New York State Court of Claims

New York State Court of Claims

VENNERA v. THE STATE OF NEW YORK; NEW YORK STATE POLICE, and ANONYMOUS STATE POLICE OFFICERS AND INVESTIGATORS In their official capacities, #2003-028-595, Claim No. 107437, Motion Nos. M-66679, CM-66989


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:
BY: Joel L. MarmelsteinAssistant Attorney General
Third-party defendant's attorney:

Signature date:
December 29, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant's pre-answer motion to dismiss the

Claim and Claimant's Cross-Motion for permission to late file a claim:

1) Notice of Motion and Supporting Affirmation of Assistant Attorney General Joel L. Marmelstein filed April 11, 2003 with annexed Exhibit A;

2) Notice of Cross-Motion and Affirmation in Support /Opposition of Francis T. Cuda, Esq., (Cuda Affirmation) filed June 16, 2003 with annexed Exhibits A-C;

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 § 10[3]).

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 Claim.
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[1]. 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 articulated (cf. 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 CPLR 105[u]).

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)[2]. In Brown v State of New York (89 NY2d 172), the Court of Appeals determined that a "narrow remedy" (id. at 192) for constitutional tort is properly implied where needed to assure a constitutional provision's effectiveness and further its purpose (id. 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).[3] 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., supra at 11). 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)
to dismiss the Claim number 107437 is GRANTED and Claimant's cross-motion (CM -66989) for permission to late file her claim is DENIED.

December 29, 2003
Albany, New York

Judge of the Court of Claims

[1] The previously filed Claim is annexed to the Claimant's papers and is accepted as the proposed claim for late filing.
[2] The Court lacks jurisdiction to hear either the federal claims which would necessarily be raised in an action pursuant to 42 USC § 1983 (see Zagarella v State of New York, 149 AD2d 503; Davis v State of New York, 124 AD2d 420; Matter of Thomas v New York Temporary State Commn on Regulation of Lobbying, 83 AD2d 723, affd 56 NY2d 656 or causes of actions against individual officers (Claim ¶ 13; Court of Claims Act § 9).
[3] The Court does not, and need not reach Defendant's argument that an expert affidavit is required on an application for permission to late file a claim for negligent training and supervision.