In May 2002, a criminal proceeding was commenced against claimant Frank
Claimant was charged in the Town of
Liberty Justice Court with knowingly operating an adult care facility in
violation of Social Services Law § 461-b (2)
The Office of Welfare Inspector General
(WIG) referred the matter to the Attorney General’s Office for
prosecution. That office then delegated responsibility for the prosecution back
to the Office of the WIG.
convicted in Justice Court, and that conviction was affirmed by County Court.
The Court of Appeals thereafter reversed the conviction, finding that the
Office of the WIG lacked the statutory authority to prosecute claimant and
further lacked the authority to request the Attorney General to investigate
and/or prosecute claimant (People v Cuttita,
7 NY3d 500, 506-508 ).
Claimants then filed this claim against defendant State of New York (defendant)
seeking damages in the amount of $500,000.00. Defendant moves to dismiss the
claim for failure to state a cause of action.
Claimants oppose the motion.
Defendant contends that the allegations contained in the claim are insufficient
to satisfy the pleading requirements of Court of Claims Act §§ 8-b, 11
(b), and therefore the claim fails to set forth causes of action for wrongful
confinement, unjust conviction, malicious prosecution, or false arrest.
Defendant further asserts that although Rose Cuttita is named as a claimant,
none of the allegations refer to her. Finally, defendant also argues that
without further factual allegations, it cannot determine whether any affirmative
defenses such as timeliness are appropriate and should be raised in the
Claimants counter that because the claim cites reversal of the judgment of
conviction by the Court of Appeals based upon a lack of jurisdiction, causes of
action for unjust conviction and malicious prosecution have automatically been
Claimants also argue that any
lack of information cited by defendant can be cured by serving a demand for a
bill of particulars along with its answer.
The entire substantive portion of the claim states:
[t]he Office of Welfare Inspector General commenced a criminal prosecution
against the claimant Frank Cuttita on or about May 21, 2002, in the Town of
Liberty Justice Court. Claimant, Frank Cuttita was charged with one misdemeanor
count of [k]nowingly [o]perating an Adult Care Facility in violation of Social
Services Law Section 461-b(2) (c). Before trial, claimant moved to dismiss the
complaint on the grounds that the Office of Welfare Inspector General lacked
jurisdiction. The Office of Welfare Inspector General referred the matter to
the NYS Attorney General’s Office for prosecution who then designated the
Office of Welfare Inspector General attorney as a special attorney general for
this prosecution. The [m]otion to dismiss was denied and claimant was tried and
convicted. The Court of Appeals reversed the conviction and dismissed (sic) the
complaint citing lack of jurisdiction. Stating in sum and substance: ‘The
Attorney General’s office cannot invoke its limited criminal jurisdiction
based only on a referral from an in-house adjunct that does not clearly have
subject matter referral authority.
(Claim ¶ 2).
In addition, claimants
state that the allegedly wrongful act took place in Town of Liberty Justice
Court, that the claim accrued on October 24,
and that they were damaged in the amount
First, the claim itself contains no reference to claimant Rose Cuttita nor to
how defendant’s alleged wrongdoing may pertain to her. Although on its
face the claim is insufficient to allege a cause of action on her behalf, on a
motion to dismiss for failure to state a cause of action, the Court “may
freely consider affidavits submitted by the [claimant] to remedy any defects in
the [claim] and ‘the criterion is whether the proponent of the pleading
has a cause of action, not whether he has stated one’ ” (Leon v
Martinex, 84 NY2d 83, 87-88  quoting Guggeheimer v Ginzburg, 43
NY2d 268, 275 ). Claimant’s attorney, Albert A. Gaudelli, states in
his affirmation in opposition to the motion that Rose Cuttita is
claimant’s spouse and has incurred substantial legal fees, loss of
earnings, deprivation of a livelihood and loss of consortium from 2002 - 2006.
Nevertheless, neither of the individual claimants who would have first-hand
knowledge of those facts has submitted an affidavit in opposition to the motion.
As a result, the Court finds that the allegations contained in the claim are
insufficient as a matter of law to assert a cause of action on behalf of Rose
Even if Rose Cuttita had properly been named as a claimant, defendant’s
motion to dismiss is meritorious. The essential elements of a cause of action
for malicious prosecution are: (1) commencement of a criminal proceeding against
a claimant, (2) the termination of the proceeding in favor of the claimant, (3)
absence of probable cause for the criminal proceeding, and (4) actual malice
(Broughton v State of New York, 37 NY2d 451, 457 , cert denied
sub nom. Schanbarger v Kellogg, 423 US 929 ; Martinez v City of
Schenectady, 97 NY2d 78 , appeal dismissed 98 NY2d 727 ,
lv denied 99 NY2d 503 ).
Although claimant has established the first element, the Court finds that the
remaining three elements are lacking. With respect to the second element,
claimant must allege that the prior proceeding was terminated in his favor.
“While a plaintiff need not prove actual innocence in order to satisfy the
favorable termination prong of a malicious prosecution action . . . the absence
of a conviction is not [in] itself a favorable termination” (Martinez v
City of Schenectady, supra at 84). Claimant’s conviction was reversed
solely on the ground that the Attorney General lacked the statutory authority to
prosecute him. Dismissal of the accusatory instrument under that circumstance
is not tantamount to a favorable termination (see Romero v State of New
York, 294 AD2d 730, 731 ).
With regard to the third element of malicious prosecution, this Court finds
that there was probable cause to commence the criminal proceeding. Prior to
January 2003, the Department of Health (DOH) received a complaint that claimant
was operating an adult care facility on certain property in the Town of Liberty,
Sullivan County (People v Cuttita, 7 NY3d 500, 504, supra). DOH
conducted an investigation and brought an administrative enforcement proceeding
against claimant (People v Cuttita, 1 Misc 3d 904 [A] , affd by
Matter of People v Cuttita, 12 AD3d 881 , lv denied 4 NY3d 706
). A hearing was held by an Administrative Law Judge (ALJ) who found that
claimant had violated Social Services Law §§ 461-b (1) and (2) by
operating an adult home without obtaining a license from DOH (People v
Cuttita, 7 NY3d 500, 504, supra). Based upon the ALJ’s
determination, Supreme Court, among other things, granted summary judgment and
issued a permanent injunction enjoining claimant from operating any type of
boarding facilities (Matter of People v Cuttita, 12 AD3d 881,
supra). The Appellate Division, Third Department held that there was
substantial evidence to support the ALJ’s determination and affirmed
Supreme Court’s order (id.). Given the administrative finding,
confirmed by the courts, that claimant violated Social Services Law §§
461-b (1) and (2), this Court finds that there was probable cause to commence
the criminal proceeding.
Further, claimant has failed to satisfy the fourth element as he has not
alleged that the Attorney General commenced the criminal proceeding with actual
malice. The claim itself does not contain any reference to actual malice and
even if this court were to consider the statements in Attorney Gaudelli’s
affirmation, the allegation of malice is unsubstantiated and conclusory in
nature (see Vail-Ballou Press v Tomasky, 266 AD2d 662, 664 ).
Thus, the claim fails to state a cause of action for malicious prosecution as a
matter of law.
The Court also finds the claim is insufficient to assert a cause of action for
unjust conviction. In order to set forth a cause action for unjust conviction
under Court of Claims Act
§ 8-b, claimant must establish the facts of his criminal conviction and
that such conviction was reversed or vacated and the accusatory instrument
dismissed on one of several enumerated grounds (Court of Claims Act § 8-b
). Additionally, “the claim must state in sufficient detail facts
permitting the court to find that the claimant is likely to succeed at trial in
proving that he did not commit any of the acts charged in the accusatory
instrument or that the acts did not constitute criminal conduct, and that the
claimant did not, through his own conduct, contribute to his conviction”
(Lanza v State of New York,
130 AD2d 872,873 ; see Fudger v
131 AD2d 136, 138 , lv denied
70 NY2d 616
If, after reading the claim, the
Court finds that claimant is not likely to succeed at trial, it shall dismiss
the claim, sua sponte or upon the State’s motion (Court of Claims Act
§ 8-b ).
It is evident that claimant satisfied the first element of the unjust
conviction cause of action, as he was convicted of a misdemeanor (see
Social Services Law § 461-b  [c]). However, as a matter of law,
claimant cannot prove the remaining elements. Claimant’s conviction was
reversed solely on the basis that the Offices of the WIG and the Attorney
General lacked the authority to prosecute him. Accordingly, the accusatory
instrument was not dismissed on any of the grounds listed in CPL 440.10 or
470.20 (see Court of Claims Act § 8-b ). Dismissal on that technical
ground is not tantamount to being found innocent as required under the statute
(see Court of Claims Act § 8-b; Romero v State of New York,
supra). Moreover, the fact that claimant was previously found to have
violated Social Services Law §§ 461-b (1) and (2) precludes him from
proving that he did not commit the crime charged or that he did not bring about
his own conviction. Having reviewed the claim pursuant to Court of Claims Act
§ 8-b (4), the Court finds that claimant is unlikely to succeed on a cause
of action for unjust conviction at trial.
Defendant’s Motion No. M-72794 is granted and Claim No. 113077 is