New York State Court of Claims

New York State Court of Claims
BUCHANAN, et al v. THE STATE OF NEW YORK, # 2018-015-174, Claim No. 128544, 128539, 128543,128541, 128542, 128527, Motion Nos. M-92537, M-92538, M-92540, M-92539

Synopsis

Claim by five correction officers seeking damages for emotional trauma caused by the issuance of notices of discipline for excessive force were dismissed for failing to state a cause of action. Claimants lacked standing to sue for breach of the collective bargaining agreement; they could not recover for intentional infliction of emotional distress on public policy grounds; the circumstances did not provide a basis for their claim of negligent infliction of emotional distress and the constitutional claims lacked merit as a matter of law.

Case information

UID: 2018-015-174
Claimant(s): DAVID M. BUCHANAN, ROBERT DePAOLO, DANIEL W. TAGGART, and JASON A. HOFMANN
Claimant short name: BUCHANAN, et al
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s): ELISE HOFMANN and McKENZIE A. BUCHANAN
Third-party defendant(s): THE STATE OF NEW YORK
Claim number(s): 128544, 128539, 128543,128541, 128542, 128527
Motion number(s): M-92537, M-92538, M-92540, M-92539
Cross-motion number(s):
Judge: FRANCIS T. COLLINS
Claimant's attorney: Douglas Walter Drazen, Esq.
By: Douglas Walter Drazen, Esq.
Defendant's attorney: Honorable Barbara D. Underwood, Attorney General
By: Anthony Rotondi, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 1, 2018
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimants(1) , all of whom are employed by the Department of Corrections and Community Supervision (DOCCS), seek damages for emotional trauma stemming from their suspension and subsequent reinstatement to their jobs as correction officers. Defendant moves to dismiss the claims pursuant to CPLR 3211 (a) (2) and (7) on the ground they fail to state a cause of action.

In separate but nearly identical claims, each of the claimants, David M. Buchanan (Buchanan), Robert DePaolo (DePaolo), Daniel W. Taggart (Taggart) and Jason A. Hofmann (Hofmann), allege that while on duty as a Correction Alternative Rehabilitation program escort at Sullivan Correctional Facility an altercation arose between two inmates, Burrell and Mantock, near the salley port entrance on November 6, 2015 (defendant's Exhibit A, claims, 4). The four claimants intervened to separate the inmates as directed by a superior (id. at 5).

Claimant Buchanan alleges that "[i]n the process of that intervention, claimant moved inmate Mantock toward a facility wall, and felt threatened by the inmate's actions, so he took the inmate to the floor, with the inmate sustaining no meaningful injury" (Motion No. M-92537, defendant's Exhibit A, Claim No. 128544, 6). Buchanan alleges he was placed on administrative leave, with pay, on November 6, 2015; he was suspended without pay on January 5, 2016, and on January 8, 2016 a Notice of Discipline was issued against him regarding the November 6th incident (id. at 8). The Notice of Discipline alleged the use of excessive force, that Buchanan failed to properly secure an inmate, and that he gave false and misleading information regarding the incident in violation of the DOCCS Employee Manual (id.). The penalty proposed in the Notice of Discipline was dismissal and loss of annual leave accruals. Buchanan denied the charges and, following arbitration, the arbitrator issued a decision on June 20, 2016 exonerating him of all charges and restoring him to his facility duties (id. at 9).

Claimant DePaolo alleges that "[i]n the process of that intervention [with the inmates], and while assisting two other officers, claimant restrained inmate Burrell, and allegedly delivered three blows to the inmate's leg with his knee" (Motion No. M-92538, defendant's Exhibit A, Claim No. 128539, 6). DePaolo alleges he was placed on administrative leave, with pay, on November 6, 2015; he was suspended without pay on January 5, 2016, and on January 8, 2016 a Notice of Discipline was issued against him regarding the November 6th incident (id. at 8). The Notice of Discipline alleged the use of excessive force, that DePaolo failed to properly secure an inmate, and that he gave false and misleading information regarding the incident in violation of the DOCCS Employee Manual (id.). The penalty proposed was dismissal and loss of annual leave accruals. DePaolo denied the charges and, following arbitration, the arbitrator issued a decision on June 16, 2016 exonerating him of all charges and restoring him to his facility duties (id. at 9).

Claimant Taggart alleges that at his direction, four corrections officers intervened to separate the two inmates and "[i]n the process of that intervention, neither inmate sustained meaningful injury" (Motion No. M-92540, defendant's Exhibit A, Claim No. 128543, 6). Taggart alleges he was placed on administrative leave, with pay, on November 10, 2015; he was suspended without pay on January 5, 2016, and on January 8, 2016 a Notice of Discipline was issued against him regarding the November 6th incident (id. at 8). The Notice of Discipline alleged Taggart failed to report the use of excessive force and that he gave false and misleading information regarding the incident in violation of the DOCCS Employee Manual (id.). The penalty proposed in the Notice of Discipline was dismissal and loss of annual leave accruals. Taggart denied the charges and, following arbitration, the arbitrator issued a decision on April 20, 2016 exonerating him of all charges and restoring him to his facility duties (id. at 9).

Claimant Hofmann alleges that "[i]n the process of that intervention [with the inmates], claimant restrained inmate Burrell, who was resistant, but not meaningfully injured" (Motion No. M-92539, defendant's Exhibit A, Claim No. 128541, 6). Hofmann alleges he was placed on administrative leave, with pay, on November 6, 2015; he was suspended without pay on January 5, 2016, and on January 8, 2016 a Notice of Discipline was issued against him regarding the November 6th incident (id. at 8). The Notice of Discipline alleged the use of excessive force, that he failed to properly secure an inmate, and that he gave false and misleading information regarding the incident in violation of the DOCCS Employee Manual (id.). The penalty proposed in the Notice of Discipline was dismissal and loss of annual leave accruals (id.). Hofmann denied the charges and, following arbitration, the arbitrator issued a decision on May 17, 2016 exonerating him of all charges and restoring him to his facility duties (id. at 9).

All four claimants allege the following causes of action: intentional infliction of emotional distress (first through third causes of action); negligent infliction of emotional distress (fourth cause of action); constitutional tort based upon a violation of the due process clause of the NYS Constitution (fifth cause of action); violation of the 14th Amendment to the US Constitution (sixth cause of action); violations of the Federal Constitution predicated on 42 USC 1983 (seventh cause of action); malicious prosecution (eighth cause of action); breach of an employment contract (ninth cause of action); negligence and gross negligence (tenth cause of action).(2)

On a motion to dismiss a claim pursuant to CPLR 3211 (a) (7) the court is required to

"accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see also Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). "When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). Notwithstanding the favorable treatment of such pleadings, however, "bare legal conclusions with no factual specificity do not suffice to withstand a motion to dismiss" (Mid-Hudson Val. Fed. Credit Union v Quartararo & Lois, PLLC, 155 AD3d 1218, 1219 [3d Dept 2017]), affd 31 NY3d 1090 [2018]). Rather, the test to be applied is whether or not the pleading alleges facts "sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense" (CPLR 3013). Dismissal of a claim is warranted where insufficient facts are alleged to support an element of the claim (Mid-Hudson Val. Fed. Credit Union, 155 AD3d at 1219). Moreover, bare legal conclusions or facts that are flatly contradicted by the documentary evidence need not be presumed true nor given the benefit of every favorable inference (Wisdom v Reoco, LLC, 162 AD3d 1380, 1381 [3d Dept 2018]; Herman v Greenberg, 221 AD2d 251 [1st Dept 1995]).

First, to the extent claimants purport to assert a claim for breach of contract directly against their employer, they lack standing. "As a general proposition, when an employer and a union enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract" (Matter of Board of Educ., Commack Union Free School Dist. v Ambach, 70 NY2d 501, 508 [1987], cert denied 485 NY2d 501 [1987]). An exception arises where the union fails in its duty of fair representation (id. at 508; Altman v Rossi, 107 AD3d 1223 [3d Dept 2013]; Lundgren v Kaufman Astoria Studios, 261 AD2d 513 [2d Dept 1999]; Herington v Civil Serv. Empls. Assn., 130 AD2d 961 [4th Dept 1987]). Here, however, claimants do not allege that the union breached its duty of fair representation nor do they allege any facts from which such a breach may be inferred (see Matter of Sinacore v State of New York, 277 AD2d 675, 677 [3d Dept 2000], lv denied 96 NY2d 706 [2001], rearg denied 96 NY2d 824 [2001]). Accordingly, the ninth cause of action for breach of an employment contract contained in each of the subject claims must be dismissed.

Claimants' first through third causes of action allege intentional infliction of emotional distress, a form of action which, as against the State, is precluded on public policy grounds (Sawitsky v State of New York, 146 AD3d 914 [2d Dept 2017], lv denied 29 NY3d 908 [2017]). "Where, as here, '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 [3d Dept 1997], lv denied 91 NY2d 814 [1998], quoting Brown v State of New York, 125 AD2d 750, 752, appeal dismissed 70 NY2d 747 [1987]). These causes of action must therefore be dismissed.

To recover on a claim for negligent infliction of emotional distress, the circumstances must provide some indicia of reliability (Ornstein v New York City Health & Hosps. Corp., 10 NY3d 1 [2008]). As a matter of policy, therefore, liability for negligent infliction of emotional distress is limited to circumstances in which a breach of duty owed directly to the claimant results in psychological trauma accompanied by "residual physical manifestations" (Johnson v State of New York, 37 NY2d 378, 381 [1975]; citing, inter alia, Battalla v State of New York, 10 NY2d 237 [1961]; see also Justice v State of New York, 66 AD3d 1182 [3d Dept 2009]; Tatta v State of New York, 20 AD3d 825 [3d Dept 2005], lv denied 5 NY3d 716 [2005]) or the circumstances are such that there exists a "guarantee that the claim is not spurious" (Johnson v State of New York, 37 NY2d at 382). Such guarantees of genuineness have been found to exist in only limited circumstances, such as the negligent transmission of a death notification or the mishandling of a corpse (id.; see also Shipley v City of New York, 80 AD3d 171 [2d Dept 2010]; Estate of LaMore v Sumner, 46 AD3d 1262 [3d Dept 2007]; Massaro v O'Shea Funeral Home, 292 AD2d 349 [2d Dept 2002]). Claimants here allege no physical manifestations of injury as the result of the State's conduct and the circumstances alleged are not of the type to permit an inference of injury in the absence of physical manifestations (cf. Sawitsky v State of New York, 146 AD3d 914, 915 [2d Dept 2017]). Claimants' fourth cause of action must therefore be dismissed.

Claimants' fifth cause of action alleging a constitutional tort based upon the defendant's alleged violation of the due process clause of the NYS Constitution must also be dismissed as the existence of an alternative remedy renders recognition of a constitutional tort cause of action unnecessary (Inmate M v State of New York, 164 AD3d 1629 [4th Dept 2018]; Franza v State of New York, 164 AD3d 971 [3d Dept 2018]).

Claimants' sixth and seventh causes of action based upon a violation of the Federal Constitution must be dismissed as the State is not a "person" within the meaning of the enabling legislation (42 USC 1983; Brown v State of New York, 89 NY2d 172, 184-185 [1996], citing Monell v New York City Dept. of Social Servs., 436 US 658 [1978]; see also Flemming v State of New York, 120 AD3d 848 [3d Dept 2014]; Shelton v New York State Liq. Auth., 61 AD3d 1145 [3d Dept 2009]).

Claimants' eighth cause of action alleges malicious prosecution. "The elements of the tort of malicious prosecution are: (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice" (Broughton v State of New York, 37 NY2d 451, 457 [1975], cert. denied sub nom., Schanbarger v Kellogg, 423 US 929 [1975]; see also Martinez v City of Schenectady, 97 NY2d 78, 84 [2001]; Smith-Hunter v Harvey, 95 NY2d 191, 195 [2000]). Claimants do not allege that a criminal proceeding was commenced and therefore the first element of a cause of action for malicious prosecution is lacking. Claimants' eighth cause of action must therefore be dismissed.

Claimants' tenth cause of action allege defendant's course of conduct with respect to this matter went beyond ordinary negligence and constituted gross negligence.(3) Assuming this allegation is referring to the manner in which the investigation occurred, "there is no claim in New York for negligent . . . investigation" (Peterec v State of New York, 124 AD3d 858, 859 [2d Dept 2015]; Ellsworth v City of Gloversville, 269 AD2d 654, 656-657 [3d Dept 2000]). Accordingly, claimants' tenth cause of action must be dismissed.

Lastly, Elise Hofmann and McKenzie Buchanan allege in Claim Numbers 128542 and 128527 that the defendant's conduct toward their husbands caused them harm. These claims are subject to dismissal because the defendant breached no duty owed directly to these claimants. To the extent these claims could be interpreted as derivative of their husbands' claims, they fail for all of the aforementioned reasons their husbands' claims failed. While these claims were not the subject of defendant's motions, given their nature the Court will dismiss them sua sponte.

Accordingly, defendant's motions are granted and Claim Numbers 128544,128539, 128543,128541, 128542 and 128527 are dismissed.

November 1, 2018

Saratoga Springs, New York

FRANCIS T. COLLINS

Judge of the Court of Claims

Papers Considered:

Claim 128544

  1. Notice of motion, dated July 10, 2018;
  2. Affirmation of Anthony Rotondi, Esq., dated July 10, 2018, with Exhibits A and B;
  3. Affirmation of Douglas Walter Drazen, Esq., dated August 28, 2018.

Claim 128539

  1. Notice of motion, dated July 10, 2018;
  2. Affirmation of Anthony Rotondi, Esq., dated July 10, 2018, with Exhibits A and B;
  3. Affirmation of Douglas Walter Drazen, Esq., dated August 28, 2018.

Claim 128543

  1. Notice of motion, dated July 10, 2018;
  2. Affirmation of Anthony Rotondi, Esq., dated July 10, 2018, with Exhibits A and B;
  3. Affirmation of Douglas Walter Drazen, Esq., dated August 28, 2018.

Claim 128541

  1. Notice of motion, dated July 10, 2018;
  2. Affirmation of Anthony Rotondi, Esq., dated July 10, 2018, with Exhibits A and B;
  3. Affirmation of Douglas Walter Drazen, Esq., dated August 28, 2018.

1. Unless otherwise indicated, "claimants" refers to the claimants in Claim Numbers 128544, 128539, 128543 and 128541.

2. Taggart's filed claim (Claim No. 128543) does not include substantive allegations with respect to his eighth cause of action and does not include a ninth cause of action as do the other claims herein. It appears one of the pages of the filed claim may have been cut-off.

3. Claimant Taggart (Claim No. 128543) does not allege an eighth cause of action and his ninth cause of action was incomplete in the filed claim.