New York State Court of Claims

New York State Court of Claims

THOMPSON v. THE STATE OF NEW YORK, #2001-015-019, Claim No. 103148, Motion No. M-62687


Synopsis


Claim based upon alleged legal malpractice of privately retained attorney and upon alleged unjust conviction (CCA § 8-b) dismissed for lack of jurisdiction and for failure to state a cause of action.

Case Information

UID:
2001-015-019
Claimant(s):
JOHN T. THOMPSON, JR. The caption of this claim was amended sua sponte in this Court's decision and order dated January 9, 2001 to reflect that this Court has no jurisdiction over the County of Albany which was improperly named as a defendant on this claim.
Claimant short name:
THOMPSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this claim was amended sua sponte in this Court's decision and order dated January 9, 2001 to reflect that this Court has no jurisdiction over the County of Albany which was improperly named as a defendant on this claim.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103148
Motion number(s):
M-62687
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
John T. Thompson, Jr., Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michele M. Walls, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 1, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


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 357).

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 legally stated.

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.


February 1, 2001
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 December 6, 2000;
  2. Affirmation in support of motion to dismiss in lieu of answer dated November 2, 2000, with exhibit.