New York State Court of Claims

New York State Court of Claims

TOMS v. THE STATE OF NEW YORK, #2001-005-501, Claim Nos. 102127-A, 103034, Motion Nos. M-61238, M-61584, M-62449, M-62472


The Court dismissed two pending claims and denied two motions for permission to file late claims alleging multiple causes of action arising out of the arrest and prosecution of pro se Claimant.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect only the properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102127-A, 103034
Motion number(s):
M-61238, M-61584, M-62449, M-62472
Cross-motion number(s):

Claimant's attorney:
Jerry L. TomsPro Se
Defendant's attorney:
Eliot Spitzer, Attorney General By: Thomas G. Ramsay, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 8, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 14, were read on motions by Claimant for permission to file late claims and motions by defendant for dismissal of filed claims:

1-3 Notice of Motion, Affidavit in Support and Proposed Claim (Motion No. M-61238)

  1. Affirmation in Opposition (Motion No. M-61238)
  1. Affirmation Response to Opposition Affirmation
6, 7 Notice of Motion and Affirmation with Exhibits (Motion No. M-61584)

  1. Responding Affirmation of Jerry L. Toms (Motion No. M-61584)
  1. Reply Affirmation of Thomas G. Ramsay (Motion No. M-61584)
10, 11 Affirmation Response to Opposition Affirmation and Inquiry Upstate with Verified Claims (Motions No. M-61238, M-62449)

  1. Affirmation in Opposition (Motions No. M-61238, M-62449)
13, 14 Notice of Motion and Affirmation (Motion No. M-62472)

Filed Papers: Verified Claims (Claim No. 102127-A)

Verified Complaint/Notice of Claims (Claim No. 103034)

Upon the foregoing papers, Claimant's motions for permission to file late claims are denied and Defendant's motions for dismissal are granted.

By claims filed March 14, 2000, (Claim No. 102127-A) and September 5, 2000, (Claim No. 103034), Claimant Jerry L. Toms asserts myriad causes of action arising out of his arrest and prosecution on a charge of Second Degree Aggravated Harassment. In lieu of answering, the State has filed motions for dismissal of the claims (Motions No. M-61584 and M-62472). In the meantime, apparently concerned that some of his causes of action may be untimely, Claimant filed two motions pursuant to Court of Claims Act §10(6) seeking permission to file late claims arising from the same series of events underlying his filed claims (Motions No. M-61238 and M-62449).[1] Given the common factual and legal issues presented, all four motions were adjourned to a single date and will be disposed of herein.

On May 2, 1999, Claimant was arrested by New York State Trooper Tracy Patterson and charged with aggravated harassment in the second degree (Penal Law §240.30).[2] The charge stemmed from complaints made to Trooper Patterson by Claimant's former wife, Jill Gardner, regarding letters and postcards she had received from Claimant. According to Gardner's supporting deposition, despite a prior warning from the State Police, Claimant sent her a letter postmarked March 5, 1999, two letters postmarked April 12, 1999, and a post card postmarked March 24, 1999, all containing "personal and unfounded enquirees [sic] into [her] retirement plans" and communications "of a personal nature" which she found "annoying" and "harassing" (Exhibit 3 attached to Claim No. 102127-A).

Claimant does not attach copies of the March 24, 1999 postcard or the two April 12, 1999 letters referred to in Gardner's supporting deposition, leaving me to speculate as to the contents of those mailings. The March 4, 1999 letter (i.e., the letter postmarked March 5, 1999), signed by Claimant with the designation "Pro Se Attorney/Plaintiff" and the index number from Claimant's action for divorce from Ms. Gardner, requests that Gardner execute an authorization permitting Gardner's employer to release certain retirement account information to Claimant. Interspersed with references to the release are personal sentiments, including requests that Gardner accept a birthday card and gift from Claimant and that she compile a photo album for Claimant "to treasure the rest of [his] life," references to Claimant's attempts "open dialogue with [Gardner] though Christian friends in accordance with Biblical principles," and insinuations as to Gardner's "genuine thoughts and intentions." He states: "[w]hile I have forgiven you for the acts and occurrences which caused me great pain and confusion in the past, we must still resolve these clear and concise legal matters" (Exhibit 2 attached to Claim No. 102127-A).

Claimant contends the letters at issue were sent in his capacity as pro se plaintiff in the divorce action for the purpose of obtaining releases to enable him to prepare a Qualified Domestic Relations Order (QDRO) as directed by Supreme Court. According to Claimant, he sent his request directly to Gardner only after his letters to her attorney were returned unopened. He maintains the decision to arrest him was based in part upon false statements by Gardner's attorney to Trooper Patterson indicating the request for documents in the March 4, 1999 letter (i.e., the letter postmarked March 5, 1999) was unfounded and that all matters relating to the divorce had been settled.

Pending Claimant's arraignment on the harassment charge, Town of Barre Justice Alan Jones issued an order of protection directing Claimant to stay away from Jill Gardner, her home and place of employment. The order further prohibited Claimant from contacting Gardner by phone or mail (Order of Protection [dated 6-3-99], Exhibit 6 to Verified Proposed Claims, Motion No. M-61238). Claimant was arraigned before Justice Jones on June 17, 1999. At the arraignment, the Orleans County District Attorney offered and Claimant accepted an adjournment in contemplation of dismissal (ACD) in satisfaction of the harassment charge on the condition that Claimant comply with a one-year order of protection.[3] In addition to the terms of the existing temporary order, the one-year order of protection prohibited Claimant from flying over Ms. Gardner's residence at an altitude of less than 5,000 feet (Order of Protection [dated 6-3-99], Exhibit 7.[4] Claimant was told that if he complied with the conditions of the ACD, all charges against him would be dismissed on December 16, 1999, and his fingerprint cards and photographs would be returned to him at that time (Transcript of Proceedings [6-17-99], Exhibit 14 to Claim No. 103034, at 2). According to Claimant, he fully complied with the order of protection for the six-month term of the ACD, yet the records have not been returned to him.

Claim No. 102127-A alleges wrongdoing on behalf of Trooper Patterson, Claimant's former wife's attorney, his own criminal attorney, the Orleans County District Attorney and Justice Jones, both individually and in concert with one another. The claim includes causes of action ranging from negligent investigation, entrapment, false arrest, malicious prosecution and abuse of process to fraud, defamation, legal malpractice and professional misconduct. Among other damages, Claimant maintains he suffered damage to his reputation, economic hardship and deprivation of his right to represent himself in his divorce action.

In addition to reiterating many of the allegations of Claim No. 102127-A, Claim No. 103034 states that on June 17, 2000, the date on which the temporary order of protection issued in connection with the ACD was to expire, Justice Jones executed a new two-year ex parte order of protection falsely stating as its basis that Claimant had been convicted of the aggravated harassment charge. Claimant alleges that in reaching his decision to issue the order of protection, Justice Jones improperly consulted with Claimant's ex-wife and the Orleans County District Attorney in violation of Claimant's civil rights and the Criminal Procedure Law and that he further failed to file the order of protection in the office of the Court Clerk as required by law. Claimant maintains when he attempted to gain access to the order and other documents relating to the criminal prosecution, the Town of Barre Court Clerk indicated to him that Justice Jones "must have those [documents] at home." He asserts that the actions of Justice Jones and the Court Clerk bespeak a lack of training in procedural matters that must be imputed to the State of New York.

Claimant alleges that fear of arrest under the new order of protection prevents him from completing the QDRO and finalizing the divorce action and, therefore, forestalls his recovery of certain marital property. He further maintains that under the term of the order of protection restricting his flight paths, he will continue to suffer economic loss in the operation of his aviation business. Among other hardships, he states that the restrictions disqualify him from obtaining funding through guaranteed loan programs and, as a result, he will be forced to utilize venture capital funding "to capitalize on his patents and immediate business opportunity."
Motion No. M-61584
By Motion No. M-61584, Defendant seeks dismissal of Claim No. 102127-A. In support of the motion, Defendant asserts that the claim was received in the office of the Attorney General on March 13, 2000, by regular mail, rather than by personal service or certified mail, return receipt requested, as required by Court of Claims Act §11(a). Attached as an exhibit to Defendant's motion is a copy of the envelope in which the claim was received, bearing the designation First Class Mail and reflecting postage paid of $1.87. The claim filed in the Clerk's office does not include an affidavit of service or other proof of service of the claim upon the Defendant by a method authorized by Court of Claims Act §11. Moreover, Claimant has submitted no such proof in opposition to Defendant's motion.

Pursuant to Court of Claims Act §11(a), the claim must be served upon the Attorney General either personally or by certified mail, return receipt requested, within the time period provided for filing with the Clerk of the Court. Section 11(a) constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State and, thus, must be strictly construed (Buckles v State of New York, 221 NY 418; Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607). The failure to properly serve the claim upon the Attorney General gives rise to a jurisdictional defect which, if raised with particularity in the Defendant's answer or a pre-answer motion to dismiss, requires dismissal of the claim. The Court has no authority to overlook a defect in the manner of service where, as here, the deficiency is properly raised by the Defendant. Consequently, Defendant's motion to dismiss Claim No. 102127-A must be granted.
Motion No. M-61238
By Motion No. M-61238, filed February 17, 2000, Claimant seeks permission to file a late claim based upon the events surrounding his arrest and prosecution and the failure of the Barre Town Court to return his criminal records to him upon the expiration of the ACD. Inasmuch as this motion is timely made, I have jurisdiction to grant relief under Court of Claims Act §10(6) and I have considered all the factors listed therein. The issue of the appearance of merit is pivotal, however, since it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tend to favor the request (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729). A claim is said to have an appearance of merit when it is not patently groundless, frivolous or legally defective and there is a reasonable basis to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11).

As with Claim No. 102127-A, the proposed claim herein alleges negligent and intentional acts by Trooper Patterson, Claimant's ex-wife's attorney, his own criminal attorney, the Orleans County District Attorney and Justice Jones. The State of New York has waived immunity from liability and has conferred jurisdiction upon the Court of Claims to entertain claims for damages caused by the "torts of its officers or employees while acting as such officers or employees" (Court of Claims Act §9). Both Ms. Gardner's attorney, Daniel DeMatteo, and Claimant's criminal attorney, D. Michael Murray, were acting as private counsel, not as officers or employees of the State. Claimant has demonstrated no relationship to the State that would render it liable for the acts of the individual attorneys (see Murph v State of New York, 98 Misc 2d 324, reargument denied 105 Misc 2d 684). District Attorneys are county employees; to the extent a governmental entity may be held liable for the actions of a District Attorney, that entity is the county by which s/he is employed, in this case, the County of Orleans (Fisher v State of New York, 10 NY2d 60; Claude H. v County of Oneida, 214 AD2d 964; Whitmore v. State of New York, 55 AD2d 745, lv denied 42 NY2d 810; Murph v State of New York, supra). A Town Justice is an employee of the town in which s/he serves (Town Law §20; cf. Mullen v State of New York, 122 AD2d 300 [citing Judiciary Law § 39{1}, {6}], lv denied 68 NY2d 609, cert denied 480 US 938). In any event, the issuance of an order of protection is a judicial function cloaked with absolute judicial immunity (Harley v State of New York, 186 AD2d 324 ["[a]cts performed in excess of jurisdiction are still subject to the privilege and it is only those acts performed in the clear absence of any jurisdiction over the subject matter that fail to come under the umbrella of immunity"], appeal dismissed 81 NY2d 781). Consequently, with respect to actions of the private attorneys, the District Attorney and the Barre Town Justice, Claimant has failed to state a cause of action upon which relief may be granted.

Trooper Patterson is an officer of the New York State Police and, therefore, a State employee whose conduct may support a cause of action against the State of New York. Nevertheless, the proposed claim submitted in support of Motion No. M-61238 does not state facts upon which the Court may find an appearance of merit.

Claimant's causes of action arising out of the conduct of Trooper Patterson ostensibly include false arrest, false imprisonment, malicious prosecution, entrapment and negligent investigation. A cause of action for false arrest or false imprisonment requires a showing by Claimant that (1) the Defendant intended to confine him, (2) the Claimant was conscious of the confinement, (3) the Claimant did not consent to the confinement and (4) the confinement was not otherwise privileged (Broughton v State of New York, 37 NY2d 451, 456, cert denied sub nom. Schanbarger v Kellogg, 423 US 929). According to Claimant's recitation of the events surrounding his arrest, he voluntarily appeared at the New York State Trooper barracks and was issued an appearance ticket. He does not indicate that he was detained or confined at any time. The service of an appearance ticket does not restrict the recipient's freedom and, therefore, does not form a basis for a false arrest claim (Kramer v Herrera, 176 AD2d 1241; Pritchett v State of New York, 61 AD2d 1110). Consequently, the cause of action for false arrest and false imprisonment is without merit.

In order to sustain a cause of action for malicious prosecution, a claimant must show (1) the initiation of a proceeding, (2) termination of the proceeding in favor of claimant; (3) the absence of probable cause, and (4) actual malice (Colon v City of New York, 60 NY2d 78, 82; Broughton v State of New York, 37 NY2d 451, 457, supra). Claimant does not dispute that he received an ACD on the charge brought by Defendant against him. An ACD bars recovery for malicious prosecution as it is not a determination of guilt or innocence (Hollender v Trump Vil. Coop., 58 NY2d 420; Nadeau v LaPointe, 272 AD2d 769, 771; see CPL 170.55[1]).

I also reject Claimant's contention that after receiving Gardner's complaint, Trooper Patterson should have verified Claimant's need for the requested releases by reviewing transcripts of the Supreme Court proceedings. Trooper Patterson properly relied upon the sworn statement of complainant Jill Gardner and, according to Claimant, assurances by her attorney to Patterson and the Orleans County District Attorney that the request for releases was unnecessary to the divorce action. In any event, no cause of action exists for negligent investigation of a crime (Gisondi v Town of Harrison, 72 NY2d 280; Coyne v State of New York, 120 AD2d 769; La Mar v Town of Greece, 97 AD2d 955).

Claimant further alleges that in warning Claimant to cease contacting his ex-wife, Trooper Patterson advised him he could communicate with his ex-wife through his attorney. According to Claimant, he reasoned that inasmuch as he was acting as his own attorney, he would be permitted to communicate with his wife in that capacity. He asserts that Trooper Patterson's statements misled him and, therefore, constituted entrapment. Even assuming allegations of "entrapment" could support a civil cause of action (see generally Pettalino v State of New York, 24 AD2d 524 [in establishing a cause of action for malicious prosecution, "entrapment" may support finding of malice]), this argument is without merit. Aside from Claimant's self-serving statement, there is no indication Trooper Patterson's actions were motivated by an intent to ensnare Claimant into committing an offense. To the contrary, it is apparent that Trooper Patterson was attempting to assist Claimant in pursuing his matrimonial action and it was Claimant who chose to interpret the trooper's advice in a manner virtually irreconcilable with the warning by which it was accompanied. To the extent Claimant asserts other causes of action aimed at the conduct of Trooper Patterson, suffice it to say that the proposed claim fails to satisfactorily allege any wrongdoing on behalf of Patterson or the New York State Police.

Finally, with regard to the delay in returning Claimant's criminal records to him at expiration of the ACD period, Claimant has failed to articulate a basis for State liability or to demonstrate damages attributable to the delay. Much of the relief Claimant seeks, including the return of his photographs and fingerprints pursuant to CPL 160.50, is equitable in nature and inappropriate for consideration in the Court of Claims (see Court of Claims Act §9; CPL 160.50; Harper v Angiolillo, 89 NY2d 761 [article 78 proceeding for return of records]).

In sum, Claimant has not persuaded the Court there is a reasonable basis to believe a valid cause of action exists on the facts presented in his proposed claim and I decline to exercise my discretion in his favor. It is not necessary to address the other factors of §10(6), since allowing a proposed claim without merit is an exercise in futility (Prusack v State of New York, 117 AD2d 729 supra). Consequently, Motion No. M-61238 must be denied.
Motion No. M-62472
By Motion No. M-62472, Defendant seeks dismissal of Claim No. 103034. As previously noted, Claim No. 103034 reiterates many of the factual averments of Claim No. 102127-A. In its motion for dismissal, Defendant asserts that no notice of intention to file a claim was served upon the Attorney General in connection with the claim and, therefore, any cause of action accruing more than 90 days prior to the service and filing of the claim is untimely (Court of Claims Act §10). Claimant raises no opposition on this point, having already filed a claim and a motion for permission to file a late claim exhaustively detailing those causes of action.

The only "new" development addressed in Claim No. 103034 is the execution by Justice Jones of a two-year order of protection on June 17, 2000. The claim, served and filed on September 5, 2000, is timely to the extent it challenges the execution of that order of protection. However, the claim fails to state a cause of action upon which relief may be granted.

Claimant's contention is that Justice Jones, acting in concert with Ms. Gardner's attorney and the Orleans County District Attorney and in excess of his authority, executed an order of protection predicated upon a false statement that he was convicted of the charge of aggravated harassment in the second degree. He further alleges that his attempts to obtain a copy of the order have been unsuccessful. He asserts that the circumstances demonstrate not only wrongdoing on behalf of Justice Jones, Gardner's attorney and the District Attorney, but negligence on behalf of the New York State court system in training Justice Jones.

As more fully discussed in connection with Motion No. M-61238, neither Ms. Gardner's attorney nor the Orleans County District Attorney are individuals whose conduct may form a basis for liability against the State of New York. In executing the order of protection, Justice Jones was performing a judicial act for which the State is protected by absolute immunity. In addition, Claimant's conclusory assertion that Justice Jones and the Court Clerk were improperly trained in procedural matters by the "New York State Court System" is wholly unsupported by allegations of fact necessary to sufficiently plead a cause of action.

Finally, Claimant fails to draw a causal connection between the issuance of the order

of protection and the damages he states in his claim. Claimant's own submissions suggest Claimant was provided with releases as requested in his March 4, 1999 letter to Ms. Gardner. Moreover, nothing in the record suggests the order of protection prohibits Claimant from contacting his wife's attorney on legitimate matters directly related to the divorce. Consequently, Claimant's contention that fear of arrest prevents him completing documents necessary to finalize the divorce is unpersuasive. Claimant's further assertion that as a result of the protective order, he will be unable to obtain secured loans, his interest in his business and patents will be at the mercy of venture capitalists, and he will suffer millions of dollars of consequential damages is wholly speculative and unsupported by any fair reading of the facts of the claim. In any event, Claimant's remedy would be a motion to vacate the order of protection, relief beyond the jurisdiction of this Court.
Motion No. M-62449
As previously noted, Claimant's final "motion" for permission to file a late claim is comprised of a document entitled "Affirmation Response to Opposition Affirmation & Inquiry Upstate" and one entitled "Verified Claims," which is identical to one of two documents included under Claim No. 103034. The papers are insufficient to constitute a motion because they do not contain a Notice of Motion (CPLR 2211; Uniform Rules for the Court of Claims § 206.8[a]). Moreover, the content of the "Affirmation" suggests it may have been intended as a response to Defendant's motion to dismiss Claim No. 103034 and inquiry as to the status of Motion No. M-61238, Claimant's earlier motion for permission to file a late claim. In any event, even assuming the papers were intended as a motion, the only relief requested - permission to file a late claim - must be denied. For reasons stated above in dismissing Claim No. 103034, the present motion does not demonstrate an appearance of merit.

Based upon the foregoing, Motions No. M-61238 and M-62449 are denied. Motions No. M-61584 and M-62479 are granted and Claims No. 102127-A and 103034 dismissed.

January 8, 2001
Rochester, New York

Judge of the Court of Claims

Although the proposed claim submitted in support of the Motion No. M-61238 is not identical to Claim No. 102127-A, it appears to allege the same essential facts. The papers assigned Motion No. M-62449 include an "Affirmation Response to Opposition Affirmation & Inquiry Upstate" and a document entitled "Verified Claims" which is identical to one of two documents comprising Claim No. 103034.
Penal Law § 240.30(1) provides that a person is guilty of aggravated harassment in the second degree when he or she "with the intent to harass, annoy, threaten or alarm another person * * * [c]ommunicates * * * by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm."
At the time Claimant filed Claim No. 102127-A and Motion No. M-61238, he indicated his efforts to obtain a copy of the transcript of the June 17, 1999 hearing had been unsuccessful. Therefore, the allegations of his claim and proposed claim were drawn from his recollection of the proceeding. Claim No. 103034, however, includes a partial transcript of the June 17, 1999 proceedings (Transcript of Proceedings [6-17-99], Exhibit 14 to Claim No. 103034).
In the event he was directed by the Federal Aviation Administration (FAA) to fly in the prohibited area, Claimant agreed to obtain a written statement of the directive to submit to the court (Transcript of Proceedings [6-17-99], Exhibit 14 to Claim No. 103034, at 7).