The defendant's motion pursuant to CPLR 3211 (a) 2, (a) 7 and (a) 8 for an
order dismissing the claim for failure to state a cause of action and for lack
of jurisdiction, upon which the claimant has failed to submit opposition, is
granted. The record establishes that the claimant was served with a copy of the
instant motion to dismiss the claim on November 2, 2000. He did not formally
respond to the motion although he submitted an unsworn letter dated November 24,
2000 devoted primarily to explaining his delay in filing the claim. It does
not appear that a copy of the letter was provided to the defendant's attorney.
The claim herein was filed with the Court on September 28, 2000 and is
deficient in several critical respects. In narrative fashion it relates factual
allegations regarding the claimant's arrest in the City of Cohoes, County of
Albany, on December 2, 1998 on a charge of driving while intoxicated. It
further alleges that an unnamed police officer, with no apparent legal
connection to the State of New York, offered perjured testimony at trial
regarding certain facts upon which the claimant's DWI arrest was predicated.
Claimant alleges that the testimony ultimately resulted in his conviction for
the crime of driving while intoxicated and that he was sentenced to a term of
one to three years in a state correctional facility. Claimant does not allege
that his conviction was overturned on appeal or otherwise vacated.
The claim further alleges that the lawyer hired by claimant's mother to
represent him on the criminal charge failed to disclose that he was a former
judge in the City of Cohoes, a public defender and a "legal counsel member in
the city of cohoes [sic]." Claimant asserts that he was disadvantaged by
the conflicts of interest presented by his attorney's involvement with the City
of Cohoes. Claimant does not, however, allege in the claim that the attorney
was an employee of the State of New York at the time he committed the acts
complained of. As noted above, claimant's attorney was apparently retained
pursuant to a private agreement with claimant's mother and the claim fails to
allege a legal nexus between the attorney and the defendant State of New York.
Additionally, the claim contains no request for money damages and, in fact,
fails to request relief in any form.
Pursuant to Court of Claims Act § 8 the State has waived its immunity from
liability and "[t]he waiver includes all claims over which the Court of Claims
has jurisdiction- appropriation, breach of contract and tort - and applies the
rule of respondeat superior to the State" (Brown v State of New York, 89
NY2d 172, 181; see, Court of Claims Act § 9 (2). The effect of the
doctrine of respondeat superior is to render the State liable for the tortious
acts of its officers or employees when acting in the scope of their employment
(State of New York v Popricki, 89 AD2d 391). "An employee acts in the
scope of his employment when he is doing something in furtherance of the duties
he owes to his employer and where the employer is, or could be, exercising some
control, directly or indirectly over the employee's activities" (Lundberg v
State of New York, 25 NY2d 467, 470, rearg den 26 NY2d 883).
Claimant herein has failed to allege facts showing that either the arresting
officer or claimant's privately retained attorney was an officer or employee of
the State acting within the scope of their State employment when the act or
omission of which claimant complains occurred. Nor may either of these
indispensable elements be inferred from the facts alleged in the instant claim.
Absent such allegations the claim fails to state a cause of action.
Subdivision (b) of section 11 of the Court of Claims Act, in relevant part,
provides "[t]he claim shall state the time when and 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." It is well settled that 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).
While a notice of intention to file a claim will be deemed sufficient if it
substantially complies with the pleading requirements of the Court of Claims
Act, more is required of a claim (Ferrugia v State of New York, 237 AD2d
858). A claim must set forth a cause of action against the State and, at the
very least, assert in some factual manner the nature of the State's alleged
negligence (Bonaparte v State of New York, 175 AD2d 683). The burden of
complying with the pleading requirements contained in section 11 (b) falls upon
the claimant and the State "is not required to go beyond a claim or notice of
intention in order to investigate an occurrence or ascertain information which
should be provided pursuant to Court of Claims Act § 11" (Grande v State
of New York, 160 Misc 2d 383, 386).
The instant claim does not "provide a sufficiently detailed description of the
particulars of the claim to enable the State to investigate and promptly
ascertain the existence and extent of its liability" (Sinski v State of New
York, 265 AD2d 319). Claimant fails to allege the time when the claim
arose, the injuries he sustained, and the amount sought by way of compensation.
A claim failing to comply with the requirements of Court of Claims Act § 11
(b) is jurisdictionally defective (Cobin v State of New York, 234 AD2d
498) and subject to dismissal (Schneider v State of New York, 234 AD2d
The apparent unjust conviction cause of action is likewise legally
insufficient. The elements of such a cause of action are set forth in Court of
Claims Act § 8-b and require that claimant establish by documentary
evidence that he was convicted and served all or any part of the sentence
imposed, that his conviction was reversed and the accusatory instrument
dismissed, and that his claim was timely (see, Reed v State of New
York, 78 NY2d 1). The instant claim fails to assert any allegation that
claimant's DWI conviction was reversed and the accusatory instrument dismissed.
Absent such an allegation, a cause of action for unjust conviction has not been
Accordingly, the instant claim is dismissed for lack of jurisdiction and
failure to state a cause of action. Dismissal on these grounds renders academic
the question of whether the instant claim was timely filed pursuant to section
10 of the Court of Claims Act.