New York State Court of Claims

New York State Court of Claims

ARROYO v. THE STATE OF NEW YORK, #2002-016-041, Claim No. 103695, Motion No. M-64501


Motion to dismiss on grounds of alleged timeliness and alleged failure to adequately plead malicious prosecution was granted in part and denied in part.

Case Information

DAVID ARROYO The caption has been amended to reflect that the sole proper defendant is the State of New York.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect that the sole proper defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
Flora Edwards, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Nancy Hornstein, Esq., AAG
Third-party defendant's attorney:

Signature date:
May 17, 2002
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is defendant's motion to dismiss the claim of David Arroyo. In the underlying claim, it is alleged that a New York State correction officer engaged in an unprovoked assault on claimant on August 6, 1999 and subsequently caused him to be arrested and prosecuted. The claim contains five causes of action: (1) assault; (2) malicious prosecution; (3) intentional infliction of emotional distress; (4) negligent hiring, training and supervision; and (5) state constitutional tort. Defendant argues that the claim should be dismissed on the grounds that: the claim was untimely with respect to the first, third, fourth and fifth causes of action; and with respect to the second cause of action, the claim does not adequately plead malicious prosecution.

The First and Third Causes of Action: Assault and Intentional Infliction of Emotional Distress

It is undisputed that: (1) a notice of intention was served on the Attorney General on September 1, 1999; (2) the claim was served on the Attorney General on January 16, 2001; and (3) the claim was filed with the Clerk of the Court on January 19, 2001.

Section 10.3-b of the Court of Claims Act provides with regard to intentional torts that if a notice of intention is filed within 90 days of accrual, the claim must then be filed within one year of accrual. The claim in this case contains two causes of action for intentional tort -- the first, for assault, and the third, for intentional infliction of emotional distress. While Arroyo's notice of intention was filed within 90 days of accrual, the claim itself was not filed until approximately 17 months later.

"It is well established that compliance with sections 10 and 11 of the Court of Claims Act pertaining to the timeliness of filing and service requirements respecting claims and notices of intention to file claims constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and accordingly, must be strictly construed . . ." Byrne v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv denied 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted). See also Mallory v State of New York, 196 AD2d 925, 601 NYS2d 972 (3d Dept 1993). As Arroyo failed to serve and file his claim within one year of accrual of his first and third causes of action, this Court lacks jurisdiction over such causes of action.

The Fourth and Fifth Causes of Action: Negligent Hiring, Training and Supervision; and State Constitutional Tort

Defendant argues that since references to negligent hiring, training and supervision and of state constitutional tort were not specifically made in Arroyo's notice of intention, such causes of action, which are asserted in the claim, were untimely. Arroyo's notice of intention provided as follows:
The time when and the place where such claim arose and the nature of the same are as follows: On August 6, 1999 at or about 6:30-7 p.m. at the corner of 156th Street and Elton Avenue, County of Bronx, State of New York, New York State Correction Officer David McMillan, Shield 22044 assigned to Sing Sing Correctional Facility, set his dog upon Claimant and then drew his gun and repeatedly struck Claimant on the head, causing him to fall to the ground, and causing wounds which were [sic] required approximately 24 stitches. Having severely beaten Claimant, Correction Officer McMillan without probable cause and in [sic] without authority arrested Claimant causing him to spend the night in custody. The above conduct by Correction Officer McMillan caused Claimant to suffer serious injury, substantial pain and suffering and [sic] well as extreme humiliation, annoyance and alarm.

While the notice of intention does not specifically refer to negligent hiring, training and supervision, claimant's allegations of assault by a correction officer are sufficient to put the state on notice that the hiring, training and supervision of its employee would be called into question.

As to a tort under the State Constitution, however, the facts alleged in the notice of intention do not put the State on notice of the type of tort contemplated by Brown v State of New York, 89 NY2d 172, 652 NYS2d 223 (1996). In Brown, law enforcement officials investigating a reported knife point attack interrogated all non-white males in and around the city of Oneonta. The facts alleged in the notice of intention – and in the claim for that matter -- do not fall within the protection of Brown.

The Second Cause of Action: Malicious Prosecution

The elements of a cause of action for malicious prosecution [1] are: (1) the initiation of a criminal proceeding; (2) its termination in favor of the accused; (3) a lack of probable cause for the proceeding; and (4) actual malice. Broughton v State of New York, 37 NY2d 451, 457, 373 NYS2d 87 (1975), cert denied sub nom Schanbarger v Kellogg, 423 US 929 (1975). Defendant argues that the second element has not been sufficiently alleged, citing Hollender v Trump Village Cooperative, Inc., 58 NY2d 420, 461 NYS2d 765 (1983) for the proposition that the determination must, on its face, indicate innocence. In Smith-Hunter v Harvey, 95 NY2d 191, 199, 712 NYS2d 438, 443 (2000), the Court of Appeals, in finding that a dismissal of charges on speedy trial grounds constituted favorable termination, noted that "[o]ur holdings in Ward, Hollender and MacFawn stand only for the proposition that dispositions inconsistent with innocence . . . cannot be viewed as favorable to the accused."

According to Arroyo's claim, the charges against him were dismissed on the People's motion after they reviewed the report of an arbitrator[2] which found, inter alia, that the correction officer indulged in a street brawl which he himself started after not cleaning up after his dog in violation of New York City ordinances; invoked his peace officer status to stop a fight that he himself had started; unlawfully represented himself as a police officer; and drew his gun and hit claimant. In short, I find that claimant has sufficiently alleged that the proceeding against him was favorably terminated.
* * * * *
For the foregoing reasons, having reviewed the parties' submissions,[3] IT IS ORDERED that motion no. M-64501 be granted to the extent that claimant's first, third and fifth causes of action, for assault, intentional infliction of emotional distress and state constitutional tort, respectively, be dismissed and such motion otherwise be denied with respect to claimant's second and fourth causes of action for malicious prosecution and negligent hiring, training and supervision, respectively.[4]

May 17, 2002
New York, New York

Judge of the Court of Claims

  1. [1]It is undisputed that Arroyo's claim for malicious prosecution was timely filed and served within 90 days of the termination of the criminal proceeding against him on October 30, 2000.
  2. [2]The New York State Department of Correctional Services charged the correction officer with various violations after which an arbitration was held.
  3. [3]The following were reviewed: defendant's notice of motion with affirmation in support and exhibits A-C; and claimant's affirmation in opposition.
  4. [4]Claimant's opposition papers refer to a cross-motion for leave to amend the claim with respect to his second cause of action, although no cross-motion was noticed and no cross-motion number was assigned by the office of the Clerk of the Court. In any event, in view of the fact that such cause of action was found to be adequately pled, the issue of a cross-motion need not be reached.