4,5 Filed papers: Claim, Affidavit of Service
After carefully reviewing the papers issued and submitted and the applicable
law the Order to Show Cause is resolved as follows:
Initially, the Court is satisfied that both Claimant and Defendant were served
with a copy of the Order to Show Cause, issued by the Court after its review of
the Claim herein, by service upon Counsel of record.
Claimant alleges in Claim Number 112891 that on July 20, 2005 a New York State
Trooper wrongfully charged him with obstructing governmental administration and
disorderly conduct when Claimant did not - as directed by the trooper - move a
tandem truck he was attempting to drive through the entrance to a New York State
Department of Transportation inspection point to a parking location where
“it would have been impossible to park.” [Claim No. 112891,
¶¶ 3, 6]. Claimant told the trooper “. . . that he would have to
call the New York State Thruway Authority to rectify the situation , . . . [and
then] was immediately informed by Trooper Finn that he was under arrest.”
[Ibid. ¶6]. Additionally, the trooper placed handcuffs on the
Claimant in too tight a fashion, and then “forcibly toss[ed] Claimant into
the back of the truck” when claimant complained about the tightness.
Thereafter, Claimant was transported to the New York State Police Barracks and
held in custody for five (5) hours and then released. It appears that at some
point the charges were either withdrawn or dismissed, but claimant does not
indicate when such action occurred.
Six (6) different “claims” are alleged stemming from the facts
alleged above, including combined causes of action alleging violations of the
United States Constitution, the New York State Constitution, negligent hiring,
training and supervision, assault and battery, false arrest and imprisonment,
and malicious prosecution.
A Notice of Intention to file a Claim was served on the Office of the Attorney
General on October 17, 2005. The Claim itself was filed in the Office of the
Chief Clerk of the Court of Claims on October 18, 2006. No proof of service of
the Claim on the Office of the Attorney General was filed as required,
22 NYCRR §206.5(a)] and no Answer had been served or filed by
the Attorney General
, suggesting that the
Defendant had not been timely served with a copy of the claim, thus the Court
issued its Order to Show Cause on February 15, 2007.
Court of Claims Act §11(a) requires that a Notice of Intention, as well as
“ . . . be served personally or by certified mail, return receipt
requested, upon the attorney general . . .” within the time prescribed in
Court of Claims Act §10. Service is complete when it is received in the
Attorney General’s Office. Court of Claims Act §11(a)(i). Personal
service is accomplished by service upon the Attorney General or an Assistant
Attorney General [Civil Practice Law and Rules §307] although Defendant
may be estopped from asserting a failure to serve such documents personally when
a clerk designated as recipient of legal process accepts the papers, [see
e.g. Francis v State of New York, 155 Misc 2d 1006 (Ct Cl 1992)] and
such a defect in service is also waivable. See Court of Claims Act
More significantly, the filing and service requirements contained in Court of
Claims Act §§10 and 11 are jurisdictional in nature and must be
strictly construed. Finnerty v New York State Thruway Auth., 75
NY2d 721, 722-723 (1989). Indeed, the statute provides in pertinent part
“. . . [n]o judgment shall be granted in favor of any claimant unless such
claimant shall have complied with the provisions of this section applicable to
his claim . . . ” Court of Claims Act §10.
As directed by the Order to Show Cause, Claimant has now presented proof of
personal service upon the Attorney General’s Office on February 8, 2007,
and same is acknowledged by the Defendant in the affirmation submitted by the
Assistant Attorney General.
Claimant has not, however, by his submissions, established that the claim was
served, since it was served more than ninety (90) days after its
accrual of July 20, 2005, and more than one (1) year after the intentional tort
causes of action accrued, if a proper Notice of Intention to file a Claim was
timely served upon the Attorney General’s
Court of Claims Act §11(b) requires that a Notice of Intention “. .
. state the time when and place where such claim arose, [and] the nature of same
. . . ” The purpose of the Notice of Intention is to put the Defendant
State on notice of potential suit against it, so that it may investigate the
claim and infer a theory of liability. It also acts to extend the period within
which a Claim must be served and filed, provided it has been properly served and
contains the required information. While it need not be scrutinized with the
same attention as a pleading, it should nonetheless perform its notice function,
as well as provide specific enough information to determine whether any
subsequently served and filed Claim is timely filed.
With regard to this claim, no copy of the notice of intention is submitted by
either party, thus the Court has nothing to evaluate to determine whether the
notice of intention satisfied the purposes described. Accordingly, for the
purposes of the present discussion, it is assumed that the Notice of Intention
was timely served on October 17, 2005, and that it contained sufficient
information to allow the State to form a theory of liability.
In terms of extending the period within which Claimant was required to serve
his claim, however, as to any intentional tort causes of action, the time within
which to serve the claim expired on July 20, 2006 [See Court of Claims
Act §10(3-b)], and the time within which to serve the claim with regard to
negligent causes of action would have expired, at the latest, on July 20 2007.
See Court of Claims Act §10(3).
The assault and battery causes of action, premised on the doctrine of
untimely, since the accrual date is July 20, 2005 and - again assuming the
Notice of Intention was adequate - no claim was served upon the State of New
York within one (1) year of accrual as required. Court of Claims Act
§10(3-b). Additionally, claimant is foreclosed from pursuing late claim
relief with regard to these causes of action because the time within which a
person suing other than in the court of claims could bring a lawsuit is one (1)
year from accrual [see
Civil Practice Law and Rules §215(3)] thus
the time within which to bring application for permission to serve and file a
late claim has expired as well. See
Court of Claims Act §10(6).
With respect to the alleged constitutional violations, what appears to be
asserted are purported violations of the United States Constitution, not
justiciable 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 would 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. See Brown v State of New York
NY2d 172 (1996).
In New York, constitutional
provisions are presumptively self-executing. Brown v State of New York
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
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
could have provided this Claimant
with an adequate remedy, were they included in a timely served claim. 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.). Furthermore, as intentional tort causes of
action, and assuming a date of accrual of July 20, 2005 as well as an adequate
notice of intention, late claim relief is unavailable here with respect to false
arrest and false imprisonment causes of action. Court of Claims Act §10
(3-b); Civil Practice Law and Rules §215. It cannot be determined if any
cause of action for malicious prosecution is untimely, because claimant has not
alleged when any criminal prosecution was resolved in his favor.
With regard to the negligent supervision or other related causes of
however, and assuming that the notice
of intention adequately apprised the State of these theories of liability, the
claim is timely served within two (2) years of accrual, as they are causes of
action sounding in negligence.
Accordingly, Claimant has failed to establish why portions of the claim should
not be dismissed for failure to comply with the provisions of Court of Claims
Act §§10 and 11, in that the claim was not timely served upon the
office of the attorney general as required.
Claimant’s first, second, fourth, and fifth “claims for
damages” are hereby dismissed in their entirety. Claimant’s third
(negligent hiring, training and supervision) and sixth (malicious prosecution)
causes of action remain, subject to whatever defenses are raised by Defendant in
its Answer. As noted, Defendant is directed to Answer the claim, assuming it
contains only the causes of action that remain as set forth herein, within
thirty (30) days of the filing date of this decision and order.