New York State Court of Claims

New York State Court of Claims

GRIFFIN v. THE STATE OF NEW YORK, #2007-030-555, Claim No. None, Motion No. M-73439


Synopsis


Late claim motion granted. Claim containing separately stated and numbered causes of action for false arrest, false imprisonment, assault and battery, negligent training and supervision and possibly negligent retention to be served and filed within thirty (30) days of the date of filing of this decision. Claimant alleges he was stopped without cause by state troopers while driving on a state highway, and assaulted

Case Information

UID:
2007-030-555
Claimant(s):
EDWARD GRIFFEN, JR.
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
GRIFFIN
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-73439
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
LAUB & DELANEY, LLPBY: ALFRED C. LAUB, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: DEWEY LEE, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
September 4, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on Claimant’s motion for an Order permitting “late filing of a notice of claim (sic)”:
1-3 Notice of Motion; Affirmation in Support by Alfred C. Laub, Attorney for Claimant; proposed Claim and attached exhibits

  1. Affirmation by Dewey Lee, Assistant Attorney General
  1. Reply by Alfred C. Laub, Attorney for Claimant
  1. Filed papers: Decision and Order, Griffen v State of New York, Claim No. None, Motion No. M-72280 (Scuccimarra, J., filed December 14, 2006)
In prior motion practice referred to above, and incorporated herein, claimant’s application for an Order permitting late filing of a notice of intention to file a claim, treated as one for permission to serve and file a late claim, was denied without prejudice to a timely and adequately supported motion for late claim relief attaching a proposed claim containing separately stated and numbered causes of action justiciable in this Court that have actually accrued. The present motion, served on May 17, 2007, and submitted on June 20, 2007 contains essentially the same arguments contained in the prior motion, and contains a proposed verified claim as well.

According to the proposed claim, 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 “physically assaulted and threatened by said trooper. Claimant managed to leave the vicinity of the stop and proceeded to his home. He was subsequently assaulted and battered by . . . [the same trooper] and another trooper . . . He was then falsely arrested, charged with various crimes, falsely imprisoned for a period of 2 days, maliciously prosecuted and had his civil rights violated under color of law.” [Proposed Claim, ¶3]. Mr. Griffen further states that upon information and belief, the troopers had “prior instances [of] abusing their authority and office and, said troopers were not properly instructed and supervised in the methods, means and manner of effectuating a custodial interrogation and/or arrest.” [Ibid. ¶4].

From this incident, and rather than following the court’s instruction in the earlier decision and order to separately state and number causes of action that have actually accrued and that are justiciable in this court, claimant, through his attorney, alleges in the proposed claim
“the following claims against respondents: false arrest; false imprisonment; malicious prosecution; vicarious liability-respondeat superior on the part of the state for the intentional infliction of emotional distress committed by the officer of the State Police; negligent and improper training and supervision of the officers of the State Police; negligent infliction of emotional distress; assault and battery, vicarious liability-respondeat superior on the part of the State for violations of claimant’s rights under the 4th, 8th and 14th amendments of the Constitution and violations of claimant’s rights under 42 U.S.C. §1983 and related statutes committed by officers of the State police. Claimant also contends that respondents were negligent in the conduct and supervision of [these] officers and employees by failing to afford them the proper training and instruction in effectuating the stop, arrest, incarceration and prosecution of the claimant and those individuals similarly situated.” [Ibid. ¶2].
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 §10(6) of the Court of Claims Act. 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. 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).

Assuming dates of accrual of May 27, 2006 or May 29, 2006, the motion is timely as to those causes of action that may have accrued since the applicable statute of limitations with regard to any negligence based causes of action raised is three (3) years, and the statute of limitations with regard to intentional acts is one (1) year. See Court of Claims Act § §10(3) and 10(3-b); Civil Practice Law and Rules §§ 214(5); 215.

Counsel for claimant reminds the court that the delay in seeking late claim relief was minimal, that this court has discretion to allow late claim relief, and then, somewhat parenthetically, notes “. . . the criminal proceeding is still pending and the investigation is presumably still continuing. In reality, the limitations periods governing some of these claims may not have yet matured or have just begun to run.” [Affirmation by Alfred C. Laub, attorney for claimant, ¶18]. Claimant has no reasonable excuse beyond law office failure, and argues that the delays are minimal, and there is no prejudice to the State.

As noted in the court’s earlier decision and order, “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 . . .” The Court went on to remind counsel that the claims arising under the United States Constitution would not lie; no cause of action for intentional infliction of emotional distress would lie; no State constitutional tort action was made out; and that any malicious prosecution claim if the criminal proceeding was ongoing was not made out since it had not accrued. Nonetheless, the proposed claim submitted herewith continues the error of including all of the above, without recitation, in separate numbered paragraphs as directed to allow a reasonably coherent Answer on the State’s part, or even a reasonable analysis of merit on the part of this Court. If as alleged in the claim this claimant was treated in this fashion by the State’s agents and viewing all of the allegations as true, however, there is the appearance of merit to at least a portion of the proposed claim.

Accordingly, and after considering all the pertinent factors, the motion for late claim relief is nonetheless granted, to the extent that claimant may serve and file a verified claim - although not the proposed claim attached herewith - upon the Attorney General, containing separately stated and numbered causes of action for false arrest, false imprisonment, assault and battery, negligent training and supervision and possibly negligent retention[2] and to file said claim with the Chief Clerk of the Court of Claims all within thirty (30) days from the date of filing of this decision and order in the Clerk’s Office, with such service and filing to be in accordance with the Court of Claims Act, with particular reference to §§ 10, 11 and 11-a, and the Uniform Rules for the Court of Claims.


September 4, 2007
White Plains, New York

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




[2].In the proposed claim there is the de minimis statement that the troopers were improperly trained and supervised, and that prior misconduct was known.