Motion for late claim for negligent conduct and unlawful arrest.
|Claimant short name:||JACOBS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CATHERINE C. SCHAEWE|
|Claimant's attorney:||RUSSELL A. SCHINDLER, ESQ.|
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD, ATTORNEY
BY: Peter DeLucia, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 26, 2018|
|See also (multicaptioned case)|
Movant seeks permission to file and serve a late claim to recover damages allegedly suffered as a result of his purported unlawful arrest due to the negligence of an Oneonta City Court Clerk in failing to vacate a prior warrant. Defendant State of New York (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 ). Movant asserts that the allegedly negligent conduct occurred in February 2018 when he appeared in Oneonta City Court and the Court vacated an arrest warrant, but the Court Clerk failed to update the Court records. As a result of this conduct, he alleges that he was unlawfully arrested on May 10, 2018 and detained until May 11, 2018.(1)
It is well-settled that a claim for false imprisonment accrues upon release from confinement (see Campos v State of New York, 139 AD3d 1276 [3d Dept 2016]; Davis v State of New York, 89 AD3d 1287 [3d Dept 2011]). The statute of limitations for a cause of action for false arrest is one year (CPLR 215 ) and three years for a negligence cause of action (CPLR 214 ). Accordingly, this motion, delivered to an Assistant Attorney General on August 15, 2018, is timely (see e.g. Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2d Dept 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) movant has any other available remedy.
Movant argues that the delay in timely filing and serving the claim is justified because he initially served a notice of claim upon the City of Oneonta due to his mistaken belief that the Court Clerk was a City employee. Movant states that it was not until after the 90 days in which to file and serve a claim had expired that corporation counsel advised him that Court employees were in fact State employees. A movant's ignorance of the requirements of the Court of Claims Act and failure to conduct a diligent investigation to ascertain the correct identity of the proposed defendant are not adequate excuses for the 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 [3d Dept 2002], lv dismissed 99 NY2d 589 ).(2) Accordingly, this factor weighs against movant.
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. For the purposes of this motion, defendant concedes that it had notice of the essential facts constituting the claim as well as an opportunity to investigate and that there is no prejudice to the State. Thus, these three factors weigh in favor of movant.
Another factor to be considered is whether movant has any other available remedy. Movant is seeking damages allegedly suffered due to the negligence of a State employee during the course of his or her employment. Defendant concedes that there is no other available remedy. This factor also weighs in favor of movant.
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 [Ct Cl 1977]). In order to establish a meritorious claim, a movant 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 [Ct Cl 1992]).
In his proposed claim, movant alleges that in September 2017 and due to a typographical error, it appeared that he pleaded guilty to Criminal Trespass (Penal Law § 140.15), a misdemeanor.(3) Because it appeared that movant had been convicted of a misdemeanor, City Court issued a directive that movant submit a sample of his DNA for the State Registry. Movant states that he contacted his criminal defense attorney, who thereafter advised City Court that there had been a mistake involving the guilty plea. Movant indicates that his attorney then informed him that he had taken care of the matter with the Court and there was no need to submit the DNA sample.
Movant asserts that in February 2018, he appeared in City Court on an unrelated matter and was advised that there was an outstanding warrant for his arrest due to his failure to submit a DNA sample. Movant states that he informed the Court that there had been a typographical error in his plea affidavit and his criminal defense attorney had previously corrected the matter. He also notes that his attorney personally appeared during the February 2018 appearance and addressed the matter with the Court. Movant alleges that City Court advised him that a DNA sample was not necessary and vacated the warrant for his arrest at that time. Movant states that the Court Clerk both failed to note that the warrant had been vacated on the Court's records and to transmit such information to the police agencies. Movant asserts that as a result of this negligence, he was arrested on May 10, 2018 and detained for approximately 5.5 hours. He states that when he appeared in City Court the next morning, he was informed that the warrant had not been properly vacated in February 2018.
Movant also submits an affidavit in support of this motion in which he clarifies that on his affidavit pleading guilty to Trespass, his attorney incorrectly cited Penal Law § 140.15 (Criminal Trespass) rather than the correct Penal Law section (140.05 - Trespass). Movant further explains that conviction of a misdemeanor, such as Criminal Trespass, requires submission of a DNA sample. Because movant failed to submit a DNA sample as initially directed by City Court, the Court issued a warrant for his arrest. Movant reiterates that when he appeared in City Court in February 2018, he explained the situation to the Court. The Court agreed that no DNA sample was required and vacated the previously issued warrant of arrest. Movant alleges that the City Court Clerk negligently failed to indicate that the warrant had been vacated on Court records and to transmit said information to the police agencies, causing him to be arrested on May 10, 2018 upon the belief that the warrant was still active.
Claimant argues that because of the City Court Clerk's negligent failure to record the cancellation of an arrest warrant as ordered by the Court, he was falsely imprisoned on May 10, 2018. Conversely, defendant contends that by submitting an authorization and affidavit allowing his attorney to plead guilty to the misdemeanor of Criminal Trespass, albeit in error, claimant initiated the chain of events which culminated in issuance of the arrest warrant, and was in essence a proximate cause of his own arrest.
To the extent that claimant may be asserting a claim for false imprisonment, this proposed cause of action lacks the initial appearance of merit. In order to establish such a cause of action, movant must show (1) that he was intentionally confined, (2) that he was conscious of the confinement, (3) that he did not consent to the confinement, and (4) that the confinement was not otherwise privileged (see Broughton v State of New York, 37 NY2d 451, 456 , cert denied sub nom. Schanbarger v Kellogg, 423 US 929 ). There is no dispute that the first three elements have been met in this case. The only contested issue is whether movant's detention was the product of an unlawful arrest.
As an initial matter, movant was arrested by the Oneonta City Police, an entity over which the Court of Claims lacks jurisdiction (Court of Claims Act § 9; see Monreal v New York State Dept. of Health, 38 AD3d 1118, 1119 [3d Dept 2007]; Whitmore v State of New York, 55 AD2d 745, 746 [3d Dept 1976], lv denied 42 NY2d 810 ). Further, it is well-settled that "[a]n otherwise unlawful detention is privileged where the confinement was by arrest under a valid process issued by a court having jurisdiction (Nazario v State of New York, 75 AD3d 715, 718 [3d Dept 2010] [internal quotation marks omitted], lv denied 15 NY3d 712 ; see also Collins v State of New York, 69 AD3d 46, 51 [4th Dept 2009]; Holmberg v County of Albany, 291 AD2d 610, 612 [3d Dept 2002], lv denied 98 NY2d 604 ; Harty v State of New York, 29 AD2d 243, 244 [3d Dept 1968], affd 27 NY2d 698 ). Notwithstanding that the warrant at issue was erroneously not properly recorded as having been vacated, it is undisputed that it had been issued by a Court of competent jurisdiction and was therefore facially valid. Accordingly, movant's arrest was lawful. Thus, the factor of merit weighs against movant with respect to this potential cause of action.
"[W]here 'the excuse offered for the delay is inadequate and the proposed claim is of questionable merit' "(Matter of Robinson v State of New York, 35 AD3d 948, 949-950 [3d Dept 2006], quoting Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]), denial of a late claim application is appropriate (see Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]).
Movant also asserts that his arrest and confinement was due to the negligence of the City Court Clerk, a non-judicial employee of defendant. "It is well settled that in order to set forth a prima facie case of negligence, the [claimant] must demonstrate: (1) a duty owed by the defendant to the [claimant]; (2) a breach of that duty; and (3) an injury suffered by the [claimant] which was proximately caused by the breach" (Murray v New York City Hous. Auth., 269 AD2d 288, 289 [1st Dept 2000]). However, the Court of Appeals has made it clear that in order to maintain a negligence action against the State or one of its municipalities which arises out of the performance of a governmental function, a claimant must first establish the existence of a special duty owed to the claimant, rather than a general duty owed to the public at large (see Valdez v City of New York, 18 NY3d 69, 80 ; McLean v City of New York, 12 NY3d 194, 199 ). Once the claimant establishes the existence of a special duty, defendant's breach of that duty and the claimant's ensuing damages, defendant may still escape liability pursuant to the governmental function immunity defense (Valdez, 18 NY3d at 75). While "[g]overnment action, if discretionary, may not be a basis for liability. . . ministerial actions may be, but only if they violate a special duty owed to the [claimant], apart from any duty to the public in general" (McLean, 12 NY3d at 203).
The Court notes that neither movant nor defendant have addressed whether the special duty requirements of McLean would change the results of earlier cases which have held the State liable for similar instances of ministerial negligence (see Lapidus v State of New York, 57 AD3d 83 [2d Dept 2008] [where in an earlier criminal prosecution, a court clerk's negligence in incorrectly recording the verdict and sentence which caused the claimant to be erroneously sentenced as a second felony offender was found sufficient to potentially form the basis for a claim of ministerial negligence]; Schwandt v State of New York, 4 Misc 3d 405 [Ct Cl 2004] [where the State was held labile for a claimant's arrest caused by the ministerial negligence of a Court Clerk's failure to transmit the information to the police department that the warrant had been cancelled]). However, this Court finds that even though the governmental immunity issue may well be determinative on a motion for summary judgment, at this preliminary stage in the litigation, movant has established the initial appearance of merit (see Lawrency v State of New York, UID No. 2014-029-076 [Ct Cl, Mignano, J., Jan. 6, 2015]; Nunez v State of New York, UID No. 2011-029-056 [Ct Cl, Mignano, J., Jan. 5, 2012; Pearson v State of new York, UID No. 2010-015-107 [Ct Cl, Collins, J., Jan. 15, 2010]). In other words, movant has set forth sufficient allegations such that the claim is not groundless, frivolous or legally defective.(4) Accordingly, the factor of merit also weighs in movant's favor with respect to his cause of action for negligence.
In conclusion, although four of the six stautory factors weigh in movant's favor on a potential cause of action for false imprisonment, the crucial issue of merit weighs against him. However, five of the six statutory factors, including the all-important issue of merit, weigh in movant's favor on his proposed cause of action based upon ministerial negligence. Movant's motion for permission to file and serve a late claim is granted solely with respect to said negligence cause of action. Movant is directed to serve a claim containing the information required by Court of Claims Act § 11 (b) upon the Attorney General, and to file said claim with proof of service with the Clerk of the Court of Claims, all within 30 days from the date of filing of this Decision and Order. The service and filing of the claim shall be performed pursuant to the strict requirements of the Court of Claims Act.
November 26, 2018
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on movant's motion:
1) Notice of Motion filed August 15, 2018; Affidavit of Joshua Jacobs, sworn to August 14, 2018; Affirmation of Russell A. Schindler, Esq., dated August 15, 2018, and attachment.
2) Affirmation in Opposition of Peter DeLucia, Assistant Attorney General, dated September 28, 2018, and attached exhibits.
1. A cause of action for unlawful or false arrest is virtually the same as a cause of action for false imprisonment. "False imprisonment is an unlawful detention contrary to the will of the person detained accomplished with or without process of law. False arrest is such a detention accomplished by means of an unlawful arrest" (59 NY Jur 2d, False Imprisonment § 1). The Court will refer to this proposed cause of action as false imprisonment in this Decision and Order.
2. As defendant aptly notes, a cursory web search for the Oneonta City Court or telephone call to the Court itself would have revealed that such entity was a part of the New York State Unified Court System.
3. Movant states that in reality, he was pleading guilty to Trespass (Penal Law § 140.05), a violation.
4. The Court further notes that neither party has addressed whether the doctrine of judicial immunity applies. This doctrine, which bars claims against judges of the State for their judicial acts, also extends to non-judicial personnel who are integral parts of the judicial process, such as court clerks (Mosher-Simons v County of Allegany, 99 NY2d 214 ; Hennessy v State of New York, UID No. 2008-015-504 [Ct Cl, Collins, J., May 22, 2008]). At this early point in the litigation, the question of whether recording the cancellation of a warrant is an integral part of the judicial process cannot be determined as a matter of law. Accordingly, the Court finds that this motion for late claim relief should not be barred at this time (see Pearson, UID No. 2010-015-107).