New York State Court of Claims

New York State Court of Claims

TUBBS v. THE STATE OF NEW YORK, #2007-044-575, Claim No. 112896, Motion Nos. M-73330, CM-73545


Synopsis


Court dismissed claim for unlawful arrest for failure to comply with jurisdictional requirement of CCA § 11(b) that a sum certain be specifically set forth in the claim. Claimant’s motion for permission to file a late claim is granted with respect to the proposed causes of action alleging use of excessive force and false arrest, and is denied with respect to any proposed cause of action for a Federal or State constitutional tort, or for negligence.

Case Information

UID:
2007-044-575
Claimant(s):
KEVIN C.J. TUBBS
Claimant short name:
TUBBS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112896
Motion number(s):
M-73330
Cross-motion number(s):
CM-73545
Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
LAW OFF ICE OF RONALD R. BENJAMIN
BY: Ronald R. Benjamin, Esq., of counsel Mary Jane Murphy, Esq., of counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 24, 2007
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant filed Claim No. 112896 (the Original Claim) on October 19, 2006, alleging, inter alia, that he was the victim of an unlawful arrest and was subjected to the use of excessive force by a New York State Trooper (the Trooper) and that defendant State of New York (defendant) negligently trained and negligently supervised the Trooper. The claim arises out of an incident which occurred when claimant pumped $30 of fuel into his vehicle at a convenience store, and attempted to pay by check despite the sign on the door which indicated that checks were not an acceptable method of payment. After some dispute with the employees of the store, the State Police were called and claimant was eventually arrested. Claimant contends that, in addition to the allegedly improper arrest, he was injured due to the manner in which the handcuffs were placed on his wrists during the arrest. Claimant also asserts that his vehicle was the subject of an improper search during the arrest, although no damages are alleged as a result of said search. Claimant concedes that the Original Claim does not contain the total sum claimed as required by Court of Claims Act § 11 (b). Anticipating the Court’s dismissal of that claim pursuant to Kolnacki v State of New York (8 NY3d 277 [2007]),[1] claimant now moves for permission to file a late “notice of claim.” Defendant opposes the motion and cross-moves for dismissal of the Original Claim on the basis of lack of jurisdiction, pursuant to Kolnacki.

The Original Claim does not contain a total sum of monetary damages and is thus jurisdictionally defective. Accordingly, defendant’s cross motion is granted and the Original Claim (No. 112896) is hereby dismissed.

The Court must therefore address claimant’s motion for leave to file and serve a late claim. The proposed claim[2] purports to specifically set forth causes of action for “deprivation of [claimant’s] constitutional rights guaranteed by the Fourth and 14th Amendment [sic] of the Constitution of the State of New York,”[3] as well as causes of action for negligent training and negligent supervision of the Trooper, and for use of excessive force by the Trooper.

Initially, it must be noted that the Court of Claims does not have jurisdiction to consider a cause of action alleging a violation of the Federal Constitution (see Brown v State of New York, 89 NY2d 172, 184 [1996]; see also Tooks v State of New York, Ct Cl, Jan. 10, 2006, Sise, P.J., Claim No. 106164, Motion No. M-69401 [UID # 2006-028-500], affd 40 AD3d 1347 [2007]). Therefore, to the extent that claimant’s motion may be seeking permission to file and serve a late claim alleging violations of the Federal Constitution, it is denied.

The claim accrued on May 10, 2006, the date of claimant's arrest. A motion seeking permission to file a late claim must be filed within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act § 10 [6]). As set forth above, claimant specifically alleges a proposed cause of action for unspecified violations of the State Constitution,[4] as well as one for negligence for “failing to properly train and supervise state troopers in the course of carrying out searches, seizures, and arrests, as well as in the use of appropriate force in effectuating arrests of citizens” (Proposed Claim ¶ 7). The applicable statute of limitations, both for negligence and for constitutional torts, is three years from the date of accrual (see CPLR 214 [4]; see Brown v State of New York, supra). Accordingly, to the extent that this motion filed on May 2, 2007 seeks permission to file and serve a late claim containing causes of action alleging both negligence and a constitutional tort, it is timely, having been brought less than three years after claimant's allegedly unlawful arrest on May 10, 2006.

Claimant also alleges a cause of action for use of excessive force, which is an intentional tort. In addition to the causes of action specifically listed by claimant, the proposed claim contains factual allegations which, if found to be credible, might support a cause of action for false arrest/false imprisonment,[5] another intentional tort. The statute of limitations for an intentional tort is one year (see CPLR 215 [3]). Therefore, this motion for permission to file a late claim is also timely with respect to causes of action for the intentional torts of use of excessive force and for false arrest.

Having determined that the motion is timely with regard to the proposed causes of action for negligence, an unspecified constitutional tort, use of excessive force, and false arrest, the Court turns to a consideration of the merits of the motion itself. The factors that the Court must consider under Court of Claims Act § 10 (6) in determining a motion to permit a late filing of a claim are whether:

1) the delay in filing the claim was excusable;

2) defendant had notice of the essential facts constituting the claim;

3) defendant had an opportunity to investigate the circumstances underlying the claim;
4) the claim appears to be meritorious;

5) the failure to file or serve upon the attorney general a timely claim or to

serve upon the attorney general a notice of intention resulted in substantial prejudice to defendant; and

6) claimants have any other available remedy.

Claimant’s assertion that the delay in filing a claim in this matter was solely due to the Court of Appeals recent decision in Kolnacki is inaccurate. The proposed causes of action, the factual bases of which were initially alleged in the Original Claim, accrued on May 10, 2006. The Attorney General was served with the Original Claim in July 2006, and on August 31, 2006, filed and served an answer, a demand for a bill of particulars, and a notice for an examination before trial. However, when these documents were submitted to the Clerk of this Court for filing, the Attorney General’s Office was notified that no claim had been filed. The Original Claim was not filed with the Clerk of the Court until October 19, 2006, and was therefore untimely at that point (see Court of Claims Act § 10 [3], [3-b]).[6] Accordingly, any contention that the Kolnacki case is the sole basis for the late filing of this claim is unavailing.

Claimant contends that the Original Claim was untimely filed because “an inexperienced paralegal at [counsel’s] office . . . failed to send [it] to the Clerk of the Court of Claims”).[7] Because law office failure is not an adequate excuse for failing to comply with the filing requirements of Court of Claims Act § 10 (see Nyberg v State of New York, 154 Misc 2d 199, 200 [1992]; see also Osho v State of New York, Ct Cl, Mar. 8, 2004, Sise, J., Claim No. None, Motion No. M-67743 [UID #2004-028-509]), the Court finds that the delay was not excusable, and this factor weighs against claimant.

The three factors of notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice are frequently analyzed together since they involve similar considerations. Although the claim was not timely filed, service on the Attorney General in July 2006 clearly gave defendant timely notice of the essential facts of the proposed claim as well as an opportunity to investigate. Moreover, defendant has not set forth any evidence which would support an inference that the State would be prejudiced in defending this claim. Accordingly, these three factors weigh in favor of claimant.

Another factor to be considered is whether claimant has any other available remedy. Notably, claimant completely failed to address this factor. In any event, claimant does have an alternate remedy, as he could assert a cause of action against the individual Trooper under 42 USC § 1983, either in Supreme Court or in Federal District Court. Thus, this factor weighs against claimant.

The issue of whether the proposed claim appears meritorious is the most crucial component in determining a motion under Court of Claims Act § 10 (6), since it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [1977]). In order to establish a meritorious claim, a claimant must demonstrate that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (id. at 11). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg v State of New York, supra).

With respect to the alleged violation of the State Constitution, the Court of Appeals recognized the existence of a constitutional tort as a “narrow remedy” to assure a constitutional provision’s effectiveness and to further its purpose (see Brown v State of New York, supra). However, it is not necessary to recognize a constitutional tort in situations where a claimant has adequate, alternate remedies in common-law tort (see Martinez v City of Schenectady, 97 NY2d 78 [2001]; Augat v State of New York, 244 AD2d 835, 837 [1997], lv denied 91 NY2d 814 [1998]). Given that claimant has adequate remedies for defendant’s alleged conduct, including his proposed causes of action for false arrest, use of excessive force, and negligence, this Court need not, and will not, recognize a constitutional tort claim under the State Constitution in this matter (see Martinez v City of Schenectady, supra; Bullard v State of New York, 307 AD2d 676 [2003]). Consequently, claimant’s proposed cause of action for a constitutional tort lacks merit, and to the extent that claimant is seeking permission to file and serve a late claim for that cause of action, claimant's motion is denied.

While facts stated in a motion for leave to file a late claim against the State are normally deemed true for purpose of the motion, this rule is only applicable where such statements are made by an individual with first-hand knowledge of the facts in question (Jolley v State of New York, 106 Misc 2d 550, 551-552 [1980]). Since claimant himself has not provided an affidavit in support of the motion, the Court will only consider the information contained in the proposed claim, which was verified by claimant (Matter of Santana v New York State Thruway Auth., supra at 11; see also Vennera v State of New York, Ct Cl, Dec. 29, 2003, Sise, J., Claim No. 107437, Motion No. M-66679, Cross Motion No. CM-66989 [UID # 2003-028-595]).

In order to establish a cause of action for false arrest, claimant must prove (1) that defendant intentionally confined him, (2) that he was conscious of the confinement, (3) that he did not consent to the confinement, and (4) that the confinement was not otherwise privileged (see Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]). There is no dispute that the first three elements have been met in this case. The only contested issue is whether claimant’s detention was the product of an unlawful arrest, or in other words, an arrest without probable cause.

In his proposed claim, claimant alleges that he pumped $30 worth of gasoline into his truck, planning to pay for the purchase with a personal check. Claimant states that when he was informed that a personal check would not be accepted, he arranged for someone to bring cash to the gas station and make the payment. Claimant alleges that the station manager called the State Police and when the individual Trooper responded, claimant informed him that he had no intention of stealing the fuel. Claimant states that he also informed the Trooper that a third party was bringing cash to the gas station to pay for the purchase. Claimant states that despite this knowledge, the Trooper arrested him without probable cause.[8] Claimant also asserts that the Trooper used excessive force when arresting him because the handcuffs placed on his wrists caused bruises and abrasions.

In marked contrast to claimant's allegations, defendant has submitted sworn statements[9] by the two store employees, who state that claimant was given the opportunity to leave to obtain cash or another method of payment, but that claimant refused. The employees both state that claimant said that the facility would either take his check or not get paid, and that claimant became belligerent. The Trooper also made a sworn statement that he too offered claimant various alternatives to resolve the situation, including the opportunity to leave to obtain cash to pay for the fuel, but that claimant refused to pay for the fuel with anything other than his personal check.1[0]

While these statements are clearly completely contradictory, and thus raise troubling issues of credibility, the Court finds that these issues are best resolved on the merits of the case. As aptly stated in Barotti v State of New York (Ct Cl, June 29, 2007, Siegel, J., Claim No. None, Motion No. M-73090 [UID # 2007-042-515]), “it would be improvident to deny the claimant the right to proceed, based upon credibility determinations at this early stage” (see also Sydney v State of New York, Ct Cl, Jan. 7, 2003, Scuccimarra, J., Claim No. None, Motion No. M-65988 [UID # 2003-030-503]). The Court concludes that claimant has made a sufficient showing of merit to grant his application for leave to file a late claim containing this proposed cause of action. It is noted, however, that the appearance of merit is limited to the Court’s ruling on this motion, and that a heavier burden of proof rests upon claimant in order to prevail at trial.

To state a cause of action for use of excessive force in this claim, claimant must show that the Trooper used more force than was necessary or reasonable under the circumstances, specifically that the Trooper did not properly fasten the handcuffs on claimant and thereby caused injuries to his wrists (see Jones v State of New York, 33 NY2d 275, 279 [1973]; Ostrander v State of New York, 289 AD2d 463, 464 [2001]; Passino v State of New York, 260 AD2d 915 [1999], lv denied 93 NY2d 814 [1999]; see also Parker v State of New York, Ct Cl, Sept. 4, 2001, Ruderman, J., Claim No. 97167 [UID # 2001-010-069]). As set forth previously, claimant alleges that the Trooper used excessive force “by placing handcuffs on his wrists in a manner which caused bruises and abrasions to the wrists for which the claimant had to seek medical treatment.” Notwithstanding the Trooper’s statement that he used two sets of handcuffs in light of claimant's large physical stature and double-locked them to prevent injuries, the Trooper also attested in his statement that he remanded claimant, while still in handcuffs, to the custody of two other troopers for transportation to the police station. Because claimant was not subject to the Trooper's supervision during the entire time he was in handcuffs, the Trooper's assertion that the handcuffs were properly fastened cannot be taken as a dispositive statement that no problems subsequently ensued. Claimant has thus set forth sufficient factual allegations which demonstrate that the claim is not patently groundless, frivolous, or without merit. This factor weighs in favor of claimant on the proposed cause of action for use of excessive force.

Lastly, the Court finds that claimant’s proposed cause of action alleging negligence is without merit. While claimant couches his allegations of negligence in terms of negligent training and negligent supervision, claimant's essential assertion is that the Trooper was negligent in making the arrest and that defendant is liable based upon its failure to properly train or supervise its employees on the issue of probable cause. It is well settled that there is no cognizable cause of action for negligent investigation or negligent arrest in this State and a claimant’s only redress is through the traditional remedies of false arrest and malicious prosecution (see Hernandez v State of New York, 228 AD2d 902 [1996]; Coyne v State of New York, 120 AD2d 769 [1986]; see also Ellsworth v City of Gloversville, 269 AD2d 654 [2000]).1[1] In any event, claimant’s allegations of negligent training and negligent supervision are insufficient as a matter of law. Claimant has completely failed to identify or allege how defendant’s training and supervision were deficient (see Vennera v State of New York, supra) or to establish that defendant had notice of the Trooper’s propensity to engage in the allegedly wrongful conduct (see Mirand v City of New York, 84 NY2d 44 [1994]; Doe v State of New York, Ct Cl, Mar. 10, 2004, Sise, J., Claim No. None, Motion No. M-67159 [UID # 2004-028-512]). Therefore, the all important factor of merit weighs against claimant in the proposed negligence cause of action.

In conclusion, claimant’s motion for permission to file a late claim is granted with respect to the proposed causes of action alleging use of excessive force and false arrest, and is denied with respect to any proposed cause of action for a Federal or State constitutional tort, or for negligence. Claimant is directed to serve a claim upon the Attorney General containing the causes of action permitted herein, and to file said claim with proof of service with the Clerk of the Court of Claims, all within forty-five (45) days from the date of filing of this Decision and Order. The service and filing of the claim shall be in conformity with all applicable statutes and rules of the Court.

Defendant’s cross motion is granted in its entirety and Claim No. 112896 is dismissed.


October 24, 2007
Binghamton, New York

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


The following papers were read on claimant’s motion and defendant’s cross motion:

1) Notice of Motion filed on May 2, 2007; Affirmation of Mary Jane Murphy, Esq., dated April 23, 2007, and attached exhibit.

2) Notice of Cross Motion filed on June 8, 2007; Affirmation of Geoffrey B. Rossi, AAG, dated June 6, 2007, and attached Exhibits A through G.

Filed papers: Claim filed on October 19, 2006; Verified Answer filed on November 22, 2006.


[1]. In Kolnacki, the Court of Appeals specifically held that a claimant’s failure to include the total sum of monetary damages within a claim was a jurisdictional defect which required dismissal of the claim. Although the Governor has approved a bill passed by the New York State Legislature which removes the jurisdictional requirement that a sum certain be stated, it is applicable only to personal injury, medical, dental, or podiatric malpractice, or wrongful death actions (Court of Claims Act § 11 [b], as amended by L 2007, ch 606). Accordingly, that legislation has no relevance to this proceeding.
[2]. Although claimant has designated the document attached to his motion papers as an “Amended Verified Claim,” it is in essence a proposed claim and the Court will refer to it as such throughout this Decision and Order.
[3]. Claimant appears to be alleging violations of the Federal Constitution rather than of the State Constitution, given the references to the 4th and 14th Amendments, which are not applicable to the New York State Constitution.
[4]. The Court addresses this allegation in the event that claimant is attempting to assert a claim under the State Constitution and only inadvertently referenced the 4th and 14th Amendments.

[5]. A cause of action for false arrest is virtually the same as a cause of action for false imprisonment. “False imprisonment is an unlawful detention contrary to the will of the person detained accomplished with or without process of law. False arrest is such a detention accomplished by means of an unlawful arrest” (59 NY Jur 2d, False Imprisonment § 1). The Court will refer to this proposed cause of action as false arrest in this Decision and Order.

[6]. Claimant does not allege that he served a notice of intention to file a claim within 90 days of the claim’s accrual, and therefore is not entitled to an extended period of time in which to file and serve the claim (see Court of Claims Act § 10 [3], [3-b]).
[7]. Affirmation of Mary Jane Murphy, Esq., in support of claimant’s motion, ¶ 10.
[8]. Claimant alleges that he called the Chief of Police of the Village of Owego, James DeVita, on his cell phone, and asked him to bring money to pay for the fuel. Conversely, the Trooper states that he was not aware that Chief DeVita had been contacted until subsequent to the arrest, when claimant was already being transported to the police station.
[9]. Defendant's Exhibits E and F.
1[0]. Defendant's Exhibit D.
[1]1. To the extent that claimant may be asserting that defendant is liable in negligence based upon the Trooper’s allegedly negligent use of excessive force, that proposed cause of action is without merit. As discussed previously, the use of excessive force is an intentional tort.