New York State Court of Claims

New York State Court of Claims

SWAN v. THE STATE OF NEW YORK, #2003-009-46, Claim No. 107875, Motion No. M-67141


Synopsis


Defendant's motion to dismiss the claim for failure to state a cause of action was granted, was the Court founds that it did not have jurisdiction over claims alleging tortious acts by an Assistant District Attorney.

Case Information

UID:
2003-009-46
Claimant(s):
GEORGE W. SWAN
Claimant short name:
SWAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107875
Motion number(s):
M-67141
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
GEORGE W. SWAN, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Heather R. Rubinstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
October 20, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant has brought this motion seeking an order dismissing the claim for failure to state a cause of action against the State of New York.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibit 1,2


Answering Affidavit 3

Filed Papers: Claim

In his claim, claimant seeks damages for false imprisonment, mental anguish, malicious prosecution, prosecutorial misconduct, and negligence arising from a criminal action instituted against him in Onondaga County. Specifically, claimant alleges that both a representative and an Assistant District Attorney from the Onondaga County District Attorney's office improperly removed and tampered with physical evidence while felony criminal proceedings were pending against him. Claimant further alleges that following his trial, which resulted in a hung jury, he plead guilty to two Class A misdemeanors, and that he plead guilty only because of a fear that he might be convicted in a subsequent felony trial at which the allegedly tampered evidence would be used. It is well established, however, that the State may not be held liable for alleged tortious acts committed by an Assistant District Attorney (Fisher v State of New York, 10 NY2d 60; Ritter v State of New York, 283 App Div 833; Fishbein v State of New York, 282 App Div 600), and that the Court of Claims does not have jurisdiction over such claims (Whitmore v State of New York, 55 AD2d 745).

Based on the foregoing, it is

ORDERED, that Motion No. M-67141 is hereby GRANTED, and it is further

ORDERED, that Claim No. 107875 is hereby DISMISSED.


October 20, 2003
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims