New York State Court of Claims

New York State Court of Claims

MARRERO v. STATE OF NEW YORK, #2008-045-024, Claim No. 114902, Motion No. M-74726


defendant’s motion to dismiss for failure to include negligence claim in notice of intention which asserts false arrest.

Case Information

1 1.The caption has been amended, sua sponte, to reflect the State of New York as the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended, sua sponte, to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant’s attorney:
Nelson M. Stern, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Anne C. Leahey, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 21, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


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 denied.

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[3] 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.[2]

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 claim.

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 [2000]; Tango v Tulevech, 61 NY2d 34 [1983]).

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 this matter.

Therefore, for the foregoing reasons, defendant’s motion to dismiss is denied.

May 21, 2008
Hauppauge, New York

Judge of the Court of Claims

[2].Defendant does not argue that claimant is time-barred from bringing a late claim motion asserting a cause of action based on negligence pursuant to CCA §10(6).