New York State Court of Claims

New York State Court of Claims

PETEREC-TOLINA v. THE STATE OF NEW YORK, #2009-015-115, Claim No. 115316, Motion No. M-75596


Synopsis


Pro Se inmate's claim was dismissed for improper service, insufficient pleading and failure to state a cause of action arising out of negligent investigation by the Inspector General's Office.

Case Information

UID:
2009-015-115
Claimant(s):
JOHN L. PETEREC-TOLINA
1 1.The caption is amended sua sponte to reflect the only properly named defendant.
Claimant short name:
PETEREC-TOLINA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption is amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115316
Motion number(s):
M-75596
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
John L. Peterec-Tolina, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Joan Matalavage, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 15, 2009
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant moves for dismissal of the claim pursuant to CPLR 3211 on the grounds of improper service and failure to state a cause of action. Claimant, proceeding pro se, opposes the motion and cross-moves for an order directing the Office of the Inspector General to undertake a criminal investigation of a New York State Police Officer. The claim was filed with the Clerk of the Court on June 2, 2008 and served by priority mail service on August 20, 2008 (see defendant's Exhibit A). The claim allegedly accrued on March 5, 2008 and is based upon the following acts or omissions by the defendant:
"By not taking any action whatsoever in investigating procedural irregularities on the part of New York State Police Officer Kyle Kroeger, badge # 4858, etc. The office of Inspector General reviewed my detailed complaint and correspondence which contained details and exhibits corresponding to these facts, fully exemplyfied. These facts fully show allegations of fraud, corruption, abuse, conflict of interest and criminal conduct in certain New York State agencies, which is the responsibility [sic] to investigate by the office of Inspector General. The office refused to even conduct an investigation which more than has merits as to their vality."

Court of Claims Act § 11(a) (i) provides, in relevant part, that a copy of the claim "shall be served upon the attorney general . . . either personally or by certified mail, return receipt requested. . . " The Court of Appeals has noted in interpreting this provision that "statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). The failure to comply with this requirement, if not waived, is a defect that deprives the Court of jurisdiction requiring dismissal of the claim (Rodriguez v State of New York, 307 AD2d 657 [2003]). Defendant has not waived its defense as it moves to dismiss the claim in a pre-answer motion as provided in Court of Claims Act § 11 (c). Claimant's improper service of the claim by priority mail requires that the claim be dismissed.

Additionally, the claim fails to comply with the pleading requirements of Court of Claims Act § 11 (b), which provides, in relevant part, that the claim “ shall state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed." The purpose of this requirement “ 'is to provide a sufficiently detailed description of the particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and extent of its liability' ” (Robin BB. v State of New York, 56 AD3d 932, 932-933 [2008]; quoting Sinski v State of New York, 265 AD2d 319, 319 [1999]; see also Rivera v State of New York, 52 AD3d 1075 [2008]). Failure to comply with the statutory requirements mandates dismissal for lack of subject matter jurisdiction (Robin BB. v State of New York, 56 AD3d at 933).

Here, while the claimant alleges the failure to investigate "fraud, corruption, abuse, conflict of interest and criminal conduct in certain New York State agencies", neither the nature of the conduct complained of nor the injuries sustained were pled with sufficient particularity to enable the defendant to investigate the claim and ascertain its liability under the circumstances. Additionally, claimant failed to set forth the total sum claimed as damages. This fact alone warrants dismissal of the claim (Kolnacki v State of New York, 8 NY3d 277 [2007]).

Lastly, defendant's motion to dismiss for failure to state a cause of action is premised on the contention that the defendant is immune from suit for the discretionary decision of the Inspector General's Office not to perform an investigation. "The case law is well settled that, on public policy grounds, no legally cognizable cause of action exists for negligent investigation of a crime and claimant's only avenue of relief is by way of the traditional remedies of false arrest and malicious prosecution suits" (Coyne v State of New York, 120 AD2d 769 [1986]).

For the foregoing reasons, defendant's motion to dismiss the claim is granted and the claim is dismissed. Claimant's cross-motion is denied as moot.



January 15, 2009
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated September 22, 2008;
  2. Affidavit of Joan Matalavage sworn to September 22, 2008, with exhibits;
  3. "Affidavit/Affirmation" of John L. Peterec-Tolino sworn to October 7, 2008 with exhibits;
  4. Affidavit of Joan Matalavage sworn to October 22, 2008;
  5. Reply affidavit of John L. Peterec-Tolino sworn to October 24, 2008.