New York State Court of Claims

New York State Court of Claims

NATIONAL LATINO OFFICERS v. THE STATE OF NEW YORK, #2007-030-558, Claim No. 110942, Motion No. M-73319


Synopsis


Motion to amend claim for second time granted in part, in claim for damages based upon alleged defamatory and slanderous conduct of employees of the New York State Division of Human Rights.

Case Information

UID:
2007-030-558
Claimant(s):
NATIONAL LATINO OFFICERS ASSOCIATION OF AMERICA, INC. and ANTHONY MIRANDA
Claimant short name:
NATIONAL LATINO OFFICERS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110942
Motion number(s):
M-73319
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
CRONIN & BYCZEK, LLPBY: ROCCO G. AVALLONE, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: GAIL P. PIERCE SIPONEN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
September 6, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on Claimants’ motion to amend their


claim:

1,2 Notice of Motion to Amend Claim; Affirmation in Support of Motion by Rocco G. Avallone, attorney for claimants and attached exhibit

  1. Affirmation in Opposition by Gail P. Pierce-Siponen, Assistant Attorney General
4-6 Filed papers: Claim, Amended Claim, Answer to Amended Claim

This is a claim for damages based upon the alleged defamatory and slanderous conduct of employees of the New York State Division of Human Rights (hereafter NYSDHR) on or about March 6, 2005 and on or about May 25, 2005 in telephone conversations and in open court. [See Claim (filed May 27, 2005) and Amended Claim (filed February 22, 2006) Number 110942]. National Latino Officers Association of America, Inc. (hereafter NLOA) and Anthony Miranda, the claimants herein, now seek to further amend their claim to include a paragraph included in the original claim, but excluded from the amended claim erroneously they contend, namely the allegations concerning open court conduct on May 25, 2005. They seek to reinsert a paragraph concerning May 25, 2005 that reads:
“Moreover, on May 25, 2005, during a New York State Division of Human Rights hearing with regard to the charging party’s claims, defendants and AAG Leonard Mancini, an employee of the NYS Attorney General, in open court, accused claimants LOA and MIRANDA again of sending a ‘threatening’ letter to the Governor of the State of New York in connection with allegations of racial discrimination by high ranking officers with the NYS Department of Corrections. AAG Mancini further stated that all settlement offers with respect to the charging party’s claim were off the table due to the alleged ‘threatening’ letter sent by claimants.” [See Claim Number 110942, ¶2].
Additionally - and Claimants do not make this clear in their moving papers - allegations concerning statements made (possibly) in November and December 2004, not elsewhere noticed in the prior pleadings, are sought to be included in an additional amended claim. While the Court readily agrees that inclusion of the omitted paragraph concerning statements made on May 25, 2005 is not prejudicial to the defendant - the primary concern when applications to amend pleadings are made at this late date [see generally Civil Practice Law and Rules §3025(b)] - inclusion of entirely different incidents is more problematic. In allowing the inclusion of the previously deleted paragraph the court is not unmindful of the privilege that may be associated with any statements made during a quasi-judicial proceeding, but that would be a matter awaiting dispositive motion practice or a trial.

During a deposition of claimant Anthony Miranda held on March 27, 2007, Mr. Miranda testified as to additional defamatory references to the claimant organization made by Courtney Brown, an employee of the NYSDHR. The NLOA were referred to as “gangsters,” Mr. Miranda testified, in the presence of other organization members and the Administrative Law Judge, and Mr. Brown further referred to one of the officers of the NLOA as a “racist” who was not acting in the best interest of a complainant appearing before the NYSDHR during a proceeding. [Affirmation by Rocco G. Avallone, ¶6]. Mr. Miranda also testified that Mr. Brown referred to the NLOA as Latin Kings and Bloods in the presence of other organization members and the Administrative Law Judge. [Ibid. ¶7]. Counsel for claimant argues that inclusion of these additional statements is “simply emphasiz[ing] in more detail the allegations of the defamation

. . . ” [ibid. ¶13]. He argues that no new cause of action is proposed, and there is no surprise or prejudice associated with adding these statements, or any change to the nature of the allegations, which will need to be proven by claimants in any event. [Ibid. ¶¶13, 14].

This would be more convincing if the new statements were not referenced as having been made in 2004, some months before the original defamatory acts claimed in March and May 2005. Moreover, the moving papers do not make clear when exactly these additional statements were made. It is only after reviewing the “proposed second amended claim” [See ibid. Exhibit A], that the court was able to ascertain that some of these allegations occurred in 2004, while at least one other statement[1] is now “tacked on” to the original incident date of March 6, 2005. [See id. ¶10 ].

As pointed out by the Assistant Attorney General, what claimants seek to add are additional paragraphs covering new events with dates of accrual that were not a part of the original claim. Even if they had been included in the original claim, they would have been untimely since they refer to events occurring in November and December 2004, and the time within which to serve and file a claim relative to such acts would have expired. Court of Claims Act §10(3-b). Indeed, as intentional tort causes of action, the time within which to seek late claim relief has also expired. Court of Claims Act §§10(3-b), 10(6); Civil Practice Law and Rules §215(3). Moreover, it was apparently during claimant Anthony Miranda’s March 2007 deposition that these statements from 2004 were brought out for the first time, although counsel for claimants does not say this exactly. Clearly, such information was already in claimants’ possession at the time the original claim was served and filed more than two (2) years ago.

Based on the foregoing, claimants’ motion to amend their claim for a second time is granted in part and denied in part, to the extent that claimants may include the paragraph concerning the allegations of May 25, 2005 that appeared in the original claim, as recited above. No additional amendment is granted. Claimants are directed to serve and file their second amended claim as allowed herein, within twenty (20) days of the filing date of this decision. Defendant shall serve an answer to the amended claim within twenty (20) days of service of the second amended claim. The time within which to complete all discovery and to file a note of issue and certificate of readiness is herewith extended to January 18, 2008.


September 6, 2007
White Plains, New York

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



[1]. That an NLOA officer is a “racist” not representing the best interest of the claimant is now alleged to have been stated on March 6, 2005. See Exhibit A, ¶10.