Opinion
# 2013-048-122 Claim No. 121055 Motion No. M-83717
12-13-2013
JORGE TIRSE v. THE STATE OF NEW YORK
Claimant's attorney: GEORGE TIRSE, Pro Se Defendant's attorney: HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esq. Senior Attorney
Synopsis
The Court denied Claimant's motion to amend and supplement the Claim.
Case information
UID: 2013-048-122 Claimant(s): JORGE TIRSE Claimant short name: TIRSE Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 121055 Motion number(s): M-83717 Cross-motion number(s): Judge: GLEN T. BRUENING Claimant's attorney: GEORGE TIRSE, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Thomas Trace, Esq. Senior Attorney Third-party defendant's attorney: Signature date: December 13, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, Jorge Tirse, commenced this action to recover damages for false arrest and defamation arising out of a January 13, 2012 arrest for forgery in the second degree. Specifically, Claimant alleges that he entered into a lease agreement for certain premises with Joseph Andrews, out of which Claimant intended to operate a restaurant. A dispute thereafter ensued between Claimant and Mr. Andrews, and a civil lawsuit was commenced. Claimant alleges that as a result, Mr. Andrews made a false report that Claimant had forged Mr. Andrews' signature on the lease agreement that was submitted to the New York State Liquor Authority. Claimant alleges that he was unlawfully arrested by New York State Trooper Bazan without probable cause, and that a thorough investigation would have revealed that the report made was false. Claimant now moves for leave to amend and supplement the Claim to add additional causes of action. Defendant opposes Claimant's motion.
CPLR 3025 (b) provides that "[a] party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties" (see also 22 NYCRR 206.7). Leave to amend or supplement a pleading under CPLR 3025 (b) is freely granted in the exercise of the trial court's discretion, "unless the proposed amendments plainly lack merit or would cause the nonmoving party to suffer prejudice or unfair surprise" (Bastian v State of New York, 8 AD3d 764, 765 [3d Dept 2004]). In this regard, "[m]ere lateness is not a barrier to the amendment" (Webber v Scarano-Osika, 94 AD3d 1304, 1305 [3d Dept 2012] [internal quotation marks and citation omitted]). Procedurally, "[a]ny motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading" (CPLR 3025 [b]).
"An amendment is something that makes any change at all in a pleading, including the addition of facts and claims that were even in existence at the time of the original pleading. A 'supplement' seeks to add to the pleading a claim or matter that only came into being, or into the pleader's knowledge, after the original pleading was served" (Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3025:9).
In support of his motion, Claimant submits a Notice of Motion, a Supporting Affidavit, a document entitled "Plaintiff's Motion to Amended and Supplemental Pleadings" with Exhibits 1-7, and a one-page document entitled "Proposed Amended/Supplemental Pleading." The document entitled "Proposed Amended/Supplemental Pleading" references the originally-filed Claim and states that the Claim should include "violation of Due Process, Suppression of evidence, Fabrication of a witness statement, withholding exculpatory evidence (Brady Material), Failure to conduct a reasonable investigation, failure of duty to investigate, Conspiracy to false arrest, Negligence in training, Obstruction, failure to supervise, and Bad Faith in investigation" (Proposed Amended/Supplemental Pleading; see also Plaintiff's Motion to Amended and Supplemental Pleadings, page 1). Claimant also seeks to amend that part of the Claim which erroneously states that Mr. Andrews was the Plaintiff in the civil action.
In support of his motion, Claimant submits a supporting affidavit in which he argues that he intended to assert, among other causes of action, a cause of action for malicious prosecution (see Affidavit of Jorge Tirse, page 2). However, Claimant's "Proposed Amended/Supplemental Pleading" does not reference a cause of action for malicious prosecution.
Substantively, Claimant asserts that Defendant ignored certain witnesses who claimed to have been present when Mr. Andrews provided Claimant with a temporary lease to be forwarded to the New York State Liquor Authority and gave Claimant permission to sign Mr. Andrews' name. Claimant asserts that the Fulton County District Attorney, who has since recused herself from the criminal action, has a friendship with Mr. Andrews, and that Trooper Bazan was pressured into making an arrest. Claimant asserts that the Special Prosecutor assigned to the criminal matter, among other things, improperly offered Claimant a plea agreement if he dropped the civil suit against Mr. Andrews. In July 2012, all charges were dismissed in the interest of justice (see Plaintiff's Motion to Amended and Supplemental Pleadings, Exhibit 3). In opposition to Claimant's motion, Defendant argues that the additional causes of action Claimant seeks to add are not supported by the allegations in the Claim, are untimely, or are not cognizable.
While Claimant's motion papers attach a document entitled "Proposed Amended/Supplemental Pleading," that document is not a complete proposed amended or supplemental Claim "clearly showing the changes or additions to be made to the pleading" (CPLR 3025 [b]). Rather, it is a one-page document referencing the originally filed Claim and lists, without setting forth any underlying or related facts, the causes of action he wishes to include. It is unclear where those changes and additions would be placed in relation to the allegations set forth in the Claim and what facts relate to each proposed cause of action. Along these lines, CPLR 3014 provides, in pertinent part, that every pleading shall consist of plain and concise statements in consecutively numbered paragraphs. It further provides that each paragraph shall contain, as far as practicable, a single allegation. Thus, the Court is unable to determine whether the "Proposed Amended/Supplemental Pleading" is plainly lacking in merit within the meaning of CPLR 3025. Furthermore, the "Proposed Amended/Supplemental Pleading" does not comply with the substantive pleading requirements set forth in Court of Claims Act § 11 (b), which requires, in relevant part, that [t]he claim [ ] state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed.
Claimant also seeks to correct an inadvertent error he made in the Claim, wherein he referred to Mr. Andrews as the plaintiff in a related civil matter, when Mr. Andrews is the defendant in that matter. Although Claimant failed to include his amended pleading, this change is a simple word substitution, to which Defendant does not object, and the Court deems that error corrected in the furtherance of justice pursuant to Court of Claims Act § 9 (8).
All of the requirements in section 11 (b) are "substantive conditions upon the State's waiver of sovereign immunity" (Lepkowski v State of New York, 1 NY3d 201, 207 [2003]), and a Claimant's failure to comply with those statutory provisions renders the Claim, or in this case the "Proposed Amended/Supplemental Pleading," jurisdictionally defective (see Kolnacki v State of New York, 8 NY3d 277, 280-281 [2007]). Therefore, Claimant's motion must be denied.
However, even if the "Proposed Amended/Supplemental Pleading" was not jurisdictionally defective, the motion must nevertheless be denied because the proposed new causes of action lack merit. To the extent Claimant seeks to assert due process violations under the Federal Constitution, such claims are beyond the jurisdiction of the Court of Claims (see Carver v State of New York, 79 AD3d 1393, 1395 [3d Dept 2010], lv denied 17 NY3d 707 [2011]). To the extent that Claimant seeks to assert due process violations under the State Constitution, such claims are also barred where, as here, Claimant has an alternative legal remedy in the form of a common-law tort action for false arrest (see Waxter v State of New York, 33 AD3d 1180, 1182 [3d Dept 2006]). To the extent that the "Proposed Amended/Supplemental Pleading" alleges that Defendant was negligent in failing to investigate, failing to conduct a reasonable investigation, or that Defendant conducted its investigation in bad faith, such claims are not actionable in New York (see Hernandez v State of New York, 228 AD2d 902, 904 [3d Dept 1996]). Likewise, "New York does not recognize civil conspiracy to commit a tort as an independent cause of action" (Wells Fargo Bank, N.A. v Wine, 90 AD3d 1216, 1218 [3d Dept 2011]). Furthermore, where an employee such as Trooper Bazan acts within the scope of his employment (see Affirmation of Thomas Trace, Esq., ¶ 8), no claim may proceed against the State for negligent hiring, training or supervision (see Gray v Schenectady City School Dist., 86 AD3d 771, 773-774 [3d Dept 2011]; Matter of Trader v State of New York, 277 AD2d 978, 978 [4th Dept 2000]).
Fabrication of a witness's statement and suppression of evidence by law enforcement personnel would constitute, among other things, official misconduct (see Penal Law § 195.00; see also Penal Law § 210.45), and would not be considered as within the normal scope of employment (see e.g. Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 [1999]). In such a case, claims for negligent training or supervision require allegations that "defendant knew or should have known of its employee's propensity to engage in the conduct that caused the [Claimant's] injuries, and that the alleged negligent supervision or retention was a proximate cause of those injuries" (Gray v Schenectady City School Dist., 86 AD3d at 773; see Bowman v State of New York, 10 AD3d 315, 316 [1st Dept 2004]).
While the "Proposed Amended/Supplemental Pleading" does not allege a cause of action for malicious prosecution, to the extent that Claimant intended to assert this cause of action, he attaches the Certificate of Disposition from the Johnstown City Court to his affidavit, which states that the charges were "[d]ismissed in the [i]nterest of [j]ustice" (Affidavit of Jorge Tirse, Exhibit 3). However, a dismissal in the interest of justice, without more, is not necessarily consistent with innocence. Accordingly, Claimant has not established that the dismissal was a favorable termination, which is required for showing malicious prosecution (see Cantalino v Danner, 96 NY2d 391, 395 [2001]; see also Dobies v Brefka, 263 AD2d 721, 722 [3d Dept 1999]; Christenson v Gutman, 249 AD2d 805, 809 [3d Dept 1998]).
To establish a cause of action for malicious prosecution, Claimant must prove "(1) the commencement or continuation of a criminal proceeding by the defendant against the [Claimant], (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] [citation omitted]).
The Court notes that the relation back doctrine permits a Claimant to assert a cause of action which would otherwise be time-barred, when the original Claim "give[s] notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading" (Lawyers' Fund for Client Protection of the State of N.Y. v JP Morgan Chase Bank, N.A., 80 AD3d 1129, 1130 [3d Dept 2011] [internal quotation marks and citations omitted]; see CPLR 203 [f]).
The remaining proposed new causes of action - suppression of evidence, fabrication of a witness statement, withholding exculpatory evidence and obstruction - relate to the causes of action alleged in the original Claim or to a cause of action sounding in malicious prosecution, and are not themselves independent causes of action.
To the extent that Claimant challenges the actions of the prosecuting attorneys in the criminal action, the State is not subject to liability in the Court of Claims for the consequences of official acts of a district attorney, who is not an officer or employee of the State (see Fuller v State of New York, 11 AD3d 365, 366 [1st Dept 2004]).
Accordingly, Claimant's Motion No. M-83717 is denied.
December 13, 2013
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Notice of Motion, filed July 9, 2013;
Affidavit of Jorge Tirse, sworn to on July 8, 2013;
"Plaintiff's Motion to Amended and Supplemental Pleadings," dated July 8, 2013, with Exhibits 1-7;
"Proposed Amended/Supplemental Pleading," dated July 8, 2013;
Affirmation of Thomas Trace, Esq., dated August 8, 2013, with Exhibits A-E.