New York State Court of Claims

New York State Court of Claims

STERNISHA v. THE STATE OF NEW YORK, #2007-030-533, Claim No. 112891, Motion No. M-72951


Case Information

1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

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):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
May 25, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on the disposition of the Court’s Order to

Show Cause:

  1. Order to Show Cause signed February 15, 2007
  1. Affirmation in Support of Claimant’s Application to Vacate Court’s Order to Show Cause, by Daniel F. Lynch, Counsel for Claimant
  1. Affirmation by Dian Kerr McCullough, Assistant Attorney General
4,5 Filed papers: Claim, Affidavit of Service[2]

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. [Ibid. ¶7].

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, [see 22 NYCRR §206.5(a)] and no Answer had been served or filed by the Attorney General[3], 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 the claim,

“ . . . 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 §11(c).

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 timely 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 Office.[4]

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 respondeat superior,[5] are 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, 89 NY2d 172 (1996).[6] 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[7] 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 action,[8] 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.

May 25, 2007
White Plains, New York

Judge of the Court of Claims

[2].If Claimant’s attorney has not already done so, it is suggested that he file the affidavit of service included in the response papers in the Clerk’s office as required.
[3]. If served, the Defendant has forty (40) days within which to serve and file its answer. 22 NYCRR §206.7(a). The Defendant was given an additional thirty (30) days from the filing date of this decision and order to serve and file an answer.
[4]. The Assistant Attorney General writes: “On October 17, 2005, the New York State Office of the Attorney General received papers purported to be the notice of intention to file a claim by personal service.” [Affirmation by Dian Kerr McCullough, Assistant Attorney General, ¶ 2].
[5].See generally Riviello v Waldron, 47 NY2d 297, 302 (1979); Jones v State of New York, 33 NY2d 275, 279 (1973).
[6].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.
[7].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.

[8].In order to hold Defendant directly liable under a negligent retention theory, the Claimant was required to establish that the employer knew or should have known of the employee’s propensity for the sort of conduct which caused the injury. Detone v Bullit Courier Service, Inc., 140 AD2d 278 (1st Dept 1988), lv denied, 73 NY2d 702 (1988). In a negligent retention cause of action, the negligence of the employer arises from its “...having placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the...retention of his employees.” Detone v Bullit Courier Service, Inc., supra, at 279. Assuming the theory applies. See Mon v City of New York, 78 NY2d 309 (1991)(immunity for liability from conduct involving the exercise of discretion, including hiring decision); Arias v City of New York, 22 AD3d 436 (2d Dept 2005)(police officers’ actions were not shown to have been inconsistent with acceptable police practice, where participant in undercover firearms sale killed in gunfire); cf.: Lubecki v City of New York, 304 AD2d 224 (1st Dept 2003), lv denied, 2 NY3d 701 (2004)(police officers’ reckless disregard for decedent’s safety inconsistent with acceptable police practice); Ubiles v Monroe County Sheriff’s Dept., 13 Misc3d 375 (Rochester City Ct 2006) (professional judgment rule discussed at length).