New York State Court of Claims

New York State Court of Claims

McCABE v. THE STATE OF NEW YORK, #2004-015-413, Claim No. 108925, Motion No. M-68263


Defamation action brought by former State Trooper dismissed for lack of jurisdiction stemming from lack of specificity of allegations contained in claims as to defamation and invasion of privacy. No constitutional tort claim found.

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:
Leon T. Koziol, EsquireNo Appearance
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 24, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's pre-answer motion for an order dismissing the claim for lack of jurisdiction pursuant to CPLR 3211 (a) (2) and (8) is granted. The claim filed with the Court Clerk on February 18, 2004 seeks to recover unspecified damages for defamation allegedly occurring between the summer of 2000 and December 2001 while claimant was employed as a member of the New York State Police stationed at Ray Brook, New York. It alleges that Captain Robert LaFountain wrongfully and repeatedly accused claimant of misconduct in the work place over a period of eighteen months and that the defendant and its agents caused and continue to cause the false and defamatory statements to be communicated to members of the public and potential and current employers. The claim further alleges that claimant's personnel file containing false and defamatory statements was shown to and made available to the public in violation of claimant's right to privacy under state and federal laws, and that respondent and its agents have otherwise violated claimant's right to due process under both the state and federal constitutions.

Defendant moves to dismiss the claim alleging that it fails to state a date upon which the claim accrued, does not assert a cognizable theory of liability against the state and fails to set forth the specific damages requested. Finally, the defendant asserts that claimant failed to file and serve the claim within 90 days of its accrual as required by Court of Claims Act § 10 (3-b). Claimant, who is represented by counsel, did not oppose the motion.

Court of Claims Act § 8 effects a waiver of the State's historical sovereign immunity conditioned upon compliance with the limiting provisions of article II of the Act (see, Alston v State of New York, 97 NY2d 159, 163). An elemental limitation upon the State's conditional waiver of immunity is found in Court of Claims Act § 11 (b) which in relevant part provides:
The claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed.
In Lepkowski v State of New York (1 NY3d 201, 207) the Court of Appeals recently stated "section 11 (b) places five specific substantive conditions upon the State's waiver of sovereign immunity by requiring the claim to specify (1) 'the nature of [the claim]'; (2) 'the time when' it arose; (3) the 'place where' it arose; (4) 'the items of damage or injuries claimed to have been sustained'; and (5) 'the total sum claimed' ". Construing the requirements of section 11 (b) strictly (see, Lichtenstein v State of New York, 93 NY2d 911; Dreger v New York State Thruway Auth., 81 NY2d 721) the Court found that although the claimants had properly set forth the nature of the claims at issue, dismissal was appropriate in that "they fail to allege the times when and the place where the claims arose, any items of damage or the total sum claimed" (Lepkowski, at p. 201).

The instant claim does not adequately set forth the time when the claim arose. Rather, the claim alleges that claimant was the subject of accusations of misconduct between Summer, 2000 and December, 2001. Such allegations, encompassing a period of eighteen months, are not sufficiently definite to permit the State to promptly investigate the claim and determine its potential liability (see, Heisler v State of New York, 78 AD2d 767) which "is the guiding principal informing section 11(b)" (Lepkowski, at p. 207). In this regard the claim also alleges that the allegedly defamatory statements were communicated to the public and to claimant's current and potential employers some time subsequent to December, 2001. The claim provides no specific date when the allegedly defamatory communications took place and thus leaves the defendant uninformed regarding the "time when" the claim arose for purposes of Court of Claims Act § 11 (b). The failure to set forth the time when the defamation claim arose renders the claim jurisdictionally defective and requires dismissal of that portion of the claim alleging a defamation cause of action.

Similar jurisdictional defects exist with regard to an alleged cause of action for the invasion of claimant's privacy as a result of the alleged disclosure of his personnel file. It cannot be determined from the claim what disclosures were made, when the disclosures allegedly took place or to whom the file contents were made available. In addition, the claim lacks significant detail regarding any alleged State constitutional tort claim (see Brown v State of New York, 89 NY2d 172). Claimant has not specified which constitutional provision has been violated or how the alleged violations occurred. This Court does not possess subject matter jurisdiction to entertain a claim based upon the alleged violation of claimant's civil rights under the United States Constitution as the State of New York is not a person within the meaning of 42 USC § 1983 (Will v Michigan Dept. of State Police, 491 US 58; Monell v New York City Dept. of Social Services, 436 US 658; see also, Welch v State of New York, 286 AD2d 496).

Finally, the claim fails to set forth "the total sum claimed" as required by Court of Claims Act § 11 (b). This information is required by the mandatory language of the statute and its absence renders the claim jurisdictionally defective requiring dismissal.

Accordingly, the defendant's motion is granted and the claim is dismissed for the reasons set forth above.

June 24, 2004
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated March 29, 2004;
  2. Affirmation of G. Lawrence Dillon dated March 29, 2004 with exhibit.