New York State Court of Claims

New York State Court of Claims

BALLOU v. THE STATE OF NEW YORK, #2008-016-046, Claim No. None, Motion No. M-74937


Synopsis


Late claim motion was granted in part.

Case Information

UID:
2008-016-046
Claimant(s):
SEAN BALLOU
1 1.The caption has been amended to reflect that the sole proper defendant is the State of New York.
Claimant short name:
BALLOU
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect that the sole proper defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-74937
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
Hanshe & Hanshe, PLLCBy: Joseph A. Hanshe, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Kimberly A. Kinirons, Esq., AAG
Third-party defendant’s attorney:

Signature date:
September 2, 2008
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Sean Ballou moves for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the “Act”). Mr. Ballou’s proposed claim arises from his August 7, 2007 arrest at his home in the Bronx by New York State Police Officers in connection with a narcotics investigation. Claimant characterizes his arrest as a “mistake,” which he surmises may have occurred because he was confused “with his brother or someone else.” See ¶11 of the May 6, 2008 affirmation of Joseph A. Hanshe (the “Hanshe Aff.”).

Little information has been provided as to the arrest or what followed. Claimant did not submit an affidavit or any documentation[2]; he provides only his attorney’s affirmation and a proposed claim. It is not stated whether there was a warrant for Ballou’s arrest, which he refers to as illegal and without probable cause. It is alleged that after he was arrested, he was driven to Suffolk County, where he was held in two locations of the Suffolk County Correctional Facility for 53 days, during which time he appeared in court three to five times. His attorney states that he was arraigned and indicted by the Suffolk County District Attorney and “[u]ltimately the Claimant was cleared of all charges and the indictment was vacated with prejudice”; he does not state when the indictment was vacated or under what circumstances. See ¶8 of the Hanshe Aff. Most notably lacking is any indication of whether there was a warrant for Ballou’s arrest, although he refers to it as illegal and without probable cause. In order to determine this motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[3]

The first three factors – whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). In this case, defendant argues that it would be prejudiced by the passage of time, but “concedes that if the New York State Police was the lead law enforcement agency involved in the investigation and arrest of the claimant, it would have a record of said investigation and arrest.” See ¶7 of the June 9, 2008 affirmation of Kimberly A. Kinirons. On balance, I find that these three factors have been met.

As to an alternate remedy, as set forth more fully below, claimant might have causes of action against other actors in other venues. With regard to excuse, claimant maintains that he initially believed that he had been arrested by Suffolk County Police Officers. He has advanced no authority that such is a valid excuse for the purposes of the Act.

Finally, it must be determined whether the proposed claim appears meritorious. Ballou’s papers make reference to a number of causes of action and theories of recovery, which are addressed below.

Entities Other than the State

In his caption, claimant names “John Doe New York State Police Officers #1-10" as defendants. The Court of Claims lacks jurisdiction over individual persons. See, e.g., Smith v State of New York, 72 AD2d 937, 938, 422 NYS2d 221, 222 (4th Dept 1979), affd 59 NY2d 718, 463 NYS2d 439 (1983).

To the extent claimant alleges that he was “[d]efamed and [s]landered by the prosecutor

. . . in open Court . . . ,” the State is not liable for the actions of district attorneys, as they are not state officers under §2 of the Public Officers Law. See Fisher v State of New York, 10 NY2d 60 (1961).

To the extent Ballou alleges lack of medical treatment while incarcerated, as set forth above, he was held at Suffolk County facilities. The Court of Claims has no jurisdiction over the County of Suffolk.


Intentional Infliction of Emotional Distress

To the extent claimant alleges the intentional infliction of emotional distress, such a cause of action does not lie against the State of New York. See, e.g., Brown v State of New York, 125 AD2d 750, 509 NYS2d 169 (3d Dept 1986), appeal dismissed 70 NY2d 747, 519 NYS2d 1034 (1987).

Assault and Fraud

Ballou’s proposed claim alleges that he was assaulted by “the Police and the Agents of the State of New York,” however no details are provided and no physical encounter is mentioned elsewhere in his papers. Similarly, he has provided no details as to an alleged “fraud” committed on the Grand Jury of Suffolk County.

Civil Rights

To the extent claimant asserts a cause of action under 42 USC §1983, such may not be pursued against the State of New York in this court. See, e.g., De La Rosa v State of New York, 173 Misc 2d 1007, 1008-1009, 662 NYS2d 921, 923 ( Ct Cl 1997). Claimant also alleges violations of his rights under New York Civil Rights Law and the New York State Constitution. No specific violations have been identified, but in any event, claimant has failed to demonstrate that he meets the standard for such a cause of action set forth in Martinez v City of Schenectady, 97 NY2d 78, 735 NYS2d 868 (2001).

Malicious Prosecution and False Arrest

Finally, claimant alleges malicious prosecution and false arrest. As to malicious prosecution, the elements of such a cause of action are: the commencement or continuation of a criminal proceeding by the defendant against the claimant; the termination of the proceeding in favor of the accused; the absence of probable cause for the criminal proceeding; and actual malice. See Broughton v State of New York, 37 NY2d 451, 373 NYS2d 87 (1975). Without addressing the first three elements, Ballou has alleged no facts which would support a finding of actual malice.

As to false arrest, the elements of such a cause of action are: the intentional confinement of the claimant; claimant's conscious awareness of the confinement; claimant's lack of consent to the confinement; and the confinement was not otherwise privileged. An arrest made pursuant to a warrant that is facially valid and issued by a court possessing jurisdiction can give rise only to a cause of action for malicious prosecution -- not one for false arrest. See Broughton, supra. Neither party has indicated whether or not there was a warrant for Ballou’s arrest. While, as set forth above, the facts submitted on this motion are somewhat sketchy, with regard to a cause of action for false arrest, Ballou does meet the standard for merit set forth in Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977).

Accordingly, having reviewed the parties’ submissions[4], IT IS ORDERED that motion no. M-74937 be granted with respect to a cause of action for false arrest, and such motion shall otherwise be denied. IT IS FURTHER ORDERED that within forty-five (45) days of the filing of this Decision and Order, claimant shall serve and file his claim in compliance with sections 11 and 11-a of the Court of Claims Act.[5]

September 2, 2008
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [2]Aside from an April 23, 2008 letter from the Suffolk County Attorney, essentially advising claimant’s attorney that the Suffolk County Police were not involved in claimant’s arrest and that the law enforcement agency involved was the New York State Police.
  2. [3]See Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  3. [4]The following were reviewed: claimant’s notice of motion with the affirmation of Joseph A. Hanshe entitled “Motion for Permission to File Late Notice of Claim” and exhibits A through C; and defendant’s affirmation in opposition.
  4. [5]Such shall be entitled “claim”, shall name the State of New York as sole defendant, and shall include false arrest as its only cause of action.