Claimant's motion for permission to file a late claim is denied. He may file a subsequent motion for permission to late file a claim that complies with the requirements of Court of Claims Act 11 (b) and addresses the factors set forth in Court of Claims Act 10 (6). Defendant's motion to dismiss is granted in part and denied in part.
|Claimant(s):||CARLOS M. SANCHEZ|
|Claimant short name:||SANCHEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-90802, M-90944|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||CARLOS M. SANCHEZ, Pro Se|
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
BY: Carlton K. Brownell, III, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 22, 2017|
|See also (multicaptioned case)|
On July 21, 2017, pro se claimant Carlos M. Sanchez filed claim no. 130003 seeking to recover damages for false arrest, false imprisonment, malicious prosecution, negligent and intentional infliction of emotional distress, defamation, libel and slander, negligence and violation of his civil rights under 42 U.S.C. 1983. Shortly thereafter, on July 24, 2017, claimant filed motion no. M-90802 for permission to late file a claim identical to claim no. 130003. In lieu of answering this claim, defendant filed motion no. M-90944 seeking to dismiss claim no. 130003, and opposed claimant's motion for late claim relief. The Court has considered all of the papers submitted by both parties on the two motions as the arguments raised overlap to some degree. In that a resolution of defendant's motion no. M-90944 could obviate the need to address claimant's motion no. M-90802, the Court will address defendant's motion first.Defendant's Motion No. M-90944 to Dismiss Claim No. 130003
Court of Claims Act §§ 10 (3), 10 (3-b) and 11 (a) (i), provide that a claim to recover damages for injuries caused by the negligence or intentional acts of an officer or employee of the State of New York must be filed and a copy served upon the Attorney General personally or by certified mail, return receipt requested, within ninety (90) days of accrual of the claim, unless the Claimant shall within the same ninety (90) day period serve upon the Attorney General a notice of intention to file a claim, in which event the claim shall be filed and served within two (2) years after accrual of the claim. Service by certified mail, return receipt requested, upon the Attorney General is not complete until the claim or notice of intention to file a claim is received in the office of the Attorney General (Court of Claims Act § 11 [a] [ii]).
The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 ). The failure to serve a notice of intention or a claim within the statutory ninety (90) day period divests the Court of jurisdiction requiring dismissal of the claim (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]). Defendant alleges that neither a notice of intention nor the claim was served within the requisite ninety (90) day period.
The ninety (90) day statutory period is measured from the date of accrual of the particular cause of action. Defendant alleges that the actions which gave rise to these claims accrued on September 9, 2016, September 16, 2016 and December 15, 2016. Defendant further relies on claimant's statement made in paragraph 5 of claimant's affidavit in support of his motion for permission to file a late claim (defendant's Exhibit B) that "multiple violations against the . . . Claimant by the Defendant herein did occur on September 9, 2016." Claimant alleges that his claim accrued on April 24, 2017 when he was able to ascertain his damages (see defendant's exhibit B, ¶ 5).
In the claim, claimant alleges causes of action for false arrest and false or wrongful confinement. Such causes of action accrue when the claimant is released from custody (Roche v Village of Tarrytown, 309 AD2d 842 [2d Dept 2003]). From the claim it appears that claimant was arrested, arraigned and released on his own recognizance, all on September 9, 2016. Thus, these causes of action accrued on September 9, 2016 and a claim alleging false arrest and/or wrongful confinement had to be served and filed within ninety (90) days or by December 8, 2016. The claim was not filed and served until July 21, 2017, more than ninety (90) days after accrual. Accordingly, the causes of action for false arrest and wrongful confinement must be dismissed as untimely.
Claimant also alleges a cause of action for malicious prosecution which accrues when the criminal proceedings terminate favorably to the claimant (Williams v CVS Pharmacy, Inc., 126 AD3d 890 [2d Dept 2015]; Bumbury v City of New York, 62 AD3d 621 [1st Dept 2009]). According to the claim, the charges against the claimant were dismissed on April 24, 2017. In that the claim was filed and served within ninety (90) days of accrual, claimant's cause of action for malicious prosecution is timely.
The Court of Claims is a court of limited jurisdiction with the power to hear claims against the State of New York for the torts of its officers and employees (NY Const Art IV; Court of Claims Act § 9). Throughout his claim, claimant names several judges, court personnel and other individuals. Individuals, however, cannot be sued in their individual capacity in the Court of Claims, even if they are employees of the State of New York (Smith v State of New York, 72 AD2d 937 [4th Dept 1979]). Thus, insofar as the claim may be construed as alleging a claim against any individual, it must be dismissed.
The claim is also dismissed insofar as it can be construed as alleging a claim against the State for the actions of an Assistant District Attorney or of a City of Buffalo Police Officer, or of a County of Erie or City of Buffalo employee. Neither an Assistant District Attorney nor a Buffalo Police Officer is a state officer for whose tortious conduct the State is liable (Whitmore v State of New York, 55 AD2d 745 [3d Dept 1976]). Similarly, the State is not responsible for the actions of county or city employees (see Bardi v Warren County Sheriff's Dept., 194 AD2d 21 [2d Dept 1993]).
Further, insofar as the claim seeks to hold the State liable for the judicial acts of the individual judges named in the claim, it must be dismissed. The doctrine of judicial immunity bars any action against the State for the judicial acts of judges unless such acts were performed in the "clear absence of all jurisdiction over the subject matter" (Sassower v Finnerty, 96 AD2d 585, 586 [2d Dept 1983], app dismissed 61 NY2d 756 ). Nothing in the claim itself indicates or even alleges that their actions were performed without any jurisdiction over the subject matter. Similarly, the State is not responsible for the actions of court personnel, court appointed attorney Ronald M. Cinelli, or District Executive Andrew B. Isenberg, Esq. as their actions are also cloaked with the mantle of judicial immunity. (1)
Claimant alleges that his claim includes causes of action for defamation of character and for libel and slander. Insofar as the claim can be construed as alleging a cause of action for defamation against the State for the actions of a Judge, it must be dismissed. Statements made by judges in the exercise of their judicial function are absolutely privileged even if alleged to be false, irrelevant or malicious (Montesano v State of New York, 11 AD3d 436 [2d Dept 2004]). Furthermore, nothing in the claim itself sets forth any of the elements of a cause of action for defamation based on libel or slander (see Kamchi v Weissman, 125 AD3d 142 [2d Dept 2014]), and it is impossible to discern from the claim what claimant is trying to base a cause of action on for libel or slander. In claimant's response to defendant's opposition to the motion to late file, claimant argues for the first time that his defamation claim is based on the allegedly false charges made when he was arrested on September 9, 2016. A cause of action for libel accrues on the date of the initial publication (McPhillips v State of New York, UID No. 2017-038-552 [Ct Cl, DeBow, J., Aug. 16, 2017]). Insofar as the charges were brought on September 9, 2016, a claim for libel based on the charges would be untimely. In fact, if claimant is complaining about his arrest, then his cause of action sounds in false arrest or malicious prosecution and not libel or slander. As a result, any cause of action for defamation based on libel or slander is dismissed.
Claimant's cause of action based on negligence is more problematic. Claimant does not set forth specific acts of negligence nor does he specify a date upon which any act of negligence occurred. The claim was filed and served on July 21, 2017. Thus, a negligent cause of action which accrued within ninety (90) days of July 21, 2017 would be timely. However, insofar as the claim can be construed as alleging a cause of action based on a negligent act which occurred prior to April 22, 2017, or on an act by an individual for whom the State is not responsible, the claim is dismissed.
The Court of Claims does not have jurisdiction to consider Federal constitutional claims, including alleged civil rights violations brought pursuant to 42 USC § 1983 (Brown v State of New York, 89 NY2d 172 ). To the extent that the claim can be construed as alleging a State constitutional claim, it too must fail. A State constitutional claim may only be pursued in the Court of Claims where no other remedy is available to enforce claimant's rights (Martinez v City of Schenectady, 97 NY2d 78 ). Here, claimant may raise his constitutional claims in Federal Court as he has done, albeit with respect to other claims, and he has alternate causes of action which will remain pending in this Court. Thus, all constitutional claims are dismissed.
In addition, insofar as the claim seeks punitive damages, it is dismissed as Court of Claims Act § 8 does not permit punitive damages to be assessed against the State or its political subdivisions (Sharapata v Town of Islip, 56 NY2d 332 ). Further, the Court has no authority to award attorneys' fees or costs (Court of Claims Act § 27). Similarly, a claim for the intentional infliction of emotional distress against the State is prohibited as against public policy (Ellison v City of New Rochelle, 62 AD3d 830 [2d Dept 2009]), and a claim for negligent infliction of emotional distress generally may not be maintained against the State, except in very limited circumstances (Lauer v City of New York, 95 NY2d 95 ).
Based on the foregoing, defendant's motion no. M-90944 is granted in part and denied in part. All of the causes of action in the claim are dismissed except the claim for malicious prosecution and the claims for negligence and for negligent infliction of emotional distress but only insofar as the negligent claims are established to be based upon actions that accrued on or after April 22, 2017, and only if they involve the actions of non-judicial, State employees.Claimant's Motion No. M-90802 to Late File a Claim
Claimant moves for permission to late file a claim pursuant to Court of Claims Act § 10 (6). A motion to late file may be brought "at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules" Claimant attaches to his motion the same claim which is the subject of defendant's motion to dismiss. It is difficult to determine the accrual date for each of the various causes of action claimant attempts to assert in his claim and, thus, impossible to determine if claimant's motion for permission to late file is timely.
In addition, in determining whether to grant permission to late file a claim, the Court must consider, among other factors, "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether 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 the state; and whether the [movant] has any other available remedy" (Court of Claims Act § 10 ). The enumerated statutory factors are not exhaustive and the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 ).
Claimant has failed to address any of these factors. Further, a motion for late claim relief must be accompanied by the claim proposed to be filed, containing all of the information set forth in section 11 of the Court of Claims Act. Pursuant to section 11 (b), the claim "shall state the time when and place where such claim arose, the nature of same [and] the items of damage or injuries claimed to have been sustained." Here, the proposed claim fails to state an accrual date for any of the causes of action generally alleged in the proposed claim, fails to allege the elements necessary for each of the proposed causes of action, and lacks any information as to how each cause of action occurred and what a State employee did or did not do. The Court of Claims Act does not require the defendant "to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York, 1 NY3d 201, 206 ).
Of the factors listed in the Court of Claims Act, the most important factor to consider on a motion to late file a claim is merit as it would be futile to permit a claim to be filed which was subject to dismissal (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]. It is Movant's burden to show that the proposed claim is not patently groundless, frivolous or legally defective and that there is a reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). Without the information Court of Claims Act § 11 (b) requires to be included in the proposed claim, there is no way to determine if the proposed claim has merit. It would be futile to permit a proposed claim to be filed which was subject to dismissal for failure to comply with the pleading requirements of Court of Claims Act § 11 (b).
Based on the foregoing, claimant's motion no. M-90802 for permission to file a late claim is denied. Claimant may file a subsequent motion for permission to late file a claim that is in compliance with Court of Claims Act § 11 (b) and is accompanied by an affidavit which addresses all of the statutory factors set forth in Court of Claims Act § 10 (6). Any subsequent motion must be filed prior to the expiration of the applicable statute of limitations.
December 22, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Notice of motion no. 90802 and affidavit of Carlos Sanchez sworn to on July 21, 2017, with annexed exhibit;
2. Opposing affirmation of Assistant Attorney General Carlton Brownell, III dated August 10, 2017, with annexed exhibit A
3. Notice of motion no. M-90944 and affirmation of Assistant Attorney General Carlton K. Brownell, III dated August 15, 2017, with annexed exhibits A-B; and
4. Carlos Sanchez' reply affidavit to defendant's opposition to claimant's motion to late file a claim sworn to August 24, 2017.
1. Claimant alleges for the first time in his reply affidavit that the actions of Judge Freedman lacked jurisdiction. No such allegation is made in the claim and nothing in the claim would suggest that Judge Freedman acted without jurisdiction.