New York State Court of Claims

New York State Court of Claims

LEE v. THE STATE OF NEW YORK, #2006-013-012, Claim No. 107329, Motion No. M-70971


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:
Attorney General of the State of New York
Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 13, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


On December 21, 2005, the following papers were read on motion by Defendant for summary judgment dismissing the claim:

Notice of Motion, Affirmation and Exhibit Annexed

Opposing Papers (Not Considered)

Filed Papers: Claim

Upon the foregoing papers, this motion is granted and the claim is dismissed.

The Defendant seeks summary judgment dismissing the claim herein. Previously, in Motion No. M-69971, in a decision and order filed on July 1, 2005, I denied a similar motion by Defendant, without prejudice to its renewal upon the completion of certain outstanding discovery requests made by Claimant.

Now, in accordance with the schedule permitted in my preliminary conference order dated October 20, 2005, the Defendant renewed its summary judgment motion. Prior to addressing the merits of the motion, an issue has been raised concerning the Claimant’s answering papers. This motion was served by mail upon Claimant’s counsel on November 17, 2005 and made returnable on December 21, 2005. The notice of motion contained a seven-day demand (CPLR 2214[b]). Claimant’s opposing papers, consisting of a memorandum of law in opposition, were sent to the Clerk’s Office by facsimile transmission on December 21, 2005 at 18:58, nearly 7:00 p.m.

The Defendant wrote to the Court on December 23, 2005, noting its receipt of said opposing papers at 7:25 p.m. on December 21, 2005, also by facsimile, without having received any prior communication from the Claimant with respect to the opposing papers. Defendant objects to the consideration of these papers, inter alia, because it has been deprived of its right to submit reply papers.

Claimant’s opposing papers are late and I decline to consider them.

Summary judgment is sought on the ground that a cause of action for negligent training and supervision may not lie in this matter, relying, inter alia, on Matter of Trader v State of New York (277 AD2d 978). It should be noted that I granted Claimant permission to file a late claim on December 18, 2002, albeit only permitting a cause of action sounding in negligent training and supervision of the correction officers involved in the incident with Claimant. In that decision and order (M-65575), I noted Defendant’s opposition based upon Matter of Trader v State of New York (277 AD2d 978, supra), but distinguished its applicability because it arose upon a motion for summary judgment, not a late claim application, and different burdens applied (see Waxter v State of New York, 6 Misc 3d 1035[A]; Ct Cl, UID #2005-032-007, Claim No. 102256, Motion No. M-69417, Feb. 16, 2005, Hard, J.[1]).

The Defendant does not dispute that the correction officers were acting within the scope of their duties in the course of their employment at the time of the incident in which Claimant was injured. Thus, if the officers had engaged in tortious conduct, the Defendant would be vicariously liable for their actions. As I noted in my earlier decision and order, such cause of action was not timely asserted here, and the late claim motion was untimely as to such alleged intentional conduct.

Defendant suggests analogous circumstances where a state constitutional tort will not lie if the alleged wrongs could have been raised in timely interposed common law torts (see Lyles v State of New York, 194 Misc 2d 32, 37, affd 2 AD3d 694, affd on other grounds 3 NY3d 396;

Waxter v State of New York, 6 Misc 3d 1035[A], supra, where the court held that such remedy is recognized only if a claimant has no common law or statutory remedy available).

The Fourth Department has reiterated its holding in Trader, noting:

[A]n underlying requirement in actions for negligent [hiring or retention] is that the employee is individually liable for a tort or guilty of a claimed wrong against a third person, who then seeks recovery against the employer [citations and internal quotation marks omitted].... Because a finding of negligence cannot serve as a basis for liability against [the employee], such a finding cannot serve as a basis for imposing liability on the [employer] for negligent hiring and retention. With respect to the further allegation of reckless hiring and retention, the [employer] has admitted that [the employee] was acting within the scope of his employment[[2]] and, thus, if [the employee] was reckless, the [employer] is liable... regardless of the reasonableness of the hiring or retention.

(Primeau v Town of Amherst, 303 AD2d 1035, 1036.)

In the instant matter, there was a remedy available to Claimant, but it was not timely interposed. Under these circumstances, and in reliance upon the Fourth Department’s holdings in Matter of Trader v State of New York (277 AD2d 978, supra) and its progeny, the Defendant’s motion for summary judgment is granted and the claim is dismissed.

April 13, 2006
Rochester, New York

Judge of the Court of Claims

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  1. [2]As the Defendant has acknowledged in the instant matter.