New York State Court of Claims

New York State Court of Claims

GRANT v. THE STATE OF NEW YORK, #2004-015-432, Claim No. NONE, Motion No. M-68829


Late claim application supported solely by affirmation of counsel denied in case involving a potential claimant photographed by State Police seated on a toilet. Public policy prevents consideration of claim for intentional infliction of emotional injury against the State under doctrine of respondeat superior. Movant failed to demonstrate required elements of cause of action for negligent infliction of emotional harm. NY does not recognize common law action for invasion of privacy and Civil Rights Law § § 50-51 have no application here.

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:
Anderson, Moschetti & Taffany PLLCBy: David J. Taffany, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Stephen J. Maher, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 27, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's application for late claim relief pursuant to Court of Claims Act § 10 (6) is denied. The proposed unverified claim bearing only the signature of movant's attorney alleges that movant sustained unspecified "personal and emotional injuries" as the result of the actions of a New York State Trooper at the State Police barracks at Westport, New York, Essex County. Specifically, the proposed claim alleges that at approximately 3:30 a.m. on October 18, 2003 the movant was photographed by an unidentified trooper by surprise and without his consent while seated on a toilet with his pants down following his arrest on driving while intoxicated charges. It is further alleged that movant was caused to suffer physical and emotional harm when the photograph was later displayed in a conspicuous place within the barracks available to both State Police personnel and the public. Neither a notice of intention nor claim was served upon the Attorney General within 90 days of the incident and movant now seeks late claim relief pursuant to Court of Claims Act § 10 (6).

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether 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, whether the claimant has any other available remedy".

A claim arising from the alleged negligence of the State is governed by the three year statute of limitations set forth in CPLR § 214 (5). A claim based upon an intentional tort is subject to a one-year Statute of Limitations pursuant to CPLR § 215. The incident giving rise to the claim purportedly occurred on October 18, 2003 and this application filed on July 21, 2004 is therefore timely.

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965). The statutory factors are not exhaustive nor is one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254).

Movant's attorney alleges that the delay in filing the claim was attributable to the movant's and his then attorney's preoccupation with the criminal charges lodged against him. This excuse constitutes either ignorance of the law (Griffin v John Jay College, 266 AD2d 16) or law office failure (Nyberg v State of New York, 154 Misc 2d 199; Almedia v State of NewYork, 70 AD2d 712) neither of which can be considered a reasonable excuse. This factor weighs in favor of the defendant.

The intertwined issues of notice, opportunity to investigate and prejudice will be considered together. Movant's attorney alleges that notice of the alleged actions of the unidentified trooper was unnecessary since it was the trooper's action which gave rise to the claim. This argument was soundly rejected by the Appellate Division, Third Department in Witko v State of New York (212 AD2d 889, 890) where the Court held that "[n]otice will not be imputed to the State where, as here, the claimed knowledge is that of the alleged tortfeasor, and not that of a person possessing the supervisory authority to initiate an investigation into the claim (see Tarquinio v City of New York, 84 AD2d 265, 270 affd sub nom. Pierson v City of New York, 56 NY2d 950; Matter of Cooper v City of Rochester, 84 AD2d 947; Phillips v State of New York, 36 AD2d 679)." Movant has not alleged any other facts establishing notice or that the State had a reasonable opportunity to investigate the alleged incident (see Remley v State of New York, 174 Misc 2d 523; Green v State of New York, Ct Cl, October 17, 2000 [Claim No. None, Motion No. M-60328, UID # 2000-005-567] Corbett, J., unreported[1])
Movant's attorney has merely suggested that the alleged photograph was seen by an unidentified tow truck operator and has not attached to the application an affidavit from the alleged witness or identified any other witness to the alleged activity. Under these circumstances the factors of notice, opportunity to investigate and prejudice weigh in favor of the defendant.

Regarding the issue of merit it is movant's burden to show that the proposed claim is not patently groundless, frivolous or legally defective and that there is reasonable cause to believe that a valid claim exists (see Rosenhack v State of New York, 112 Misc 2d 967; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). The instant application is supported solely by the affirmation of movant's attorney. "The affidavit of the attorney 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)" (Baker v The Olympic Regional Development Authority, et ano, Ct Cl, January 26, 2001 [Claim No. None, Motion No. M-62868, UID # 2001-007-082] Bell, J., unreported). Moreover, the proposed claim submitted on the motion is not verified and therefore cannot be substituted as an affidavit by the movant pursuant to CPLR § 105 (u). However, in the exercise of its discretion and in furtherance of judicial economy the Court has chosen to treat the allegations set forth in the moving papers as true for the purposes of the motion and finds that even construed liberally these papers fail to establish that a valid claim exists. First, New York does not recognize a common law cause of action to recover damages for invasion of privacy (D'Agostino v Pan American World Airways, 79 AD2d 646 Grodin v Liberty Cable, 244 AD2d 153) and it does not appear that the statutory cause of action set forth in Civil Rights Law § § 50 and 51 has any application under the circumstances alleged in the proposed claim. Similarly, it is established that public policy prohibits an action against the State of New York for intentional infliction of emotional harm (Brown v State of New York, 125 AD2d 750, appeal dismissed 70 NY2d 747; Wheeler v State of New York, 104 AD2d 496; De Lesline v State of New York, 91 AD2d 785, lv denied 58 NY2d 610). As a result, the motion is denied to the extent that movant seeks to assert a claim for invasion of privacy or intentional infliction of emotional distress.

While a cause of action for negligent infliction of emotional harm may be asserted against the State its use is limited to "extremely rare instances where the emotional injury is a direct rather than a consequential result of the negligence (Kennedy v McKesson Co., 58 NY2d 500, 506)" (Kidd v State of New York, Ct Cl, November 19, 2003 [Claim No. None, Motion No. M-67198, UID # 2003-013-030] Patti, J., unreported) and "a high likelihood exists that the claims are genuine rather than spurious or feigned (Rivera v Wyckoff Hgts. Hosp., 184 AD2d 558, 560)" (Collins v State of New York, Ct Cl, August 4, 2000 [Claim No. None, Motion No. M-61725, UID # 2000-001-042] Read, P.J., unreported). Such a cause of action generally must be premised upon conduct that unreasonably endangers the plaintiff or causes the plaintiff to fear for his or her physical safety (see Crispino v Greenpoint Mtge. Corp., 2 AD3d 478; Doe v Archbishop Stepinac High School, 286 AD2d 478; Johnson v New York City Bd. of Educ., 270 AD2d 310; Perry v Valley Cottage Animal Hosp., 261 AD2d 522) (Lipton v Unumprovident Corp., ____ AD2d ____ 2004 WL 2164871). No such allegations are set forth in the proposed claim. Based upon these considerations the proposed claim appears not to be meritorious and this important factor likewise weighs against granting the motion.

As to the final factor, it cannot be determined on the basis of movant's submission whether there is any other available remedy.

Consideration of all of the statutory factors leads this Court to deny this motion.

October 27, 2004
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated July 16, 2004;
  2. Affirmation of David J. Taffany dated July 16, 2004 with exhibit;
  3. Affirmation of Stephen J. Maher dated August 10, 2004.

[1]Unreported decisions from the Court of Claims are available via the internet at