New York State Court of Claims

New York State Court of Claims

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.

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:
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Janet L. Polstein, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
April 21, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

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) negligence.[1]
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."[2]
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 ankles.

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.[3]
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).

  1. Causes of action governed by one year statute of limitations
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.[4]
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 [3]). 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 Am., 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 action.

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 ends.[5]
(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's arguments
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 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 negligence.

  1. Tortious Interference with Contractual Relationship
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 plaintiff. (
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.

  1. Negligence
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 fail.

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.


April 21, 2003
Binghamton, New York

Judge of the Court of Claims

[1]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).
[2]Unless otherwise indicated, all quotations are from the Court's trial notes.
[3]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).
[4]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]).
[5]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 York, 149 AD2d 503, 504).