New York State Court of Claims

New York State Court of Claims

FLYNN v. NEW YORK STATE POLICE, #2008-038-588, Claim No. 113346, Motion No. M-74128


Defendant’s motion to dismiss granted. Part of the claim was filed more than 90 days after accrual. Remainder of claim alleged defamatory testimony at a judicial proceeding, which were absolutely privileged as statements pertinent to litigation, and therefore not actionable.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael C. Rizzo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 23, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


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 tort.[1] 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 [3], § 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 (id.). 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 [1989]) 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 (see 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 [1969]; see Youmans v Smith, 153 NY 214, 219 [1897]; 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 [1991]). “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” (id.)

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.[2] Manifestly, the testimony of the troopers that is alleged to be defamatory (i.e. 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 [1983]; see Sexter & Warmflash, P.C. v Margrabe, 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 is

ORDERED, that Motion No. M-74128 is GRANTED, and Claim No. 113346 is hereby DISMISSED in its entirety.

January 23, 2008
Albany, New York

Judge of the Court of Claims

Papers considered

(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 exhibits 1-7;

(7) Affidavit in Opposition of Bruce C. Flynn, sworn to October 26, 2007.

[1]. While the claim was initially filed on February 20, 2007, an amended claim (revising the caption) was filed on February 26, 2007. A second amended claim, which is substantively indistinguishable from the initial and amended claims, was filed on April 10, 2007. The parties have agreed that the claim should proceed upon this last pleading, and defendant has filed and served an answer thereto.
[2]. While the claim expressly names only Trooper Kenyon as a witness at the hearing, claimant’s affidavit in opposition to defendant’s motion addresses the statements of both Kenyon and Houle. Because the analysis of absolute privilege applies to both troopers, this decision will discuss both of them.