New York State Court of Claims

New York State Court of Claims

CUTTITA v. THE STATE OF NEW YORK, #2007-044-521, Claim No. 113077, Motion No. M-72794


Synopsis



Case Information

UID:
2007-044-521
Claimant(s):
FRANK CUTTITA and ROSE CUTTITA
Claimant short name:
CUTTITA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113077
Motion number(s):
M-72794
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
ALBERT A. GAUDELLI, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 20, 2007
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In May 2002, a criminal proceeding was commenced against claimant Frank Cuttita.[1] 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) (c).[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.[3] Claimant was 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 [2006]). 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.[4] 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 answer.

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 established.[5] 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).[6] In addition, claimants state that the allegedly wrongful act took place in Town of Liberty Justice Court, that the claim accrued on October 24, 2006,[7] and that they were damaged in the amount of $500,000.00.

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 [1994] quoting Guggeheimer v Ginzburg, 43 NY2d 268, 275 [1977]). 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 Cuttita.

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 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]; Martinez v City of Schenectady, 97 NY2d 78 [2001], appeal dismissed 98 NY2d 727 [2002], lv denied 99 NY2d 503 [2002]).

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 [2002]).

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] [2003], affd by Matter of People v Cuttita, 12 AD3d 881 [2004], lv denied 4 NY3d 706 [2005]). 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 [1999]). 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 [3]). 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 [1987]; see Fudger v State, 131 AD2d 136, 138 [1987], lv denied 70 NY2d 616 [1988]).[8] 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 [4]).

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 [2] [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 [3]). 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 dismissed.



March 20, 2007
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on the defendant’s motion to dismiss:

  1. Notice of Motion filed on January 8, 2007, Affirmation of Carol A. Cocchiola, AAG, dated January 5, 2007, and attached Exhibits A and B.
  1. Affirmation in Opposition of Albert A. Gaudelli, Esq. dated January 11, 2007, and attached Exhibits A and B.

Filed Papers: Verified Claim filed on December 7, 2006.


[1]. Rose Cuttita's claim is at best derivative in nature and, unless otherwise indicated or required by context, the term “claimant” shall refer to Frank Cuttita.
[2]. Several judicial proceedings were commenced against claimant simultaneously; the proceeding in the Town of Liberty Justice Court is the only one relevant to this claim.
[3]. A prosecutor from the Office of Welfare Inspector General and an Assistant Attorney General from the Department of Law prosecuted claimant (People v Cuttita, 7 NY3d 500 [2006]).
[4]. Defendant also moves to amend the caption to reflect the State of New York as the sole defendant, which motion is granted.
[5]. As claimants’ motion papers only raise the argument that the claim states causes of action for malicious prosecution and wrongful conviction, the Court will not address any other potential causes of action.
[6]. The purported quote by claimants (which is missing an ending quotation mark) is not accurate, as it does not appear within the body of the Court of Appeals’ decision in People v Cuttita (7 NY3d 500, supra).
[7]. The date of the Court of Appeals’ reversal of claimant's conviction.
[8]. At trial, the claimant must prove all of the elements by clear and convincing evidence (Court of Claims Act § 8-b [5]).