New York State Court of Claims

New York State Court of Claims

MORAN v. THE STATE OF NEW YORK, #2006-028-541, Claim No. 107730, Motion Nos. M-70956, M-70788


A claim that provides no information about the cause of action being asserted must be dismissed for failure to comply with CCA §11(b). and amendment is not possible to cure a jurisdictional defect. Claimant’s motion to late file is denied with respect to an untimely cause of action and granted with respect to a timely one. Question is raised whether an attorney’s lies and malfeasance can excuse a Claimant’s delay.

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):
M-70956, M-70788
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
BY: Kathleen M. Arnold, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 11, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant’s motion for an order of dismissal (Motion No. M-70788) and on Claimant’s motion for permission to amend the claim and to file a claim “nunc pro tunc” (Motion No. M-70956):

1. Notice of Motion (Motion No. M-70788) and Supporting Affirmation of Kathleen M. Arnold, AAG, with annexed Exhibit (Arnold Affirmation)

2. Affirmation in Opposition of Paul M. Villanueva, Esq., with attachment (Villanueva Affirmation in Opposition)

3. Notice of Motion (Motion No. M-70956) and Supporting Affirmation of Paul M. Villanueva, Esq., with annexed Exhibits (Villanueva Affirmation)

4. Affirmation in Opposition of Kathleen M. Arnold, AAG, with annexed Exhibit and Affidavit of Donald Tatro (Arnold Affirmation in Opposition)

5. Affidavit in Further Support of Motion to Amend of William Moran (Moran Affidavit)

6. Letter of Kathleen M. Arnold, AAG

Filed papers: Claim; Answer

When Claim No. 107730 was filed and served, in May 2003, Claimant was represented by another attorney. Other than a statement that the claim accrued on February 13, 2003 and that the act(s) took place in Norman, OK and Rikers Island, Queens, NY, the entire substantive portion of the Claim consists of these five statements:
1. Claimant was released from incarceration in 1992.
2. Claimant was permitted to report to a parol [sic] officer in Norman, OK.

3. On August 9, 1999, claimant was placed on inactive status.

4. On March 18, 2000, a fugitive warrant was issued for his arrest.

Claimant was imprisoned for five months on Rikers Island.

5. Claimant was again arrested in January 2003. He was re-arrested and released on February 13, 2003.

Defendant has moved for an order dismissing this Claim on the ground that it fails to satisfy the substantive pleading requirements of Court of Claims Act § 11(b), specifically the requirement that a claim (or notice of intention) state “the time when and place where such claim arose [and] the nature of same.”

The accepted standard for determining if the content of a claim or notice of intention meets the pleading requirements of section 11(b) was recently discussed by the Court of Appeals in Lepkowski v State of New York (1 NY3d 201 [2003]). To determine whether the statutory requirement has been met, the Court stated that information contained in a claim is “sufficiently definite” if it “enable[s] the State . . . to investigate the claim promptly and to ascertain its liability under the circumstances” (id. at 207, quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]). This criteria, the high court observed, was “the guiding principle informing section 11(b)” (Lepkowski v State of New York, at 207).

The instant Claim fails entirely to meet this standard. It is simply not possible to determine the nature of the claim being asserted against the State from the five statements quoted above. To fulfill the statutory requirement, the claim “must contain some meaningful reference to the defect or wrongful actions by State officials that will allegedly give rise to liability (Grumet v State of New York, 256 AD2d 441), so that the State will have an opportunity to investigate the facts and determine its potential liability” (Arquette v State of New York, 190 Misc 2d 676, 678 [Ct Cl 2001], citing Heisler v State of New York, 78 AD2d 767, supra and Grumet v State of New York, 256 AD2d 441 [2d Dept 1998]). A claim that fails to assert “a legal theory upon which the State is liable” is defective (Bonaparte v State of New York, 175 AD2d 683 [4th Dept 1991]).

Consequently, the Court disagrees with counsel’s statement that “[i]t is abundantly clear from the Claim that claimant is alleging that he was falsely arrest[ed] and falsely imprisonment [sic] by the Defendant” (Villanueva Affirmation in Opposition, ¶ 20). Nothing contained in the instant claim either identifies the State’s allegedly wrongful acts or describes the injury to Claimant. Because the Claim does not satisfy the pleading requirements of section 11(b) of the Court of Claims Act, Defendant’s motion must be granted and the Claim dismissed.

In response to Defendant’s motion, Claimant moved for permission to amend the Claim and for “permission to file a claim nunc pro tunc.” The amendment that Claimant seeks is to have his claim be deemed timely with respect to the period of imprisonment commencing March 18, 2000, to “more clearly articulate his causes of action for both his March 18, 2000 claims and his January 28, 2003 claims,”[1] (Villanueva Affirmation, ¶ 10).[2]

Although in most instances, leave to amend is to be “readily granted” (CPLR 3025 [b]), defects that are jurisdictional may not be cured by amendment (Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983 [3d Dept 1986]; Grande v State of New York, 160 Misc 2d 383 [Ct Cl 1994]; see also Valz v Sheepshead Bay Bungalow Corporation, 249 NY 122 [1928]). Both the time limitations contained in section 10 of the Court of Claims Act and the procedural and substantive requirements contained in section 11 are jurisdictional, and thus defects in meeting them may not be cured by amendment.

That portion of Claimant’s motion for “permission to file a claim nunc pro tunc” is, his counsel states, based on section 10(6) of the Court of Claims Act. Consequently, it is more accurately a motion for permission to file an untimely claim. The proposed claim (captioned “proposed amended claim”) (Villanueva Affirmation, Exhibit A) contains much more detailed information than did the original claim.[3] It alleges that in 1993 Claimant was placed on interstate parole and reported to a parole officer in Oklahoma until August 9, 1999. At that time, he was informed by an official of the New York State Division of Parole that he had been placed on “inactive status” in October 1998 and no longer needed to report in. Relying on this information, Claimant stopped reporting to the Oklahoma parole officer. On March 18, 2000, he was arrested in Oklahoma on a fugitive warrant, charged with violating his parole by failing to report. He was transported to Rikers Island Correctional Facility in Queens, New York, and kept there until his release on August 17, 2000, following a hearing at which he was exonerated of all charges (proposed claim, ¶ II-I). A few years later, on January 28, 2003, Claimant was again arrested on the same charge. He was again transported to Rikers Island, but this time released more quickly, on February 13, 2003, with all charges against him being dismissed.

The proposed claim alleges that Claimant’s improper imprisonment was caused by Defendant’s negligence in failing to note his inactive status and otherwise failing to keep accurate records. Injuries caused by the negligence or unintentional torts of State officials are subject to the time limitations contained in section 10 (3) of the Court of Claims Act, which provides that either a claim must be filed and served, or a notice of intention served, within 90 days of the date a claim accrues. If a notice of intention is employed, the claim must be filed and served within two years after the date of accrual.

As defense counsel notes, Claims based on intentional torts must be commenced, at the latest (i.e., if a notice of intention is employed), within one year after the date of accrual (Court of Claims Act § 3-b), and pursuant to CPLR 215(3), actions for false imprisonment are subject to a one-year Statute of Limitations. It has been recognized, however, that because the Court of Claims Act speaks of “intentional” torts, rather than naming specific causes of action, and because additional or wrongful confinement can be caused solely by negligence within the State prison (or parole) system, the time limitation for unintentional torts (section 10[3]) may sometimes apply to claims that are generally described as “false imprisonment” (Ramirez v State of New York, 171 Misc 2d 677 [Ct Cl 1997]). This is such a case.

The causes of action based on 1) Claimant’s incarceration from March 18, 2000 to August 17, 2000 and 2) his incarceration from January 28, 2003 to February 13, 2003 accrued on the dates that he was released: August 17, 2000 and February 13, 2003. A late claim motion must be commenced before expiration of the applicable CPLR Statute of Limitation, which for negligence claims is three years (CPLR 214). Claimant’s motion, which was filed on October 26, 2005, was untimely with respect to the period of incarceration that occurred in 2000 but timely with respect to the cause of action based on his 2003 incarceration.

In determining a motion for permission to file a late claim, the Court must consider, among
other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: 1) whether the delay in filing the claim was excusable; 2) whether the State had notice of the essential facts constituting the claim; 3) whether the State had an opportunity to investigate the circumstances underlying the claim; 4) whether the claim appears to be meritorious; 5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and 6) whether the movant has another available remedy. The Court in the exercise of its discretion balances these factors, and the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979 [1982]).

Claimant’s delay in filing his claims (for both the 2000 and 2003 periods of incarceration) was, he states, the result of his being misled by his first attorney, Michael Bressler. He indicates in an affidavit that he first contacted Mr. Bressler in September 2000, shortly after he was released from Rikers Island following the first arrest:
Within the first sixty days of retaining Mr. Bressler, Mr. Bressler had assured me that my case was underway and that he had made all necessary filing with the Court. At least 3 or 4 times throughout the year 2001, Mr. Bressler told me that my matter was proceeding smoothly and that settlement negotiations were underway. Upon information and belief, Mr. Bressler was subsequently disbarred from the practice of law for having lied to several of his clients concerning his court filings and the status of their cases.(Moran Affidavit, ¶¶ 6-8). Shortly after Claimant was released from the 2003 incarceration, the original claim, bearing Mr. Bressler’s address, was filed.[4] Because its substantive content was so inadequate, however, it has been dismissed, and this late claim motion becomes necessary.

Claimant states that he was not aware that timely and proper claims were not filed on his behalf until Bressler was disbarred. Although a copy of a newspaper article relating to his disbarment has been submitted (Villanueva Affirmation, Exhibit B), there is no date on the article, and neither Claimant nor his attorney provide information about when the disbarment occurred. Assuming, arguendo, that malfeasance by an attorney which misled a claimant can in some situations be an acceptable excuse for delay (see
Sessa v State of New York, 88 Misc 2d 454, 459-460 [Ct Cl 1976], affd 63 AD2d 334 [3d Dept 1978], affd 47 NY2d 976 [1979]); Flannery v State of New York, 91 Misc 2d 797, 801 [Ct Cl 1977]
), the fact that Claimant has not identified the time period during which he was misled makes it difficult for the Court to determine whether - or for how long - it may have excused his failure to act with respect to the events that took place in 2003.
The factors of notice, opportunity to investigate and potential prejudice to the Defendant are interrelated, and – accepting Claimant’s allegations as true for the purposes of this motion – the unusual circumstances presented here support a conclusion that the State was on notice of its error and the potential for a lawsuit at the time that the still-viable cause of action accrued, February 13, 2003. To have issued a second inaccurate warrant, which resulted in a second unauthorized arrest and imprisonment of the same person is surely rare enough, and troubling enough, that following the hearing at which the charges were dismissed, officials at the supervisory level would be well aware of the error and its implications. (See e.g.
Witko v State of New York, 212 AD2d 889 [3d Dept 1995] ; Powell v State of New York, 187 AD2d 848 [3d Dept 1992];
Espinal v State of New York
, 159 Misc 2d 1051 [Ct Cl 1993] [certain serious or unusual events provide both an opportunity and a motive for investigation].)

It does not appear that Claimant would have a remedy against any person or entity other than the State, and if he succeeds in proving his factual allegations, his claim will be meritorious by any standard.

Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting the requested relief. Claimant therefore is directed to file and serve a claim that sets forth only the cause of action arising from the arrest and incarceration that allegedly occurred in 2003, and to do so in conformity with the requirements of Court of Claims Act §§ 10, 11 and 11-a within thirty (30) days of the date this Decision and Order is filed.

Defendant’s motion is GRANTED and Claim No. 107730 is dismissed: Claimant’s motion DENIED insofar as it seeks permission to amend the original claim and GRANTED in part and DENIED in part insofar as it seeks permission to file an untimely claim.

April 11, 2006
Albany, New York

Judge of the Court of Claims

[1]. The dates used by counsel to identify these two claims are technically incorrect, as a cause of action for false imprisonment accrues when the complained-of confinement ends, not when it begins (Caminito v City of New York, 19 NY2d 931 [1967]; Schildhaus v City of New York, 17 NY2d 853 [1966]; 59 NY Jur 2d False Imprisonment § 125).
[2]. Claimant also seeks to amend the Claim’s caption to add the State of New York as a party, but that change, along with removal of the improperly-named Defendant, has already been accomplished by Decision and Order filed May 10, 2004.
[3]. Counsel for Defendant states several times that Claimant failed to submit a proposed claim or proposed amended claim (Arnold Affirmation in Opposition, ¶¶ 3, 8, 15) and therefore bases her argument that the content of the claim is insufficient on the admittedly-defective original claim. Defendant’s failure to address the subsequent proposed claim had no effect on the resolution of this motion, however.
[4]. The 90th day after February 13, 2003 was May 14, 2003. The original claim was filed with the Clerk of the Court on May 12, 2003 and served on the Attorney General on May 12, 2003.