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).
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,
(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).
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
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
). 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, ¶
The proposed claim does not specify the
negligent State actor(s) or their allegedly negligent act(s) (id.
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"], ¶¶
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 ; 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 ). 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
The "Arrest Processing" portion
of the manual similarly provides as follows:
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
, ¶ 9); and that
"both in Supreme Court and the Criminal Court, the State had
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
, 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
, 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,
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
, 190 Misc 2d 809 [App Term, 1st Dept] [citing Lauer
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
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).
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.