New York State Court of Claims

New York State Court of Claims

DONATELLO v. STATE OF NEW YORK, #2000-018-037, Claim No. 101061, Motion Nos. M-61501, M-61412


The Court partially granted defendant's motion to dismiss the claim. The false arrest cause of action is untimely, and the claim fails to set forth a cause of action for abuse of process, malicious prosecution, or negligent investigation. The Court denied claimant's motion for an in-camera review of a State police investigator's personnel file for failure to make a clear showing that the Court's review was warranted.

Case Information

ALAN DONATELLO The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-61501, M-61412
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: JOEL L. MARMELSTEIN, ESQUIRE Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 5, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The Court has before it two motions. Claimant's counsel brings a motion for an order granting an in camera review of a State Police officer's personnel file, and defendant brings a motion to dismiss and for summary judgment. Both motions will be decided together. The Court has considered the following submissions:

Motion No. M-61412

Notice of Motion...........................................................................1

Affidavit of David A. Longeretta, Esquire in support with all

exhibits attached thereto....................................................2

Affidavit of Alan Donatello in support..........................................3

Good Faith Affidavit of David A. Longeretta, Esquire................4

Affirmation of Joel L. Marmelstein, Esquire, Assistant

Attorney General, in opposition........................................5

Motion Number M-61501

Notice of Motion...........................................................................6

Affirmation of Joel L. Marmelstein, Esquire, Assistant

Attorney General, in support with all exhibits attached


Affidavit of Alan Donatello in opposition.....................................8

The Court will initially address Motion Number M-61501. The claimant seeks damages for false arrest/imprisonment, negligence, abuse of process, and malicious prosecution. It is defendant's position in this motion that each of claimant's causes of action fail as a matter of law, and it is thereby entitled to an order granting dismissal and summary judgment.

In the claim and supporting documents claimant asserts that at the time of this incident he was employed as a driver for United Parcel Service (hereinafter UPS) for eleven years. On or about December 29, 1998, claimant was assigned to deliver a package containing a camcorder to a Mr. Janes' address which he asserts he delivered to that address that day. Approximately two weeks later, claimant was advised that the package was allegedly not delivered to Mr. Janes so claimant went to Mr. Janes' address to investigate. Upon entering the enclosed porch attached to Mr. Janes' residence he noticed a box labeled "camcorder." Mr. Janes refused to answer any questions and told claimant to leave his residence. Claimant advised Mr. Janes that he would be contacting the State Police to advise of the theft of the camcorder.

Thereafter, a State Police Investigator contacted the claimant advising that she was investigating this matter. Claimant professed his innocence and advised the investigator of certain facts surrounding this matter. Allegedly, the investigator failed to follow these leads, instead arresting claimant for a violation of the New York State Penal Law, Sections 155.30 (Grand Larceny in the 4th Degree), 170.10 (Forgery in the 2nd Degree), 175.10 (Falsifying Business Records in the 1st Degree), and 210.45 (False Written Statement). Claimant incurred legal expenses and humiliation from the charges which were finally dismissed after a grand jury voted a "no bill" on June 17, 1999.

Defendant initially argues that the claim, which was filed on September 15, 1999, and personally served upon the Attorney General's office on the same date, is untimely pursuant to Court of Claims Act §10(3-b) for any cause of action for false arrest, and thus that portion of the claim must be dismissed pursuant to CPLR 3211(a)(2) and (8). It is defendant's position that an action for false arrest accrues upon arraignment and release, which occurred for claimant on February 3, 1999. Claimant had 90 days from that date to file and serve a claim or to serve a notice of intention. No notice of intention was ever served and the claim was served untimely, thereby depriving this Court of jurisdiction. Claimant, on the other hand, argues that the claim was not enforceable until he received a "no bill" from the grand jury which did not occur until June 17, 1999. He filed a claim within 90 days of that date.

Defendant correctly articulates the law; an action based upon false arrest/imprisonment accrues upon release from custody. (See, Molyneaux v County of Nassau, 22 AD2d 954, aff'd 16 NY2d 663; Bomboy v State of New York, 26 AD2d 974; Karen v State of New York, 111 Misc 2d 396.) Claimant was arraigned and released on bail on February 3, 1999, and a claim for false arrest should have been served and filed by May 4, 1999. Since no claim or notice of intention was filed or served on that date the cause of action for false arrest is untimely. This objection, however, is subject to waiver if not properly preserved in the answer or by a pre-answer motion to dismiss in accordance with Court of Claims Act §11(c). In this case, defendant's first and second affirmative defenses in the answer assert that the Court lacks personal and subject matter jurisdiction over the claim due to the failure to serve and/or file a notice of intention[1] (First Affirmative Defense ¶5) or the claim (Second Affirmative Defense ¶6) within 90 days after accrual of the cause of action as required by Sections 10(3) and 10(3-b) of the Court of Claims Act. The defenses could be more specifically drafted, however the minimal requirements were met, which put claimant on notice that the cause of action had been untimely commenced. (See, Sinacore v State of New York, 176 Misc 2d 1, 8-9) Accordingly, this cause of action must be dismissed.

Defendant also argues that claimant's negligence claim is actually a claim for negligent investigation which also fails as well. New York State does not recognize a cause of action for negligent investigation. (Gisondi v Town of Harrison, 72 NY2d 280, 285; Hernandez v State of New York, 228 AD2d 902; Coyne v State of New York, 120 AD2d 769.) The police are not under a duty to pursue every lead even if "they had knowledge of the lead and the capacity to investigate it." (Gisondi v Town of Harrison, supra at 285.) Where the cause of action for negligence stems from an improper arrest or prosecution, redress is through the traditional remedies of false arrest and malicious prosecution. (See, Ellsworth v City of Gloversville, 269 AD2d 654; Higgins v City of Oneonta, 208 AD2d 1067,1069; Coyne v State of New York, supra at 770; Remley v State of New York, 174 Misc 2d 523, 525-526.)

Although the Court agrees with the defendant that claimant has no cause of action for negligent investigation, it appears from the other documents submitted that claimant is also alleging a claim for negligent hiring and training. (Claimant's Verified Bill of Particulars Item 4 (A), (B), and (C); Nader v General Motors Corp., 25 NYS2d 560, 565; MacDonald v Howard, 91 AD2d 1119, 1120.) Reading claimant's pleadings and other documents as liberally as possible, the Court cannot say as a matter of law that claimant does not have a cause of action for negligent hiring and training. (Remley v State of New York, supra at 525.)

Defendant next argues that the claim as a matter of law, does not state a cause of action for abuse of process. Defendant argues that the pleadings and bill of particulars[2] fail to allege that the process issued, namely the arrest, was improperly used after it was issued. Claimant on the other hand, relying verbatim on Parkin v Cornell University, Inc., 78 NY2d 523, claims that the failure to allege a lack of improper conduct after issuance of process will not defeat an otherwise viable abuse of process cause of action.

A claim for abuse of process has three essential elements: (1) regularly issued process, civil or criminal, compelling the performance or forbearance of some act; (2) with the intent to do harm without excuse or justification; and (3) for the purpose of some collateral advantage outside the normal objective of the process. (Board of Educ. v Farmingdale, 38 NY2d 397, 403.) Actual or special damages must also be alleged and proven. (Onderdonk v State of New York, 170 Misc 2d 155, 160.) The oft cited language describing the cause of action provides that the "gist of the action for abuse of process lies in the improper use of process after it is issued." (emphasis added) (Dean v Kochendorfer, 237 NY 384, 390; Williams v Williams, 23 NY2d 592; Curiano v Suozzi, 63 NY2d 113, 117.) The Court of Appeals in Parkin v Cornell University, Inc., 78 NY2d 523, supra, opened the door to question whether this description of the action was a limiting definition or "merely illustrative," adding that nothing would preclude "an abuse of process claim based upon the issuance of the process itself." (Parkin v Cornell University, Inc., supra at 530.) The Court went on to note that the issue was not properly before the Court for decision in Parkin, leaving the question still unresolved. A review of the cases since Parkin, shows that the courts which have addressed the issue are in a quandary as to the effect of the dicta on the cause of action. (See for example, Teague v Teague 244 AD2d 182; Butler v Ratner, 210 AD2d 691, 693; Giannattasio v Artuz, 2000 WL 335242; Granato v City of New York, 1999 WL 1129611; PI, Inc. v Ogle, 1997 WL 37941.)

In this case, whether the Court looks to the improper use of the process after it has issued or the process itself, claimant has failed to allege a viable abuse of process claim. Nowhere in the claim or in the other documents submitted has claimant alleged that defendant had the intent to do harm for a collateral purpose by arresting claimant. Even accepting claimant's allegations as true, as required in determining this motion, claimant still has failed to set forth the elements for an abuse of process claim. (See, Dean v Kochendorfer, supra at 390; Board of Educ. v Farmingdale, supra at 404; Curiano v Suozzi, supra at 116-117; Plataniotis v Twe-Advance/Newhouse Partnership, 704 NYS2d 327; Chapo v Premier Liquor Corp., 259 AD2d 1050,1051; Butler v Ratner, 210 AD2d 691,693, supra; Remley v State of New York, 174 Misc 2d 523, supra.) In fact the only hint of any collateral objective the investigator may have had in arresting claimant is the unsworn assertion of claimant's counsel in the memorandum of law that the investigator made the arrest to enhance or advance her career. Even if Investigator Helt had, as an objective to enhance her career by arresting claimant in this matter, this is not a perverted use of the process. It seems likely that in most cases a goal of the investigating officer in arresting a suspect would be to enhance or advance the officer's career. (See, Board of Educ. v Farmingdale, supra at 400.) In any event that allegation is not before the Court in acceptable form and cannot be considered in determining the viability of this cause of action.

Defendant next argues that summary judgment should be granted on claimant's malicious prosecution cause of action since there was probable cause to believe that claimant had committed the crimes with which he was charged. A cause of action for malicious prosecution requires: (1) commencement of a judicial proceeding against the claimant; (2) termination of the proceeding in favor of the accused; (3) the absence of probable cause; and (4) actual malice. (See, Colon v City of New York, 60 NY2d 78, 82.) The issue of probable cause is a question of law to be decided by the court only where there is no real dispute as to the facts or the proper inferences to be drawn from such facts. (Parkin v Cornell University, Inc., 78 NY2d 523, 529.) Defendant argues that there is no real dispute to the facts or to the inferences to be drawn therefrom. Although many of the facts are not in dispute, the inferences to be drawn therefrom is another matter; particularly, whether it was reasonable to infer to whom the electronic signature belonged, i.e., claimant, Mr. Janes, or some other person at the residence.

Despite this issue existing, claimant's cause of action for malicious prosecution must fail as well. The injured party asserting a malicious prosecution claim must set forth facts from which actual malice could be inferred. (See, Scott v State of New York, 204 AD2d 424, 425.) Actual malice refers to a wrong or improper motive on the part of the State. (Scott v State of New York, supra at 425.) No where in any of the documents submitted by claimant is there any set of facts from which it can be reasonably inferred that the State acted with actual malice in arresting claimant for the missing camcorder.

Claimant argues in opposition to the motion that it is premature for the Court to grant summary judgment since full discovery has not been completed in the case. However summary judgment cannot be defeated due to the need for further discovery without some indication that further discovery may lead to relevant evidence. (See, Auerbach v Bennett, 47 NY2d 619; Carmichael v Faxon, 266 AD2d 693; Ruttura & Sons Constr. v Petrocelli Constr. 257 AD2d 614.) Pursuant to the Preliminary Conference Order and Stipulation dated November 17, 1999, all depositions were to be scheduled and held by March 24, 2000, three days before claimant filed motion number M-61412,[3] which seeks an order permitting an in camera review of the State Police Investigator's personnel file, on the basis that the information is necessary before the depositions can be completed.[4] Even accepting as true claimant's arguments asserting the need for this information, there is no allegation that defendant acted with actual malice, and there is no indication that discovery will lead to relevant evidence to support the malicious prosecution claim or the abuse of process claim. Accordingly, claimant's causes of action for false arrest, abuse of process, and malicious prosecution are DISMISSED. Claimant may proceed on his claim for negligent hiring and training.

Motion No. M-61412

Claimant brings a motion seeking an in camera review of State Police Investigator Lyndy E. Helt's personnel file. Claimant apparently made a disclosure demand for the information, but the same was denied by the defendant based upon Civil Rights Law §50-a. Claimant argues that the information is necessary because he has learned that "Investigator Helt often is advised of exculpatory information regarding accused, and neglects to investigate the same and merely brings charges against innocent citizens." (Donatello Affidavit ¶23.) The purpose of seeking this information is to determine whether "Investigator Helt had ever performed an investigation wherein said Investigator searched for exculpatory material to prove the innocence of the accused Defendant." (Donatello Affidavit ¶22.)

Civil Rights Law §50-a provides in pertinent part: "1. All personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof ...shall be considered confidential and not subject to inspection or review without the express written consent of such police officer...except as may be mandated by lawful court order. 2. Prior to issuing such court order the judge must review all such requests and give interested parties the opportunity to be heard. No such order shall issue without a clear showing of facts sufficient to warrant the judge to request records for review." Claimant has failed to set forth any facts making a "clear showing" that review of the records is warranted. (People v Hall (Derrick), 243 AD2d 651; Taran v State of New York, 140 AD2d 429.) Furthermore, since claimant's cause of action for false arrest has been dismissed and as discussed above, claimant has no cause of action for negligent investigation, any relevance for a review of the records has been eliminated.

Accordingly, claimant's motion, number M-61412, is DENIED without prejudice, and defendant's motion, number M-61501, is GRANTED in part and DENIED in part in accordance with the foregoing.

September 5, 2000
Syracuse, New York

Judge of the Court of Claims

Since August 2, 1995, notices of intention no longer have to be filed with the Clerk of the Court; service upon the Attorney General is all that is required. (See, Court of Claims Act §11(a)(i); L. 1995, c. 466.)
Actually, the demand for the bill of particulars sought particulars specifically for the negligence causes of action, not for malicious prosecution or abuse of process.
Motion number M-61412, seeking an order granting an in camera review of the State Police Investigator's personnel file was filed on March 27, 2000 and this summary judgment motion, Motion number M-61501 was filed April 10, 2000.
It is acknowledged that apparently the Attorney General's office had a change of heart in agreeing to stipulate to an in camera review of the State police investigator's personnel file, which delayed the discovery in this matter; however, certainly Mr. Janes deposition could have been completed.