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
Little information has been provided as to the arrest or what followed.
Claimant did not submit an affidavit or any
; 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.
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
To the extent claimant alleges that he was “[d]efamed and [s]landered by
. . . 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
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.
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’
, 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