3) Affirmation in Opposition of Assistant Attorney General Joel L. Marmelstein
filed August 1, 2003 with annexed Exhibits A-D;
Filed Papers: Verified Claim filed March 6, 2003.
The underlying Claim asserts causes of action sounding in negligent hiring
/training and state constitutional tort flowing from police actions which are
alleged to have occurred on December 13, 2002.
Defendant timely moves by pre-answer motion to dismiss the instant Claim
asserting that although timely filed with the Clerk of the Court of Claims,
Claimant failed to timely effect service upon the Attorney General as required
by Court of Claims Act §10(3) (Marmelstein Affirmation ¶ 4).
Claimant acknowledges that the Claim was not served upon the Attorney General
within 90 days of the accrual of the Claim but rather on March 21, 2003, eight
days late (Cuda Affirmation ¶ 4). There is no assertion by Claimant
that a Notice of Intention to file a claim was served thereby extending the time
in which the Claim could be served (see Court of Claims Act §
The requirements set forth in Court of Claims Act § 10 are jurisdictional
in nature and, as such, must be strictly construed (see Lichtenstein v
State of New York, 93 NY2d 911, 912-913).
The Court is not free to temper application of a rule of law, whether done in
the exercise of discretion, equity or because there is no prejudice and a harsh
result will be avoided (see Martin v State of New York, 185 Misc 2d 799,
804-805, collecting cases). Pursuant to Court of Claims Act § 10, Claimant
was required to file and serve her claim within 90 days after the accrual of the
claim or by March 13, 2003. As such, Claimant's service of her Claim on March
21, 2003 was untimely, thereby compelling the dismissal of the claim
(see Voulgarelis v State of New York, 211 AD2d 675).
The Court now turns to Claimant's request for permission to late file her
As a threshold issue, the Court has jurisdiction to review and determine this
motion since it was timely filed within the relevant statute of limitations
provided by Article 2 of the CPLR.
It is well-settled that the factors a Court must consider in determining a
properly framed CCA §10 (6) motion are whether 1) the delay in filing the
claim was excusable, 2) the State had notice of the essential facts
constituting the claim, 3) the State had an opportunity to investigate the
circumstances underlying the claim, 4) the claim appears to be meritorious, 5)
the failure to file or serve upon the attorney general a timely claim or to
serve upon the attorney general a notice of intention resulted in substantial
prejudice to the State, and 6) there is any other available remedy (see
Matter of Gavigan v State of New York, 176 AD2d 1117, 1118; Bay
Terrace Coop. Section IV v New York State Employees' Retirement System
Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981). The most
decisive component in determining a motion under CCA §10 (6) is whether the
proposed claim appears to be meritorious, since it would be futile to permit a
meritless claim to proceed. (Matter of Santana v New York State Thruway
Auth., 92 Misc 2d 1, 10). Claimant must establish the proposed claim is
not patently groundless, frivolous, or legally defective and that there is
reasonable cause to believe
that a valid claim exists (Matter of Santana v New York State Thruway
Auth., supra at 11).
The Defendant does not oppose the application on the factors of excusable
delay, notice, opportunity to investigate or prejudice (Marmelstein
Affirmation ¶ 4 & 5). As such, those factors are deemed to weigh
in favor of the application and the Court notes that on the papers before it,
these factors would be found to weigh in favor of the application. Defendant
vigorously opposes the application on the issue of merit (Marmelstein
Affirmation ¶¶ 13 - 23).
The cross-motion is supported by an affirmation from Claimant's attorney and a
verified proposed claim
. The affirmation of
the attorney, however, who does not purport to have personal knowledge of the
facts, is of no value in determining whether a meritorious claim has been
. Vermette v Kenworth Truck Co.
, 68 NY2d 714;
Hasbrouck v City of Gloversville
, 102 AD2d 905, affd 63 NY2d 916) and
counsel has wisely referred the Court to the verified proposed claim for the
facts (Cuda Affirmation
, ¶ 11, see also
Claimant alleges a violation of her State Constitutional right to be free from
unreasonable searches and seizures pursuant to "Article 1 § 12 of the New
York State Constitution and principles of federal and New York State common law"
(Claim ¶ 11)
. In Brown v State of
(89 NY2d 172), the Court of Appeals determined that a "narrow
at 192) for constitutional tort is properly implied where
needed to assure a constitutional provision's effectiveness and further its
. at 187). No such need exists where, as is the case here,
claimant's "constitutional tort allegations may be analogized to an existing
common-law tort[s] for which there are adequate alternate remedies" (Augat v
State of New York
, 244 AD2d 835, 837, lv denied
91 NY2d 814; see
also Remley v State of New York
, 174 Misc 2d 523). These common-law torts,
if proven, afford remedies adequately protecting the interests at stake
(see Remley v State of New York
, supra; see also
Martinez v City of Schenectady
, 276 AD2d 993 affd
97 NY2d 78).
The Court also notes that Claimant may pursue remedies against the individual
law enforcement officials she asserts participated in this alleged unlawful
behavior. Consequently, this Court finds that Claimant has failed to establish
that her proposed claim appears meritorious with respect to the constitutional
tort cause of action.
Defendant alleges the cause of action for negligent training and/or supervision
is also without merit. In support of this contention, Defendant has provided
affidavits and documentary evidence (see
Affidavits of Joel H. Campbell,
Michael Tinkler and Daniel G. Palmisano; see also Marmelstein Opposition
Exhibit D) which, contrary to Claimant's allegations, place the State Police
at Claimant's residence on not four but only a single occasion on the day in
question. Moreover, Defendant has appended a section of the New York State
Police Field Manual which, on its face, suggests the State Police could take the
actions complained of by Claimant (see Marmelstein Opposition
Exhibit A). To establish liability on negligent training a Claimant must
"establish the requisite causal connection between his injuries and . . . [the]
inadequate training, he must make some showing that specific deficiencies in the
training . . . led the misbehaving officer to engage in the alleged misconduct."
(Vippolis v Village of Haverstraw
, 768 F 2d 40, 44-45, cert denied
480 US 916 ). In the first instance, Claimant has failed to identify or allege
how the training and/or supervision provided by Defendant was deficient.
Claimant's conclusory allegations in the proposed Claim are insufficient to
support a late filing application (see Moore v First Federal Sav. and
Loan Ass'n of Rochester
, 237 AD2d 956).
To the extent the negligent training and supervision allegations are the
outgrowth of a police investigation there is case law suggesting that such a
claim is not actionable as being akin to a claim for negligent investigation or
prosecution, which is not actionable in New York (see Russ v State
Employees Federal Credit Union
[SEFCU], 298 AD2d 791 and Pandolfo v U.A.
Cable Sys. of Watertown
, 171 AD2d 1013). Likewise adding support to the
conclusion that the proposed claim lacks merit is Defendant's observation that
there is no evidence of damages submitted in support of the proposed claim.
Since this is not a motion to dismiss pursuant to CPLR 3211 but rather an
application addressed to the Court's discretion pursuant to § 10(6),
Claimant does bear a higher burden - it is not just whether a claim is stated
but whether there is reasonable cause to believe that a valid claim exists.
(Matter of Santana v New York State Thruway Auth
Given the nature of the injuries alleged - anguish, embarrassment, humiliation,
emotional trauma and a profound loss of dignity (Proposed Claim
¶¶ 10 and 19), it was incumbent upon Claimant to offer some
scintilla of proof to support same (see Augat v State of New York
244 AD2d 835, 837).
As to the last factor, it appears that Claimant has remedies against the local
police officials involved in the events of December 13, 2002 as well as actions
in the federal court pursuant to 42 USC § 1983 as alleged in the proposed
Claim. This factor therefore also weighs against the application.
Taking into account the six statutorily prescribed factors, the Court finds
them to weigh against the granting of claimant's motion for permission to file
a late claim.
Based upon the foregoing reasons, Defendant's motion (M- 66679)