New York State Court of Claims

New York State Court of Claims

MALONEY v. THE STATE OF NEW YORK, #2009-044-532, Claim No. None, Motion No. M-76418


Claimant’s motion for late claim for defamation denied.

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:
LAW OFFICES OF REMY R. PEROTBY: Michael J. Mucci, II, 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:
June 5, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission to file and serve a late claim to assert causes of action for “Incrimination and Defamation of Character”.[1] Defendant opposes the motion.

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]). Claimant asserts that his causes of action accrued on September 13, 2008, when a New York State Trooper (the Trooper) wrote a felony complaint and issued an appearance ticket for an incident that occurred at a Giant Supermarket in the Town of Union, Broome County.[2] The Statute of Limitations for a cause of action for defamation is one year (CPLR 215 [3]).[3] Accordingly, this motion mailed on March 20, 2009 is timely (Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2001]).

Having determined that the motion is timely, 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 a 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 asserts that the delay in filing a claim was justified because of “the circumstances surrounding [the] service of process”. Although claimant timely served the Attorney General’s Office with a “§ 50-e Notice of Claim” (Notice of Claim),[4] that document was rejected as a nullity because it was not verified (see Court of Claims Act § 11 [b]). Claimant thereafter verified the Notice of Claim and served it by certified mail, return receipt requested on January 7, 2009 – more than 90 days after the incident.[5] Claimant’s ignorance of the requirements of the Court of Claims Act is not an adequate excuse for his delay in timely serving a notice of intention to file a claim, or in timely filing and serving a claim (see Matter of Sandlin v State of New York, 294 AD2d 723 [2002], lv dismissed 99 NY2d 589 [2003]). Accordingly, 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. Claimant alleges that even though the Trooper issued a felony complaint and appearance ticket against him on September 13, 2008, he had not been indicted as of January 5, 2009. The allegedly wrongful conduct was committed by the Trooper during the course of his employment with the State. Accordingly, defendant appropriately concedes that it had notice of and an opportunity to investigate the incident. Moreover, defendant does not assert that there will be substantial prejudice to the State in defending this claim. Thus, 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. As discussed above, the proposed cause of action concerns the conduct of a State employee during the course of employment, and defendant appropriately concedes the Court of Claims is the proper forum for this action. Accordingly, 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, 154 Misc 2d 199, 202-203 [1992]).

The Court notes that because the proposed claim fails to contain a statement of the total sum claimed, it is jurisdictionally defective, and this motion could be denied solely on that basis (see Kolnacki v State of New York, 8 NY3d 277 [2007]). However, this is a motion for leave to file and serve a late claim, and the Court may, in the interest of judicial economy, determine “whether to exercise its discretion and ameliorate the . . . pleading defect[] in the proposed claim” in order to avoid a subsequent motion for the same relief (Byrd v State of New York, Ct Cl, Apr. 16, 2007, Moriarity III, J., Claim No. 112877, Motion No. M-72825 [UID # 2007-037-018]). The Court will therefore address whether the proposed claim appears meritorious.

Claimant conclusorily asserts that this claim is meritorious because even though a felony complaint had been issued, he has not been indicted.[6] In order to set forth a cause of action for defamation, claimant must allege (1) that defendant published a false statement to a third party; (2) defendant published said statement without authorization or privilege; (3) fault, judged at a minimum by a negligence standard; and (4) special harm or defamation per se (see Salvatore v Kumar, 45 AD3d 560 [2007], lv denied 10 NY3d 703 [2008]; Dillon v City of New York, 261 AD2d 34, 38 [1999]). Moreover, a pleading in an action for defamation must also set forth the particular words complained of, and the manner and persons to whom the publication was made (CPLR 3016 [a]; see Salvatore v Kumar, supra, at 562-563).

Claimant appears to be asserting that defendant has defamed him by issuing a felony complaint against him but then not indicting him.[7] As defendant correctly notes, claimant has completely failed to set forth the particular words alleged to be defamatory as required by CPLR 3016 (a), and this failure is fatal to his cause of action for defamation (see Salvatore v Kumar, supra). Further, although a felony complaint was issued, claimant has not indicated the manner in which, or persons to whom the allegedly defamatory material was published.[8] Moreover, because claimant was charged with a felony, the People have six months in which to obtain an indictment and announce their readiness for trial (CPL § 30.30 [1] [a]; Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 30.30, at 208-209). Counsel’s affidavit in support of this motion was executed during the six-month period following the incident, and therefore this motion appears premature.[9] Accordingly, the Court finds that claimant’s proposed cause of action for defamation lacks any appearance of merit.

Based upon a balancing of the statutory factors and recognizing that “it would be futile to permit a defective claim to be filed even if the other [statutory] factors . . . supported the granting of the claimant’s motion” (Savino v State of New York, 199 AD2d 254, 255 [1993]), claimant’s motion to file a late claim is denied.

June 5, 2009
Binghamton, New York
Judge of the Court of Claims

The following papers were read on claimant’s motion:

1) Notice of Motion filed on March 23, 2009; Affidavit of Michael J. Mucci, II, Esq., sworn to on March 3, 2009; Affidavit of Marlaine Dyer, sworn to on March 3, 2009, and attached Exhibits A through D.

2) Affirmation in Opposition of James E. Shoemaker, AAG, dated April 3, 2009, and attached Exhibits A and B.

3) Supplemental Affirmation of James E. Shoemaker, AAG, dated April 8, 2009, and attached Exhibit A.

[1]. The exact nature of a cause of action for “incrimination” is unclear to the Court.
[2]. The Manager of the Supermarket apparently called the State Police and accused claimant of attempting to pay for his purchase with counterfeit money.
[3]. Because claimant has not set forth a cognizable cause of action for “incrimination” in his claim, it is impossible to determine whether this motion is timely. Accordingly, the motion is denied with respect to said cause of action.

[4]. The Court notes that claimant’s counsel apparently has misunderstood the terminology and procedure set forth in the Court of Claims Act, as the document served was a Notice of Claim pursuant to General Municipal Law
§ 50-e (2) – a statute which has no application in the Court of Claims.

[5]. This Notice of Claim was verified on January 5, 2009 and is attached to claimant’s motion papers as Exhibit D. Notwithstanding its misnomer, the Court will refer to the Notice of Claim as a proposed claim.

The Court notes that although the caption of claimant’s motion papers names the People of the State of New York as the defendant, claimant has also named an individual State Trooper as an additional defendant in the caption of the proposed claim. The Court of Claims does not have subject matter jurisdiction over any individual employee of the State (Court of Claims Act § 9; see Peters v Tormey, Ct Cl, Sept. 30, 2008, Midey, Jr., J., Claim No. 115165, Motion No. M-74925, Cross Motion No. CM-75039 [UID # 2008-009-028]). Accordingly, the sole proper defendant in this matter is the State of New York.
[6]. It appears that after making this motion, claimant was indicted for Criminal Possession of a Forged Instrument in the First Degree, Attempted Petit Larceny, and Unlawful Possession of Marijuana (Supplemental Affirmation of Assistant Attorney General [AAG] James E. Shoemaker, Esq. dated April 8, 2009).
[7]. Defendant apparently also issued both an information – charging claimant with a misdemeanor – and an appearance ticket directing him to appear in Town of Union Justice Court (Affirmation of AAG James E. Shoemaker, Esq. dated April 3, 2009, Exhibit B).
[8]. Notably, claimant has neither alleged that the felony complaint was filed in the Town of Union Justice Court, nor that its issuance was not privileged.
[9]. The six-month time period actually begins to run when the criminal action is commenced, i.e. the felony complaint is filed in the Justice Court (CPL 1.20 [1], [8], [16-17]). If the felony complaint was indeed filed, such filing would have occurred, at the earliest, on September 15, 2008 (September 13, 2008 was a Saturday).