New York State Court of Claims

New York State Court of Claims



Motion for permission to file a late claim based on incorrect identification of the photograph from Claimant's gun permit application is denied. Although the motion is timely, the actions of the county Clerk's Office were not related to the State judicial function of that office.

Case Information

MIGUEL COLON No proper defendant in this Court is named in the motion or proposed pleadings. Given the ultimate determination herein, this omission requires no further comment.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
No proper defendant in this Court is named in the motion or proposed pleadings. Given the ultimate determination herein, this omission requires no further comment.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

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

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 31, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


On December 18, 2002, the following papers were read on Claimant's motion "to file a late Notice of Intention to File Claim and Notice of Claim:"
1. Notice of Motion and Supporting Affidavit of Paul J. Vacca, Jr., Esq. ("Vacca Affidavit") and Exhibits Annexed;

2. Affirmation in Opposition of Reynolds E. Hahn, Esq. ("Hahn Affirmation");

3. Affidavit of Hedy Williams ("Williams Affidavit");

4. Filed Papers: None

Claimant's proposed claim[1] alleges that on November 4, 2001, a television show entitled "Murder Reopened" was shown on the Discovery Channel. In that show, Robert R. Hazelwood, a criminal profiler, reviewed a series of murders that had taken place in Rochester, New York in the 1970's. A year or so before the show aired, Hazelwood visited the Rochester Police Department, spoke with an investigator, and received from the investigator a box of investigative paperwork. Hazelwood's subsequent analysis pointed to one Miguel Colon, an individual who was related to one of the victims and who committed suicide in 1991, as the person most likely to have committed at least one of the crimes. A photograph that was purported to be of the said Miguel Colon was shown on the air several times. The photograph shown, however, was not of the Miguel Colon who may have been involved in the murders, but, rather, of Claimant himself.[2]

Claimant identifies the picture used as one that was taken for his gun permit and states that he does not know how it found its way to the Police Department or to the television show. The State's liability for such negligence is set forth in one very generally worded statement that "the State of New York was negligent and careless by reason of the actions of its agents, in that, among other things, said State of New York knew or should have known of the incompetency of its agents" (Proposed Claim, ¶5).

Attached to the proposed claim is the lengthy complaint that Claimant filed against the same Defendants named herein in an action commenced in Monroe County Supreme Court. In that action, all of the defendants, except the Discovery Channel, Film Garden Entertainment, Inc. (the show's producers), and the Rochester Police Department moved for summary judgment dismissing the claim. The Hon. Andrew V. Siracuse held that there was no separate cause of action for negligence and dismissed the defamation claim as to all moving defendants (including the Discovery Channel and Film Garden Entertainment), except the County of Monroe. The order of Justice Siracuse is silent as to the Rochester Police Department, an omission that has no bearing on my determination here.

Evidence presented in connection with those motions, according to Justice Siracuse, established that the film's producers had asked the Rochester Police Department for a photograph of the Miguel Colon suspected of involvement in the murders. Acting on information the Police Department possessed that the individual had applied for a gun permit in 1988, a police officer contacted an employee of the Monroe County Clerk's Office and asked for the photograph from that application. A Clerk's Office employee pulled the wrong file, the one containing Claimant's 1967 gun permit application. When a police officer arrived to pick up the picture, the Clerk's employee separated the photograph from the card to which it was attached and handed the photograph only, with no identifying information, to the officer.[3] Justice Siracuse held that there was a question of fact as to whether this official's failure to check the files against the information supplied by the officer was grossly irresponsible, the standard that he determined to be applicable to defamation of private persons that occurs in connection with discussions of matters of public interest (Colon v City of Rochester, 2002 WL 1461909 [Sup Ct, Monroe County, June 26, 2002]).

In October 2002, the County of Monroe sought and obtained permission to amend its answer to add an eighth affirmative defense which would assert that maintaining records relating to gun permit applications arises from the County Clerk's role as Clerk of the County Court. As a result, the State of New York, not the locality, would be the responsible party for any compensable wrong that occurred in connection with such activity. The instant motion followed.

This Court's power to grant permission to file an untimely claim is limited to the time period "before 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]). Case law has held that, in order to comply with this requirement, the motion for permission to file a late claim must be filed and served before the CPLR article 2 statute of limitations has expired, although the motion may be decided after that date (Matter of Unigard Ins. Group v State of New York, 286 AD2d 58). One of the grounds on which the State opposes the instant motion is that it is untimely.

The proposed claim alleges that Claimant was injured by the State "by means of defamation, invasion of privacy and negligence" (proposed Claim, ¶6). Where an individual seeks redress for injury to reputation, however, the action is one for defamation, and the one-year statute of limitations applicable to that tort (CPLR 215[3]) may not be circumvented by characterizing the action as some other tort (Matter of Entertainment Partners Group v Davis, 198 AD2d 63). It is the Court's function to examine the allegations and determine the true nature of the underlying claim (Morrison v National Broadcasting Co., 19 NY2d 453, 458-459). In agreement with the Supreme Court on this issue, I hold that in this action the only viable cause of action is one for defamation (Colon v City of Rochester, 2002 WL 1461909, supra). And, as will be noted below, the Appellate Division, Fourth Department, in an appeal from Supreme Court (Colon v City of Rochester, ____ AD2d ____, 2003 NY Slip Op 15830 [July 3, 2003]), dismissed that action in its entirety. It determined that there was no allegation that the employee of the County Clerk's Office said anything defamatory about the Claimant; that the only putatively defamatory statements were those set forth in the documentary and "cannot be attributed to the County irrespective of the role of the County employee in mistakenly providing plaintiff's [here Claimant's] photograph."

Taking that logic one step further, that finding by the Appellate Division applies to the actions of the County Clerk, regardless of whether it could be deemed a county or a state function.

Given the above, much of the following discussion may be academic, but for the edification of the parties, I will discuss the issues raised by this motion.

The one-year statute of limitations applicable to actions based on defamation (i.e., slander or libel) runs from the date the defamatory remark is first published (Gregoire v Putnam's Sons, 298 NY 119). Defendant takes the position that "publication" occurred when the photograph was handed to Police Officer Williams some time prior to June 28, 2001, the date on which the photograph was forwarded from Officer Williams to Film Garden Entertainment (Williams Affidavit, Exhibit B). Claimant asserts that the cause of action for defamation accrued on November 4, 2001, when the television show linking the photograph to speculation about the series of murders was first aired. If Defendant is correct, the motion was untimely; if Claimant is correct, it was timely. Neither party cites to any authority in support of its position.

Defamation occurs when a false and defamatory statement about and concerning an individual is made by the defendant to a third party; the defendant is at fault (i.e., actual or implied malice); and injury results (43A NY Jur 2d, Defamation and Privacy, §4). Special damages must be alleged unless the statement is one that falls within one of the categories that is considered to be slander or libel per se (Liberman v Gelstein, 80 NY2d 429). These categories include statements that, as here, impute the commission of a criminal offense (id.). As indicated, a cause of action for defamation accrues on the day that the defamatory statement is first published (Rinaldi v Viking Penguin, 52 NY2d 422), and publication occurs when the defamatory statements are read or heard by someone other than the person who was allegedly defamed (Fedrizzi v Washingtonville Cent. School Dist., 204 AD2d 267). In order to establish publication, there must be proof that the defamatory statement alleged in the pleading "was in fact uttered" (Elsky v Hearst Corp., 232 AD2d 310).

Claimant has alleged that the defamatory statement that injured him -- statements linking his photograph to statements that the individual in the photograph had most likely committed serious crimes -- was first made on November 4, 2001, when the television show first aired, and Defendant has failed to come forward with any evidence or even an allegation that any statement of a defamatory nature was made or uttered prior to that date. The Williams affidavit indicates that she provided the birth date and Social Security number of the Miguel Colon who died in 1991 to another police officer who worked in the Licensing Unit of the Rochester City Police Department. That officer called the County Clerk's Office and requested a photograph of the individual so identified. When Officer Williams was informed by her colleague that the photo was ready, she "went to a desk at the Monroe County Clerk's Office, identified herself and told the clerk that she was there to pick up a photo which Officer Tuite had requested" (Williams Affidavit, ¶5). There is nothing to indicate that the Clerk's Office employee was even aware of the reason the photograph had been requested or that she made any statement about the individual depicted except that he was dead and thus the photograph did not have to be returned. Later, when Officer Williams sent the photograph to Film Garden Entertainment, her handwritten note accompanying it merely apologized for the fact that it was a "very, very, very small" picture (Williams Affidavit, Exhibit B). It appears, therefore, that no statement linking Claimant's photograph to the defamatory information was made prior to the airing of the television show. Consequently, this motion is timely.

In determining a motion for permission to file a late claim, the Court must consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (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 Claimant has another available remedy. The Court, in the exercise of its discretion, balances these factors. 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).

In the instant motion, the critical question is whether the proposed claim has sufficient apparent merit to warrant it being late filed. The test to be applied is whether the claim is patently groundless, frivolous, or legally defective, and whether there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Although this standard sets a low threshold, permitting a defective claim to be filed, even if the other factors in Court of Claims Act §10(6) support the granting of Claimant's motion, would be meaningless and futile (Prusack v State of New York, 117 AD2d 729; Rosenhack v State of New York, 112 Misc 2d 967).

Defendant contends that this proposed claim has no appearance of merit because the function of a County Clerk's Office in maintaining its gun permit records is "local in nature" (Hahn Affirmation, ¶14). In seeking to amend its answer, however, the County of Monroe argued before Supreme Court (and thus Claimant argues here) that in maintaining those records, the County Clerk is acting in its role as a Clerk of the County Court, and thus as a State officer (Vacca Affidavit, Attachment, Memorandum of Law, p. 5).

County Court Judges, Supreme Court Justices, and City Court Judges are State officers for whose conduct the State may be liable under some limited circumstances (Mullen v State of New York, 122 AD2d 300, 301, lv denied 68 NY2d 609, cert denied 480 US 938; see also, Judiciary Law §39). The most widely accepted explanation of this dual role was provided by the Court of Appeals in National Westminster Bank, USA v State of New York, 76 NY2d 507, 509:

The County Clerk serves both the State and local governments (Olmsted v Meahl, 219 NY 270). As a clerk of the courts, the County Clerk is a State officer for whom the State is responsible. But when performing general duties the County Clerk acts as a local officer, and the local government must answer for actions taken.... The question as to whether the Clerk should be considered a State or local officer in a suit challenging his conduct depends upon the nature of the act which is the subject of the suit.

The Court also noted that while the designation of various actions in the CPLR fee schedules (CPLR 8020 ["County clerks as clerks of court"] and CPLR 8021 ["County clerks other than as clerks of court"]) could be considered, they do not "conclusively establish the liability of the State or local governments for the County Clerk's actions" (id., at 510).

Consequently, it has been held that the County Clerk is acting as a State officer when filing judgments or notices of pendency because those acts are part of the judicial process (id., at 509), but accepting and filing notices of mechanic's liens is a purely local duty (Ellrott Excavating Contrs. v State of New York, 247 AD2d, 705, 706):

Unlike a lis pendens, which cannot be filed except in the context of ongoing or imminent litigation (see, CPLR 6501; Ashland Equities Co. v Clerk of N.Y. County, [110 AD2d 60], supra, at 64), a mechanic's lien can, and often does, exist in the absence of any related judicial process. Accordingly, the Court of Claims did not err in holding that the docketing of a mechanic's lien is not sufficiently related to court functions to warrant concluding that it is an inherent part of the judicial system [citation omitted].

Issuing, renewing or revoking gun permits likewise occurs "in the absence of any related judicial process" and does not occur only in the context of ongoing or imminent litigation. Under this test, therefore, the actions of the County Clerk's Office of maintaining records of gun permit applications is not an inherent part of the judicial system.

In support of the motion to amend its answer, however, the County of Monroe argued that because the "licensing officer" who issues or renews gun permits in Monroe County is, by custom, a County Court judge, then the Clerk's function of maintaining permit records is an adjunct of a judicial function. Section 265.00(10) of the Penal Law provides the following definition of the term "licensing officer" and is applicable to the provisions relating to firearms permits (Penal Law §400.00):

"Licensing officer" means in the city of New York the police commissioner of that city; in the county of Nassau the commissioner of police of that county; in the county of Suffolk the sheriff of the county except in the towns of Babylon, Brookhaven, Huntington, Islip and Smithtown, the commissioner of police of that county; for the purposes of section 400.01 of this chapter the superintendent of state police; and elsewhere in the state a judge or justice of a court of record having his office in the county of issuance.

By statute, therefore, a "licensing officer" is not necessarily a judicial officer and, at least in those counties where the commissioner of police or superintendent of state police fulfills that role, the County Clerk's record keeping function in connection with gun permits could not be considered as an integral part of any judicial activity. A rule that makes the State liable for certain actions in some localities and makes the locality liable for those same actions elsewhere would be both inequitable and confusing.

I believe the better standard is the one set out in Ellrott Excavating Contrs. v State of New York (247 AD2d, 705, supra): whether the activity occurs only "in the context of ongoing or imminent litigation" or, to the contrary, whether it occurs routinely or exclusively "in the absence of any related judicial process." Under this standard, the County Clerk's employee who gave Officer Williams the wrong photograph was not, at that point, acting as a State official, and consequently the State could not be liable for any harm that resulted.

Thus, because I find that the County Clerk's employee was not acting as a State official, and because the Fourth Department, in its July 3, 2003 dismissal of the claim, held that no defamatory statements could be attributed to the County Clerk's employee, regardless of the status of the role undertaken, the proposed claim does not have the appearance of meritoriousness, and the motion here must be denied. It must be further observed that the Fourth Department similarly affirmed the Supreme Court when it "properly granted all defendants summary judgment dismissing the negligence cause of action."

The motion is denied in its entirety.

July 31, 2003
Rochester, New York

Judge of the Court of Claims

  1. [1]This document is incorrectly captioned "Notice of Intention to File a Claim." There is no provision in the Court of Claims Act that allows for the late filing of a notice of intention (see, Court of Claims Act §10[6]).
  2. [2]Thus the purported perpetrator and the Claimant both have the same name, but obviously are different people.
  3. [3]The State's papers submitted in opposition to this motion contain the affidavit of the police officer, Hedy Williams, who received the request from the film producers and who received the photograph in question from the Monroe County Clerk's Office employee (Williams Affidavit, Exhibit A).