New York State Court of Claims

New York State Court of Claims

REYNOLDS v. THE STATE OF NEW YORK, #2008-044-576, Claim No. None, Motion No. M-75089


Claimant’s motion to file and serve a late claim for false arrest / false imprisonment based upon his DWI arrest granted. Because there is a dispute as to the essential facts underlying the arrest, probable cause may not be determined as a matter of law, and leads to the appearance of merit. Five of the six statutory factors, including the most crucial factor of merit, weigh in favor of claimant.

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:
JACOBS & JACOBS, ESQS.BY: Patrick J. Cannon, Esq., of counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 9, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission to file and serve a late claim asserting causes of action for false arrest, false imprisonment and a violation of the United States Constitution. Defendant opposes the motion. Initially, it must be noted that the Court of Claims does not have jurisdiction to consider a cause of action alleging a violation of the Federal Constitution (see Brown v State of New York, 89 NY2d 172, 184 [1996]; see also Tooks v State of New York, Ct Cl, Jan. 10, 2006, Sise, P.J., Claim No. 106164, Motion No. M-69401 [UID # 2006-028-500], affd 40 AD3d 1347 [2007],

lv denied
9 NY3d 814 [2007]). Therefore, to the extent that claimant’s motion is seeking permission to file and serve a late claim alleging such a cause of action, it is denied.

A motion seeking permission to file and serve a late claim must be brought within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act

§ 10 [6]). The statute of limitations for false arrest / false imprisonment[1] is one year (CPLR 215 [3]). This proposed cause of action for false arrest accrued on July 12, 2007, when claimant was released from custody (Caminito v City of New York, 19 NY2d 931 [1967]; Salman v Econo Lodge, 303 AD2d 923 [2003]; Danchak v State of New York, 29 AD2d 609 [1967]). Accordingly, this motion, which was served by mail on June 11, 2008, is timely (see Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2001]).

Having determined that the motion is timely with regard to a portion of the allegations contained therein, the Court turns to a consideration of the merits of the motion itself. The factors that the Court must consider under Court of Claims Act § 10 (6) in determining a motion to permit late filing of a claim are whether:

1) the delay in filing the claim was excusable;

2) defendant had notice of the essential facts constituting the claim;

3) defendant had an opportunity to investigate the circumstances underlying the claim;
4) the claim appears to be meritorious;

5) the failure to file or serve upon the attorney general a timely claim or to

serve upon the attorney general a notice of intention resulted in substantial prejudice to defendant; and

6) claimant has any other available remedy.

Claimant states that his former attorney failed to advise him that either a claim or a notice of intention to file a claim must be filed within 90 days of accrual of the claim. Further, claimant asserts that he incorrectly believed that the time in which to commence this action would not begin to run until the criminal charges against him had been resolved, and the delay in filing this claim is therefore justified. Neither the claimant’s ignorance of the law nor his former attorney’s law office failure is an adequate excuse for failing to comply with the filing requirements of Court of Claims Act § 10 (see Nyberg v State of New York, 154 Misc 2d 199, 200 [1992]; see also Osho v State of New York, Ct Cl, Mar. 8, 2004, Sise, J., Claim No. None, Motion No.

M-67743 [UID #2004-028-509]). Accordingly, the Court finds that the delay was not excusable, and this factor weighs against claimant.

The three factors of notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice are frequently analyzed together since they involve similar considerations. Defendant contends that there was no investigation of the alleged incident with respect to a lawsuit for false arrest or false imprisonment. Further, defendant argues that it will be prejudiced in its defense of this matter because it does not have information concerning the current location of two of the three witnesses – Jessica Delehanty and Roger Baust – to the incident which formed the basis for claimant’s arrest.

Claimant was arrested for violation of Vehicle and Traffic Law § 1192 (3) (driving while intoxicated - DWI) by State Police Trooper D.A. Nolder, based upon Nolder’s Supporting Deposition/DWI Bill of Particulars as well as the Supporting Deposition of alleged witness Michael Craft.[2] The State Police did not specifically investigate the matter with respect to a civil action. However, it did investigate the incident with respect to claimant’s arrest, and those facts are also the facts which support his cause of action for false arrest. Accordingly, the Court finds that defendant had both notice of and an opportunity to investigate this matter.

Further, one of defendant’s potential affirmative defenses in this claim would presumably be that there was probable cause for claimant’s arrest (see Martinez v City of Schenectady, 97 NY2d 78 [2001]). Because neither Jessica Delehanty nor Roger Baust provided statements to Trooper Nolder prior to claimant’s arrest, their potential testimony would have no bearing on the issue of probable cause. Their purported unavailability at this time is therefore not prejudicial to defendant.[3] The three factors of notice of the essential facts, an opportunity to investigate, and the lack of prejudice all weigh in favor of claimant.

Another factor to be considered is whether claimant has any other available remedy. The allegedly wrongful conduct against claimant occurred during the course of Trooper Nolder’s employment with the State of New York, and under the doctrine of respondeat superior, his conduct may provide the basis for defendant’s potential liability (see Rossetti v Board of Educ. of Schalmont Cent. School Dist., 277 AD2d 668 [2000]). As defendant appropriately concedes, the Court of Claims is the proper forum for resolution of this action. This factor weighs in favor of claimant.

The issue of whether the proposed claim appears meritorious is the most crucial component in determining a motion under Court of Claims Act § 10 (6), since it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth.,

92 Misc 2d 1, 10 [1977]). In order to establish a meritorious claim, a claimant must demonstrate that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (id. at 11). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg v State of New York, supra).

In order to set forth a cause of action for false arrest, claimant must prove (1) that defendant intentionally confined him, (2) that he was conscious of the confinement, (3) that he did not consent to the confinement, and (4) that the confinement was not otherwise privileged (see Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]). There is no dispute that the first three elements have been met in this case. The only contested issue is whether claimant’s detention was the product of an unlawful arrest, or in other words, an arrest without probable cause.[4] There is a presumption that a warrantless arrest and imprisonment is unlawful (see id.), but “[t]he existence of probable cause serves as a legal justification for the arrest and an affirmative defense to [a cause of action for false arrest]” (Martinez v City of Schenectady, supra, at 85). Where “there is no real dispute as to the essential facts underlying the arrest or the proper inferences to be drawn from those facts” (Stratton v City of Albany, 204 AD2d 924, 926 [1994]), the Court may determine probable cause as a matter of law (Saunders v County of Washington, 255 AD2d 788, 789-790 [1998]).

The proposed claim arises out of an incident where claimant was arrested at his home for DWI. Claimant alleges that he was involved in a romantic relationship with Jessica Delehanty, and that on July 11, 2007, they became involved in an argument. Claimant alleges that she left his house and apparently went to the home of Michael Craft, her former boyfriend. Claimant admits that at approximately 4:00 p.m. on that day, he drove by Craft’s residence and saw Jessica coming out of the house. Claimant also states that he and Craft have not been on friendly terms for several reasons – including claimant’s relationship with Delehanty – and that Craft observed him driving by the house. Claimant asserts that he then drove home and some time thereafter, a State Trooper arrived at claimant’s residence and asked whether he had been drinking. Claimant states that he admitted that he had been drinking since arriving home at his residence, but denied having any alcohol prior to or while driving his vehicle. Claimant also admits that he refused to take any test to determine his blood alcohol level. Claimant states that there is a motion currently pending in the criminal proceeding to dismiss the charges against him of driving while intoxicated and refusal to take a breath screening test.

In his Supporting Deposition, Michael Craft stated that on July 11, 2007 at approximately 4:45 p.m., claimant drove uphill past his house. Craft states that claimant then drove down the hill past the house again, and upon seeing Jessica come out of the front door, claimant slowed down, leaned out of the window, and started shouting at her. Craft stated that claimant was not watching the road and drove off the right shoulder into the ditch, “slammed” into his neighbor’s culvert, bounced off and continued driving down the road. Craft stated that claimant “looked crazed when he leaned out the window, screaming and waving his arm.” Craft stated that he immediately called 911.

Based upon a review of Trooper Nolder’s Supporting Deposition/DWI Bill of Particulars,[5] he stated that the probable cause for claimant’s arrest was based, in part, upon the odor of an alcoholic beverage, claimant’s glassy eyes, impaired speech and impaired motor coordination, as well as a civilian identification of claimant and a civilian complaint against him. Trooper Nolder also noted that when he spoke to claimant at 17:15[6], claimant admitted to drinking “At His House.”[7]

Because the motion to dismiss the criminal proceeding has not yet been resolved, there has been no determination of the existence of probable cause or the lack thereof. Although Craft’s statement indicates that claimant was driving erratically, it contains no evidence that claimant had been drinking or was intoxicated. Further, the only evidence that claimant was intoxicated was Trooper Nolder’s observation of claimant, at least one-half hour later[8] – at his residence – where he had admittedly been drinking. However, Trooper Nolder did not observe claimant driving a vehicle, and he apparently did not inspect claimant’s vehicle for any damage which may have occurred when he struck the culvert. Moreover, the statements of Michael Craft and claimant are clearly contradictory with respect to the time of the incident. Accordingly, the Court finds that it is inappropriate to determine probable cause as a matter of law. This issue is best resolved on the merits of the case (cf. People v Camagos, 160 Misc 2d 880 [1993] [the defendant’s presence at the scene of a one-car accident, and the identification of him as the driver of the vehicle by a civilian witness, constituted probable cause for his arrest, notwithstanding that the incident was not witnessed by the arresting officer]). As aptly stated in Barotti v State of New York (Ct Cl, June 29, 2007, Siegel, J., Claim No. None, Motion No. M-73090 [UID # 2007-042-515]), “it would be improvident to deny the claimant the right to proceed, based upon credibility determinations at this early stage” (see also Sydney v State of New York, Ct Cl, Jan. 7, 2003, Scuccimarra, J., Claim No. None, Motion No. M-65988 [UID # 2003-030-503]). The Court concludes that claimant has made a sufficient showing of merit to his cause of action. Accordingly, this factor also weighs in claimant’s favor.

The Court finds that five of the six factors, including the most crucial factor of merit, weigh in claimant’s favor. Claimant’s motion for permission to late file a claim is therefore granted to the extent that it alleges a cause of action for false arrest, and is denied with respect to any proposed cause of action for a violation of the Federal Constitution. Claimant is directed to serve a claim containing the information required by Court of Claims Act § 11 (b) setting forth a cause of action for false arrest upon the Attorney General, and to file said claim with proof of service with the Clerk of the Court of Claims, all within 45 days from the date of filing of this Decision and Order. The service and filing of the claim shall be performed pursuant to the strict requirements of the Court of Claims Act.

September 9, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion:

1) Notice of Motion filed on June 12, 2008; Affidavit of Gregory A. Reynolds sworn to on June 11, 2008; Affirmation of Patrick J. Cannon, Esq., dated June 10, 2008, and attached exhibits.

2) Affirmation in Opposition of James E. Shoemaker, Assistant Attorney General, dated July 14, 2008, and attached Exhibits A and B.

[1]. False arrest, which is “a detention accomplished by means of an unlawful arrest,” and false imprisonment, which “is an unlawful detention contrary to the will of the person detained accomplished with or without process of law” (59 NY Jur 2d, False Imprisonment § 1), are virtually indistinguishable (see Poje v Hopkins, 298 AD2d 780 [2002]). The Court will therefore refer to claimant’s proposed cause of action as false arrest in this Decision and Order.
[2]. Claimant was also charged with violating Vehicle and Traffic Law § 1194 (1) (b) – refusing to take a breath test.
[3]. In any event, Baust provided an affidavit in support of claimant’s motion to dismiss the criminal proceeding. Presumably, that affidavit contains some information which may assist defendant in locating him. Claimant and Craft were both former boyfriends of Delehanty and conceivably know her family, and/or friends who may have information on her current whereabouts. It appears that with a little investigative work, the State may be able to locate these potential witnesses.
[4]. Probable cause has been defined as “such grounds as would induce an ordinarily prudent and cautious person, under the circumstances, to believe that plaintiff had committed the [crime]” (Smith v County of Nassau, 34 NY2d 18, 25 [1974]; see also Orminski v Village of Lake Placid, 268 AD2d 780, 781 [2000]).
[5]. The Supporting Deposition/DWI Bill of Particulars is a checklist/fill-in-the-blank form (Claimant’s Motion, Exhibit 2).
[6]. The State Police apparently records events in military time, which when converted to standard time would be 5:15 p.m.
[7]. Claimant’s Motion, Exhibit 2
[8]. Based upon claimant’s allegations, Trooper Nolder arrived at hisclaimant’s residence approximately 1 hour and 15 minutes after claimant drove past Craft’s residence.