New York State Court of Claims

New York State Court of Claims

McCAIN v. THE STATE OF NEW YORK, #2008-030-506, Claim No. 114469, Motion No. M-74335


Synopsis


Pre-answer motion to dismiss claim for untimeliness, failure to state a cause of action against the State of New York, and lack of jurisdiction granted. Claimant was apparently convicted, along with an accomplice, with a 1980 murder and rape. Claimant alleged that passage by Rockland County Legislature in 2005 of resolution expressing condolences to the family of claimant’s victim - that did not name claimant or his accomplice - for use in the family’s appearance before the New York State parole board to oppose claimant’s application for parole, defamed him. A cause of action for defamation accrues on the day that the defamatory statement is first published in accordance with the so-called “single publication rule.” Notice of intention and claim served more than two years after passage of resolution untimely. Court does not have jurisdiction over matters involving private parties or local legislators, nor is cause of action for defamation made out in any event. Parole determinations absolutely immune.

Case Information

UID:
2008-030-506
Claimant(s):
ROBERT McCAIN
Claimant short name:
McCAIN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114469
Motion number(s):
M-74335
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
ROBERT McCAIN, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: MICHAEL T. KRENRICH, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
February 19, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on Defendant’s motion to dismiss:

1,2 Notice of Motion to Dismiss; Affirmation in Support by Michael T. Krenrich, Assistant Attorney General and attached papers

  1. Affidavit in Opposition to Defendant’s Motion to Dismiss by Robert McCain, Claimant
  1. Filed paper: Claim
Robert McCain alleges in his claim that the State of New York should be held liable for allowing a Resolution to be passed by the Rockland County Legislature expressing condolences to the family of claimant’s victim, such resolution to be sent in certified form to the victim’s family, for use in the family’s appearance before the New York State Parole Board to oppose claimant’s application for parole. The resolution does not name claimant or his accomplice. Claimant was apparently convicted, along with an accomplice, with the 1980 murder of Paula Bohovesky. The proponent of the resolution also urged fellow legislators to circulate petitions among constituents to be forwarded to the victim’s mother for her use. Claimant avers that the legislature’s actions defamed him, and were performed with the intent to cause him “personal damage and emotional distress.” [Claim Number 114469, ¶ 3, page 4]. He states that he has “no way of knowing the content of these petitions, because . . . as a ward of the State . . . [he is] not granted access to the things which govern . . . [his] present life and future condition; but based on the past statements made by the respondents it is . . . safe to assume that the petitions also accuse . . . [him] of rape.” [Ibid.].

In his claim Mr. McCain states that he “was made aware” of the resolution on October 11, 2007, although the resolution itself had been passed in 2005. [Claim Number 114469, ¶ 3]. The claim was filed in the Office of the Chief Clerk of the Court of Claims on November 9, 2007. No affidavit of service has been filed to indicate when and by what means the defendant was served, although papers attached to the defendant’s motion appear to indicate that the claim was served by certified mail, return receipt requested as required, and was received by the Attorney General’s Office on November 8, 2007.

Defendant moves to dismiss the claim on the grounds that it was not timely served and filed, that it fails to state a cause of action against the State of New York, and that the court lacks personal and subject matter jurisdiction. Court of Claims Act §§10(3), 11, Civil Practice Law and Rules §§3211(a)(2),(7) and (8).

The only date of accrual alleged is when claimant avers he became “aware” of the resolution on October 11, 2007. As noted by defendant, this seems to be a somewhat arbitrary selection of a date to allow that service and filing of the claim fall within the ninety (90) day period provided for both negligent and intentional tort causes of action. See Court of Claims Act §§10(3) and 10 (3-b). The passage of this resolution, however, occurred in 2005. [Affirmation in Support by Michael T. Krenrich, Assistant Attorney General, ¶5]. Both the notice of intention and the claim itself were served on defendant on November 8, 2007, well after the county legislature passed this resolution in 2005. [Ibid.]. A cause of action for defamation accrues on the day that the defamatory statement is first published in accordance with the so-called “single publication rule,” including publication on the internet. See Firth v State of New York, 98 NY2d 365 (2002); see also Meyer v Onondaga County, 30 AD3d 1002 (4th Dept 2006).[1] The claim is therefore untimely, and dismissal is warranted on that ground alone, based upon this timely pre-answer motion to dismiss. See Court of Claims Act §11(c).

Additionally, viewed as a claim that the State of New York is to be held liable for the statements made by the local legislature, two issues apply. First, the State of New York is not a party chargeable for the acts of private individuals or local legislators. These actions were by local officials, not agents of the State of New York. Second, the statements purportedly libelous, that is, referring to claimant as a rapist or a murderer, describe the acts for which he has been convicted and/or incarcerated. Indeed, a quick search of the official reports of published cases reveals that Mr. McCain’s conviction for this crime is officially reported. See People v McCain, 134 AD2d 287 (2d Dept 1987) appeal denied 71 NY2d 899 (1988). The Court of Claims does not have subject matter jurisdiction over a claim against private parties or local legislators, or Rockland County, nor does the claim state a cause of action for defamation. Court of Claims Act § 9; Firth v State of New York, supra.

Finally, if it is denial of parole by an agency of the State of New York as a result of the passage by the Rockland County Legislature of this resolution that is alleged, parole decisions are absolutely immune, as quasi-judicial discretionary acts for which the State has not waived sovereign immunity. See Tarter v State of New York, 68 NY2d 511 (1986); Tango v Tulevech, 61 NY2d 34, 41 (1983); see also Arteaga v State of New York, 72 NY2d 212 (1988).

Accordingly, defendant’s motion to dismiss [M-74335] is hereby granted, and claim number 114469 is in all respects dismissed.

February 19, 2008
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. Action for libel, slander, defamation and personal injuries based on county sheriff’s alleged negligence in issuing an arrest warrant charging the plaintiff with acts of sexual abuse dismissed. Cause of action accrued when warrant issued, not five years later when plaintiff first learned of its issuance.