CRITTON v. THE STATE OF NEW YORK, #2003-019-005, Claim No. 97597
Claim dismissed after trial; Court dismisses assault and battery, abuse of
process, and false arrest/false imprisonment causes of action as untimely; and
causes of action for tortious interference with a contractual relationship and
untimely medical treatment dismissed due to Claimant's failure to establish
prima facie case thereof.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
K.C. OKOLI, ESQ.
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Janet L. Polstein, Assistant Attorney General, of counsel
April 21, 2003
See also (multicaptioned
Claimant, Daniel Critton, brings this Claim against the State of New York
alleging the following causes of action: (1) assault and battery; (2) abuse of
process; (3) false arrest and false imprisonment; (4) tortious interference with
a contractual relationship; and (5)
The trial of this matter, held in the White Plains District on October 29 and
30, 2001, was bifurcated. The parties requested additional time post-trial to
obtain the trial transcript and to submit memorandums of law. This Decision
addresses the issue of liability only.
In January of 1996, Claimant was employed by Baruch College as a probable
permanent employee in the capacity of "Campus Peace Officer - Level I"
(hereinafter "Campus Officer"). Claimant, who is six feet six inches tall and
weighs 275 pounds, was issued an identification card, a shield, and some
uniforms in order to perform his function as a Campus Officer. The terms and
conditions of his employment required that he continue to meet certain
eligibility standards for a Campus Officer, including obtaining a Certificate of
Disposition of a prior arrest involving a dispute with a cab driver over a fare.
Consequently, on July 15, 1996, Claimant went to the Central Clerk's Office at
the Bronx Criminal Courthouse to obtain a Certificate of Disposition relative to
that earlier offense. Claimant testified that he arrived at the Bronx Criminal
Courthouse at the lunch hour, went through the metal detectors, and proceeded up
the stairway to the Central Clerk's Office. Upon arrival he observed that he
was the only person in the room and that Court employees were on lunch break.
Claimant remained and waited at one of the windows until 2:00 p.m. when the
window opened and he explained the nature of his business. He was told to go to
a side room, which he did. Claimant waited in this room for approximately
fifteen minutes and then asked for help, stating that he needed a criminal
disposition sheet. The office workers instructed him to go back to the first
window. Claimant admitted that he got annoyed and basically said, "I'm getting
the runaround, I'm not a yo-yo."
Upon hearing that, an employee in the Clerk's Office got upset and told
Claimant, "That's it, you're not getting any papers today." Claimant challenged
the authority of this worker, left the side room and went back to the first
window. However, upon arrival at the first window he was ignored. Claimant
then felt a presence behind him and saw the Clerk who had previously refused to
assist him in the company of several uniformed court officers. Claimant
testified that these court officers, consisting of two white males, one black
male, and one white female, all came at him and attacked him. He was grabbed by
his shirt, his arms, and around the neck. One of them pulled his leg out from
underneath him. He testified that he was wrestled to the floor "like cattle".
While restrained on the floor, Claimant was then handcuffed and lifted to his
feet by the officers who placed a baton between his handcuffs and pulled
Claimant up on his feet. Claimant testified that he did not resist, but rather
just "went with the flow", and that even though he requested help from the 20 to
25 other people in the room, none of them responded to his request for
assistance and have since refused to testify in this proceeding on his behalf.
Claimant denies that he ever hit any of the court officers, specifically the
female officer in the face, or that he kicked or struck any other court
officers. He was then lifted and escorted from the room and while being
escorted to the security office, Claimant testified, his pants fell to the
floor. He was not allowed to raise his pants and was required to walk through
the Courthouse with his pants down around his
Claimant testified that during the melee he suffered bruises, cuts and
abrasions. When he arrived at the security office, he was handcuffed to a bench
and was spitting blood from a cut in his mouth. Claimant testified that he
wanted to know why he was being arrested, but was not given an answer.
Approximately one hour later an EMS technician looked at Claimant's cuts and
bruises and suggested that the Claimant be transported to the hospital for
examination. He was then taken to Lincoln Hospital in a New York City patrol
car where he received some medical treatment. Claimant was released from
Lincoln Hospital and transported back to the Bronx Criminal Courthouse holding
room where he was again cuffed to the bench while paperwork was prepared. He
was held approximately eight to nine hours and then processed and transported to
a holding cell where he was held another eight to nine hours. Claimant
testified that at some point during this processing he was searched and his
identification and security shield from Baruch College were seized. Claimant
testified that he was arraigned the next day, July 16, 1996 and bail was set in
the amount of $5,000.00. Claimant could not make bail and as a result was held
in the Bronx House of Detention until his case went before a Grand Jury.
Claimant was released on July 20, 1996.
He testified that when he returned home after his release he found a letter
waiting for him dated July 17, 1996 from Baruch College informing him of his
termination from his Campus Officer position. (Cl. Ex. 3). Claimant attributes
his loss of employment to court officers who he alleges unfairly notified his
employer of this incident. Claimant was charged with assault 2nd, resisting
arrest, disorderly conduct, and reckless endangerment, as a result of this
incident. While he cited numerous subsequent court appearances, Claimant
testified that all charges where finally dismissed as of January 7, 1997. (Cl.
Exs. 4 & 6).
To counter the testimony of the Claimant, the State called two of the officers
involved in the July 15, 1996 incident, namely Sergeant David Rufo and Officer
Giannini. Sergeant Rufo is a New York State Court Officer and was on duty in
the Bronx Courthouse on July 15, 1996. He testified that the entire building
generally takes their lunch break between 1:00 and 2:00 p.m. At approximately
2:00 p.m. on the aforesaid date, Sergeant Rufo responded to the Central Clerk's
Office and observed a number of people in line and heard yelling. He saw the
Claimant yelling loudly at a Clerk by the name of Richard Matulat, who the
Sergeant described as an older frail gentleman, as well as Court Officer Tracy
DeSanto whom he described as female and petite. He observed the Claimant being
loud and abusive and that the officers present were trying to place him under
arrest. He observed the Claimant resist and pull away from the officers and he
saw the Claimant hit Officer DeSanto in the face. Sergeant Rufo denies that any
excessive force was used against the Claimant, such as striking him with the
baton, punching him in the face, or attempting to break Claimant's arm. He
confirmed there were various members of the public in the room at the time who
were encouraging the Claimant to calm down, to stop fighting, and go peaceably.
Sergeant Rufo was present when the Claimant's Campus Officer shield and
identification from Baruch College were seized. Sergeant Rufo did not
personally recall placing any calls to Baruch College regarding Claimant's
arrest, but generally recalled that someone made such a call. (T. 264,
277-281). With respect to medical treatment, Sergeant Rufo testified that only
a short period of time elapsed between the time that Mr. Critton requested
medical attention and medical assistance was summoned. After a brief
examination by EMS technicians, Sergeant Rufo testified, he accompanied Claimant
to Lincoln Hospital and that Claimant's physical condition "appeared to be fine"
and that he continued to yell and curse at the officers.
The State also called Court Officer Joseph Giannini who was summoned to the
Central Clerk's Office on July 15, 1996. Officer Giannini testified that prior
to reaching that office he observed an argument between the Claimant, Clerk
Richard Matulat and Court Officer Tracy DeSanto. Officer Giannini testified
that he tried on a couple of occasions to convince Claimant to calm down and
leave the building voluntarily. However, when Claimant persisted in his refusal
to comply, the Officer felt that there was no alternative but arrest. The
witness further stated that a scuffle ensued because Claimant refused to allow a
peaceful arrest but rather resisted by swinging his arms and kicking. Officer
Giannini had no specific recollection of personally calling anyone at Baruch
College regarding Claimant's arrest.
With regard to his claim of tortious interference with a contractual
relationship arising from his ultimate dismissal by Baruch College, Claimant
called Ms. Ronny Widener, Director of Human Resources at Baruch College. Ms.
Widener testified that she has been Personnel Director at the College and
Director of Human Resources from 1991 to 1999. The witness testified that Mr.
Critton was appointed January 31, 1996 as a probationary employee to the
position of "Campus Peace Officer - Level 1". (Cl. Ex. 1). Ms. Widener
testified that during this probationary period Mr. Critton could be fired at any
time for any reason. Additionally, his appointment letter specifically required
that Claimant's continued employment with the College was contingent upon him
continuing to meet "all standards of eligibility as specified in applicable
State statute and municipal code...." (Cl. Ex. 1). More specifically, Claimant
was required to safeguard his shield and Baruch College ID card and to
immediately report the loss of shield or ID card. Furthermore, all probationary
employees needed to comply with procedures under New York State Law for
obtaining peace officer status. Ms. Widener testified that she did receive a
memorandum from Donald J. Barto, Assistant Director of Public Safety, outlining
the nature of Claimant's arrest on July 15, 1996. (Cl. Ex. 2). Based on the
foregoing, the witness sent a termination letter to Claimant, a probable
permanent employee, indicating that his position as a Campus Peace Officer
Patrol - Level 1 was terminated effective July 17, 1996. (Cl. Ex 3). The
witness confirmed that Claimant was fired based upon information that Claimant
had been arrested and his shield confiscated. (Cl. Ex. 1; St. Ex. J).
of action governed by one year statute of
As stated at the outset, Claimant alleges five separate causes of action
against the State. Three of those causes of action — assault and battery,
abuse of process, and false arrest/false imprisonment — are all governed
by a one year statute of limitations. Here, a Notice of Intention was served on
October 11, 1996; the Claim was filed with the Clerk of the Court on January 5,
1998; and the Claim was served on the Attorney General's office on February 11,
1998. At the commencement of trial the State moved to dismiss these three
causes of action as time barred.
At trial the Court heard testimony on all of the causes of action reserving its
decision on the motion to dismiss for subsequent argument in post-trial briefs.
The Court will first address the issue of timeliness of these three causes of
action and then separately address Claimant's arguments in response to the
State's assertions of untimeliness.
Assault and Battery
It is uncontroverted that a cause of action based in assault and battery
accrues on the date of the alleged attack, here July 15, 1996. Claimant
properly and timely served a Notice of Intention to File a Claim on the Attorney
General's Office on October 11, 1996 which was within ninety days of said
accrual date pursuant to CCA 10 [3-b]). As such, Claimant's time to file and
serve a claim based upon assault and battery was extended until one year after
the accrual, namely July 15, 1997. (CCA 10 [3-b]; CPLR 215 ). Claimant,
however, did not file this Claim with the Court of Claims until January 5, 1998
or personally serve the same on the Attorney General's Office until February 11,
1998. Clearly, the filing and service of this Claim were untimely with respect
to the assault and battery cause of action. (
Lyles v State of New York
, 194 Misc 2d 32).
Abuse of Process
It is well-settled that a cause of action for abuse of process is governed by a
one year statute of limitations. (
Beninati v Nicotra
, 239 AD2d 242; Gallagher v Directors Guild of
, 144 AD2d 261, 262, lv denied
73 NY2d 708). There is some debate
on whether abuse of process accrues when the allegedly abusive proceeding is
initiated or whether it must wait until said proceeding is terminated in favor
of the claimant. (Dobies v Brefka
, 263 AD2d 721, 723; Cunningham v
State of New York
, 53 NY2d 851; Beninati
, 239 AD2d at 242-243). If
the Court uses the earliest possible date - the date of arrest of July 15, 1996-
then the service of the Notice of Intention on October 11, 1996 was timely, but
the filing of the Claim on January 5, 1998, and the service of the Claim on the
Attorney General on February 11, 1998 were late. If the Court uses the latest
possible date for accrual - the date the charges were terminated in Claimant's
favor of January 7, 1997, then the Notice of Intention was actually prematurely
served with respect to this cause of action. In any event, the filing and
service of the Claim were untimely under both scenarios. As such, this Claim is
untimely with respect to the abuse of process cause of
Parenthetically, the Court notes that Claimant's post-trial memorandum contains
a motion to conform the pleadings to the proof requesting this cause of action
be transformed into one sounding in malicious prosecution. (Claimant's
Memorandum, pp 25-26). Assuming, arguendo, this Court were to grant such
relief, a cause of action for malicious prosecution is also governed by a one
year statute of limitations which accrues when the proceeding is terminated in a
claimant's favor. (CPLR 215). As such, for the same reasons articulated
above, a cause of action based upon malicious prosecution is also untimely.
False Arrest/False Imprisonment
With regard to the causes of action of false arrest/false imprisonment, the
one-year limitation period within which to commence a cause of action for false
arrest/false imprisonment starts when the confinement
(Collins v McMillan
, 102 AD2d 860; CCA 10 [3-b]). Here, Claimant was
released on July 20, 1996. As such, any cause of action for false arrest/false
imprisonment accrued on said date meaning the claim needed to be served and
filed withing one year thereafter, or by July 20, 1997. As noted above, this
Claim was not filed until January 5, 1998 or personally served on the Attorney
General's Office until February 11, 1998, well beyond the aforementioned 1997
deadline. Consequently, this cause of action is untimely.
Claimant submits two arguments in an attempt to save these causes of action
from dismissal. First, Claimant argues that the limitations period should be
deemed tolled because his first attorney died on June 22, 1997. Secondly,
Claimant asserts that the Court should treat his Notice of Intention as a Claim
pursuant to CCA 10 (8).
(1). Death of Attorney
Claimant argues that the death of his prior attorney, Michael D. Scavella, on
June 22, 1997 should serve to toll any limitations period based upon equitable
principles. Although not specifically cited by Claimant, CPLR 321 (c) does
states that "[i]f an attorney dies...at any time before judgment, no further
proceeding shall be taken in the action against the party for whom he appeared,
without leave of the court, until thirty days after notice to appoint another
attorney has been served upon that party either personally or in such manner as
the court directs." However, in
Finnegan v NFT-Metro Bus System,
101 AD2d 1010, affd
63 NY2d 1018,
this provision was found to apply only to commenced actions. Here, although Mr.
Scavella prepared and served the Notice of Intention, no actual claim was
commenced pursuant to CCA 10 and 11. As such, CPLR 321 (c) does not apply to
this matter. With respect to Claimant's attempt to justify a toll based upon
equitable considerations, the Court notes that Claimant offers no explanation as
to why the Claim was not filed and served in the eight months after the service
of the Notice of Intention but before Mr. Scavella's death. Furthermore, there
was no proof offered relative to the actual efforts, if any, to engage
replacement counsel nor is there any allegation that the State in any way
contributed to the delay. (Id
. at 1011). Based upon the foregoing, the
Court finds no basis on which to provide for the tolling of a limitations period
on either statutory or equitable grounds.
(2). Court of Claims
Act § 10 (8)
In the alternative, Claimant argues that he should be allowed to deem the
previously served Notice of Intention as a Claim under CCA § 10 (8). The
State argues, however, that CCA 10 (8) requires that such applications be made
"before an action asserting a like claim against the citizen of the state will
be barred under the provisions of article two of the civil practice laws and
rules". Claimant argues that this statute, including an August 2001 amendment
thereto, should not control this matter since these causes of action accrued
prior to said amendment. CCA 10 (8) was added in 1993, well before this matter
arose. (L.1993, c. 405, § 1, eff. July 21, 1993). The 2001 amendment to
which the parties refer merely clarified that such relief should be sought by
way of motion, which although raised by the State, is not necessary to the
disposition here. More pertinent here is that CCA 10 (8) requires that such
applications be sought within the applicable limitation periods per CPLR Article
2 which are the one year periods outlined hereinabove. Claimant's request for
CCA 10 (8) relief, made at trial, is well beyond such time periods.
Consequently, Claimant's application for conversion of his Notice of Intention
to a Claim pursuant to Section 10 (8) of the Court of Claims Act is unavailable.
Maendel v State of New York
, 178 Misc 2d 297).
In sum, the Court finds that Claimant's arguments to save these causes of
action from dismissal must fail for the reasons stated above. Accordingly,
based upon the foregoing, the causes of action sounding in assault and battery;
abuse of process; false arrest/false imprisonment, are all hereby dismissed.
Therefore, the Court will now turn to the two remaining causes of action,
sounding in tortious interference of a contractual relationship and
Interference with Contractual
The first remaining cause of action is Claimant's allegation of tortious
interference with a contractual relationship. From what the Court gleans from
the testimony at trial and the pleadings, Claimant alleges that State employees
(court officers) were responsible for his termination by notifying his employer
Baruch College of his arrest and loss of his shield and identification card.
Based upon that conduct, Claimant alleges the State is liable for tortious
interference with the contractual relationship between Baruch College and
Claimant. However, the Court agrees with the arguments put forth by the State
that Claimant cannot sustain such a cause of action for several reasons.
In order to establish a cause of action for tortious interference with
contractual relationship, Claimant must show: (1) the existence of a contract
between plaintiff and a third party; (2) defendant's knowledge of the contract;
(3) defendant's intentional inducement of the third party to breach or otherwise
render performance impossible; (4) breach of the contract; and (5) damages to
Kronos, Inc. v AVX Corp
., 81 NY2d 90, 94).
With respect to the first element, Claimant argues that his status as a
"probable" or "at-will" employee is irrelevant. The Court finds this argument
to be without merit and finds that there was no contract in existence. Claimant
by his own testimony and the testimony of his witness Ms. Widener, did not have
a contract for employment with Baruch College. Rather, he was merely a
probationary permanent employee who could be fired at any time without cause.
As such, no valid employment contract existed, but rather Claimant's position
was a conditional offer of employment and accorded the status of probationary
permanent employee. Moreover, "[a] probationary employee, unlike a permanent
public employee, has no property rights in his position and can be discharged
without a hearing and without a stated specific reason, provided the discharge
is in good faith and not in violation on constitutional, statutory, or
decisional law [citations omitted]." (
Matter of McKenzie, v Jackson
, 152 AD2d 1, 8, affd
75 NY2d 995).
Moreover, according Ms. Widener, Claimant's loss of his shield was an additional
basis for termination. (T., p 73; St. Ex. J). Moreover, Claimant himself
signed Ms. Widener's original letter indicating that he had been informed of all
of his duties and responsibilities as a probationary employee as a Campus
Officer which would have included possession of his shield. (Cl. Ex. 1).
Even if this Court were to accept Claimant's argument that his probationary
status is irrelevant to this cause of action, there is absolutely no proof to
support the position that the State intentionally acted to bring about a breach
of Claimant's employment contract. To the contrary, the Court agrees with the
State that court officers upon learning of the nature of Claimant's employment,
did what any reasonable police officer would do by attempting to ascertain
whether the Claimant's shield was valid and contacting his employer Baruch
College for this purpose. The Court finds that the court officers in question
did not intentionally seek to have Claimant fired, but merely attempted to
verify his identity and status as being legitimately employed as a Campus
Officer at Baruch College. Consequently, Claimant has also failed to prove that
Defendant intentionally induced Baruch College to terminate a contract, if any,
with Claimant - a necessary element to sustain a cause of action for tortious
interference with contractual relations. Nor for that matter is there any
evidence whatsoever of fraud or misrepresentation as urged by Claimant.
Consequently, based upon the foregoing, Claimant has failed to establish a prima
facie case of tortious interference with a contractual relationship.
Consequently, the only cause of action remaining for the Court to determine at
this juncture is the allegation of Claimant that he was provided untimely
medical treatment for the injuries he received on July 15, 1996. The Court
disagrees and finds the record totally barren of any such proof. In a
negligence claim based upon untimely medical treatment, a claimant must
establish that the delay "[i]n diagnosis and/or treatment [was] a proximate or
aggravating cause of the claimed injury [citations omitted]." (
Marchione v State of New York
, 194 AD2d 851). While it is clear from the
record that Claimant did sustain some minor injuries as a result of his
encounter with employees of the State, there is no evidence of any delay or any
resulting injury from that delay. Rather, the proof supports the conclusion
that Claimant did receive prompt medical attention based upon the testimony of
Sergeant Rufo and Officer Giannini which the Court finds much more credible than
Claimant's testimony on this issue. Those Officers testified that Claimant
received prompt medical attention once he had been transported to the holding
area. He was transported by a New York City patrol car to Lincoln Hospital when
EMS technicians indicated such course of action. While at Lincoln Hospital,
Claimant received some emergency room treatment and examination for his cuts and
bruises. He was then discharged back to the custody of police officers and told
to rest and perhaps take a couple of days off from work. However, there is
nothing in this record that indicates that Claimant's medical treatment was
either unreasonably delayed or ignored, other than Claimant's own testimony
which the Court finds on this point to be incredible. Consequently, the only
testimony which the Court finds credible is that Claimant requested medical
attention and that State employees made sure that medical attention was summoned
and provided to Claimant in a prompt and timely manner. Based upon the
foregoing, Claimant's cause of action for negligent medical treatment must also
As such, based upon the foregoing, Claim No. 97597 is hereby DISMISSED.
Any and all motions on which the Court may have previously reserved or which
were not previously determined are hereby denied.
ENTER JUDGMENT ACCORDINGLY.
Binghamton, New York
HON. FERRIS D. LEBOUS
Judge of the Court
Claimant was previously granted permission to
amend his Claim to add a cause of action for negligent failure to provide prompt
medical treatment. (Critton v State of New York
, Ct Cl, January 12,
1999, Nadel, J., Claim No. 97597, Motion No. M-57741).
Unless otherwise indicated, all quotations are
from the Court's trial notes.
Although Claimant did not provide the exact
date of his release, based upon his testimony that the initial incident occurred
on July 15, 1996 (a Monday) and that he was not released until the following
Saturday night, which would have been July 20, 1996, the Court deems his date of
release to have been Saturday, July 20, 1996. (T. 123-126).
The State properly preserved this defense by
raising the defense, with particularity, as its Sixth Affirmative Defense in its
Amended and Second Amended Answers. (CCA 11 [c]).
To the extent that Claimant relies upon 42 USC
1983 in an attempt to trigger a three year statute of limitations under federal
law, such arguments are totally without merit since 42 USC 1983 does not give
rise to a cause of action against the State. (Zagarella v State of New
, 149 AD2d 503, 504).