New York State Court of Claims

New York State Court of Claims

SANCHEZ v. THE STATE OF NEW YORK, #2002-001-034, Claim No. N/A, Motion No. M-64552


Synopsis



Case Information

UID:
2002-001-034
Claimant(s):
RENE RAMON SANCHEZ
Claimant short name:
SANCHEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
N/A
Motion number(s):
M-64552
Cross-motion number(s):

Judge:
SUSAN PHILLIPS READ
Claimant's attorney:
Irving Cohen, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Kathleen M. Resnick, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
October 3, 2002
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on claimant's motion for permission to file a late claim pursuant to Court of Claims Act § 10 (6): Notice of Motion, dated December 28, 2001 and filed January 7, 2002; Affirmation of Irving Cohen, Esq., dated December 28, 2001 and filed January 7, 2002, with annexed Exhibits A-B; [proposed] Verified Claim, dated December 28, 2001 and received January 7, 2002; Affirmation in Opposition of Kathleen M. Resnick, Esq., AAG, dated February 11 and filed February 13, 2002; Affidavit of William J. Sillery, sworn to February 6 and filed February 13, 2002; Reply Affirmation of Irving Cohen, Esq., dated March 19 and filed March 25, 2002, with annexed Exhibits A-E; Sur-Reply in Opposition of Kathleen M. Resnick, Esq., AAG, dated and filed March 26, 2002; Supplemental Affidavit of William J. Sillery, sworn to and filed March 26, 2002; Sur-Reply Affirmation of Irving Cohen, Esq., dated April 24 and filed April 29, 2002. Movant Rene Ramon Sanchez ("movant") seeks permission to file a late claim pursuant to Court of Claims Act § 10 (6) to allege that defendant State of New York ("defendant" or "the State") through its Division of Criminal Justice Services ("DCJS") misidentified him as another person, which caused his wrongful imprisonment for approximately 66 days (Affirmation of Irving Cohen, Esq., dated December 28, 2001 and filed January 7, 2002, with annexed Exhibits A-B ["Cohen Aff."], ¶ 2; [proposed] Verified Claim, dated December 28, 2001 and received January 7, 2002 ["proposed claim"], ¶¶ 1, 27-28).[1]

I. Background

On July 15, 1995, the New York City Police ("NYPD") arrested movant for driving while intoxicated and felony reckless endangerment. When the NYPD fingerprinted movant afterwards, his fingerprints were somehow mistakenly recorded on a fingerprint card containing the name, NYSID ("New York State Identification") number and arrest information for someone named Leo Rosario ("Rosario"), who had been arrested by NYPD the previous day (Affidavit of William J. Sillery, sworn to February 6 and filed February 13, 2002 ["Sillery Aff."], ¶ 4; Supplemental Affidavit of William J. Sillery ["Sillery"], sworn to and filed March 26, 2002 ["Sillery Supp. Aff."], ¶ 5; Reply Affirmation of Irving Cohen, Esq., dated March 19 and filed March 25, 2002, with annexed Exhibits A-E ["Cohen Reply Aff."], ¶¶ 6, 28, Exh. C).

During the relevant time period, DCJS utilized a two-step procedure to enter fingerprint information into its database (Sillery Supp. Aff., ¶ 2). First, the arresting agency faxed the arrestee's fingerprint card to DCJS, and the arrestee's pedigree and criminal and fingerprint information were entered into DCJS's fingerprint/criminal history record system (id.). Next, the arresting agency mailed the original fingerprint card to DCJS (id., ¶ 3). Upon its receipt, a clerk compared the unique facsimile control number on the fingerprint card as well as the name, NYSID and arrest date to match up the actual card with the earlier faxed copy of it (id.). Upon verifying that the hard copy matched the earlier faxed copy, the fingerprints from the hard copy were digitally scanned and stored in DCJS's fingerprint/criminal history record system, overriding the fingerprints previously entered from the fax (id.).

According to DCJS, because of a mistake or mistakes made by NYPD, movant's fingerprints became linked with the NYSID number assigned to Rosario, and movant's name became an alias for Rosario in DCJS's fingerprint/criminal history record system (Sillery Aff., ¶ 4; see also, Sillery Supp. Aff., ¶¶ 5,10; Cohen Reply Aff., Exh. A [showing NYSID numbers for movant and Rosario to be the same]). Specifically,
Rosario was arrested by NYPD (33rd Precinct) on July 14, 1995. According to procedure, NYPD faxed Rosario's fingerprints to DCJS on July 15, 1995. [Movant] was arrested by the same NYPD precinct on July 15, 1995. . . . For some reason, NYPD must have had a need to re-fingerprint [Rosario]. Instead of re-fingerprinting him, however, NYPD recorded [movant's] fingerprints on a fingerprint card containing [Rosario's] name, date of birth, social security number, and other demographic and arrest information, then mailed that hardcopy fingerprint card to DCJS's Office of Operations, Fax Match Unit. In accordance with procedure, [DCJS's] automated fingerprint identification equipment captured the fingerprints and digitally stored them in [DCJS's] base files. For quality reasons, the record of the hardcopy prints replace[s] the fingerprints initially faxed to [DCJS] because hard copies of fingerprints are more clear than faxed copies. In this case, therefore, Rosario's actual fingerprints were replaced in [DCJS's] base files with [movant's] fingerprints because it was [movant's] fingerprints that were sent to [DCJS] by NYPD on the hardcopy fingerprint[] card that contained Rosario's name, date of birth, social security number and other information identifying the prints as Rosario's
(Sillery Aff., ¶ 4).

Movant's association with Rosario first came to light when, after his arrest by NYPD on August 8, 1998 for driving while intoxicated, he appeared before a judge in Criminal Court (Cohen Aff., Exh. B [General Municipal Law § 50-h hearing], at 12, 22, 26-28). Rosario's outstanding bench warrant, due to the matching NYSID number, appeared on movant's rapsheet (Cohen Reply Aff., Exh. A). After he denied being Rosario, Criminal Court directed that movant's fingerprints be taken and summoned Rosario's records (Cohen Aff., Exh. B, at 28-30). According to movant, he was released after the judge compared his physical appearance to a photograph of Rosario (id.).

Some two years later, on October 1, 2000, movant was pulled over by the police because his car had a defective light, and when NYPD checked his license number through its computer system, the warrant under Rosario's name turned up again (Cohen Aff., Exh. B, 14, 32; proposed claim, ¶¶ 9-10). Movant was taken to court, but released the same day after it was again determined that he was not Rosario (Cohen Aff., Exh. B, 34-35).

Ten days later, on October 11, 2000, movant, who was returning to the United States from the Dominican Republic, was taken into custody by NYPD at John F. Kennedy Airport on account of the same Rosario warrant. He was first held in a New York City ("City") jail, but on October 19, 2000 a Criminal Court judge released him to INS's custody (proposed claim, ¶¶ 12-14). Movant remained in INS's custody until December 20, 2000, when he was released after "authorities recognized" that he was not Rosario (proposed claim, ¶ 15).

II. Discussion

In order to determine whether to grant an application for permission to file a late claim, the Court must consider, among any other relevant factors, the six statutory factors set forth in Court of Claims Act § 10 (6): (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. The Court in the exercise of its discretion balances these factors, and, as a general rule, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

Movant's excuse for his proffered claim's untimeliness is law office failure; specifically, that his attorney's clerk failed to serve a notice of intention upon the State despite being instructed to do so and having successfully served a notice of claim upon the City (Cohen Aff., ¶¶ 5-6; Cohen Reply Aff., ¶ 2). Since law office failure is not an adequate excuse for neglecting to comply with the filing requirements of the Court of Claims Act (see, Nyberg v State of New York, 154 Misc 2d 199, 200; Szmulewicz v State of New York, 29 Misc 2d 298 [alleged failure of the secretary of movant's attorney to follow direction to serve a copy of the notice of intention on the Attorney-General does not present a reasonable excuse]), this factor weighs against movant's application.

The second, third and fifth factors (whether defendant had notice of the essential facts constituting the claim, whether defendant had an opportunity to investigate the circumstances underlying the claim and whether movant's delay resulted in substantial prejudice to defendant) are related. Accordingly, the Court will consider them together (see, Brewer v State of New York, 176 Misc 2d 337, 342).

Defendant contends that movant's delay in filing the claim or motion to file a late claim substantially prejudiced it as DCJS and/or the State were not aware of the false fingerprint card until served with movant's papers, at which time DCJS corrected the error (Affirmation in Opposition of Kathleen M. Resnick, Esq., AAG, dated February 11 and filed February 13, 2002 ["Resnick Aff."], ¶¶ 10-13; Sillery Aff., ¶¶ 5, 6; Sillery Supp. Aff., ¶ 11). Movant counters that the State has not been prejudiced because the matter has now been fully investigated (see generally, Sillery Aff.); and that the investigation's ultimate conclusion--that NYPD sent DCJS inaccurate information--is unaffected by the claim's untimeliness (Cohen Reply Aff., ¶¶ 6, 9-10). DCJS was obviously unable to investigate the error in its fingerprint/criminal history record system before learning of it,[2] but has not suggested that movant's late filing prejudiced its means to do so. Accordingly, these factors, although not weighing heavily in movant's favor, do not strongly militate against granting his application either.

Next, the most critical factor is the apparent merit of the proposed claim (see, Plate v State of New York, 92 Misc 2d 1033). Unlike a litigant who has timely filed his claim, a party seeking permission to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see, Nyberg v State of New York, 154 Misc 2d 199, supra). To establish this factor, however, a movant need only show that the proposed claim is not patently groundless, frivolous or legally defective, and that there is reasonable cause to believe that a valid cause of action exists (see, Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). If a movant cannot meet this low threshold and the claim is patently without merit, it would be meaningless and futile for the court to grant the application even if all the other factors in Court of Claims Act § 10 (6) favored the request (see, Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729).

Movant's first listed cause of action alleges violations of Federal law and is premised upon 42 USC §§ 1983 and 1985 (proposed claim, ¶¶ 17-20). Because the State cannot be considered a "person" within the meaning of these civil rights statutes, this portion of movant's proposed claim is not actionable in the Court of Claims (see, e.g., Monell v Department of Soc. Servs. of the City of New York, 436 US 658; Ferrick v State of New York, 198 AD2d 822; Zagarella v State of New York, 149 AD2d 503; De La Rosa v State of New York, 173 Misc 2d 1007; see also, Brown v State of New York, 89 NY2d 172, 185, citing Jett v Dallas Ind. School Dist., 491 US 701).

Movant's second proposed cause of action alleges that defendant caused movant "to experience immediate harmful and/or offensive touching and battery" (proposed claim, ¶ 22). This portion of movant's application fails for two reasons. First, Court of Claims Act § 10 (6) only gives the Court discretion to allow late claims up to the time when "an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules" (Court of Claims Act § 10 [6]). CPLR 215 (3) provides that an action to recover damages for battery shall be commenced within one year of its accrual, and here the latest potential accrual date is December 20, 2000, the date when INS released movant from custody (see generally, Maendel v State of New York, 178 Misc 2d 297). In addition, nothing in movant's papers hints that any State employee ever came into physical contact with him.

The third, fourth and fifth causes of action in the proposed claim allege that movant was damaged as a result of "false arrest, false imprisonment, malicious prosecution and deprivation of liberty" (proposed claim, ¶ 26). These causes of action are likewise untimely under article two of the CPLR and are thus beyond the remedial reach of Court of Claims Act § 10 (6) (see, Bardi v Warren County Sheriff's Dept., 260 AD2d 763, 764; Coyne v State of New York, 120 AD2d 769, 770; Maendel v State of New York, supra). In any event, any action sounding in false arrest or imprisonment against the State would fail even if it had been timely commenced inasmuch as it was NYPD and, later, INS that arrested and/or detained movant, not the State (see, Secard v Department of Social Servs. of County of Nassau, 204 AD2d 425, at 426, citing Broughton v State of New York, 37 NY2d 451, 456).

Movant's sixth and final proposed cause of action alleges that "the acts and conduct of the defendant were negligent" (proposed claim, ¶ 28).[3] The proposed claim does not specify the negligent State actor(s) or their allegedly negligent act(s) (id.), but the only State entity referred to in the proposed claim's "Preliminary Statement" is DCJS (id., ¶ 1). In his moving papers movant focuses on the alleged negligence of DCJS and, in his sur-reply papers, of Court employees--specifically, clerks or court officers--all of whom he faults for failure to correct the mistaken association of his fingerprints with Rosario's name, NYSID and criminal information (Sur-Reply Affirmation of Irving Cohen, Esq., dated April 24 and filed April 29, 2002 ["Cohen Sur-Reply"], ¶¶ 5-13).

DCJS is statutorily charged with acting essentially as a clearinghouse to which agencies involved with law enforcement contribute criminal justice information and from which they access data from DCJS's central data facility (see, Executive Law § 837 [6]; 9 NYCRR 486.2 [b]). As part of this process, DCJS receives and maintains, among other things, fingerprint and other data for purposes of establishing the identity and criminal history of arrestees (see, Executive Law § 837 [7]). Accordingly, an arresting agency has a duty to forward copies of an arrestee's fingerprints to DCJS (CPL § 160.20), and DCJS has the reciprocal duty to receive the fingerprints, enter them into its database and forward to the arresting agency a report (rapsheet) containing all information in its records pertaining to the subject's criminal record (see, CPL § 160.30).

DCJS has no statutory duty to inquire into or assess the accuracy of the large volume of information provided to it by all the criminal justice agencies operating at the State, county, city, district, town and village levels in New York State (see, Sillery Supp. Aff., ¶ 6 [noting that in 1995 DCJS processed approximately 900 fingerprint cards a day alone, or 335,000 for the year]). Nor has the Court located any statutory duty or procedure to correct erroneous data appearing in a DCJS file, or any regulatory procedure for doing so other than the "Statement of Challenge" that a person (or his attorney, if properly authorized) may submit to contest the completeness or accuracy of his own criminal history record information (see, 9 NYCRR 6050.2; see also, Resnick Sur-Reply Aff., ¶ 9 [noting that "although movant was aware of the error with his criminal history record, neither he nor any of his attorneys took any steps to notify DCJS to correct the error"]).

DCJS's "Standard Practices Manual" states generally that "[w]hen courts and other criminal justice agencies notice the need to correct inaccuracies . . . [or] errors . . . pertaining to their agency on the DCJS rapsheet, written documentation of the correction needed should be made to the [DCJS]," or "[n]otification may also be made by phoning the DCJS Customer Service Contact Center" (New York State Standard Practices Manual, Processing Fingerprintable Criminal Cases ["Standard Practices Manual"], at 55 [emphasis supplied]).[4] The "Arrest Processing" portion of the manual similarly provides as follows:
Upon receipt of a rapsheet, each recipient should review it for accuracy as to their particular reported action. If errors or omissions are noticed, or the information did not associate to the appropriate arrest, notify New York State Division of Criminal Justice Services, Office of Operations, Criminal History Bureau (id., at 30; <http://www.criminaljustice.state.ny.us/stdpractices/arrest3a.htm> [emphasis supplied]).
Thus, the Standard Practices Manual--which is, in any event, aspirational and hortatory guidance, not a regulation--essentially calls for each criminal justice agency to review the information that it supplies to DCJS for completeness and accuracy. Accordingly, the courts are generally responsible for sharing and reporting case information as necessary to allow DCJS to close out arrest information with a matching court action (id., at 48).

Movant complains first that the State was negligent because DCJS's information systems were not set up to provide for some sort of automatic notification that would have lead DCJS to correct his records in the fingerprint/criminal history record system once Criminal Court in 1998 determined that he was not Rosario (Cohen Sur-Reply, ¶¶ 12, 15). The collection, maintenance and dissemination of fingerprint/criminal history information among and between criminal justice agencies is, however, an activity that is quintessentially governmental in nature and for which the State therefore enjoys sovereign immunity (Sebastian v State of New York, 93 NY2d 790). Moreover, even if movant could point to and prove an instance of ministerial neglect on the part of DCJS (e.g., if DCJS had, in fact, failed to correct its records after notification of the error), he still would have no cause of action against the State for negligence unless he could establish that DCJS thereby breached a duty specifically owed to him (see generally, Lauer v City of New York, 95 NY2d 95, 100). He has neither alleged nor otherwise provided any facts to suggest the existence of any such duty.

Movant in his sur-reply papers substantially redirects his allegations of negligence away from DCJS and towards non-judicial Court personnel (Cohen Sur-Reply, ¶¶ 5-13). Specifically, movant argues that "once [he] was brought to court as [Rosario], in 1998 and then 2000, . . . officials and employees of the Criminal Court . . . and the Supreme Court" were "made aware of the mistake" (id., ¶ 7); that "each time [movant] came to court . . . in 1998 and again in October 1, 2000, he, either personally or through his counsel, told the Court that he was not Rosario and that a recurring mistake had been made. And, on each occasion, sooner or later, the Court recognized the error and released him" (id., ¶ 8 [emphasis in original]); that "Apart from the judge, therefore, these other State court employees were made aware of the mistake on each occasion. They include court officers and the clerks who keep and transmit such records"[5] (id., ¶ 9); and that "both in Supreme Court and the Criminal Court, the State had actual knowledge of the error--through its employees in those courts. The failure of these State actors to notify the DCJS--if that was the case--cannot be laid at the foot of [movant]. He told the State authorities when brought to court and, to him, they listened because he was released believing it would never happen again" (id., ¶ 13 [emphasis in original]).

The Court is aware of two appellate division decisions in which ministerial neglect on the part of non-judicial court employees served as the basis for a negligence claim against the State (see, e.g., Marx v State of New York, 169 AD2d 642 [First Department affirmed trial court's finding of liability where claimant's injuries were caused by ministerial negligence of housing court clerks who lost case file and then, once file was recovered, failed to alert marshal about to execute eviction notice that dispossess petition against claimant had been dismissed]; Saunsen v State of New York, 81 AD2d 252 [Second Department held that State could be liable for non-judicial employees' negligence, if proven at trial, to recall an arrest warrant issued for non-payment of a traffic fine that had, in fact, been paid]). As previously noted, the proposed claim itself says nothing about the negligence of non-judicial court employees; and in his motion papers, movant merely vaguely accuses "court officers" and "clerks" (presumably those who were present during or who handled some of the paperwork related to his court appearances in 1998 and 2000) of negligence without pointing out any specific assigned task or responsibility that any court officer or clerk failed to carry out properly. More importantly, these appellate division cases were decided long before the Court of Appeals' decision in Lauer v City of New York (95 NY2d 95, supra)[6] and do not consider whether the ministerial neglect at issue was otherwise tortious (compare Marx v State of New York, 169 AD2d 642, supra, and Saunsen v State of New York, 81 AD2d 252, supra, with Marin v City of New York, 190 Misc 2d 809 [App Term, 1st Dept] [citing Lauer, appellate term held that City not liable for negligence where plaintiff was arrested on a warrant, strip searched and incarcerated for several days on account of a police officer's mistake in serving him with the wrong form of summons because plaintiff was unable to show that he was owed a special duty beyond that ordinarily associated with the police officer's routine law enforcement function]). Again, movant has neither alleged nor provided any facts to suggest that non-judicial court personnel breached a duty specifically owed to him.

In summary, none of the causes of action pleaded by movant is meritorious within the meaning of Court of Claims Act § 10 (6). Accordingly, the critical fourth factor disfavors movant's application.

The final consideration--whether movant has an alternative remedy--also weighs against the application. Movant is at present proceeding against the City (Cohen Aff., ¶ 17) and, according to defendant, has sued the Commissioner of DCJS and the City in Federal court (Resnick Sur-Reply Aff., ¶ 10).

III. Conclusion

Upon reviewing and balancing the factors set forth in Court of Claims Act § 10 (6), the Court finds that these factors considered as a whole weigh against granting this application for permission to file a late claim relief. Accordingly, the Court denies movant's motion.

October 3, 2002
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]Movant simultaneously filed a claim in the Court of Claims (Claim No. 105435, dated December 28, 2001 and filed January 7, 2002). The State's answer contains, among others, the defense that the Court lacks jurisdiction over the claim pursuant to Court of Claims Act § 10 because of its untimely filing (Answer, dated February 13 and filed February 14, 2002, ¶ sixth); and, indeed, movant's papers on this motion indicate that the latest potential accrual date for his claim is December 20, 2000, the date when he was released from the custody of the Immigration and Naturalization Service ("INS"), which is more than ninety days before the claim's filing in the Court of Claims.
[2]As will later appear, movant in his sur-reply papers espouses the position that the State's non-judicial Court employees, in fact, discovered, had an opportunity to notify and should have notified DCJS of the error in 1998 or in 2000.
[3]Numerous cases hold that when an action centers upon a wrongful detention, as it does here, a litigant "may not recover under broad general principles of negligence, . . . but must proceed by way of the traditional remedies of false arrest and imprisonment and malicious prosecution" (Boose v City of Rochester, 71 AD2d 59, 62; see, Lorensen v State of New York, 249 AD2d 762, 764 n2; Heath v State of New York, 229 AD2d 912; Higgins v City of Oneonta, 208 AD2d 1067, 1069; Secard v Department of Social Servs. of County of Nassau, supra; Shea v County of Erie, 202 AD2d 1028; Remley v State of New York, 174 Misc 2d 523, 525). In those cases, however, the allegations of negligence were directed only at the entity that arrested or confined the plaintiff or claimant.
[4]The Standard Practices Manual was developed as part of a federally-funded "comprehensive, long-term project" undertaken by DCJS to improve its criminal history records systems, which, among other things, identified a need to standardize practices so as to improve the quality of data and coordination among the 3,000 criminal justice agencies operating in the State (Standard Practices Manual, at 1-3). The Standard Practices Manual is available online at <http://www.criminaljustice.state.ny.us/stdpractices>, last updated January 2002.
[5]There is no antecedent for "such records."
[6]In fact, the decision in Marx was cited with approval by the Second Department in its decision in Lauer v City of New York (258 AD2d 92, 102), which was subsequently reversed by the Court of Appeals.