This claim seeks monetary damages for injuries allegedly sustained by claimant
as a result of the alleged wrongful conduct of State Police Troopers. The claim
asserts that: (1) claimant was wrongfully arrested on August 13, 2006 and that
he suffered physical injuries on that date; (2) a false statement submitted on
October 11, 2006 brought on a hearing addressed to claimant’s pistol
permit; and (3) a Trooper testified about these two events at the pistol permit
hearing, which was conducted on December 20, 2006. The claim was filed on
February 20, 2007. Defendant moves to dismiss the claim in its entirety,
asserting that the claim was not timely filed with respect to the claims arising
from incidents on August 13, 2006 and October 11, 2006, and that defendant is
immune from liability with respect to the Trooper’s testimony on December
20, 2006 because it was cloaked with absolute privilege. Claimant opposes the
motion. The allegations in the claim sound in negligence and intentional
Such claims must be filed with the
Clerk of the Court and served upon the attorney general within ninety days after
the accrual of the claim (Court of Claims Act § 10 , § 10[3-b]).
Alternatively, and within that same ninety-day period, the claimant may serve
upon the attorney general a written notice of intention to file a claim
). It is well established that the filing and service requirements
of the Court of Claims Act must be strictly construed (see Finnerty v
New York State Thruway Auth.
, 75 NY2d 721, 722-723 ) and that the
failure to comply with those requirements is a jurisdictional defect requiring
dismissal of the claim (see id.
; Ivy v State of New York
27 AD3d 1190 [4th Dept 2006]; Farnsworth v State of New York
, UID #
2006-031-091, Claim No. 110822, Motion No. M-71631, Minarik, J. [Dec. 29,
2006]). Here, claimant served a notice of intention on February 2, 2007
Rizzo Affirmation, Exhibit 1), and filed and served the claim later
that same month. Thus, any claims that accrued more than ninety days prior to
the service of the notice of intention -- before November 4, 2006 -- are
untimely. Accordingly, the two causes of action that accrued on August 13, 2006
and October 11, 2006 must be dismissed.
The claim alleges “slander and deformation [sic] of
character.” It appears that such a cause of action arises from the
testimony of Trooper Kenyon at the pistol permit hearing that was conducted in
the County Court of Clinton County (see Rizzo Affirmation, Exhibit 7).
“[A] statement, made in open court in the course of a judicial proceeding,
is absolutely privileged if, by any view or under any circumstances, it may be
considered pertinent to the litigation” (Martirano v Frost, 25 NY2d
505, 507 ; see Youmans v Smith, 153 NY 214, 219 ;
Fowler v Conforti, 194 AD2d 394 [1st Dept 1993]; see also
Dworkin v State of New York, 34 AD3d 1014, 1014-1015 [3d Dept 2006];
Grasso v Mathew, 164 AD2d 476, 479 [3d Dept 1991], lv denied 78
NY2d 855 ). “Nothing that is said in the court room may be the
subject of an action for defamation unless ... it is ‘so obviously
impertinent as not to admit of discussion, and so needlessly demafatory as to
warrant the inference of express malice’” (Martirano v Frost,
at 508, quoting Youmans v Smith, supra). Put another way,
“the [allegedly defamatory in-court] statement must be so outrageously out
of context as to permit one to conclude, from the mere fact the statement was
uttered, that it was motivated by no other desire than to defame”
The judicial proceeding at which Trooper Kenyon testified was held to determine
whether claimant’s pistol permit should be suspended or revoked as a
result of the incident that occurred on August 13, 2006. County Court heard the
testimony of Kenyon and Trooper Houle, and also considered a New York State
Police Report that was co-authored by Kenyon and Houle in relation to their
contact with claimant on that date.
Manifestly, the testimony of the troopers that is alleged to be defamatory
that claimant held a gun to his head) was pertinent to the
proceeding and to County Court’s determination to revoke claimant’s
pistol permit. Thus, their testimony was absolutely privileged.
Claimant’s contention that the troopers “deliberately” made
false statements at the hearing (Flynn Affidavit, ¶ 2) is without force,
because where, as here “the privilege is absolute, it confers immunity
from liability regardless of motive” (Park Knoll Assoc. v Schmidt
59 NY2d 205, 209 ; see Sexter & Warmflash, P.C. v
, 38 AD3d 163, 170 [1st Dept 2007]).
In sum, because the claim is untimely with respect to the incidents that
allegedly occurred on August 13, 2006 and October 11, 2006, and because the
troopers’ testimony at the hearing on December 20, 2006 is absolutely
privileged, and because the second amended claim cannot be read to assert any
additional claims that would withstand defendant’s motion to dismiss, it
ORDERED, that Motion No. M-74128 is GRANTED, and Claim No. 113346 is hereby
DISMISSED in its entirety.
(1) Claim, filed February 20, 2007;
(2) Amended Claim, filed February 26, 2007;
(3) Second Amended Claim, filed April 10, 2007;
(4) Verified Answer to Second Amended Claim, filed October 4, 2007;
(5) Notice of Motion to Dismiss, dated October 22, 2007;
(6) Affidavit in Support of Motion to Dismiss, sworn to October 22, 2007, with
(7) Affidavit in Opposition of Bruce C. Flynn, sworn to October 26, 2007.