New York State Court of Claims

New York State Court of Claims

PEREZ v. STATE OF NEW YORK, #2009-042-529, Claim No. 115088, Motion No. M-77128


Synopsis


This is a motion brought by the defendant for an order pursuant to CPLR Rule 3211 (a) (2), CPLR Rule 3211 (a) (7) and CPLR Rule 3211 (a) (8) dismissing the claim for lack of personal and/or subject matter jurisdiction, or alternatively for summary judgment dismissing the claim. The claim asserts the following causes of action: assault, defamation of character, intentional infliction of emotional distress, violation of claimant’s civil and constitutional rights, false arrest, malicious prosecution and wrongful incarceration and imprisonment. On the claim of assault, the court finds that service was not timely made and the claim is time-barred. The claim for assault is dismissed. On the claim of defamation of character, the court finds that said claim is subject to a one-year statute of limitation and thus time-barred and the claim for defamation of character is dismissed. The court dismisses the claim on intentional infliction of emotional distress as the claim was not timely made and is against public policy. The court dismisses the claim of violation of claimant’s civil and constitutional rights finding that the claim is not timely for failure to comply with the provision of Court of Claims Act Section 10. The court dismisses the claim for false arrest as the claimant did not meet the threshold requirement. On the claim of malicious prosecution, the court is dismissed for the same reasons set forth in the court’s discussion of the false arrest claim. The court finds that the claimant failed to meet the statutory predicate for a claim for unjust conviction and the claim is dismissed. In sum, defendant’s motion is granted and the claim is dismissed in its entirety.

Case Information

UID:
2009-042-529
Claimant(s):
ALFONSO F. PEREZ
Claimant short name:
PEREZ
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115088
Motion number(s):
M-77128
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
CARL G. SCALISE, ESQ.LEON R. KOZIOL, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 5, 2009
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The court has considered the following papers on defendant’s motion to dismiss:

1. Notice of Motion, filed August 21, 2009
2. Affirmation of Joel L. Marmelstein, Esq., dated August 20, 2009
3. Exhibits A - E, annexed to the moving papers
4. Affidavit of Alfonso F. Perez, sworn to September 26, 2009
5. Affirmation of Carl G. Scalise, Esq., dated September 30, 2009


This matter comes before the Court on a motion by defendant State of New York for an order pursuant to CPLR Rule 3211 (a) (2), CPLR Rule 3211 (a) (7), and CPLR Rule 3211 (a) (8) dismissing the claim for lack of personal and/or subject matter jurisdiction. Alternatively, defendant State of New York moves for summary judgment dismissing the claim. The claim asserts causes of action based upon:
1. Assault
2. Defamation of character
3. Intentional infliction of emotional distress
4. Violation of claimant’s civil and constitutional rights
5. False arrest
6. Malicious prosecution
7. Wrongful incarceration and imprisonment


While the facts of the incident which underpin the claim, as set forth in the claim, are vague, the following can be discerned from the claim: claimant alleges that he was assaulted and arrested without probable cause on September 18, 2005 in the Village of Herkimer, County of Herkimer, by “Herkimer Police and others.” It is alleged that claimant was subsequently detained, convicted, and wrongfully imprisoned for twenty-one months, until his conviction was overturned by the Appellate Division, Fourth Department, on January 9, 2008. The claim was filed April 8, 2008.

Claimant opposes defendant’s motion and asserts that a State Police Officer was involved in the arrest, that Herkimer County Court is a state court, and that claimant was arrested and imprisoned without probable cause.

ASSAULT CLAIM
Defendant moves to dismiss this portion of the claim on the grounds that claimant failed to timely serve either a notice of intention to file a claim or a claim itself on the Office of the Attorney General within ninety days of the date of accrual, September 18, 2005, as required by Court of Claims Act § 10. Claimant offers no facts to controvert defendant’s allegation that the Attorney General was not served with a notice of intention or a claim within ninety days following the date of accrual.

Under either Court of Claims Act § 10 (3) (negligence or unintentional tort by officer or employee of the state) or Court of Claims Act § 10 (3-b) (intentional tort by officer or employee of the state), a claim shall be filed and served upon the Attorney General within ninety days unless a notice of intention to file a claim shall have been served upon the Attorney General within ninety days of the date of accrual.
[I]t is well settled that the Court of Claims does not obtain subject matter jurisdiction unless a claim, or a notice of intention to file, is timely filed (see Court of Claims Act § 10 [3-b]; Rivera v State of New York, 5 AD3d 881, 881 [2004]; Bullard v State of New York, 307 AD2d 676, 677 [2003]).

(Matter of Best v State of New York, 42 AD3d 699, 700).


Turning to defendant’s statute of limitations argument, the defendant is correct that a claim for assault is subject to a one-year statute of limitations (CPLR § 215 [3]). The assault occurred on September 18, 2005 and this claim was not served on the Attorney General until on or about April 4, 2008 (defendant’s Exhibit A), well beyond the one-year limitation.

Inasmuch as service was not timely made and the claim is time-barred, the claim for assault is dismissed.

CLAIM FOR DEFAMATION OF CHARACTER
As with the claim for assault, this claim accrued on September 18, 2005, no notice of intention to file a claim was served upon the Attorney General and the written claim was not served until on or about April 4, 2008.

Accordingly, the claim was not timely served, as required by Court of Claims Act § 10.

As with the claim for assault, a claim for defamation is also subject to a one-year statute of limitations (CPLR § 215 [3]). Thus this claim is time-barred as well.

Defendant’s motion to dismiss the claim for defamation is granted.


CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
As with the previously mentioned claims, this claim arose on September 18, 2005 and the written claim was not served on the Attorney General until on or about April 4, 2008. Neither the claim nor a notice of intention to file a claim was served within ninety days of the accrual of the claim, as required by Court of Claims Act § 10.

The Court of Appeals has been unequivocal in finding compliance with the Court of Claims Act to be a jurisdictional prerequisite for action by the Court of Claims, noting that:
a distinction must be drawn between statutes of limitations generally and the filing limitations of the Court of Claims Act. It is well settled that statutes of limitations are designed to promote justice by preventing the revival of stale claims (citation omitted). The primary purpose of a limitations period, we have noted, is to ensure fairness to a defendant (citation omitted). The time limitations in the Court of Claims Act, however, are distinctly concerned with the subject matter jurisdiction of the Court of Claims as the State has waived its sovereign immunity against suit only to the extent that claimants comply with the provisions of the statute (see Alston v State of New York, 97 NY2d 159, 163 [2001]).

(Lyles v State of New York, 3 NY3d 396, 399-400).


The Court also went on to quote Alston v State of New York, 97 NY2d 159, at 163:

“Article II, section 10 of the Court of Claims Act could not be any clearer . . . that ‘[n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied’ with the time limitations established in that section.”

(Lyles v State of New York, 3 NY3d 396, 400).


Claimant has failed to comply with the time limitations of Court of Claims Act § 10, and as a result, this portion of the claim must be dismissed.

Defendant also asserts that “claims of intentional infliction of emotional distress

against governmental bodies are barred as a matter of public policy.” The opposition does not address this issue.

While the court need not address this issue, since the court lacks jurisdiction, nevertheless it is noted that the law is well established that where “the act complained of constituted official conduct, public policy prohibits the maintenance of a suit against the State for intentional infliction of emotional distress” (Augat v State of New York, 244 AD2d 835, 837, lv denied 91 NY2d 814; Brown v State of New York, 125 AD2d 750; Tatta v State of New York, 51 AD3d 1295, lv denied 11 NY3d 703).

Inasmuch as the claim was not timely, and, in any event, is against public policy, the claim of intentional infliction of emotional distress is dismissed.

CLAIM OF VIOLATION OF CLAIMANT’S CIVIL AND CONSTITUTIONAL RIGHTS
Once again, the claim is not timely for failure to comply with the provisions of Court of Claims Act § 10. The Court relies upon the facts and legal conclusions previously set forth in this decision and order.

Inasmuch as claimant’s failure to comply with the provisions of the Court of Claims Act results in a lack of jurisdiction, the Court need not address the merits of this particular claim. However, generally speaking, this Court does not have jurisdiction to consider federal constitutional claims and seldom countenances causes of action under the state constitution (see Brown v State of New York, 89 NY2d 172; Lyles v State of New York, 2 AD3d 694, affd 3 NY3d 396; Graham v State of New York, UID No. 2009-044-522, Claim No. 111017, Motion Nos. M-75928, M-76051, CM-76004, March 27, 2009, Schaewe, J.).

CLAIM FOR FALSE ARREST
Defendant contends that the cause of action for false arrest should be dismissed because the arrest was made by the Village of Herkimer Police Department, not the State Police. However, it does appear undisputed that the State Police assisted at the scene at the time of the arrest, though there is no evidence that the State Police effectuated the arrest.

To establish a cause of action for false arrest:
the plaintiff [claimant in this case] must show that: (1) the defendant intended to confine him, (2) the plaintiff [claimant] was conscious of the confinement, (3) the plaintiff [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged.

(Broughton v State of New York, 37 NY2d 451, 456).


In this claim, claimant cannot meet the threshold requirement, as there is no showing that the defendant, through its agents, the State Police, confined claimant, as the arrest was made by the Herkimer Village Police. In an action for false imprisonment against the Department of Social Services of the County of Nassau, the plaintiff alleged that the defendant’s negligent acts caused plaintiff to be arrested and detained by the State Police. The court dismissed the claim, stating:
[w]e agree with the defendants’ contention that the plaintiff has failed to state a cause of action against them to recover damages for false arrest and imprisonment. In order to establish a cause of action to recover damages for false imprisonment, a plaintiff must establish, inter alia, that the defendant intended to confine him (citations omitted). Since the plaintiff was concededly arrested and detained by New York State employees and not by employees of the defendants, it is clear that the defendants neither intended to confine him nor actually confined him. Accordingly, insofar as the plaintiff’s claim seeks damages against the defendants predicated upon the tort of false arrest and imprisonment, it must be dismissed.

(Secard v Department of Social Servs. of Nassau County, 204 AD2d 425, 426).


Insofar as claimant seeks to make a claim for false arrest, it is dismissed.


CLAIM FOR MALICIOUS PROSECUTION
To sustain a claim for malicious prosecution, the claimant must establish that there was the commencement or continuation of a criminal proceeding by defendant against the claimant, a termination of the proceeding in favor of the claimant, an absence of probable cause for the criminal proceeding, and actual malice (Broughton v State of New York, 37 NY2d 451, 457-458, citing Prosser, Torts [4th ed], s 119).

For the same reasons set forth in the Court’s discussion of the false arrest claim, the claim for malicious prosecution must be dismissed. The defendant State of New York, acting through its State Troopers, did not cause the commencement or continuation of criminal proceedings against the claimant. The charges were filed by the Village of Herkimer Police.[1]

CLAIM FOR WRONGFUL INCARCERATION AND IMPRISONMENT
If this claim is intended to be a claim for false imprisonment, then it is dismissed for the same reasons set forth in the Court’s discussion of the false arrest claim. But, giving claimant every benefit of a broad reading of his claim, the Court will assume, as did the Attorney General, that this claim is actually one for unjust conviction under Court of Claims Act § 8-b.

Claims brought pursuant to Court of Claims Act § 8-b are creations of statute and an abrogation of the State’s sovereign immunity. In order to make a claim under this section, strict compliance with statutory requirements is obligatory.

The Court turns now to whether claimant has made out a claim against the State. Under the provisions of Court of Claims Act § 8-b (3),
[i]n order to present the claim for unjust conviction and imprisonment, claimant must establish by documentary evidence that:

(a) he has been convicted of one or more felonies or misdemeanors against the state and subsequently sentenced to a term of imprisonment, and has served all or any part of the sentence; and

(b) (i) he has been pardoned upon the ground of innocence of the crime or crimes for which he was sentenced and which are the grounds for the complaint; or

(ii) his judgment of conviction was reversed or vacated, and the accusatory instrument dismissed or, if a new trial was ordered, either he was found not guilty at the new trial or he was not retried and the accusatory instrument dismissed; provided that the judgement of conviction was reversed or vacated, and the accusatory instrument was dismissed, on any of the following grounds:

(A) paragraph (a), (b), (c), (e) or (g) of subdivision one of section 440.10 of the criminal procedure law; or

(B) subdivision one (where based upon grounds set forth in item (A) hereof), two, three (where the count dismissed was the sole basis for the imprisonment complained of) or five of section 470.20 of the criminal procedure law; or

(C) comparable provisions of the former code of criminal procedure or subsequent law; or

(D) the statute, or application thereof, on which the accusatory instrument was based violated the constitution of the United States or the State of New York; and

(c) his claim is not time-barred by the provisions of subdivision seven of this section.

In this case, claimant did not attach any documentary evidence to the claim. Rather, he simply relies upon the allegations of the claim that he was “arrested without probable cause” and that the conviction was overturned by the Appellate Division on January 9, 2008. The claim even fails to attach the Appellate Division decision. The claim, as presented, is insufficient as a matter of law. In order to state a claim, the statute requires claimant to meet the statutory thresholds by use of documentary evidence (Court of Claims Act § 8-b (3); Reed v State of New York, 78 NY2d 1).

Defendant’s motion to dismiss is granted and the claim is dismissed in its entirety.



November 5, 2009
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims




[1]. In opposition to defendant’s motion, claimant’s counsel stated that “[t]he Herkimer County Court is a State Court, not a Local Court.” No specific allegations are made, though, with regard to any of the claims, that the court acted improperly. However, since reference is made to the Herkimer County Court, this Court would note that the County Court, acting through its judges and/or employees, has judicial immunity (Mitchell v State of New York, UID No. 2005-015-025, Claim No. 110085, Motion Nos. M-69741, M-69742, M-70183, CM-69959, June 27, 2005, Collins, J.).