The following papers were read and considered on this motion: Defendant’s
Notice of Motion, Defendant’s Affirmation in Support with annexed Exhibit
A, Defendant’s Memorandum of Law in Support, Claimant’s Affirmation
in Opposition with annexed Exhibit 1, Defendant’s Affirmation in Reply and
the filed Claim. Defendant, the State of New York, has brought this motion
pursuant to Civil Practice Law and Rules (CPLR) 3211(2),(5) and (8) seeking an
order dismissing the claim.
Claimant, Carlos Marrero, served a notice of intention in this matter upon
defendant on September 28, 2006. Thereafter, claimant filed his claim with the
Office of the Chief Clerk of the Court of Claims on February 27, 2008.
Defendant argues in its initial ground for dismissal that the claim was never
properly served upon it as required by Court of Claims Act (CCA) §
11(a)(i). In response, claimant concedes that he did not properly serve
defendant prior to the instant motion but contends that he has now corrected
this mistake by personally serving the claim upon defendant on April 1, 2008.
The Court finds that claimant has submitted sufficient proof evincing proper
service of the claim upon defendant (see Cl Exh 1). Additionally, defendant
appears to concede this point in its reply papers. Thus, since it now appears
as though claimant has served his claim in accordance with the requirements of
CCA §§ 10(3) and 11(a)(i) that portion of defendant’s motion is
Defendant further argues that the claims of negligence contained in the filed
claim are untimely since they were not properly presented as negligence claims
in claimant’s notice of intention (see CCA §§ 10 and 11[b]).
Claimant alleges in his notice of intention that his claim is “for the
recklessness, carelessness, negligence and unlawful conduct” of defendant.
Claimant states in his notice of intention that the underlying events which gave
rise to the claim occurred on July 24, 2006. Claimant describes the
circumstances surrounding his alleged arrest and states in pertinent part that
he was “detained in the State Trooper [sic] Barracks for several
hours without justification or explanation. Sometime thereafter, the Troopers
discovered that a warrant (search or arrest) was never issued or executed for
Mr. Marrero and that Mr. Marrero’s arrest and detention were unwarranted
and unlawful. The Troopers never charged Mr. Marrero with any crime(s).
Instead, after several hours, Mr. Marrero was released without explanation or
apology. Mr. Marrero was never contacted, charged or prosecuted for any matters
related to this arrest.”
As this Court previously stated in its Decision and Order filed January 11,
2008, the claims sounding in intentional tort were not timely presented by
claimant in this matter.
Defendant argues that the notice of intention does not properly set forth a
negligence theory of recovery. As a result, defendant contends, claimant is
time-barred according to CCA § 10(3) from serving and filing a claim for
negligence in this action.
In his filed claim, claimant describes the circumstances surrounding his
alleged arrest and states in pertinent part that “[s]ometime thereafter,
the defendant discovered that a warrant (search or arrest) was never properly
issued or executed for claimant and that claimant’s arrest and detention
were unwarranted and unlawful.” Claimant continues in the filed claim
that “[a]ny arrest warrant, if there was one, was not issued or processed
by a Justice in the County of Nassau where the arrest took place. As a result,
the arrest was improper.”
The purpose of a notice of intention is to provide prompt notice of an
occurrence and sufficient information to allow for a meaningful investigation to
determine potential liability (Beard v State of New York, 25 AD3d 989 [3d
Dept 2006]; Rodriguez v State of New York, 8 AD3d 647 [2d Dept 2004];
Heisler v State of New York, 78 AD2d 767 [4th Dept 1980]). “Every
element in a notice of intention need not be set forth with formalistic rigidity
and it should not be scrutinized as strictly as a pleading’”
(Sega v State of New York, 246 AD2d 753, 755 [3d Dept 1998], quoting
Cannon v State of New York, 163 Misc 2d 623, 626 [Ct Cl 1994]).
Consequently, this Court finds that claimant’s notice of intention
provides sufficient information to put defendant on notice of a negligence claim
and to conduct a meaningful investigation of such a claim in this matter. The
failure of claimant to include the word “properly” in his notice of
intention in describing the issuance or execution of the search warrant does not
mandate the exclusion of his negligence cause of action from the filed
Even assuming arguendo that a cause of action for negligence was not
properly presented in claimant’s notice of intention, it can be reasonably
inferred from the allegations contained in the notice of intention and its
inclusion in the claim does not result in surprise or prejudice to defendant
(Beard v State of New York, 25 AD3d 989 [3d Dept 2006]; Rodriguez v
State of New York, 8 AD3d 647 [2d Dept 2004]).
Finally, while it is true that claimant may not recover under broad general
principles of negligence when he is seeking damages resulting from false
imprisonment (Santoro v Town of Smithtown, 40 AD3d 736 [2d Dept 2007]), a
ministerial act may form the basis of a negligence claim against a governmental
entity (Lauer v City of New York, 95 NY2d 95 ; Tango v Tulevech,
61 NY2d 34 ).
Lastly, the Court is compelled to note the inappropriate inclusion of a the
line “The lady doth protest too much, methinks” by claimant’s
attorney in his opposition papers. Claimant’s attorney is forewarned that
such unprofessional conduct cannot and will not be countenanced by the Court in
Therefore, for the foregoing reasons, defendant’s motion to dismiss is