New York State Court of Claims

New York State Court of Claims

FERRARO v. THE STATE OF NEW YORK, #2000-015-102, Claim No. 102620, Motion No. M-62049


Claim for malicious prosecution, intentional or negligent infliction of emotional harm, negligent investigation of incident involving misidentification of thoroughbred horse during training run dismissed for failure to state a cause of action largely on public policy grounds.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Michael D. Calarco, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Thomas G. Ramsay, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 14, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion insofar as it seeks dismissal of the claim for lack of subject matter jurisdiction (CPLR § 3211 (a) (2)) over the named New York State Racing and Wagering Board (the Board) is denied as moot. This Court, by scheduling order dated September 12, 2000, sua sponte deleted the Board and named the State of New York as the proper defendant. Defendant's motion to dismiss the claim, pursuant to CPLR § 3211 (a) (7) for failure to state a cause of action is granted. The claim attempts to assert a cause of action for malicious prosecution and a cause of action for either intentional or negligent infliction of emotional harm stemming from the alleged negligence of the State in its investigation of an incident involving claimant and track personnel at Finger Lakes Racetrack and in the administrative proceeding which followed the investigation. The second cause of action alleges in very non-specific terms "[t]hat between June of 1996 [sic] to the present, the Plaintiff [sic], while acting in the legal performance of his duties, as a horse trainer at Finger Lakes Race track [sic], was continually harassed, badgered, belittled, annoyed, alarmed and subject to demeaning, extreme and outrageous conduct, from the State, it's agents' [sic] and employee's [sic]." Claimant seeks $1,000,000 in compensatory damages on each cause of action as well as punitive damages.

Claimant is an owner and trainer of thoroughbred race horses. He was cited for having furnished the incorrect name of a horse to an official timer and for having encouraged that official to give false testimony regarding the incident in violation of 9(E) NYCRR 4042.1(f). After conducting an investigation, track stewards fined claimant $1,000.00 and suspended his track privileges for 7 days. Claimant appealed that determination and a hearing was held before Hearing Officer Creighton Brittell on September 10, 1999. The hearing officer issued a report on December 1, 1999 which recommended to the Board that the stewards' decision be upheld. By decision and order dated January 3, 2000 the Board adopted the hearing officer's findings of fact and conclusions of law, affirmed the $1,000 fine and modified the suspension imposed from 7 to 15 days.

It is not alleged by either party that claimant thereafter sought judicial review of the Board's decision and order by means of an article 78 proceeding. Claimant improperly requests this Court, in this action, to find the Board's determination to have been arbitrary and capricious. In fact, claimant's opposition to this motion, which consists solely of the affirmation of counsel who is without direct knowledge, is devoted exclusively to the malicious prosecution cause of action and within that context, presents arguments appropriate to an article 78 proceeding and inappropriate to a claim for money damages. From the lack of such opposition it appears that claimant has abandoned his second cause of action and it will be treated only briefly herein.

On a motion to dismiss pursuant to CPLR § 3211 (a)(7) the allegations set forth in the claim must be accepted as true and given the benefit of every favorable inference (Melnik v Saks & Co., 248 AD2d 446). Even viewed from this vantage point claimant's cause of action for malicious prosecution as stated in the claim is legally insufficient and must be dismissed.

"[T]he elements essential to the maintenance of an action for malicious prosecution are: (1) the commencement and prosecution of a judicial proceeding against the plaintiff, (2) by or at the instance of the defendant, (3) without probable cause, (4) with malice, (5) which has terminated in favor of the plaintiff in the malicious prosecution action, (6) to his injury, and (7) where the proceeding complained of was civil in nature, it must also be shown that the plaintiff suffered interference with some provisional remedy" (Ellman v McCarty, 70 AD2d 150, 155). Provisional remedies include "arrest, attachment or injunction" (Chappelle v Gross, 26 AD2d 340, 341 citing Burt v Smith, 181 NY 1,5).

In the instant case, even if the Court assumes that the administrative appeal of the fine and suspension was a "judicial proceeding" (see, Groat v Town Bd. of Town of Glenville, 73 AD2d 426) it clearly did not terminate in favor of the claimant; nor did the subsequent review and affirmance of the hearing officer's decision by the Board. As already indicated, there is no allegation here that timely judicial review of the Board's determination was sought by way of an article 78 proceeding or, if sought, that such judicial review resulted in a decision in the claimant's favor. Further, claimant has neither alleged nor shown that the accusations lodged against him were made without probable cause or were initiated with malice. Finally, since this proceeding is civil rather than criminal in nature, claimant is required pursuant to Ellman v McCarty, supra, to allege that he suffered interference with an available provisional remedy. This he did not do. As a result, claimant has failed to state a cause of action for malicious prosecution and the first cause of action must be dismissed.

Claimant's second cause of action, which he did not address in his opposition to this motion, is presented in rather confused terminology both as an intentional tort and as a cause of action arising in negligence. Public policy prohibits a cause of action for intentional infliction of emotional harm against the State where the act complained of consisted of official conduct (Brown v State of New York, 125 AD2d 750; Wheeler v State of New York, 104 AD2d 496, 498).

As to a negligence cause of action, the claim alleges in paragraph "13" that the allegation of negligence relates to the "employee's, steward's, Hearing officer and all other agent's" [sic]. From that it must be inferred that the acts complained of relate to the investigation of the June 1999 incident and the subsequent hearing and appeal. The cause of action is, therefore, premised upon a theory of negligent or improper investigation. Case law is well settled that, on public policy grounds, no legally cognizable cause of action exists for negligent investigation (Coyne v State of New York, 120 AD2d 769, 770; Treacy v State of New York, 131 Misc 2d 849).

Finally, punitive damages are not recoverable against the State (Sharapata v Town of Islip, 56 NY2d 332). The Court in Sharapata specifically held that the State's "waiver of sovereign immunity effected by section 8 of the Court of Claims Act does not permit punitive damages to be assessed against the State or its political subdivisions" (Id., 334). This prohibition against punitive damages in actions against the State renders that portion of the claim which seeks punitive damages improper.

November 14, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated July 14, 2000;
  2. Affirmation of Thomas G. Ramsay dated July 14, 2000 with exhibit;
  3. Response to motion dated September 16, 2000;
  4. Affirmation of Michael D. Calarco sworn to September 16, 2000, with attachments;
  5. Reply affirmation of Thomas G. Ramsay dated September 19, 2000;
  6. Claim filed on June 19, 2000.