Opinion
# 2018-054-111 Claim No. NONE Motion No. M-92874
01-02-2019
G.P. v. THE STATE OF NEW YORK, THE NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, and JOHN DOE, name being fictitious as true identity unknown at this time
LAW OFFICES OF NORA CONSTANCE MARINO By: Joseph W. Murray, Esq. HON. LETITIA JAMES Attorney General for the State of New York By: Felice V. Torres, Assistant Attorney General
Synopsis
movant's application for leave to serve and file a late claim, claim shows an appearance of merit, negligent supervision of state employee.
Case information
| UID: | 2018-054-111 |
| Claimant(s): | G.P. |
| Claimant short name: | PACHO |
| Footnote (claimant name) : | The Court has, sua sponte, amended the caption to preserve the confidentiality of movant's identity pursuant to Civil Rights Law § 50-b. |
| Defendant(s): | THE STATE OF NEW YORK, THE NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, and JOHN DOE, name being fictitious as true identity unknown at this time |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-92874 |
| Cross-motion number(s): | |
| Judge: | WALTER RIVERA |
| Claimant's attorney: | LAW OFFICES OF NORA CONSTANCE MARINO By: Joseph W. Murray, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES Attorney General for the State of New York By: Felice V. Torres, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 2, 2019 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers numbered 1-5 were read and considered by the Court on movant's application for leave to serve and file a late claim:
Notice of Motion, Attorney's Supporting Affirmation, Movant's Affidavit, Proposed Claim.........................................................................................................................1
Affirmation in Opposition.........................................................................................2
Affirmation in Reply, Affidavit of James M. Liander, Bureau Chief of the Public Integrity Bureau, Queens County District Attorney's Office....................................3
Sur-Reply..................................................................................................................4
Letter of Movant's Counsel Dated December 4, 2018.............................................5
The proposed claim alleges that on March 14, 2018, movant, G.P., appeared for her scheduled road test at the New York State Department of Motor Vehicles (DMV) located at 19th Avenue facing Hazen Street in Astoria, New York. Movant had failed several prior road tests. A DMV employee, referred to by movant as John Doe, conducted the road test. John Doe allegedly directed movant to drive to a remote location where he demanded money from movant. Movant did not have any money. Thereafter, John Doe allegedly touched movant inappropriately, groped and fondled her and sexually assaulted her.
Movant's reply papers include an affidavit of James M. Liander, Bureau Chief of the Public Integrity Bureau, Queens County District Attorney's Office. Liander's affidavit states that on June 1, 2018, movant and her attorney spoke with Investigator David Matos of the Queens District Attorney's office regarding the allegation of sexual assault and bribe solicitation by a DMV employee on March 14, 2018 and that an investigation was initiated (Liander Affidavit Attached to Movant's Reply Papers, ¶¶ 6, 7). Liander further affirmed that on "June 5, 2018, I contacted the New York State Inspector General's Office and informed Jessica Silver of the allegations made by G.P. but not limited to sexual assault and bribe solicitation, by a New York State Department of Motor Vehicle employee" and that "additional victims have since been identified" (id. at 7, 8). Defendant correctly argues that the affidavit of Liander or an affidavit of Investigator David Matos should have been submitted with movant's initial papers and not in reply. However, the Court afforded movant and defendant an adjournment to submit reply papers and sur-reply papers, which the parties submitted. Under the circumstances, the Court has exercised its discretion to consider the affidavit of Liander submitted in reply, given that defendant has responded to the reply papers with sur-reply papers (see Bischoff v Hoffman, 112 AD3d 659, 660 [2d Dept 2013] [affidavit of merit submitted after reply was submitted was properly considered by the Court because opposing counsel was afforded the opportunity to respond thereto and submitted response papers]).
The proposed claim names as defendants: the State of New York; the New York State Department of Motor Vehicles; and John Doe. The Court of Claims, however, is a Court of limited jurisdiction and the only proper party defendant is the State of New York (Court of Claims Act § 9). This Court does not have jurisdiction over claims asserted against John Doe individually. Accordingly, the allegations of assault, battery, negligent and intentional infliction of emotional distress committed by John Doe are not properly venued in the Court of Claims (see Hahne v State of New York, 290 AD2d 858, 859 [3d Dept 2002] [where an intentional tort is "committed solely for the personal motives of the employee and is unrelated to the furtherance of the employer's business, no liability will attach"]).
Thus, the Court will address movant's late claim application with regard to the allegations of the proposed claim that allege wrongdoing by the State. These allegations are that: 1) the State was negligent in its failure to monitor the road test conditions and to monitor and supervise its DMV employee, John Doe, by preventing him from directing movant to a remote area and engaging in inappropriate conduct and 2) the State was negligent in retaining John Doe because DMV knew or should have known of his propensity for inappropriate conduct. Analysis
To the extent that the proposed claim alleges intentional infliction of emotional distress, such cause of action cannot be maintained against the State (see Moore v Melesky, 14 AD3d 757, 761 [3d Dept 2005]). Also, to the extent that the proposed claim seeks punitive damages, such remedy cannot be assessed against the State (see Sarapata v Town of Islip, 56 NY2d 332); nor can costs or disbursement be obtained from the State (Court of Claims Act § 27). Accordingly, movant's application is DENIED regarding the aforenoted.
The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]).
The Court has considered all the relevant factors. With regard to movant's excuse for delay, it is noted that movant appeared at counsel's office on May 17, 2018, which was within 90 days of the date of accrual of March 14, 2018 (Movant's Attorney's Supporting Affirmation, ¶ 17). Counsel contacted the Queens County District Attorney's office on behalf of movant (id. at 17-18). Counsel, however, "chose not to file a claim, nor provide written notice of intention to file a claim out of fear of compromising the integrity of the criminal investigation" (id. at 20). In Olson v State of New York (71 Misc 2d 1009, 1010 [CT Cl, 1972]), the Court held that, "[t]he possible existence of a compromising legal posture proffered by movant as an excuse for the delay in filing is not only without merit (see Kozak v State of New York, 35 AD2d 909 [4th Dept 1970]) but patently unreasonable." The Olson Court further stated, "collateral litigation is neither a legal disability nor a reasonable excuse for failure to abide by the time limitations set forth in section 10 of the Court of Claims Act" (id.). In this matter, counsel filed a late claim application with the Court more than six months after the claim had accrued. The Court finds that counsel's deliberate choice not to timely serve either a Notice of Intention to File a Claim or to timely serve and file a claim is not a reasonable excuse for the delay.
The reasonableness of movant's delay, however, is but one factor to be considered and it is not a determinative factor. The most significant factor considered on a late claim application is whether the proposed claim has an appearance of merit. Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). In this matter, the Court finds that claimant's affidavit coupled with the Liander affidavit shows an appearance of merit of the allegations of the proposed claim that the State may have been negligent in its failure to monitor and supervise John Doe and in the State's retention of John Doe as an employee of DMV because DMV knew or should have known of his propensity for his alleged inappropriate conduct. It is noted, however, that a heavier burden, than a mere showing of an appearance of merit, rests upon movant to prevail on her allegations at trial.
The next two factors considered by the Court are whether the State had notice and an opportunity to investigate the essential facts and circumstances underlying the proposed claim. The Court finds that, contrary to the arguments made by movant's counsel in his supporting affirmation, an investigation conducted by the Queens County District Attorney's office is not imputed to the State and does not establish notice to the State because the District Attorney's office is a county entity and is not in privity with the State (see Fisher v State of New York, 23 Misc 2d 935 [Ct Cl 1959]). Further, while the affidavit of James M. Liander, Bureau Chief of the Public Integrity Bureau, Queens County District Attorney's Office, indicates that the New York State Inspector General's office was notified of movant's allegations regarding a DMV employee; it was not conclusively established that such notice and an opportunity to investigate the essential facts and circumstances underlying the proposed claim was provided to DMV or the State in defending the allegations of the proposed claim. The Court finds, however, that movant has met her initial burden of showing that the State has not been substantially prejudiced by the delayed notice and that the State has not refuted such showing (see Newcomb v Middle County Cent. Sch. Dist. 28 NY3d 455, 466 [2016]).
Finally, with regard to the factor of whether movant may have another available remedy, the Court notes that movant's affidavit contains facts not alleged in the proposed claim. Specifically, movant asserts that her road test was arranged by ACAI (ACAI) Driving School located at 6720 Roosevelt Avenue, Woodside, New York. ACAI provided movant with a vehicle to take the road test and a driving instructor, identified by movant only as "Jorge," who drove movant to the road test site (Movant's Affidavit, ¶ 6). Movant further asserts that, upon arrival at the road test site, "Jorge took a piece of paper and covered the camera that was in or around the dashboard of the car, before he exited the vehicle" (id. at 7). After the encounter with John Doe, the DMV employee, movant returned to the exam site and Jorge got back into the car and removed the paper covering the camera (id. at 17). Thus, movant may have another available remedy via suit against "John Doe," "Jorge" and/or ACAI in another court.
Upon consideration and weighing all the factors, the Court finds in favor of granting movant's late claim application.
Accordingly, movant's application is GRANTED as follows: 1) movant shall serve and file a claim in accordance with the mandates for the service and filing set forth in the Court of Claims Act, within 45 days of the filed-stamped date of this Decision and Order; 2) the claim served and filed shall be limited to the allegations that: 1) the State was negligent in its failure to monitor the road test conditions and to monitor and supervise its DMV employee, John Doe, by preventing him from directing movant to a remote area and engaging in inappropriate conduct and 2) the State was negligent in retaining John Doe because DMV knew or should have known of his propensity for inappropriate conduct.
January 2, 2019
White Plains, New York
WALTER RIVERA
Judge of the Court of Claims