Opinion
# 2016-015-138 Claim No. 122855 Motion No. M-87877
06-16-2016
JANET COLLINS v. THE STATE OF NEW YORK
William E. Montgomery, III, Esquire Honorable Eric T. Schneiderman, Attorney General By: Christina Calabrese, Esquire Assistant Attorney General
Synopsis
Claimant, a nurse employed by the DOCCS, was arrested for allegedly falsifying workplace time and attendance records. Claimant's causes of action for libel/slander, false arrest and imprisonment, and abuse of process were dismissed as untimely. Claimant's cause of action for discrimination under the Human Rights Law is a statutory cause of action for which the time limitations of Court of Claims Act § 10 (4) apply. Inasmuch as defendant failed to raise this section as a defense, it was waived pursuant to Court of Claims Act § 11 (c). Nevertheless, the discrimination cause of action was dismissed under the election of remedies doctrine inasmuch as claimant pursued her administrative remedies by filing a complaint with the Division of Human Rights, which dismissed the claim on the merits. Claimant's malicious prosecution cause of action was dismissed as claimant's conclusory allegations that defendant intentionally supressed exculpatory evidence were insufficient to rebut the presumption of probable cause which arose from the Grand Jury's indictment. Lastly, claimant's causes of action for intentional infliction of emotional distress and constitutional tort were dismissed.
Case information
| UID: | 2016-015-138 |
| Claimant(s): | JANET COLLINS |
| Claimant short name: | COLLINS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption is amended sua sponte to reflect the only properly named defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122855 |
| Motion number(s): | M-87877 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | William E. Montgomery, III, Esquire |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Christina Calabrese, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 16, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to amend its answer to assert the election-of-remedies doctrine as an affirmative defense and to dismiss the claim pursuant to CPLR 3211 (a) (2), (5), (7) and (8) on the grounds the claim is untimely, fails to meet the pleading requirements of Court of Claims Act § 11 (b), fails to state a cause of action and is barred by the election-of-remedies doctrine.
Claimant alleges causes of action for false arrest and imprisonment, intentional infliction of emotional distress, defamation, violations of the State and Federal Constitution, malicious prosecution, abuse of process and the creation of a hostile work environment arising from an investigation, and her subsequent arrest and prosecution, for allegedly falsifying workplace time and attendance records.
Claimant, a Registered Nurse, was hired by the Department of Correctional Services (now known as the Department of Corrections and Community Supervision [DOCCS]) in 1986 and promoted to Nurse Administrator at Great Meadow Correctional Facility in 2009. On June 29, 2011 claimant was arrested and charged with falsifying business records in violation of Penal Law § 175.10. She was thereafter indicted on December 22, 2011 on 15 felony counts, including one felony count of grand larceny in the 3rd degree, a class D felony, in violation of Penal Law § 155.35, and 14 felony counts of offering a false instrument for filing in the 1st degree, a class E felony, in violation of Penal Law § 175.35 (Claim, ¶ 8 [c] and [i]). Claimant moved for various relief in the criminal action, including dismissal of the indictment for insufficient evidence pursuant to Criminal Procedure Law § 210.20 (defendant's Exhibit H). The motion was denied and the matter proceeded to trial before a jury on June 10, 2012. On June 19, 2012 the presiding Judge, the Hon. Kelly S. McKeighan, J.C.C., dismissed the charges at the conclusion of the People's case (Claim, ¶ 8 [n]), stating in pertinent part:
"After evaluating all of the evidence in light most favorable to the prosecution, it is the Court's determination that no rational trier of fact could find the essential elements of the crime beyond a reasonable doubt, as is the prosecution's burden. This should not be interpreted by either party as a determination of the defendant's compliance or non-compliance with time and attendance at the facility" (defendant's Exhibit B, Claim Exhibit D attached thereto, pp. D2-D3).
Defendant first contends that the claim fails to meet the pleading requirements of Court of Claims Act § 11 (b) in that it fails to allege with sufficient specificity either the place where or the dates on which each cause of action accrued. Section 11(b) of the Court of Claims Act requires that a claim state "the time when and the place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and . . . the total sum claimed." The guiding principle in determining the sufficiency of a claim is whether it is sufficiently definite " 'to enable the State. . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances' . . ." (Lepkowski v State of New York, 1 NY3d 201, 207 [2003], quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]; see also Sommer v State of New York, 131 AD3d 757, 758 [3d Dept 2015], quoting Morra v State of New York, 107 AD3d 1115, 1116 [3d Dept 2013]; Dinerman v NYS Lottery, 69 AD3d 1145, 1146 [3d Dept 2010], lv dismissed 15 NY3d 911 [2010]). While pleading with "absolute exactness" is not required, a cause of action must be pled with sufficient specificity so as not to mislead, deceive or prejudice the rights of the State (Heisler v State of New York, 78 AD2d at 767). The instant claim meets this standard.
Although initially stating that it accrued at Great Meadow Correctional Facility "from March 1, 2009 through July 19, 2012" (defendant's Exhibit B, Claim, ¶ 5), the claim plainly alleges that claimant was arrested on June 29, 2011 (id. at ¶ 8 [c]), suspended from work on June 30, 2011 (id. at ¶ 8 [aa]), indicted on December 22, 2011 and that the criminal charges were dismissed on June 19, 2012 (id. at ¶ 8 [n]). Thus, notwithstanding defendant's contrary assertion, the dates the claim accrued for purposes of claimant's causes of action for false arrest/imprisonment and malicious prosecution were sufficiently set forth in the claim to meet the pleading requirements of Court of Claims Act § 11 (b). In addition, to the extent claimant indicated that the claim accrued at Great Meadow Correctional Facility, given the nature of her allegations, the place of accrual was sufficiently set forth so as not to mislead, deceive or prejudice the rights of the State.
With respect to the defamation cause of action, however, review of the newspaper articles attached to the claim fails to disclose any particular defamatory statements, their source or the dates they were allegedly uttered. Nor, with respect to these articles, does claimant allege "the particular words complained of" as required by CPLR 3016 (a) (Sokol v Leader, 74 AD3d 1180 [2d Dept 2010]). Consequently, to the extent the defamation cause of action is premised upon these newspaper articles, it must be dismissed.
As for the allegations relating to the statements provided to the police by Mary Harris, a Nurse II employed by DOCCS, and Dr. Karandy, claimant's supervisor, the claim sufficiently alleges the dates the statements were made and the particular defamatory words complained of. The claim thus meets both the pleading requirements of Court of Claims Act § 11 (b) and the particularity requirements of CPLR 3016 (a). Claimant alleges that Mary Harris' statements of June 13, 2011 and June 29, 2011 were defamatory and quotes them in her claim (defendant's Exhibit B, ¶ 8 [jj]). Ms. Harris' statement dated June 13, 2011 is also attached to the claim. The allegedly defamatory statements of Dr. Karandy, which include his Keylog audit, are likewise attached to the claim and are "a part thereof for all purposes" (CPLR 3014). The claim therefore meets the pleading requirements of Court of Claims Act § 11 (b) and the particularity requirement of CPLR 3016 (a) with respect to the alleged defamatory statements of both Mary Harris and Dr. Karandy. As set forth below, however, the defamation claim with respect to these statements was untimely.
Court of Claims Act §§ 10 (3) and 10 (3-b), applicable to unintentional and intentional torts, respectively, require that either a notice of intention be served or a claim be filed and served within 90 days of the date the claim accrued. The two sections differ, however, in that where a notice of intention is timely and properly served, a claim for an unintentional tort must be filed and served within two years after the claim accrued, whereas a claim for an intentional tort must be filed and served within one year following the claim's accrual. To the extent the defamation cause of action rests on the statements of Mary Harris dated June 13, 2011 and June 29, 2011, and the emails and Keylog audit of Dr. Karandy allegedly published in March and May of 2011, the notice of intention served in September 2012 was untimely (Court of Claims Act § 10 [3-b]). Thus, claimant's sixth cause of action for defamation must therefore be dismissed in its entirety.
Claims for false arrest and imprisonment accrue on the date the subject is released from confinement, which in this case was the date of claimant's arrest on June 29, 2011 (Williams v CVS Pharmacy, Inc., 126 AD3d 890, 891 [2d Dept 2015]; Brownell v LeClaire, 96 AD3d 1336, 1337 [3d Dept 2012]. Claimant served a notice of intention in September 2012, more than one year after the claims accrued. As a result, claimant's second cause of action for false arrest and imprisonment, intentional torts controlled by Court of Claims Act § 10 (3-b), is untimely and must be dismissed. With respect to claimant's abuse of process cause of action, it has long been the rule that "accrual of a cause of action for abuse of process need not await the termination of an action in claimant's favor" (Cunningham v State of New York, 53 NY2d 851 [1981]; Pico Prods. v Eagle Comtronics, 96 AD2d 736 [4th Dept 1983], lv dismissed 60 NY2d 559 [1983], lv dismissed 60 NY2d 1015 [1983]; cf. Dobies v Brefka, 263 AD2d 721, 723 [3d Dept 1999] [lack of justification for issuance of the judicial process could not be alleged prior to the termination of the proceedings in plaintiff's favor and claim therefore accrued upon termination of the proceeding]; Benyo v Sikorjak, 50 AD3d 1074, 1077 [2d Dept 2008]; Beninati v Nicotra, 239 AD2d 242 [1st Dept 1997]). While not entirely clear from the allegations in the claim, it appears the process alleged to have been abused in the instant matter was either the allegedly false report to the State Police prior to the issuance of the criminal Complaint and Appearance Ticket (D'Amico v Correctional Med. Care, Inc., 120 AD3d 956, 960 [4th Dept 2014]), or the issuance of the criminal Complaint and Appearance Ticket, both of which were signed by Investigator Frank R. Borbolla on June 29, 2011 (see defendant's Exhibit B, Exhibit B1and B2 attached thereto; see also Williams v Williams, 23 NY2d 592, 596 [1969] ["Process is a 'direction or demand that the person to whom it is directed shall perform or refrain from the doing of some prescribed act.' " (citation omitted)]). Even measured from the latter of the two dates, service of the claimant's notice of intention in September 2012 was untimely, having been served beyond the 90-day period to do so set forth in Court of Claims Act § 10 (3-b). The claimant's third cause of action for abuse of process must therefore be dismissed as untimely.
According to claimant's counsel, a notice of intention was served on September 7, 2012 (Affirmation of William E. Montgomery, ¶ 15). According to defense counsel, a notice of intention was "filed" on September 10, 2012 (defendant's Memorandum of Law, ¶ 13). The notice of intention is dated September 6, 2012 (defendant's Exhibit A).
The time limitations of Court of Claims Act §§ 10 (3) and 10 (3-b) were asserted as defendant's seventh affirmative defense in its answer.
A cause of action for malicious prosecution accrues when the criminal proceeding terminates favorably to the plaintiff (Martinez v City of Schenectady, 97 NY2d 78, 84 [2001]; Williams v CVS Pharmacy, Inc., 126 AD3d at 891; Bumbury v City of New York, 62 AD3d 621 [1st Dept 2009]). Here, the criminal proceeding terminated upon dismissal of the charges on June 19, 2012. Service of the notice of intention on September 10, 2012, as alleged by defense counsel, was therefore timely, as was the filing of the claim on June 17, 2013 (Court of Claims Act § 10 [3-b]).
Claimant also alleges that she was subjected to a hostile work environment that continued through and accrued on the date the criminal action was dismissed - June 19, 2012. The accrual dates applicable to a claim involving discrete instances of discrimination or retaliation differ from the date of accrual of a claim alleging a hostile work environment. A discrete retaliatory or discriminatory act is independently actionable and such a cause of action accrues on the date the wrongful act occurs (National Railroad Passenger Corporation v Morgan, 536 US 101, 110, 114 [2002]). Discrete acts of discrimination consist only of discriminatory pay decisions, including termination, failure to promote, denial of transfer, or refusal to hire (id. at 114; Ledbetter v Goodyear Tire & Rubber Co., Inc., 550 US 618 [2007]). A claim alleging a hostile work environment, on the other hand, occurs over a series of days or years and, in contrast to discrete acts, a single act of harassment may not be actionable on its own (National Railroad Passenger Corporation v Morgan, 536 US at 115). A hostile work environment claim exists " '[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment' " (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 310 [2004], quoting Harris v Forklift Systems, Inc., 510 US 17, 21 [1993] [citation omitted]; Minckler v United Parcel Serv., Inc., 132 AD3d 1186, 1187 [3d Dept 2015]; Matter of Anagnostakos v New York State Div. of Human Rights, 46 AD3d 992 [3d Dept 2007]). Under the continuing violation doctrine, the commencement of the limitations period regarding such claims is delayed until the last discriminatory act occurs (Clark v State of New York, 302 AD2d 942, 945 [4th Dept 2003], rearg and appeal denied 305 AD2d 1127 [4th Dept 2003]; Matter of Henderson v Town of Van Buren, 281 AD2d 872 [2001]; Sier v Jacobs Persinger & Parker, 276 AD2d 401 [1st Dept 2000]; Walsh v Covenant House, 244 AD2d 214 [1st Dept 1997]; Matter of Town of Lumberland v New York State Div. of Human Rights, 229 AD2d 631 [3d Dept 1996]).
Claimant does not allege facts from which it could be inferred that she suffered a hostile work environment. Giving the claim the benefit of every favorable inference (Leon v Martinez, 84 NY2d 83, 87-88 [1994]), a single discrete instance of unlawful retaliation is alleged, the suspension of claimant from her employment, without pay, on June 30, 2011, is alleged (defendant's Exhibit B, Claim, ¶ 8 [e] and [cc]). As this Court stated in Clauberg v State of New York (19 Misc 3d 942, 948 [Ct Cl 2008]):
"[A]n action brought pursuant to the Human Rights Law is a statutory cause of action and not a traditional common-law tort. Inasmuch as section 10 (3) and (3-b) of the Court of Claims Act are expressly limited in their application to torts, whether unintentional (§ 10 [3]) or intentional (§ 10 [3-b]), the court holds that the periods of limitation specified therein are inapplicable to the instant claim. The court concludes that the controlling period for the timely service and filing of a claim alleging violations of the Human Rights Law is that set forth in Court of Claims Act § 10 (4) which applies to causes of action "not otherwise provided for by this section," including causes of action created by statute (see e.g. Alston v State of New York, 97 NY2d 159 [2001]; Schwartz v State of New York, 162 Misc 2d 313 [1994]). Court of Claims Act § 10 (4) permits such a claim to be served and filed within six months following the date of accrual unless a notice of intention is served within that time."
While application of the six-month limitations period under § 10 (4) would ordinarily bar the instant claim, defendant failed to raise this section as an affirmative defense. The defense has therefore been waived (see Court of Claims Act § 11 [c]).
Turning to that branch of defendant's motion seeking to amend its answer to allege as an affirmative defense that the claim is barred by the election-of-remedies doctrine, the law is settled that absent prejudice or surprise, leave to amend a pleading shall be freely granted where the proposed amendment is not plainly lacking in merit (CPLR 3025 [b]; McCaskey, Davies and Assoc. v New York City Health and Hosps. Corp., 59 NY2d 755,757 [1983]; Colucci v Canastra, 130 AD3d 1268, 1270 [3d Dept 2015]).
Claimant has failed to establish that she will suffer undue prejudice in the event defendant's motion to amend its answer is granted, objecting only on the ground that almost three years have elapsed since issue was joined. However, "[m]ere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine" (Edenwald Contr. Co. v City of New York, 60 NY2d 957 [1983]). No such significant prejudice has been established here.
Moreover, the defense bears merit. Defendant's motion to amend its answer and dismiss the cause of action alleging a hostile work environment is premised upon Executive Law § 297 (9), which provides that a person aggrieved by alleged discriminatory practices may elect to seek redress either in an administrative proceeding or a judicial action. As stated by the Court in Kordich v Povill (244 AD2d 112 [3d Dept 1998]), "[t]he remedies are mutually exclusive and 'once a complainant elects the administrative forum by filing a complaint with the Division of Human Rights, a subsequent judicial action on the same complaint is generally barred' " (id. at 114, quoting Marine Midland Bank v. New York State Div. of Human Rights, 75 NY2d 240, 245 [1989]; see also McGraw v State of New York, UID No. 2015-040-040 [Ct Cl, McCarthy, J., Sept. 1, 2015]). The statute further provides that where the New York State Division of Human Rights (Division) "has dismissed [the] complaint on the grounds of administrative convenience, on the grounds of untimeliness, or on the grounds that the election of remedies is annulled, [the complainant] shall maintain all rights to bring suit as if no complaint had been filed with the division" (Executive Law § 297[9]). Here, however, the Division dismissed the complaint on the merits, and not on one of the grounds which would permit recourse to a judicial forum.
Executive Law § 297 (9) states, in pertinent part, the following: "Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction . . . unless such person had filed a complaint hereunder or with any local commission on human rights, or with the superintendent pursuant to the provisions of section two hundred ninety-six-a of this chapter, provided that, where the division has dismissed such complaint on the grounds of administrative convenience, on the grounds of untimeliness, or on the grounds that the election of remedies is annulled, such person shall maintain all rights to bring suit as if no complaint had been filed with the division."
The complaint filed with the Division charged DOCCS with disparate treatment due to sex in violation of article 15 of the Executive Law. Specifically, claimant alleged in the complaint before the Division that "her supervisor threatened her by saying he was going to 'watch her' as it pertained to her time and attendance and harassed her by following her to her car to look at her cell phone to prove whether she had called him to notify him of her lateness" (defendant's Exhibit F, p.1). The complaint was dismissed because "insufficient evidence exists to suggest that the actions taken by respondent occurred under conditions which give rise to an inference of unlawful discrimination" (id. at p. 2). According to the Division's Determination and Order After Investigation:
"The investigation revealed that, beginning in February 2011, respondent became aware of discrepancies in the manner in which complainant was charging her time. On or about March 16, 2011, complainant was verbally counseled regarding her time and attendance. On or about March 22, 2011, all employees in complainant's unit were notified of the correct procedure to follow for reporting unplanned absences, and all employees were notified that their time and attendance would be more closely scrutinized. Despite having been given an opportunity to improve in reporting her absences, on March 31, 2011, complainant again failed to follow the proper procedure for notifying the facility of her lateness. On April 5, 2011, prior to the filing of the instant complaint, discrepancies regarding the complainant's time and attendance were referred to the New York State Inspector General's Office, who conducted an independent investigation of the matter and referred the matter to the New York State Police. As a result of her arrest for falsifying business records, complainant was issued a Notice of Discipline and remains suspended pending arbitration.
The investigation failed to reveal witnesses who supported complainant's claim that she was harassed by her supervisor because of her sex. The investigation failed to reveal any evidence that complainant complained internally that she was the subject of discrimination due to her sex, nor did she file a union grievance based upon discrimination" (defendant's Exhibit F, pp. 1-2).
Defendant correctly contends that the election-of-remedies doctrine bars the instant claim to the extent it alleges a cause of action for unlawful employment discrimination. The claim asserts that claimant was arrested and suspended from her employment in retaliation for being promoted over Mary Harris to the position of Nurse Administrator (defendant's Exhibit B, ¶ 8 [z]) and in response to her filing a complaint with the New York State Division of Human Rights alleging unlawful employment discrimination (defendant's Exhibit B, Claim, ¶ 8 [cc]). The first allegation is not an unlawful discriminatory practice (see Executive Law 296 [1] [a]; Forrest v Jewish Guild for the Blind, 3 NY3d at 305). The fact that claimant alleges she was harassed because she received a promotion over a female co-worker, even if true, provides no basis for a claim of unlawful discrimination. The second allegation, that the adverse employment action was in retaliation for filing a complaint with the New York State Division of Human Rights, does afford a basis for a claim of unlawful discrimination (see Executive Law § 296 [7]) but is barred by the election-of-remedies doctrine. As specifically noted by the Division in its Determination and Order, claimant was already being investigated for time and attendance discrepancies when she filed her complaint with the Division. The police report, arrest and subsequent prosecution were therefore not in retaliation for the complaint claimant filed with the Division. As a result, the Division determined that there was no probable cause to believe DOCCS engaged in an unlawful discriminatory practice (cf. Brown v State of New York, 125 AD2d 750 [3d Dept 1996], lv dismissed 70 NY2d 747 [1987]). Defendant's motion to amend its answer to assert claimant's election of remedies as an affirmative defense is granted. The answer is deemed amended, and claimant's fourth cause of action alleging a hostile work environment is dismissed.
Additionally, nowhere in the claim does the claimant allege she was discriminated against on the basis of her sexual orientation (see Executive Law § 296 [1] [a]).
Defendant next contends the claim fails to state cognizable causes of action for malicious prosecution, intentional infliction of emotional distress and violations of the Federal and State Constitutions. 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 at 87-88; 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]).
"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]). There is no dispute that a criminal proceeding was commenced thereby fulfilling the first criterion. Nor does defendant dispute that this proceeding terminated in claimant's favor. As a general rule "any final termination of a criminal proceeding in favor of the accused such that the proceeding cannot be brought again, qualifies as a favorable termination for purposes of a malicious prosecution action" (Smith-Hunter v Harvey, 95 NY2d at 195 [2000]; see also D'Amico, 120 AD3d 956). So long as the dismissal is consistent with claimant's assertion of innocence, the favorable termination element of the analysis is met (Cantalino v Danner, 96 NY2d 391 [2001]; Smith-Hunter v Harvey, 95 NY2d 191; cf. Martinez v City of Schenectady, 97 NY2d 78 [2001]). Here, the charges against the claimant were dismissed on the ground the prosecution failed to establish its case. This dismissal is not inconsistent with the claimant's assertion of innocence and therefore satisfies the second element of a cause of action for malicious prosecution.
Defendant's primary assertion is that although claimant was arrested without a warrant (see defendant's Exhibit B, Claim, attachment B1 attached thereto), the subsequent indictment by the Grand Jury, as alleged in the claim (defendant's Exhibit B, Claim, ¶ 8 [i]), created a presumption of probable cause requiring dismissal of the claim.
An indictment by a Grand Jury creates a presumption of probable cause which may be overcome "only by evidence establishing that the police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or otherwise acted in bad faith" (Colon v City of New York, 60 NY2d 78, 82-83 [1983]). The Court of Appeals recently observed that "the plaintiff may show malice and overcome the presumption of probable cause with proof that the defendant falsified evidence in bad faith and that, without the falsified evidence, the authorities' suspicion of the plaintiff would not have fully ripened into probable cause" (De Lourdes Torres v Jones, 26 NY3d 742, 761 [2016]). It has also been noted that while not all evidence must be disclosed in the early stages of a criminal prosecution, "[t]here may be extraordinary cases in which particular discrepancies are so substantive that failure to disclose them would be comparable to fraud or perjury" (Gisondi v Town of Harrison, 72 NY2d 280, 285 [1988]; see also; Kinge v State of New York, 79 AD3d 1473 [3d Dept 2010]; Haynes v City of New York, 29 AD3d 521 [2d Dept 2006]; Ramos v City of New York, 285 AD2d 284 [1st Dept 2001]; Hernandez v State of New York, 228 AD2d 902 [3d Dept 1996]). Here, the claim and claimant's affidavit submitted in opposition to the motion allege in only the most conclusory manner that the defendant "intentionally and maliciously engaged in suppressing exculpatory evidence and provided incomplete, fabricated, exaggerated and false evidence procured in bad faith to the Fort Ann Town Court, Washington County Court and Washington County District Attorney[']s Office" (defendant's Exhibit B, Claim, ¶ 11, see also ¶ 8 [t] and [v]; claimant's affidavit, ¶ 14). While it is true that a court must accept the facts as alleged in the claim as true and accord claimant the benefit of every favorable inference, a cause of action for malicious prosecution will fail where no specific facts are alleged to overcome the presumption of probable cause which attached by the Grand Jury's indictment (Hornstein v Wolf, 67 NY2d 721 [1986]; Miller v Allstate Indem. Co., 132 AD3d 1306, 1307 [4th Dept 2015]; Facebook, Inc. v DLA Piper LLP (US), 134 AD 3d 610, 614 [1st Dept 2015]; Varanelli v County of Suffolk, 130 AD2d 653, 654 [2d Dept 1987]; Phillips v City of Syracuse, 84 AD2d 957 [4th Dept 1981], affd 57 NY2d 996 [1982]; Smith v County of Livingston, 69 AD2d 993 [4th Dept 1979]). Claimant contends in opposition to the motion that the email statement of Deputy Superintendent Lindstrand to Dr. Karandy dated March 11, 2011, alleged in paragraph 8 (dd) of the claim (p. 6 of 19), stating that "the lack of documentation on [claimant's] past performance makes any action unlikely to be successful" is sufficient to rebut the presumption of probable cause. However, this argument overlooks the fact that claimant was not arrested until approximately three months after the email was generated and the performance of additional investigation, including the Keylog Audit, which revealed significant discrepancies in claimant's time and attendance. "[T]he [claimant] cannot rebut the presumption of probable cause with evidence merely indicating that the authorities acquired information that, depending on the inferences one might choose to draw, might have fallen somewhat shy of establishing probable cause" (De Lourdes Torres, 26 NY3d at 761). Inasmuch as mere conclusory allegations do not overcome the presumption of probable cause, the cause of action for malicious prosecution must be dismissed.
Public policy bars a claim for intentional infliction of emotional distress against the State (Peterec v State of New York, 124 AD3d 858 [2d Dept 2015]; Augat v State of New York, 244 AD2d 835 [3d Dept 1997], lv denied 91 NY2d 814 [1998]). Claimant's fifth cause of action in the claim must therefore be dismissed.
To the extent claimant alleges a constitutional tort cause of action based upon violations of the New York State Constitution, the existence of a common law tort remedy renders recognition of a constitutional tort cause of action unnecessary (Martinez v City of Schenectady, 97 NY2d 78, 82-84 [2001]; Peterec, 124 AD3d 858; Flemming v State of New York, 120 AD3d 848 [3d Dept 2014]). In addition, a claimant seeking damages against the State for violations of the Federal Constitution cannot use 42 USC § 1983 as a vehicle for redress because a State is not a "person" under § 1983 (Matter of Haywood v Drown, 556 US 729, 734 n 4 [2009]; Will v Michigan Dept. of State Police, 491 US 58, 66 [1989]). Accordingly, claimant's seventh cause of action must be dismissed.
Based on the foregoing, defendant's motion to amend its answer and dismiss the claim is granted and the claim is dismissed.
June 16, 2016
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers:
1. Notice of motion dated January 12, 2016;
2. Affirmation of Christina Calabrese dated January 12, 2016 with Exhibits A - H;
3.Memorandum of Law of Christina Calabrese dated January 12, 2016;
4.Affirmation of William E. Montgomery dated February 24, 2016 with Exhibits;
5.Affidavit of Janet Collins sworn to February 24, 2016 with Exhibits;
6.Memorandum of Law of William E. Montgomery dated February 24, 2016.