New York State Court of Claims

New York State Court of Claims

GOJANI v. THE STATE OF NEW YORK, #2007-030-545, Claim No. 110282, Motion Nos. M-72535, CM-73045


Synopsis


Defendant’s motion for summary judgment and for dismissal of the within claim is granted, and claimant’s cross-motion is denied. Local police agency in Florida arrested claimant as a named offender based upon the information on the New York State Domestic Violence Registry. The information was incorrect. The type of conduct falls squarely within the statutory immunity set forth in Executive Law §221-a(5), in that it presents an apparently negligent ministerial failure to record and transmit a modification of an order of protection originally entered on the New York State Domestic Violence Registry, that resulted in incorrect information being maintained on the registry. All causes of action asserted in the claim - false arrest, defamation, slander, libel and violation of State due process - stem from this same ministerial failure and are dismissed

Case Information

UID:
2007-030-545
Claimant(s):
PAL GOJANI
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
GOJANI
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):
110282
Motion number(s):
M-72535
Cross-motion number(s):
CM-73045
Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
GLENN A. WOLTHER, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: VINCENT M. CASCIO, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
July 16, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on Defendant’s motion for summary judgment dismissing the claim, [M-72535] and on Claimant’s cross-motion for partial summary judgment [CM-73045] as to liability on claimant’s first, second and third causes of action:
1,2 Notice of Motion for Summary Judgment, Affirmation of Vincent M. Cascio, Assistant Attorney General and attached exhibits

3,4 Notice of Cross-Motion for Partial Summary Judgment for Liability on Claimant’s First, Second and Third Causes of Action, Affirmation in Opposition to Defendant’s Motion for Summary Judgment and in Support of Claimant’s Cross-Motion for Partial Summary Judgment by Glenn A. Wolther, Attorney for Claimant and attached exhibits

  1. Reply Affirmation in Support of Motion for Summary Judgment and in Opposition to Cross-Motion for Summary Judgment by Vincent M. Cascio and attached exhibits
  1. Reply Affirmation in Support of Claimant’s Cross-Motion for Partial Summary Judgment for Liability on Claimant’s First, Second and Third Causes of Action
7-10 Filed papers: Claim, Answer, First Amended Claim, First Amended Verified Answer

The causes of action asserted in the claim herein arise from claimant’s arrest and detention in the State of Florida on or about August 7, 2004, pursuant to what appeared on computer records of the New York State Domestic Violence Registry - managed by the New York State Office of Court Administration and the New York State Unified Court System - as an extant order of protection emanating from the New Rochelle City Court in the State of New York. An Order of Protection had been issued to Claimant’s wife in the New Rochelle City Court on August 28, 2003 directing that claimant “stay away” from her and forbidding communication among other things. It was modified by the same court on September 26, 2003 to delete the “stay away” provisions, but the information concerning such modification was not entered in the computer by New Rochelle City Court personnel until August 13, 2004. [Affirmation in Support of Motion for Summary Judgment by Vincent M. Cascio, Assistant Attorney General, Exhibit I]. This computer entry was corrected only after the Claimant’s arrest in Florida.

Defendant moves for summary judgment based upon an immunity defense provided in Executive Law §221-a(5), asserting that the claim must be dismissed because the undisputed facts set forth above establish the applicability of this statutorily provided immunity, barring the present lawsuit. Claimant cross-moves for partial summary judgment on his first, second and third causes of action. The first cause of action is in the nature of a false arrest, the second cause of action appears to allege defamation, slander or libel, and the third cause of action asserts violation of the due process provisions of the New York State Constitution.

Civil Practice Law and Rules §3212(b) provides in pertinent part:
. . . A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party . . . the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.
Defendant’s Motion for Summary Judgment
The Defendant moves for summary judgment based upon the immunity defense provided in Executive Law §221-a(5) which states:
In no case shall the state or any local law enforcement official or court official be held liable for any violations of rules and regulations promulgated under this section, or for damages for any delay or failure to file an order of protection or special order of conditions, or to transmit information to the law enforcement communication network pertaining to such orders or related family court arrest warrants, or for acting in reliance upon such information. For purposes of this subdivision law enforcement official shall include but not be limited to an employee of a sheriff’s office, or a municipal police department or a peace officer acting pursuant to his or her special duties.” (emphasis added).


The plain language of this statute can be read and given effect without reference to legislative history, as there is no ambiguity. See generally NY Statutes §76; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557, 565 (1984)[2]; Matter of Regan v Crime Victims Compensation Bd., 57 NY2d 190 (1982)[3]; Zaldin v Concord Hotel, 48 NY2d 107 (1979)[4]. From the plain language of the statute, immunity is afforded to the state and to municipalities for failures to act or for false arrests that might result from the underlying negligent failure to record and transmit information that surrounds orders of protection, including any modification of same.

Moreover, statutes should be interpreted so as to avoid an absurd result. People v Santi, 3 NY3d 234, 242 (2004).[5] Although no case law specifically addressing this provision is cited by either party, nor has any mention of this provision been found by this court[6], even so what history there is indicates that this was an effort to immunize certain conduct surrounding protective orders by the applicable entities as part of an overall effort to standardize treatment of this type of crime. [See generally L.1994, c. 222, § 50; amended by L.1994, c. 224, § 11; L.1995, c. 349, § 2; L.1998, c. 597, § 17, eff. Dec. 22, 1998; amended L.2002, c. 462, § 2, eff. Nov. 18, 2002; L.2004, c. 107, § 6, eff. June 8, 2004].

Thus, if a local police agency failed to arrest an offender named in an order of protection, and the person for whose benefit an order of protection had been issued was then harmed by the offender, the underlying failure to record and transmit information concerning the order of protection is immunized under this statute, except, perhaps, for the narrow situation presented when “special duty”[7] considerations may arise to impose liability for otherwise immunized governmental[8] functions. See generally Sorichetti v City of New York, 65 NY2d 461 (1985).[9]

By the same token, should a local police agency arrest a named offender based upon the information on the New York State Domestic Violence Registry, the underlying ministerial failure is also immunized under this statute. Both the victim in one scenario, and the wrongfully arrested offender, have suffered from the misinformation by the ministerial negligence. It would seem manifest that the underlying conduct of the State or the municipality could have devastating consequences for each, but the legislature has chosen to immunize it by this statutory provision.

To read the statute as providing that negligent conduct resulting in an assault, however, versus conduct resulting in an arrest, allows only the latter maligned individual to sue for damages would be incongruous. The conduct which the statute immunizes - namely the conduct surrounding the mechanics of entering (or deleting or modifying) the information concerning orders of protection on the computer network - includes just the type of ministerial tasks that without such statutory immunity would render the State liable for any negligent failures of its employees to timely and properly “. . . transmit information to the law enforcement communication network pertaining to such orders or related family court arrest warrants, or for acting in reliance upon such information . . . ” Executive Law §221-a(5).1[0]

Here employees of a court failed in their ministerial duty to properly enter information concerning a modification of a court order that resulted in the retention of incorrect information on a national network. Twice. This type of a failure to perform what is clearly a ministerial act, without immunity considerations, has been repeatedly held to allow suits against the State of New York for the alleged negligence of its employees in the performance of such ministerial acts. Lauer v City of New York, 95 NY2d 95, 99 (2000); Hunt v State of New York, 36 AD3d 511 (1st Dept 2007); Boland v State of New York, 218 AD2d 235, 243-245 (3d Dept 1996); Marx v State of New York, 169 AD2d 642 (1st Dept 1991); Schwandt v State of New York, 4 Misc 3d 405 (Ct Cl 2004); Ostrowski v State of New York, 186 Misc 2d 890 (Ct Cl 2001).1[1]

Given the undisputed facts, there are no genuine material issues of fact requiring a trial, and the matter may be disposed of as a matter of law. Winegrad v New York University Medical Center, 64 NY2d 851 (1985); Zuckerman v City of New York, 49 NY2d 557 (1980).

The type of conduct acknowledged by defendant falls squarely within the statutory immunity set forth in Executive Law §221-a(5), in that it presents an apparently negligent ministerial failure to record and transmit a modification of an order of protection originally entered on the New York State Domestic Violence Registry, that resulted in incorrect information being maintained on the registry. All causes of action asserted in the claim stem from this same ministerial failure.

Defendant’s motion for summary judgment and for dismissal of the within claim is granted, and claimant’s cross-motion is denied. Claim Number 110282 is dismissed in its entirety.



July 16, 2007
White Plains, New York

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




[2]. “When the plain language of the statute is precise and unambiguous, it is determinative (see Roth v Michelson, 55 NY2d 278, 283; Patrolmen's Benevolent Assn. v City of New York, 41 NY2d 205, 208).” Thus the Court of Appeals found that the term “records” under the State’s Freedom of Information Law, included even nominally confidential minutes of insurance company meetings.
[3]. Court determined that Crime Victims Compensation Board acted outside allowable statutory requirements for compensation to crime victim, and exceeded its authority, when the Board gave compensation although claimant did not establish he “would suffer serious financial hardship without compensation.” Matter of Regan v Crime Victims Compensation Bd., infra at 194.
[4]. Court literally interpreted General Business Law §200, thus hotel owner could not claim the benefit of statutory protections as affirmative defense when the safe was not available to guests. Statute said that whenever safe available, limitations of liability for loss afforded to the hotel. Guests sought recovery for the loss of two diamond rings which disappeared from their hotel room. Plaintiffs said that hotel's vault was not available to guests at the time they attempted to place the jewelry there for safekeeping.
[5]. “In interpreting the statute we are guided by a well-settled principle of statutory construction: courts normally accord statutes their plain meaning, but will not blindly apply the words of a statute to arrive at an unreasonable or absurd result . . . (citations omitted).” Thus the Court of Appeals determined that Education Law §6512(1) did not exempt licensed individuals from criminal prosecution for aiding and abetting unlicensed individuals from the unauthorized practice of medicine.
[6]. Indeed, the only mention of Executive Law §221-a there is - and such mention is completely marginal - appears in a lawsuit brought against the City of New York in Civil Court on the related theories of false arrest, false imprisonment, and malicious prosecution by an arrestee claiming she had been wrongfully arrested pursuant to what police officers thought was violation of a valid order of protection. The appellate term held as a matter of law that the information police officers had at the time “warranted a reasonable belief that plaintiff had violated the terms of a valid order of protection issued in Family Court on defendant’s [victim’s] behalf, and this irrespective of whether the protective order was ever filed in the statewide computerized registry (see Executive Law §221-a[3]).” Mars v City of New York, 2002 WL 83697 (NY Sup.App.Term 2002). The lawsuit was dismissed.
[7].In Cuffy v City of New York, 69 NY2d 255, 260 (1987) the Court of Appeals summarized the elements of a special duty that may give rise to liability, indicating “[t]he elements of this ‘special relationship’ are: (1) an assumption by the . . . [State], through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the . . . [State’s] agents that inaction could lead to harm; (3) some form of direct contact between the . . . [State’s] agents and the injured party; and (4) . . . [the injured party’s] justifiable reliance on the . . . [State’s] affirmative undertaking . . . (citations omitted).”

[8].Whether the acts or omissions of state employees are entitled to immunity begins with the general principle that actions of government officials that are discretionary in nature are entitled to immunity, while ministerial acts are not. See Arteaga v State of New York, 72 NY2d 212 (1988). “. . . [D]iscretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results . . . [A] ministerial act envisions direct adherence to a governing rule or standard with a compulsory result.” Tango v Tulevech, 61 NY2d 34, 41 (1983). A ministerial act is typically described as being “clerical or routine” in nature. Mon v City of New York, 78 NY2d 309, 313 (1991). Once an action is distinguished as discretionary, it is further categorized as either judicial/quasi-judicial or non-judicial. If the act is discretionary and judicial/quasi-judicial then the actions are entitled to absolute immunity. See Tarter v State of New York, 68 NY2d 511 (1986). Discretionary non-judicial actions are entitled to qualified immunity, except if the actions were taken in bad faith or without a reasonable basis or if the claimant is owed a special duty in the context of police protection. The situation here, however, does not require consideration of any alleged special duty, since the conduct complained of that would be chargeable to the state is clearly ministerial.

[9].Thus in Sorichetti v City of New York, supra, the City was held liable for injuries to minor child given the existence of a “special relationship” between the municipality and the child. Although the decision to arrest or seize is a discretionary, non-judicial one, the failure to do so lacked a reasonable basis and was examined under negligence principles in light of the existence of such special relationship. Taken together, an order of protection in favor of the plaintiff minor child and her mother, the police agency’s actual knowledge of the father’s violence, the father’s threats against his wife and daughter at the police precinct where the custody exchange took place, the police officers’ direct assurances to the mother that her pleas for aid would be answered, and then the failure to act after such assurances, created a special duty between the police and the mother and the daughter. The direct contact requirement appears to be paramount. see e.g. Merced v City of New York, 75 NY2d 798 (1990) (municipality may not be held liable for injuries resulting from the failure to provide police protection to an individual absent a “special relationship;” such a relationship cannot be established without proof that the injured party had direct contact with the municipality's agents and justifiably relied to his detriment on the municipality's assurances that it would act on that party's behalf); Kircher v City of Jamestown, 74 NY2d 251, 257 (1989) (direct contact by victim required; here, unlike in Sorichetti, supra, Court said that injured person was just a potential crime victim, there was no order of protection, and those alerting police officer to her plight were strangers to victim unlike the mother and daughter).
1[0].Similarly, the further language of the statute in which it is indicated that “ . . . acting in reliance upon such information” is immunized, suggests that had this arrest occurred on New York State soil further grounds for dismissal would be present. Executive Law § 221-a(5).
[1]1.There is also some recognition of extending judicial immunity - calling it quasi-judicial immunity - to the actions of court clerks under certain narrow circumstances not present here. See Swain v State of New York, 294 AD2d 956 (4th Dept 2002), lv denied, 99 NY2d 501 (2002); Weiner v State of New York, 273 AD2d 95, 97 (1st Dept 2000); Welch v State of New York, 203 AD2d 80 (1st Dept 1994).