New York State Court of Claims

New York State Court of Claims

DOANE v. THE STATE OF NEW YORK, #2001-019-519, Claim No. 102870, Motion No. M-63044


Synopsis


State's motion to dismiss due to Claimants' failure to comply with filing and service requirements of CCA 10 and 11 granted . Claim No. 102870 DISMISSED in part. Claim Nos. 102871 & 102869 DISMISSED in their entirety.


Case Information

UID:
2001-019-519
Claimant(s):
JOHN L. DOANE
Claimant short name:
DOANE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102870
Motion number(s):
M-63044
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
LEARNED, REILLY & LEARNED, LLPBY: Philip C. Learned, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Earl F. Gialanella, Assistant Attorney General of counsel
Third-party defendant's attorney:

Signature date:
April 4, 2001
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)
2001-019-520, 2001-019-521


Decision


The State of New York (hereinafter "State") moves to dismiss these claims pursuant to CPLR 3211 for the failure of each Claimant to comply with the service and/or filing requirements of the Court of Claims Act (hereinafter "CCA") 10 and 11.[1]


The Court has considered the following papers in connection with this motion:
  1. Claim No. 102870, filed August 8, 2000.
  2. Claim No. 102871, filed August 8, 2000.
  3. Claim No. 102869, filed August 8, 2000.
  4. Verified Answer, to Claim No. 102871, filed September 11, 2000.
  5. Verified Answer, to Claim No. 102869, filed September 11, 2000.
  6. Verified Answer, to Claim No. 102870, filed September 12, 2000.
  7. Notice of Motion No. M-63044, dated January 31, 2001, filed February 2, 2001.
  8. Affirmation of Earl F. Gialanella, AAG, in support of motion, dated January 31, 2001, with attached exhibits.
  9. Affidavit of Philip C. Learned, Esq., in support of motion, dated and sworn to March 7, 2001, and filed March 9, 2001.
Each of these claims arise from an incident on April 5, 1999, when State troopers executed a search warrant at the residence of John L. Doane. Mr. Doane was arrested and charged with criminal possession of stolen property. On June 14, 1999, all charges against Mr. Doane were dismissed without prejudice, although a vehicle[2] was impounded in the interim between April 5, 1999 through June 14, 1999. Mr. Doane's sister, Dianna S. Doane, and live-in girlfriend, Tasha R. Mathews Doane, also commenced claims arising from Mr. Doane's arrest, detainment, and subsequent investigation. By way of this motion, the State asserts this Court does not have jurisdiction over portions of the claim of John L. Doane or the claims of Dianna S. Doane and Tasha R. Mathews Doane, in their entirety, due to the failure of each Claimant to comply with CCA 10 and 11. The State's corresponding Verified Answers do set forth, with particularity, these jurisdictional defenses pursuant to CCA 11 (c).


I. John L. Doane: Claim No. 102870; Motion No. M-63044

Mr. Doane's claim alleges false arrest/false imprisonment; malicious prosecution; slander and defamation; negligence; and property damage to the vehicle all arising from the aforementioned events.[3] Mr. Doane served a Notice of Intention on the attorney general's office on July 6, 1999,[4] and served and filed his Claim on August 8, 2000.


The State argues that all of Mr. Doane's causes of action, except for the property damage claim, are based on intentional torts rather than negligence and are thereby subject to the one year limitation period applicable to intentional torts pursuant to CCA 10 (3-b).[5] The Court notes that there is no legally cognizable cause of action for negligent investigation of a crime. (Hernandez v State of New York, 228 AD2d 902). As such, the Court agrees with the State's position that Claimant's remedies are the intentional torts named below.


a) False arrest/false imprisonment

The one-year limitation period within which to commence a cause of action for false arrest/false imprisonment starts when the confinement ends. (Collins v. McMillan, 102 AD2d 860; CCA 10 [3-b]). Here, Mr. Doane was arrested and released on April 5, 1999, which is the date of accrual for this cause of action. Claimant timely served a Notice of Intention on July 6, 1999, thereby extending his time to file and serve a claim. As such, in order for the claim to be timely it must have been filed and served on or before April 5, 2000, but it was not filed and served until August 8, 2000, more than one-year from the date of accrual.[6] Thus, the Court is without jurisdiction of this Claim to the extent it contains a false arrest/false imprisonment cause of action.




b) Malicious Prosecution

A claim for malicious prosecution must be commenced within one-year from the date of accrual, namely when the criminal proceeding is terminated in favor of the accused. (CCA 10 [3-b]). Here, the charge against Mr. Doane was dismissed without prejudice on June 14, 1999. Mr. Doane timely served a Notice of Intention on July 6, 1999, within 90 days from accrual so he had until June 14, 2000 (one year from the date of accrual) to serve and file his claim. Claimant missed this deadline by not serving and filing his claim until August 8, 2000. Accordingly, Claimant's cause of action for malicious prosecution must be dismissed as untimely.


c) Slander and Defamation

Any cause of action for slander or defamation is also considered an intentional tort and thus is subject to the one-year limitations period. (CCA 10 [3-b]). No specific date is provided in the claim as the date of accrual for this cause of action. In this Court's view, the date of accrual is April 5, 1999, at the earliest, and June 14, 1999, at the latest. In either event, this Claim was not filed until August 8, 2000, which is more than one year after these dates and, as such, is untimely and must be dismissed.


d) Property Damage

Finally, the State concedes that this Claim was timely served and filed with respect to the property damage cause of action. Accordingly, Claim No. 102870 is now simply a claim for property damage, if any, resulting from the seizure of the vehicle between April 5, 1999 through June 14, 1999.[7]


II. Dianna S. Doane: Claim No. 102871; Motion No. M-63044

Ms. Doane alleges negligence, harassment, and property damage by the State in connection with the aforementioned arrest and investigation of her brother. More specifically, on April 17 and 18, 1999, Ms. Doane alleges she was pulled over without cause and interrogated and detained at the State Police barracks for questioning regarding her brother's case. Whether Ms. Doane's causes of action are described in terms of negligence or intentional tort, a claim had to be filed and served within ninety days of accrual, unless a notice of intention was served within ninety days of accrual. (CCA 10 [3] & [3-b]). The notice of intention, if any, had to be served personally or by certified mail, return receipt requested. (CCA 11). Here, Ms. Doane served her Notice of Intention by express mail on July 16, 1999. It is well-settled that express mail does not satisfy the mandates of the statute. (Hodge v State of New York, 213 AD2d 766). As such, the Notice of Intention was improperly served. Without a properly served notice of intention to extend the relevant time periods, Ms. Doane had to serve and file her claim within ninety days from accrual pursuant to CAA 10 & 11. Consequently, Ms. Doane's Claim was untimely because it was not served and filed until August 8, 2000, well beyond the initial ninety day period. Accordingly, Claim No. 102871 must be dismissed.




III. Tasha R. Mathews Doane: Claim No. 102869; Motion No. M-63044

Ms. Mathews-Doane alleges damages as the result of the negligence of the State in arresting her boyfriend, John L. Doane, and harassing her in the process during his arrest on April 5, 1999. Ms. Mathews-Doane served a Notice of Intention on the attorney general's office on July 6, 1999. Her Claim was served and filed on August 8, 2000. The State argues that the gravamen of this claim are the same intentional torts outlined in Mr. Doane's claim, rather than the stated negligence cause of action. The Court agrees with the State's analysis that the claims of Ms. Mathews-Doane are more appropriately described as being grounded upon intentional torts rather than negligence and, as such, are subject to the one-year period of CCA 10 [3-b]. (Bryden v Wilson Mem. Hosp., 136 AD2d 843, 844 ["it is the gravamen or essence of the cause of action which is considered in determining the applicable Statute of Limitations [citations omitted]"). Consequently, the Claim served and filed on August 8, 2000, more than one year after accrual, was untimely and must be dismissed.


Accordingly, for the reasons stated above, it is


ORDERED that the State's motion to dismiss, Motion No. M-63044, is GRANTED in accordance with the foregoing and Claim No. 102870 is DISMISSED IN PART; it is further


ORDERED that Claim Nos. 102871 and 102869 are DISMISSED in their entirety.


April 4, 2001
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]The State's motion is not directed to that portion of Mr. Doane's Claim alleging property damage.
[2]From the record, the Court does not reach the issue of ownership of this vehicle.
[3]This Claim is without merit to the extent it purports to include a cause of action for violation of Claimant's federal constitutional rights of due process and equal protection under the Federal Civil Rights Act 42 USCS 1983. (Ferrer v State of New York, 172 Misc 2d 1, 5).
[4]The State concedes the service of this Notice of Intention on July 6, 1999, albeit on the 92nd day, was timely because July 4th and 5th were a Sunday and holiday, respectively.

[5]CCA 10 (3-b) states that a claim based upon intentional tort "[s]hall be filed and served within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim."

[6]The State actually argues that Claimant had until July 6, 2000, calculating the one-year period from the end of the initial 90-day period. However, according to CCA 10 (3-b), the one-year period runs from the accrual of such claim and not from the date of service of notice of intention. In either event, Mr. Doane's claim was untimely filed and served.
[7]From this record, the Court does not reach the issue of ownership of this vehicle.