New York State Court of Claims

New York State Court of Claims

GRAY v. STATE OF NEW YORK, #2002-018-135, Claim No. NONE, Motion No. M-64245


Movant is granted permission to file late claim on malicious prosecution cause of action only.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
JAMES W. HYDE, IV, ESQUIREKernan and Kernan, P.C.
Defendant's attorney:
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 8, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Movant brings this motion for permission to file a late claim pursuant to Court of Claims Act §10(6). The proposed claim asserts that on or about November 5, 2000, Allen Youker complained to the New York State Department of Environmental Conservation (hereinafter referred to as DEC) that movant had dumped dirt and stones on and over a fence which divides Mr. Youker's property from movant's. Officer Gossen of the DEC responded to the complaint and allegedly confined movant in his patrol car and initiated a criminal proceeding against movant for the violation of Environmental Conservation Law §71-3501. Movant further asserts that on or about March 14, 2001, the Town Justice in the Town of Oppenheim dismissed the pending criminal charge against movant on the merits, because the activity in which movant allegedly engaged could not, under any circumstances, amount to a violation of Environmental Conservation Law §71-3501. As a result, movant seeks permission to bring the proposed claim alleging causes of action for violation of his civil rights under 42 U.S.C. §1983 for false arrest and malicious prosecution.

Movant, through his counsel, alleges that his malicious prosecution cause of action is timely because it did not accrue until the underlying criminal action terminated in favor of the proposed claimant. (
Campo v Wolosin, 211 AD2d 660, 660) Movant's attorney asserts that the criminal proceeding terminated on March 14, 2001. (Attorney Hyde's affirmation ¶4) A notice of intention asserting the malicious prosecution cause of action was served upon the assistant attorney general on June 7, 2001. (Exhibit A, Attorney Hyde's affirmation) This extended movant's time to file and serve a claim asserting a malicious prosecution cause of action until March 14, 2002. (Court of Claims Act §10(3-b)) Since no claim was filed and served in accordance with Court of Claims Act §§10 and 11 by that date, the Court will consider the malicious prosecution cause of action as part of this late claim application.
Court of Claims Act §10(6) allows a movant who has failed to serve a notice of intention, or who has failed to file and serve a claim within the time frame set forth in Court of Claims Act §10 to make an application to the Court to file such a claim, in the discretion of the Court, at any time before an action asserting a like claim against a citizen of the State would be barred under article two of the CPLR. (Court of Claims Act §10(6)) Movant's motion is timely. (Court of Claims Act §10(6); CPLR §215(3);
Kubik v New York State Dep't of Social Services, 278 AD2d 644)
To determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in Court of Claims Act §10(6) and any other relevant factors. The presence or absence of any one factor is not determinative. (
Bay Terrace Cooperative Section IV, Inc., v New York State Employees' Retirement System, Policemen's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965) Instead, it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.
Movant's application glosses over the first factor, whether the delay in filing the claim was excusable. Since no reason has been given for the untimeliness, this factor must weigh against granting the application.

The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. Movant asserts that the State had timely notice of the malicious prosecution cause of action and will not suffer any prejudice if the application is granted to permit all three proposed causes of action to be brought. Clearly, the State had timely notice of the malicious prosecution cause of action and an opportunity to investigate since a timely notice of intention was served upon the attorney general. Although seven months passed prior to the State receiving notice of the essential facts for the civil rights and false arrest causes of action, written statements from witnesses are available to assist with an investigation thereby minimizing any prejudice to the State.

The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. This factor is met if the proposed claim is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists. (
Santana v New York State Thruway Authority, 92 Misc 2d 1,11)
Movant seeks to interpose three causes of action. The first cause of action asserts wrongful deprivation of movant's civil rights under 42 U.S.C. §1983. The request for permission to assert this cause of action must be denied. This Court does not have jurisdiction to hear a claim for a violation of movant's federal civil rights in that the State is not a "person" acting under color of law as defined in 42 U.S.C. §1983. (
Davis v State of New York, 124 AD2d 723, aff'd 56 NY2d 656; Ferrer v State of New York, 172 Misc 2d 1) Thus, permission to bring a claim asserting this cause of action cannot be granted.
Movant's second cause of action is for false arrest. Defendant argues, in opposition, that movant was never arrested; he was issued an appearance ticket. Defendant has attached the affidavit of Robert C. Gossen, the DEC officer, who issued the appearance ticket to movant, in which he states he never placed movant under arrest, he never read him his Miranda rights, or handcuffed, fingerprinted or photographed him. Officer Gossen states that at no point was movant told he was being arrested, detained nor was his freedom in anyway impaired. Movant's counsel asserts that movant was placed in the back of Officer Gossen's vehicle and detained against his will.

The elements of a cause of action for false arrest are that "the defendant intended to confine the claimant, that claimant was conscious of the confinement, that claimant did not consent to the confinement; and the confinement was not otherwise privileged." (
Broughton v State of New York, 37 NY2d 451, 456) As defendant asserts, issuance of an appearance ticket alone does not meet the requirements of a confinement as the basis for a cause of action for false arrest. (Kramer v Herrera, 176 AD2d 1241; Pozzanghera v Anderson, 136 AD2d 912; Pritchett v State of New York, 61 AD2d 1110) Movant's alleged confinement in the vehicle of Officer Gossen, against his will without reasonable suspicion or probable cause, could be sufficient to meet the requirements of the cause of action for purposes of this late claim application if the assertion was being made by someone with actual knowledge of the facts. In this case, the allegation is made by movant's counsel. Although allegations made in support of a motion for permission to file a late claim should be accepted as true, here the attorney has no personal knowledge of the facts. (Nyberg v State of New York, 154 Misc 2d 199, 202) The Court has an affidavit from Officer Gossen which unequivocally states that movant was not arrested, detained, or his freedom in any way impaired. (Affidavit of Officer Gossen ¶7) Under these circumstances, the Court cannot find that there is reasonable cause to believe that a valid cause of action for false arrest exists, and therefore denies the motion on the false arrest claim.
Movant also seeks to assert a cause of action for malicious prosecution. The elements of this cause of action are "(1) the commencement or continuation of a criminal proceeding by the defendant against the [claimant], (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice." (
Broughton v State of New York, supra at 457) The lack of probable cause must be plead. (Broughton v State of New York, supra) Although there is no affidavit from movant, movant's counsel represented him in the criminal proceeding and thus the attorney does have some personal knowledge of the facts surrounding this cause of action. (Jolley v State of New York, 106 Misc 2d 550, 551-552; Colson v State of New York, 115 Misc 2d 402; Matter of Edwards v State of New York, 119 Misc 2d 355) The allegations in the supporting documents will be accepted as true for purposes of the motion relating to this cause of action. (See, Nyberg v State of New York, supra at 202; Sessa v State of New York, 88 Misc 2d 454, 458, aff'd 63 AD2d 3334, aff'd 47 NY2d 976) Defendant argues that the issuance of an appearance ticket creates a presumption of probable cause which can only be overcome by showing fraud, perjury, or the withholding of evidence, which movant has not done. This Court has not found support for such a position. The cases relied upon by defendant for that proposition involve a finding of probable cause after a hearing (in Brown v Roland, 215 AD2d 1000 after a pre-trial hearing; in Gisondi v Town of Harrison, 120 AD2d 48, aff'd 72 NY2d 280, after a felony hearing; and in Hornstein v Wolf, 109 AD2d 129, aff'd 67 NY2d 721, a civil proceeding, after a trial resulting in a judicial determination); these situations created prima facie cases of probable cause. Issuance of an appearance ticket does not involve an independent evaluation of the facts leading to a determination that probable cause exists, and thus does not result in the same presumption.
"Probable cause consists of such facts and circumstances as would lead a reasonably

prudent person in like circumstances to believe plaintiff guilty." (Colon v City of New York, 60

NY2d 78, 82) The defendant's documents indicate Officer Gossen responded to complaints that

movant had illegally dumped and burned, and illegally stored tires on his property. (Officer

Gossen's supporting deposition) Allegedly, a fire started by movant got out of control and

spread to the complainant, Mr. Youker's property. To put the fire out, movant allegedly dumped

dirt on Mr. Youker's property. (Officer Gossen's supporting deposition) Officer Gossen issued

an appearance ticket to movant for a violation of §71-3501 of the Environmental Conservation

Law which reads:

"a person, who deposits, leaves or keeps, on or near a highway

or route of public travel, either on the land or on the water, any

noisome or unwholesome substance, or establishes, maintains

or carries on, upon or near a public highway or route of public

travel, either on the land or on the water, any business, trade or

manufacture which is noisome or detrimental to public health

is guilty of a misdemeanor..." (Environmental Conservation

Law §71-3501)

There is an issue as to whether Officer Gossen had probable cause to issue an appearance ticket for a violation of that section of the Environmental Conservation Law. If the criminal proceeding was commenced in the absence of probable cause, the final element, malice, may also be shown to exist. (See, Martin v City of Albany, 42 NY2d 13, 17) Actual malice refers to a wrong or improper motive on the part of the State which could reasonably be inferred from the facts. (Scott v State of New York, 204 AD2d 424, 425, lv. denied, 84 NY2d 806) Based upon the facts as set forth in defendant's documents and alleged by movant's counsel, movant has at least minimally met the Santana standard for this cause of action.
The final factor is whether the movant has any other available remedy. Movant does not address this issue, but defendant points out that movant has commenced a federal court action in U.S. District Court, and thus has an alternate remedy. This factor weighs against granting movant's application.

Accordingly, upon balancing all of the factors in Court of Claims Act §10(6), this Court GRANTS the movant's motion on the malicious prosecution cause of action only. Movant is directed to file and serve the proposed claim, properly verified, asserting only the malicious prosecution cause of action, in accordance with Court of Claims Act §11 within thirty (30) days of the date this decision and order is filed with the Clerk of the Court. Service and filing of the claim shall be in conformity with all applicable statutes and court rules.

May 8, 2002
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in determining the motion:

Notice of Motion.............................................................................1

Affirmation of James W. Hyde, IV, Esquire, in support with all
exhibits attached thereto including the proposed claim....................................................................................2

Affirmation of G. Lawrence Dillon, Assistant Attorney General

in opposition........................................................................3