83 AD2d 14, 22).

This Court's research has failed to disclose the existence of a statutory or common law cause of action for "abuse of power" and the Court declines to create one.

The elements of an abuse of process cause of action are "(1) regularly issued process, civil or criminal, compelling the performance or forbearance of some prescribed act; (2) the person activating the process must be moved by a purpose to do harm without economic or social excuse or justification; (3) the defendant must be seeking collateral advantage or corresponding detriment to the claimant which is outside the legitimate ends of the process, and (4) actual or special damages" (Onderdonk v State of New York, 170 Misc 2d 155, 160). This claim makes no reference to the issuance of any civil or criminal process and does not allege actual or special damages. As a consequence, no abuse of process cause of action is stated.

The elements of a malicious prosecution cause of action include: the initiation or continuation of a criminal or civil proceeding by the defendant; termination of the criminal proceeding in favor of the claimant; the absence or lack of probable cause for the proceeding; and actual malice (Onderdonk v State of New York, supra, at 160). The claim must either allege a criminal charge (Dobies v Brefka, 263 AD2d 721, supra) or a civil proceeding (Park v State of New York, 226 AD2d 153, supra) which terminated in claimant's favor. Furthermore, the injured party must allege facts from which actual malice could be inferred (Scott v State of New York, 204 AD2d 424). Finally, a malicious prosecution cause of action based upon administrative charges must allege special damages such as injury to personal or property rights beyond those normally associated with being sued (Campion Funeral Home v State of New York, 166 AD2d 32, 37). Those special damages do not include legal expenses incurred in defending against the charges or injury to reputation (Campion Funeral Home v State of New York supra, at 37). The claim under scrutiny does not allege the institution of criminal or civil charges by the defendant, facts from which actual malice could be inferred, or special damages. Consequently, the claim does not state a viable cause of action for malicious prosecution.

The alleged nonfeasance, malfeasance and negligence of the defendant concerning the investigation into the requirement for certification and State approval of claimants by the New York State Office of Alcoholism and Substance Abuse Services fails to state a viable theory of recovery as New York does not recognize a cause of action for negligent investigation (Titus v Hill, 134 AD2d 911; Coyne v State of New York, 120 AD2d 769; Weitz v State of New York, 182 Misc 2d 320).

A review of the claim establishes that it fails to comply with Court of Claims Act § 11 (b) in that it does not set forth facts establishing potentially viable causes of action against the State of New York. Therefore, the dismissal motion must be granted.

As to the cross-motion, the applicable rule of law was well stated by Judge Silverman in Grande v State of New York, 160 Misc 2d 383, 385, as follows:
Resolution of claimant's motion to amend the claim depends upon the sufficiency of the original pleading. If claimant failed to comply with the statutes vesting this court with jurisdiction, then he cannot amend the claim as of right or with permission, so as to cure the jurisdictional defect.
As stated earlier in this decision, the pleading requirements of Court of Claims Act § 11 (b) are jurisdictional in nature (Park v State of New York, 226 AD2d 153, supra). Upon this record the claimant did not comply with section 11 (b) and should not be permitted to circumvent that subdivision as well as sections 10 (3) and (3-b) of the Court of Claims Act through the device of serving an amended claim more than 90 days after the claim could have accrued (December 22, 1999), as an amendment may not be used to cure "a jurisdictional defect relating to the notice of claim requirements of Court of Claims Act § § 10 and 11" (Acosta v State of New York, ____ AD2d ____, 704 NYS2d 594).




July 21, 2000
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated April 19, 2000;
  2. Affirmation of Kathleen M. Resnick Dated April 19, 2000, with exhibits;
  3. Notice of cross-motion and affirmation in opposition of Martin C. Prinner dated May 25, 2000, with exhibits;
  4. Affidavit in opposition of Gerald Brown sworn to May 25, 2000;
  5. Affirmation in opposition to the cross-motion of Kathleen M. Resnick dated May 26, 2000.