New York State Court of Claims

New York State Court of Claims

GRIFFEN v. THE STATE OF NEW YORK, #2006-030-585, Claim No. None, Motion No. M-72280


Synopsis


Motion to permit late filing of Notice of Intention to file a claim - treated as one for permission to serve and file a late claim - denied without prejudice to a timely and properly supported motion for permission to serve and file a late claim as to potential causes of action for false arrest, false imprisonment, malicious prosecution (if it has accrued), assault, battery. No causes of action for constitutional tort, or intentional infliction of emotional distress will lie; no facts asserted from which negligent infliction of emotional distress or negligent supervision cause of action can be made out. No proposed claim attached

Case Information

UID:
2006-030-585
Claimant(s):
EDWARD GRIFFEN, JR.
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
GRIFFEN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-72280
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
LAUB and DELANEY, LLPBY: ALFRED C. LAUD
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: DIAN KERR McCULLOUGH, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
December 4, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers numbered 1 to 5 were read and considered on Claimant’s motion


for an Order permitting “late filing of a notice of intention to file a claim (sic)”:

1-3 Notice of Motion; Affirmation in Support by Alfred C. Laub, Attorney for Claimant; Affidavit of Regina Brown and attached exhibits

  1. Affirmation in Opposition to Claimant’s Motion to Permit Late Filing of a Notice of Intention to File a Claim by Dian Kerr McCullough, Assistant Attorney General
  1. Reply Affirmation by Alfred C. Laub, Attorney for Claimant and attached exhibits
According to the Notice of Intention attached to the Claimant’s moving papers, on May 27, 2006 between 10:30 p.m. and 11:30 p.m. Edward Griffen was driving his vehicle on State Route 343 in Amenia, New York, when he was stopped by a New York State Police Officer “without cause”, and thereafter was “physically assaulted and threatened by said officer. Claimant managed to leave the vicinity and was subsequently accosted and assaulted again. He was then falsely arrested, charged with various crimes and falsely imprisoned.” [Affirmation in Support of Motion to Permit Late Filing of a Notice of Intention to File a Claim by Alfred C. Laub, Exhibit 1]. There is no indication as to when (or if) he was released from custody, however the Court will assume that such release occurred the same day.

Claimant’s moving papers indicate that the Notice of Intention was erroneously filed with the Chief Clerk of the Court of Claims[2], but was never served on the Office of the Attorney General. Additionally, no claim was served upon the Office of the Attorney General within ninety (90) days of the date of accrual alleged. Court of Claims Act §§10(3), (3-b). Nominally, the only remedy available to this Claimant is seeking permission to serve and file a late claim in accordance with Court of Claims Act §10(6). There is no application to serve and file a “late Notice of Intention” in Court of Claims practice. Accordingly Claimant’s application has been treated as one for permission to serve and file a late claim: a common practice when a request to serve a late notice of intention is made by litigants more familiar with practice under general municipal law. Claimant has addressed the factors analyzed when seeking such permission in any event.

In order to determine an application for permission to serve and file a late claim, the Court must consider, “among other factors,” the six factors set forth in Court of Claims Act §10(6). The factors stated therein are: (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 meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available.[3] The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. See e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

Additionally, the motion must be timely brought in order to allow that a late claim be filed “. . . at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules . . . ” Court of Claims Act § 10(6). Here, the applicable statute of limitations with regard to the negligence based causes of action raised is three (3) years, and the statute of limitations with regard to intentional acts is one (1) year, thus the motion is timely. See Court of Claims Act § §10(3) and 10(3-b); Civil Practice Law and Rules §§ 214(5); 215. A proposed claim must be submitted with the motion for permission to serve and file a late claim. Court of Claims Act §10(6). No proposed claim has been submitted with the papers.[4]

A claim appears to be "meritorious" within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that there is reasonable cause to believe that a valid cause of action exists. Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 (Ct Cl 1977). Claimant need not establish a prima facie case at this point, but rather the appearance of merit.

No valid excuse for failing to timely serve and file the claim is offered beyond law office failure to mail the Notice of Intention to File a Claim to the Attorney General. [See Affirmation in Support by Alfred C. Laub, ¶¶ 4 and 5; Affidavit of Regina Brown].

The absence of an excuse, however, is but one of the factors to be considered, and does not necessarily preclude relief. Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, supra.

The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, weigh toward granting Claimant’s motion. Based upon the asserted date of accrual of May 27, 2006, the time period has been brief, and this motion practice readily provides adequate notice to the State, allowing more thorough investigation. The passage of time has not been so great that the State’s ability to investigate is impeded to its prejudice. Cf. Edens v State of New York, 259 AD2d 729 (2d Dept 1999) (Two years and two and one-half months from date of accrual). Accordingly, these factors weigh in favor of granting the motion.

As noted, Claimant need not establish his claim prima facie, but rather show the appearance of merit. If the allegations in the Notice of Intention to File a Claim are accepted as true for the purposes of the motion, Claimant has made the minimal showing of merit in order to permit late filing of a claim, at least with respect to those causes of action justiciable in this Court, and as to those causes of action that have actually accrued, if the pleading contained all the elements required. Thus a proper application to file and serve a late claim alleging false arrest, false imprisonment, “personal injuries”, assault and battery might be granted. Because no adequate proposed claim is appended, however, containing sufficient information that would allow the Defendant to respond with a meaningful Answer[5], the motion herein must be denied without prejudice on that ground alone.

In the Notice of Motion filed by Counsel for the Claimant, the causes of action Claimant intends to assert are false arrest, false imprisonment, malicious prosecution, intentional infliction of emotional distress, personal injuries, assault, battery, negligent supervision, violation of claimant’s rights under the 4th, 8th, and 14th Amendments of the Constitution and violation of claimant’s rights under 42 USC §1983 and related statutes. The Notice of Intention includes these asserted causes of action under the “nature of the claim” section, and adds negligent infliction of emotional distress as well.

The State cannot be held liable for the intentional infliction of emotional harm. The State is an entity, incapable of forming the requisite intent. Furthermore, “. . . public policy prohibits a claim for intentional infliction of emotional distress from being brought against the State . . . (citation omitted),” De Lesline v State of New York, 91 AD2d 785, 786 (3d Dept 1982); and the State is not subject to punitive damages. Sharapata v Town of Islip, 56 NY2d 332, 334 (1982); Wheeler v State of New York, 104 AD2d 496, 498 (2d Dept 1984). Accordingly, the aspect of a claim attempting to assert intentional infliction of emotional distress does not state a viable cause of action, and would not be justiciable in this Court. Without alleging any facts concerning a “direct injury”, any cause of action for negligent infliction of emotional distress - notably not even included in the notice of intention but seemingly added as an afterthought to the notice of motion - would likely not lie either. See generally Lauer v City of New York, 95 NY2d 95 (2000); Kennedy v McKesson Co., 58 NY2d 500 (1983); Johnson v State of New York, 37 NY2d 378 (1975).

With respect to the alleged constitutional violations, judging by the context, what appears to be asserted are purported violations of the United States Constitution, also not heard in this Court. Purported violations of the federal constitution may not be maintained in the Court of Claims and should be pursued pursuant to 42 USC §1983. No cause of action against the State of New York exists for alleged violations of an individual’s rights under the United States Constitution [See Lyles v State of New York, 2 AD3d 694 (2d Dept 2003) affd 3 NY3d 396 (2004); Welch v State of New York, 286 AD2d 496, 498 (2d Dept 2001); Zagarella v State of New York, 149 AD2d 503 (2d Dept 1989); Davis v State of New York, 124 AD2d 420, 423 (3d Dept 1986)], in that the State is not a “person” amenable to suit pursuant to 42 USC §1983. It is axiomatic that individuals cannot be sued in the Court of Claims, [See Court of Claims Act §9], thus naming the State Police Officers or other individuals does not somehow render the State amenable to suit for alleged federal constitutional violations.

Additionally, no cognizable constitutional tort claim under the New York State Constitution is made out here, especially in light of Claimant’s assertion that his claim is brought pursuant to 42 USC §1983. See Brown v State of New York, 89 NY2d 172 (1996). To determine whether a cause of action for a State constitutional tort is properly brought in the Court of Claims the Court must consider whether: (1) the applicable constitutional provision is self-executing; (2) monetary damage remedies further the purpose of the underlying constitutional provisions and necessarily assure its effectiveness; (3) the provisions are such that they impose a clearly defined duty on the State officers and/or employees; (4) declaratory and injunctive relief is inadequate; and (5) money damages necessarily deter governmental conduct and make the claimant whole.

In New York, constitutional provisions are presumptively self-executing. Brown v State of New York, supra at 186. Violation of every self-executing provision will not always support a claim for damages however. Only where it is necessary to ensure the effectiveness and promote the purposes of the allegedly violated provision will a constitutional tort remedy be implied. Brown v State of New York, supra at 191. Here, the Court is not convinced that any monetary recovery would further the purpose of the underlying constitutional provisions and make Claimant whole. Indeed, relief available through alternative proceedings, including appeal of the criminal proceeding, and properly asserted causes of action for false arrest and imprisonment, or malicious prosecution if and when a malicious prosecution cause of action accrues,[6] could provide this Claimant with an adequate remedy. Bullard v State of New York, 307 AD2d 676, 678 (3d Dept 2003); See Droz v State of New York, UID #2006-028-533, Claim No. 108142, Motion No. M-70955 (March 21, 2006, Sise, P. J.).

Finally, no facts are asserted herein from which a negligent supervision or other related cause of action is made out. Riviello v Waldron, 47 NY2d 297, 302 (1979); Jones v State of New York, 33 NY2d 275, 279 (1973).

Accordingly, Claimant’s motion for permission to serve and file a late notice of intention to file a claim is denied without prejudice to the Claimant’s bringing a timely motion for permission to serve and file a late claim attaching a proposed claim containing separately stated and numbered causes of action justiciable in this Court that have actually accrued.



December 4, 2006
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[2]. Effective August 2, 1995, the requirement that a Notice of Intention had to be filed with the Clerk of the Court of Claims was removed. See Chapter 466, Laws of 1995. When such a document is filed erroneously with the Clerk, it is generally returned with notification of that fact, as it was here.
[3]. The Defendant has not opposed the motion on the ground of availability of another remedy, therefore this factor is presumed to weigh in claimant’s favor. Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978)[“Although the State argues in this appeal that claimant's inference of notice to it is based on equivocal facts, it filed no affidavit with the court claiming either prejudice or lack of notice. When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true . . . (citations omitted)]
[4].The “Notice of Intention” does not contain all the information that would be necessary to comply with Court of Claims Act §11(b) and 22 NYCRR §206.6, and is insufficient to be treated as a claim pursuant to Court of Claims Act §10(8) .
[5]. As to the contents of pleadings generally, see Civil Practice Law and Rules §3014; as to the contents of a claim in Court of Claims practice, see Court of Claims Act §11(b); 22 NYCRR §206.6.
[6].A cause of action for malicious prosecution accrues when a criminal proceeding terminates in favor of the accused. Droz v State of New York, infra. The criminal proceeding is apparently ongoing as indicated in various locations in the moving and reply papers.