Opinion
# 2020-053-513 Motion No. M-94799
05-12-2020
PAUL VOGELSANG v. NEW YORK STATE UNIFIED COURT SYSTEM, NEW YORK STATE OFFICE OF COURT ADMINISTRATION, JOHN ROES I-IV, individually and as Peace Officers of the New York State Office of Court Administration, and in their capacities as such, whose identities are not yet known, OFFICER STEPHANIE SEERS, Individually and in her capacity as a law enforcement officer
HOGAN WILLIG, PLLC BY: Steven M. Cohen, Esq. William A. Lorenz, Jr., Esq. Ryan C. Johnsen, Esq. HON. LETITIA JAMES New York State Attorney General BY: Michael T. Feeley, Esq. Assistant Attorney General
Synopsis
Movant's motion seeking permission to late file and serve a claim against numerous entities, including the State that alleges nine causes of action is denied in its entirety. The claim arises from the arrest of movant by officers of the City of Buffalo Police Department and the Erie County Department and allegedly involving the NYS Unified Court System and the NYS Office of Court Administration.
Case information
| UID: | 2020-053-513 |
| Claimant(s): | PAUL VOGELSANG |
| Claimant short name: | VOGELSANG |
| Footnote (claimant name) : | |
| Defendant(s): | NEW YORK STATE UNIFIED COURT SYSTEM, NEW YORK STATE OFFICE OF COURT ADMINISTRATION, JOHN ROES I-IV, individually and as Peace Officers of the New York State Office of Court Administration, and in their capacities as such, whose identities are not yet known, OFFICER STEPHANIE SEERS, Individually and in her capacity as a law enforcement officer, |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-94799 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | HOGAN WILLIG, PLLC BY: Steven M. Cohen, Esq. William A. Lorenz, Jr., Esq. Ryan C. Johnsen, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: Michael T. Feeley, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 12, 2020 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant Paul Vogelsang brings motion no. M-94799 for permission to late file and serve a claim pursuant to Court of Claims Act § 10 (6). In his proposed claim (Movant's Exhibit H), movant alleges nine separate causes of action: (1) unreasonable seizure and deprivation of liberty without due process of law; (2) violation of movant's civil rights through excessive force; (3) battery; (4) false arrest; (5) false imprisonment; (6) intentional infliction of emotional distress; (7) negligent infliction of emotional distress; (8) malicious prosecution; and (9) negligent hiring, training and supervision. Defendant opposes the motion.
The Court of Claims is a court of limited jurisdiction, with the power to hear claims against the State of New York and certain public authorities for the torts of their officers and employees (NY Const Art VI, Court of Claims Act § 9). Here, the caption of the proposed claim names the New York State Unified Court System and the New York State Office of Court Administration as defendants. Both are agencies of the State. The caption of the proposed claim also names individuals as defendants. The Court of Claims lacks jurisdiction to hear claims against individual defendants, even when those persons are State employees (see Smith v State of New York, 72 AD2d 937 [4th Dept 1979]; Holmes v State of N.Y., Roswell Park Cancer Inst. Corp., 5 Misc 3d 446 [2004]). Further, at paragraph 13 of the proposed claim, movant references activities by officers from the City of Buffalo Police Department and from the Erie County Department of Central Police Services. As these police officers are not state officers, the state may not be held liable for their tortious conduct (Whitmore v State of New York, 55 AD2d 745 [3d Dept 1976]). Accordingly, the only proper defendant in this claim is the State of New York. If this Court should grant movant's motion to file a late claim, the caption of the claim should indicate that the State of New York is the only defendant.
In addition, the Court of Claims does not have jurisdiction over federal constitutional claims as alleged by movant in his proposed claim for unreasonable seizure and deprivation of liberty without due process of law and violation of his civil rights through excessive force (see Shelton v New York State Liq. Auth., 61 AD3d 1145 (3d Dept 2009]. To the extent movant asserts federal constitutional violations in his proposed claim, his remedy lies in another court. Claims against the State of New York alleging federal civil rights violations under federal statutes cannot be maintained as the State is not a "person" under 42 USC § 1983 (Brown v State of New York, 89 NY2d 172 [1996]). Thus, movant's proposed federal constitutional claims may not be brought in this Court due to a lack of jurisdiction.
Even if these two proposed constitutional causes of action could be construed as claims under the constitution of the State of New York, the result would be the same. Here, recognition of a state constitutional claim is neither necessary nor appropriate to ensure the realization of movant's rights as the alleged wrongs have already been raised in a state court action (see Movant's Exhibit C) and could have been redressed by a federal action or by timely interposed common-law tort claims (Williams v State of New York, 137 AD3d 1579 [4th Dept 2016], lv denied, 28 NY3d 958 [2016]; Martinez v City of Schenectady, 97 NY2d 78 [2001]). Accordingly, movant's motion for permission to late file federal or state constitutional tort claims as alleged in his proposed claim for unreasonable seizure and deprivation of liberty without due process of law; and violation of movant's civil rights through excessive force is denied.
The remaining causes of action in movant's proposed claim will be discussed with reference to Court of Claims Act § 10 (6). A motion for permission to file and serve a late claim must be brought "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules" (Court of Claims Act § 10 [6]). A negligence action against a private citizen would have to be commenced within three years of accrual of the claim (CPLR 214), while an action based on an intentional tort must be brought within one year after accrual of the claim (CPLR 215). Movant filed his motion to late file a claim on October 25, 2019. At paragraph 5 of the proposed claim (Movant's Exhibit H), movant alleges that his claim accrued "in or about December 22, 2016 [when movant was allegedly assaulted and arrested], with the exception of malicious prosecution which accrued on or about August 17, 2017 [when all criminal charges against movant were dismissed]" (¶ 25, proposed claim). Accordingly, movant's motion would be timely if based on a negligence cause of action and untimely with respect to any intentional tort cause of action.
At paragraph 40 of the supporting affirmation of movant's counsel, Steven M. Cohen, Esq., and during oral argument, movant's counsel, Ryan C. Johnsen, Esq., admitted that the one year statute of limitations had expired with respect to movant's intentional tort causes of action for battery; false arrest; false imprisonment; intentional infliction of emotional distress; and malicious prosecution. Where, as here, the time to make an application for late claim relief has expired on movant's intentional tort causes of action, the Court has no discretion and may not grant such relief nunc pro tunc (Chaudry v State of New York, 167 AD3d 704 [2d Dept 2018]). "[T]he Court does not possess the discretion to reinstate time-barred causes of action pursuant to Court of Claims Act § 10 (6)" (Berger v New York, 171 AD2d 713, 716 [2d Dept 1991]). Accordingly, movant's motion for late claim relief with respect to the intentional tort causes of action listed above is denied.
The remaining two causes of action for negligent infliction of emotional distress and negligent hiring, training and supervision will be addressed with reference to the statutory factors set forth in the Court of Claims Act. Court of Claims Act § 10 (6) grants the Court discretion to permit the late filing of a claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether 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 the state; and whether the [movant] has any other available remedy." The factors enumerated in the statute are not exhaustive and the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]).
The first factor to be considered by the Court is whether the delay in filing and serving a claim was excusable. Movant's counsel alleges that the delay was excusable as counsel took additional time to make a reasoned decision once notified by defendant's counsel that movant had filed a complaint against the State in the wrong Court. Any delay, however, in serving a timely notice of intention to file a claim or a claim upon the Attorney General in the proper Court was due to ignorance of the law or law office failure. Neither excuse is deemed to be adequate (see Langner v State of New York, 65 AD3d 780 [3d Dept 2009]; Matter of Robinson v State of New York, 35 AD3d 948 [3d Dept 2006]; Lynch v State of New York, 2 AD3d 1002 [3d Dept 2003]; Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv denied 99 NY2d 589 [2003]). This factor weighs against the granting of movant's motion. The lack of an excusable delay is, however, only one of the factors to be considered.
The next three factors of notice, opportunity to investigate and prejudice are intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337 [1998]). Movant's counsel argues that defendant had notice and an opportunity to investigate as a Notice of Claim was served pursuant to § 50 (e) of the General Municipal Law upon the State's agencies, New York State Unified Court System and the New York State Office of Court Administration (see Movant's Exhibit A). While service upon an agency of the State does not confer jurisdiction over the State of New York (see Camelot v The Commissioners of the State Insurance Fund, UID No. 2011-030-589 [Ct Cl, Scuccimarra, J., Aug. 17, 2011]), the Notice of Claim, dated March 22, 2017, gave the involved agencies notice that a claim would be commenced in Supreme Court arising out of the same facts and causes of action alleged in the proposed claim. Defendant argues that neither the Notice of Claim from the Supreme Court action nor the proposed claim (Movant's Exhibit H) is verified by the movant and that no one with any personal knowledge has submitted any evidence to the State so as to permit the State to investigate anything in the proposed claim. The Notice of Claim in the Supreme Court action is, however, notarized by counsel who avers that matters not stated to be upon his own knowledge are based on conversations with the claimant. More importantly, as noted by the Hon. Michael E. Hudson in Lee v State of New York, 51 Misc 3d 201, 205 (2015), statutory factors such as notice are "commonly addressed by counsel." Given the alleged participation of employees of the State's agencies in the activities of December 22, 2016 and the fact that the Notice of Claim was served upon these agencies approximately ninety (90) days thereafter, the Court finds the State's allegations of lack of notice, lack of opportunity to investigate and allegations of prejudice unpersuasive. As a result, these three factors weigh in favor of granting movant's motion.
The most important factor to consider is merit as it would be futile to permit a claim to be filed which was subject to dismissal (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]). It is claimant's burden to show that the proposed claim is not patently groundless, frivolous or legally defective and that there is a reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977]). While this standard places a heavier burden upon a party who has filed late, this standard does not require claimant to establish the merit of his claim or to overcome all legal objections before the Court will permit the filing of a late claim (Id. at 11-12).
The two remaining causes of action sound in negligence. General allegations of negligence are usually insufficient to establish a meritorious cause of action (Witko v State of New York, 212 AD2d 889 (3d Dept 1995). Moreover, liability for the negligent infliction of emotional distress may not be maintained where, as here, such a cause of action is duplicative of other causes of action for false arrest, false imprisonment and malicious prosecution (Afifi v City of New York, 104 AD3d 712 [2d Dept 2013]).
A claim for emotional harm only arises when there is a duty owed directly to the movant by the defendant and the breach of that duty results in emotional harm (Kennedy v McKesson Co., 58 NY2d 500 [1983]; Johnson v State of New York, 37 NY2d 378 [1975]; Moore v City of New York, 132 AD3d 644 [2d Dept 2015], lv dismissed 27 NY3d 1146 [2016]). Liability for a claim that a municipality negligently exercised a governmental function exists only when a municipality owes a special duty to the injured person, in contrast to a general duty owed to the public (Moore v City of New York, 132 AD3d 644 [2d Dept 2015], lv dismissed 27 NY3d 1146 [2016]). Police protection has long been considered a governmental function. A municipality's general duty to furnish police protection "does not create a duty of care running to a specific individual sufficient to support a negligence claim unless the facts demonstrate that a special duty was created" (Id. at 646 citing Valdez v City of New York, 18 NY3d 69, 75 [2011]). A special duty is formed when the following elements are present: "(1) an assumption by a municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking" (Cuffy v City of New York, 69 NY2d 255, 260 [1987]). There are no allegations of the existence of a special duty in the proposed claim and no evidence of the existence of any of the four elements of a special duty from the discovery conducted with respect to the Supreme Court action. As movant's cause of action for negligent infliction of emotional distress lacks the appearance of merit, movant's motion to late file a claim including this cause of action must be denied.
Movant's lone remaining cause of action is for negligent hiring, training and supervision. When an employee is acting within the scope of his or her employment, the employer is liable for the employee's negligence under a theory of respondent superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training (Talavera v Arbit, 18 AD3d 738 [2d Dept 2005]; Williams v State of New York, supra at 1580]). Here, there are no allegations in movant's proposed claim that any State employee was acting outside the scope of his or her employment. In fact, the only State employee named in the proposed claim is Officer Stephanie Sees (incorrectly referred to in the proposed claim as Stephanie Seers). The caption of the proposed claim specially indicates that Officer Sees is being sued "in her capacity as a law enforcement officer." In addition, paragraphs 44, 48, 56, 61 and 66 of the proposed claim all state that the actions complained of "were performed by Officers in the furtherance of their respective employment with Respondents."
Moreover, other than general allegations, there are no specific allegations in the proposed claim that Officer Sees had a propensity for any particular conduct that caused movant's injuries. In fact, Officer Sees was apparently not involved in the alleged assault as movant testified during his General Municipal Law §50-h hearing that she was never close to him (Movant's Exhibit B, p. 46, lines 1-4). The proposed claim also does not allege that any particular deficit in the state's hiring, training or supervision was a proximate cause of movant's alleged injuries.
Further, where, as here, the alleged allegations of negligence are based upon the activities surrounding the arrest and detention of movant, claimant must rely on the traditional remedies of false arrest, false imprisonment and malicious prosecution rather than the broader principles of negligence (Ray v County of Nassau, 100 AD3d 854 [2d Dept 2012]; Stalteri v County of Monroe, 107 AD2d 1071 [4th Dept 1985]). Accordingly, movant's proposed causes of action for negligent infliction of emotional distress and for negligent hiring, training or supervision lack the appearance of merit. This factor also weighs against movant's motion.
Finally, the Court must consider whether movant has any other available remedy. Here, movant has commenced an action in State Supreme Court (see Movant's Exhibit C). Accordingly, this final factor weighs against movant's motion.
In summary, movant's motion for permission to late file a claim must be denied in its entirety as this Court lacks jurisdiction over the first two causes of action in movant's proposed claim for unreasonable seizure and deprivation of liberty without due process and violation of movant's civil rights through excessive force; that the proposed intentional tort causes of action for battery, false arrest, false imprisonment, intentional infliction of emotional distress and malicious prosecution are all time barred; that movant has failed to offer a reasonable excuse for his failure to timely commence this action; and as his proposed claim for negligent infliction of emotional distress and negligent hiring, training and supervision lack the appearance of merit.
Accordingly, movant's motion no. M-94799 is denied.
May 12, 2020
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Notice of motion and affirmation of Steven M. Cohen, Esq. dated October 21, 2019, with annexed Exhibits A-H; and 2. Affidavit in response of Assistant Attorney General Michael T. Feeley sworn to November 27, 2019, with annexed Exhibits A-B.