New York State Court of Claims

New York State Court of Claims

KINGE v. THE STATE OF NEW YORK, #2004-009-61, Claim No. 88273, Motion Nos. M-66691, CM-66986


Each party brought a motion seeking summary judgment. Causes of action for malicious prosecution and negligent supervision were retained, and the cause of action for unjust conviction pursuant to Court of Claims Act § 8-b was dismissed.

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:
BY: Russell E. Maines, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Belinda A. Wagner, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
September 29, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought this motion (M-66691) seeking an order of summary judgment dismissing the claim. Claimant has responded with a cross-motion (CM-66986), not only in opposition to defendant's motion, but also seeking an order granting her summary judgment on the issue of liability.

This Court previously scheduled and heard oral argument on both the motion and cross-motion. In addition, the Court has received and reviewed the following papers submitted by the parties:
Notice of Motion, Affirmation of Belinda A. Wagner, Esq., including Affirmation of Darren O'Connor (Exhibit 1) and Affidavit of Vincent Rossetti (Exhibit 2), and Exhibits A-X. . . 1,2

Defendant's Memorandum of Law 3

Notice of Cross-Motion, Affidavit of Russell E. Maines, Esq., with Exhibits A-U (including Affidavit of Shirley Ann Turner [Kinge] as Exhibit A, Affidavit of Kevin Williams as Exhibit B and Affidavit of Keith L. Eggleston as Exhibit C 4,5

Claimant's Memorandum of Law 6

Defendant's Reply Memorandum of Law 7

Affirmation of Russell E. Maines, Esq., Claimant's Reply Memorandum of Law 8,9

Defendant's Post-Argument Memorandum of Law 10

Claimant's Supplemental Memorandum of Law 11

Claimant filed this claim with the Clerk of the Court of Claims, seeking damages from the State after it had been revealed that certain members of the New York State Police had tampered with evidence in criminal case proceedings against her which had resulted in her conviction.

By way of background, in December 1989 the Harris family of four was brutally murdered in Dryden, New York, and their home was then set on fire. Following an intensive investigation, claimant's son Michael Kinge, was identified as the prime suspect in these brutal crimes. As law enforcement officials attempted to arrest him, however, Michael Kinge shot himself, officers returned fire, and he died as a result of these wounds. During the course of the investigation, claimant was also viewed as a suspect in some of the crimes connected to these murders. On February 7, 1990 claimant was arrested and charged with various crimes related to the murder, arson, and use of stolen credit cards belonging to the Harris family. Claimant was subsequently tried and convicted of third degree arson, first degree burglary, hindering prosecution in both the first and second degree, second degree forgery, and fourth degree criminal possession of stolen property. She was sentenced to a term of imprisonment on January 30, 1991. Thereafter, in 1992, it was revealed that certain members of the New York State Police had fabricated evidence in this matter, as well as in other State Police criminal investigations. Based upon this misconduct, claimant's judgment of conviction was vacated on August 25, 1992, and the indictment against her was dismissed on November 9, 1992. Claimant had filed a notice of intention with the Clerk of the Court of Claims on September 21, 1992, and subsequently filed her claim on November 8, 1993.

Defendant previously brought a motion seeking to dismiss each and every cause of action set forth in the claim[1]. By an Order dated February 17, 1999 this Court dismissed several of the aspects of the claim upon various grounds, leaving three causes of action, to wit: (1) unjust conviction premised upon Court of Claims Act § 8-b, (2) malicious prosecution, and (3) negligent supervision.

Discovery has been completed, and defendant now seeks an order granting it summary judgment dismissing these three remaining causes of action. In her cross-motion, claimant seeks an order granting her summary judgment on the negligent supervision cause of action.

Pursuant to CPLR Rule 3212(b), summary judgment shall only be granted when, "upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." On a motion for summary judgment, therefore, the movant must present evidentiary facts sufficient to establish that party's right to judgment as a matter of law. Once a movant has established a prima facie showing of entitlement to judgment, the opposing party must then produce evidentiary proof in admissible form demonstrating the existence of a material question of fact (Zuckerman v City of New York, 49 NY2d 557; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065).

The Court will therefore examine each of the three remaining causes of action under this standard to determine if any such material facts exist.


Pursuant to Court of Claims Act § 8-b, individuals can be awarded damages against the State if they are wrongly convicted of a crime or crimes, and can demonstrate their innocence. A claimant, however, faces a heavy burden in order to prevail on such a claim. To obtain a judgment, a claimant must prove by clear and convincing evidence that (1) he or she has been convicted of one or more crimes and has served all or any part of the sentence imposed; (2) the judgment of conviction has been reversed or vacated and the indictment dismissed pursuant to certain statutorily enumerated grounds; (3) he or she did not commit any of the crimes charged; and (4) he or she did not cause or bring about his or her conviction (Court of Claims Act § 8-b[5]). The requirements of the statute are to be strictly construed (Torres v State of New York, 228 AD2d 579).

Pursuant to Court of Claims Act § 8-b(4), the Court must dismiss a claim for unjust conviction and imprisonment when, after reading the claim, it finds that the claimant is not likely to succeed at trial.

Based upon the papers submitted on this motion, as well as claimant's own admissions, it has been firmly established that claimant used a credit card belonging to a member of the Harris family, and that she signed the name of one of the victims when making several purchases with this credit card. In this Court's opinion, there is no question that she in fact committed acts for which she was charged within the original indictment. Therefore, it is not possible that claimant will be able to prove her innocence at trial by clear and convincing evidence of each and every count of said indictment, and cannot prevail on this cause of action.

At oral argument on this motion, the Court questioned claimant's counsel at length as to the facts of this cause of action, and the Court was under the impression that claimant intended to voluntarily discontinue this cause of action. The parties, however, were apparently unable to agree on the specific terms of a dismissal based upon consent. In any event, based upon the papers submitted, claimant's prior admissions, and the Court's reading of the claim, claimant's cause of action for unjust conviction under Court of Claims Act § 8-b must hereby be dismissed.


A claimant is faced with a heavy burden in establishing a cause of action based upon malicious prosecution. A claimant must establish that (1) a criminal proceeding was commenced or continued by the defendant against the claimant, (2) the proceeding was terminated in favor of the accused, (3) there was an absence of probable cause, and (4) the defendant acted with actual malice (Broughton v State of New York, 37 NY2d 451, 457, cert denied sub nom. Schanbarger v Kellogg, 423 US 929).

Defendant seeks to dismiss this cause of action contending that despite the fabricated fingerprint evidence, there existed sufficient probable cause to justify the arrest and prosecution of claimant.

As mentioned above, claimant's judgment of conviction in this matter was vacated in 1992, after it was revealed that State Police Investigator David Harding admitted (following an internal investigation) that he had fabricated fingerprint evidence in this case.

By way of background, during the course of the original criminal investigation of the Harris family murders, Investigator Harding reported that he had identified claimant's fingerprints on a gasoline can found at the Harris home, thereby placing her at the murder scene and implicating her in the cover-up of the four murders. During the internal investigation conducted by the State Police of Investigator Harding[2] in 1992, it was revealed that this evidence had been completely fabricated by him. There can be no question that such strong evidence was the significant factor connecting claimant to this horrendous crime.

Despite this fabricated evidence, however, the State contends that there existed sufficient other evidence which independently established probable cause and justified the prosecution of claimant. Specifically, defendant relies heavily upon claimant's admission that she obtained a credit card (in the name of a Harris family member) from her son shortly after the crimes occurred, and then immediately used the card for numerous purchases throughout the area. Defendant also maintains that there was additional other circumstantial evidence tending to place claimant at the scene of the crime and implicating her in the cover-up. For example, State Police investigators believed that the murderer had returned to the home following the four murders, in order to set the fire to cover-up the crime, and that the house was cleaned in an attempt to remove all implicating evidence prior to setting it on fire. State Police then learned, during the course of their investigation, that claimant had worked for the individual who had developed the area in question, and that she cleaned houses for a living, indications that she had both the expertise, and a knowledge of the area, to assist her son in the cover-up. Furthermore, the State Police had obtained a statement from a witness who had observed the Harris family van being operated by a black male with an older black female passenger at the time in question. These additional factors, defendant contends, when taken together, are sufficient to establish probable cause and thereby defeat any claim for malicious prosecution.

Claimant contends, on the other hand, that the fingerprint evidence was the only evidence placing claimant at the Harris family home and, without this evidence, there was insufficient evidence to establish probable cause to justify the criminal proceedings against her.

Claimant is also correct in her position that the lack of probable cause, at any point in the criminal proceedings, can provide the basis for a claim of malicious prosecution.

As a result, claimant contends that at a minimum, even if her use of the credit card was sufficient evidence for the State Police to initially view her as a suspect, probable cause dissipated during the course of the investigation and proceedings when the State Police relied solely upon the fingerprint evidence in continuing her prosecution.

In this regard, claimant relies heavily upon an extensive interrogation conducted of claimant by two State Police officers when she first became a suspect in these crimes. Following this interrogation, one of the officers remarked that except for the fingerprint evidence to the contrary, he would have accepted claimant's statements as trustworthy.

Claimant also relies upon findings reached in the investigation of the evidence scandal conducted by a Special Prosecutor.

Following Mr. Harding's admissions that he had fabricated evidence in criminal matters, Nelson E. Roth, Esq., was appointed as a Special Prosecutor to conduct an investigation into evidence tampering by members of the State Police. Pursuant to his duties, he prepared a "Confidential Report to the Honorable George E. Pataki", containing the results of his investigation. Claimant relies upon findings in this report indicating that the only significant evidence tying claimant to the events in the family residence were the fingerprints found on the gasoline can.[3]

Additionally, claimant points out that the witness identification of the black male and the older female passenger in the family vehicle was recanted, during the investigation.

Based on the foregoing, it is the opinion of this Court that questions of material fact exist as to whether probable cause existed both to commence legal proceedings against claimant, as well as to continue legal proceedings against her after her arrest. These material questions of fact cannot now be resolved on this motion for summary judgment.

Defendant, however, also contends that claimant cannot succeed on her malicious prosecution cause of action, since the State cannot be held vicariously liable for the felonies which were committed by its employees in this instance.

Recently, in a claim which also involved the fabrication of evidence, this Court determined that the State could not be held liable for the actions of State Police officers in fabricating evidence, solely through the doctrine of Respondeat Superior[4]. In that case, this Court found that the actions by members of the State Police in fabricating the fingerprint evidence constituted such a gross departure from acceptable police conduct that they did not further the State's interests, they were not commonly done by such employees within the normal scope of employment, and were not generally foreseeable by the State. As a result, the State could not be held liable for those acts of its employees solely through the doctrine of Respondeat Superior.

Based on this determination in the Prentice claim, defendant contends that the State cannot be found liable for malicious prosecution, even if probable cause is lacking. In its decision on the Prentice claim however, the Court had determined that liability could not be imposed solely on the doctrine of Respondeat Superior. Such a finding, however, even if also found applicable herein, does not, in and of itself, preclude claimant from establishing her cause of action for malicious prosecution. There were several other members of the State Police who played an integral part in this investigation, and questions of fact remain as to what actions were taken, or should have been taken, by these individuals.

Accordingly, it is the opinion of this Court that sufficient questions of fact remain which preclude this Court from granting summary judgment to the State on this cause of action.


Both parties seek an order of summary judgment from this Court with regard to the cause of action for negligent supervision.

Initially, defendant contends that this cause of action is essentially a claim for negligent prosecution, a cause of action which is barred as a matter of public policy. In its prior order of February 9, 1999, referenced above (see Motion No. M-56122), this Court had specifically addressed this issue and dismissed any aspect of the claim seeking damages for negligent investigation, which can be considered the equivalent of negligent prosecution. The Court, however, retained a cause of action alleging negligent training and supervision, and determined that such a cause of action was not barred as a matter of public policy.

Defendant further contends that claimant may not maintain this action in the absence of an actionable underlying tort. The obvious response to this argument is that this Court herein has determined that claimant may proceed to trial with her cause of action based upon allegations of malicious prosecution, and therefore, at trial, may also present proof in furtherance of the negligent supervision cause of action as well.

Accordingly, it is

ORDERED, that Motion No. M-66691 is hereby GRANTED, in part, and DENIED, in part; in accordance with the foregoing; and it is further

ORDERED, that the cause of action asserting a claim for unjust conviction under Court of Claims Act § 8-b is hereby DISMISSED; and it is further

ORDERED, that Cross-Motion No. CM-66986 is hereby DENIED.

September 29, 2004
Syracuse, New York

Judge of the Court of Claims

[1] See Motion No. M-56122.
[2] Another State Police Investigator, Robert Lishansky, had worked with Harding in the Kinge investigation and was also implicated in the evidence tampering scandal.
[3] See Exhibit E to Items 4,5, pg 299.
[4] See Prentice v State of New York, 2004 NY Slip Op 50784 (U).