Opinion
# 2016-009-027 Claim No. 124204 Motion Nos. M-85147 M-87338 Cross-Motion No. CM-85503
09-15-2016
RICHARD A. COOK, JR. v. THE STATE OF NEW YORK
RICHARD A. COOK, JR., PRO SE HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York BY: Ed J. Thompson, Esq., Assistant Attorney General, Of Counsel.
Synopsis
Defendant's motion to dismiss was granted in part, in that causes of action asserting false arrest and malicious prosecution were dismisses as untimely but the cause of action asserting negligent supervision was retained. Claimant's motion for late claim relief was denied as untimely and his motion to strike defendant's motion to dismiss was denied.
Case information
| UID: | 2016-009-027 |
| Claimant(s): | RICHARD A. COOK, JR. |
| Claimant short name: | COOK |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The Court, sua sponte, has amended the caption of this claim in accordance with its decision herein. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124204 |
| Motion number(s): | M-85147, M-87338 |
| Cross-motion number(s): | CM-85503 |
| Judge: | NICHOLAS V. MIDEY JR. |
| Claimant's attorney: | RICHARD A. COOK, JR., PRO SE |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York BY: Ed J. Thompson, Esq., Assistant Attorney General, Of Counsel. |
| Third-party defendant's attorney: | |
| Signature date: | September 15, 2016 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant has brought a motion (M-85147) seeking an order dismissing this claim based upon untimely service and filing, as well as for lack of jurisdiction. Claimant has responded with a cross motion (CM-85503) not only in opposition to defendant's motion, but also seeking permission to serve and file a late claim. Claimant has further responded with a separate motion (M-87338) in which he seeks to strike defendant's motion to dismiss based upon an alleged "fraudulent submission" to this Court.
The following papers were considered by the Court in connection with these motions:
Notice of Motion; Affirmation, with Exhibits A-C (M-85147) 1, 2
Notice of Cross-Motion; Affidavit of Richard A. Cook, Jr., with Exhibits 1-4 (CM-85503) 3, 4
Notice of Motion; Affidavit of Richard A. Cook, Jr., with Exhibits 1-2 (M-87338) 5, 6
Correspondence from claimant dated October 20, 2015 7
Claimant seeks damages stemming from his arrest for Driving While Intoxicated and other Vehicle and Traffic Law violations which occurred during the late night hours of May 31, 2008 in the Town of Genoa, Cayuga County. Although claimant has set forth nine separately numbered causes of action, the claim can best be described as asserting causes of action sounding in malicious prosecution, false arrest, and negligent supervision.
Defendant has now brought this motion (M-85147) seeking to dismiss the entire claim, contending that it was not timely served or filed.
Court of Claims Act § 10 (3) provides that a claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the State, while acting as an officer or employee, shall be filed and served upon the Attorney General within 90 days after the accrual of the claim, unless a notice of intention to file a claim is served within those 90 days, in which case a claim shall then be filed and served upon the Attorney General within two years of the date of accrual. Court of Claims Act § 10 (3) provides that a claim for an intentional tort of an employee or officer of the State must be filed and served within 90 days of the date of accrual, unless a notice of intention has been served, in which case a claim must be filed and served within one year from the date of accrual.
As set forth in his claim, claimant was arrested in the Town of Genoa, Cayuga County, during the late night hours of May 31, 2008, and was charged with Driving While Intoxicated (DWI), as well as other Vehicle and Traffic Law violations. Claimant further states in his claim that following a one-day jury trial in the Town of Genoa Justice Court on May 21, 2009, he was found guilty of the DWI charge, and was sentenced to four months in the Cayuga County Jail on August 4, 2009.
Claimant then appealed his conviction to Cayuga County Court, his sentence was stayed, and claimant was released from the Cayuga County Jail on September 21, 2009 (see Exhibit C to Items 1, 2), after he had served 49 days.
Claimant's 2009 DWI conviction was later reversed and vacated by the Cayuga County Court by an Order dated April 8, 2011, and that charge and the other vehicle and traffic infractions were divested to Auburn City Court. As set forth in an "Order Coram Nobis" by the Honorable Michael F. McKeon, Auburn City Court Judge (see Exhibit 2 to Items 5, 6), defendant (claimant) moved for dismissal of the charges against him, and those charges were apparently dismissed in a Decision dated January 4, 2013. Judge McKeon dismissed the Driving While Intoxicated charge in the "Order Coram Nobis" dated March 13, 2013.
CAUSE OF ACTION ASSERTED AGAINST THE SUPERINTENDENT OF THE NEW YORK STATE POLICE AND NEW YORK STATE TROOPER TIMOTHY BETLEWICZ
The Court of Claims is a Court of limited jurisdiction, with the statutory authority to hear and determine claims against the State of New York and certain public authorities for money damages (Court of Claims Act § 9). The State of New York is the real party in interest for claims asserted against a State Officer for conduct undertaken in an official capacity and in the exercise of a governmental function (Morell v Balasubramanian, 70 NY2d 297 [1987]; Woodward v State of New York, 23 AD3d 852 [3d Dept 2005]). In this matter, claimant has asserted claims against two individuals as named defendants. Individuals, however, cannot be sued in the Court of Claims in their individual capacity, even if they are employees or officers of the State of New York (Court of Claims Act § 9; Smith v State of New York, 72 AD2d 937 [4th Dept 1979]).
Therefore, to the extent that claimant has attempted to assert claims against these two individually named defendants (the Superintendent of the New York State Police and New York State Trooper Timothy Betlewicz), they must be dismissed, as this Court has no jurisdiction over such claims.
FALSE ARREST
Claimant's cause of action for false arrest is an intentional tort (CPLR § 215 [3]), and is therefore governed by Court of Claims Act § 10 (3-b), which requires that within 90 days of accrual, either a Notice of Intention to File a Claim must be served upon the defendant, or the claim must be served upon the Attorney General and filed with the Clerk of the Court of Claims.
Although he did not submit any documentary evidence, claimant argues that a Notice of Intention was "filed" by Attorney Alan J. Pope on March 20, 2013, seven days after Judge McKeon's "Order Coram Nobis" dismissed the DWI charge. As noted, claimant has not submitted an Affidavit of Service, or any other Affidavit from Attorney Pope to establish that the Notice of Intention was actually served upon the Attorney General.
In any event, claimant's cause of action for false arrest accrued when he was released from the Cayuga County Jail on September 21, 2009. Accordingly, neither claimant's Notice of Intention (assuming that it was served on or about March 20, 2013) nor his claim (filed and served on April 11, 2014) was timely served or filed in compliance with Court of Claims Act § 10 (3-b).
It has been consistently held that the service and filing requirements contained within Sections 10 and 11 of the Court of Claims Act are jurisdictional prerequisites to commencing and maintaining a claim against the State (Lepkowski v State of New York, 1 NY3d 201, 206-207 [2003]; Hatzfeld v State of New York, 104 AD3d 1165 [4th Dept 2013]). Strict compliance is therefore required, and claimant's failure to serve a Notice of Intention or a claim within the statutory time-frame of Section 10 (3-b) deprives this Court of subject matter jurisdiction. This cause of action must therefore be dismissed.
MALICIOUS PROSECUTION
Claimant's cause of action for malicious prosecution is also an intentional tort (CPLR § 215 [3]), subject to the provisions of Court of Claims Act § 10 (3-b). Therefore, claimant was required to either serve a Notice of Intention or serve and file his claim within 90 days from the date of accrual.
As discussed above, the DWI charge against claimant was eventually dismissed by the "Order Coram Nobis" of Auburn City Court Judge McKeon on March 13, 2013. Claimant states that a Notice of Intention was "filed" on March 20, 2013 (even though he has provided no proof of such service), well within 90 days from the termination of the criminal proceedings against claimant.
Court of Claims Act 10 (3-b) also requires, however, that if a Notice of Intention is properly and timely served, a claim must then be filed and served within one year from the date of accrual (in this case, March 13, 2013). There is no dispute that claimant's claim, however, was served and filed on April 11, 2014, and was therefore not served and filed within one year from the date of accrual. Since these provisions must be strictly construed (Lepkowski, supra; Hatzfeld, supra), claimant's failure to comply with the requirements of Section 10 (3-b) mandates dismissal of this cause of action.
NEGLIGENT SUPERVISION
Claimant's cause of action alleging negligent supervision of Trooper Betlewicz, on the other hand, is an unintentional tort, and is therefore subject to the pleading requirements of Court of Claims Act § 10 (3). This section requires that within 90 days of accrual, either a Notice of Intention to File a Claim must be served upon the defendant, or a claim must be served and filed. If a Notice of Intention is timely and properly served, the claim must then be served and filed within two years from the date of accrual.
In its motion to dismiss, defendant did not specifically address any timeliness issues with those causes of action asserting negligent supervision, other than to assert that "the untimely claim was served and filed well beyond the statute of limitations . . . including those sounding in negligence" (see Item 2, ¶ 11).
Since neither party addressed the date on which this cause of action accrued, the Court will give claimant the benefit of the doubt and find that this cause of action for negligent supervision accrued when claimant's criminal proceedings were finally disposed of by Judge McKeon's Order of March 13, 2013.
Furthermore, defendant has not disputed claimant's assertion that a Notice of Intention was "filed" on or about March 20, 2013. Therefore, even though claimant has not submitted any documentary evidence establishing this assertion, the Court will again give claimant the benefit of the doubt, as a pro se claimant, and find for purposes of this motion that a Notice of Intention was served on or about March 20, 2013. Therefore, since the claim was filed and served on April 11, 2014, it was filed and served within two years from the date of accrual as required by Section 10 (3). This cause of action is therefore timely and survives defendant's motion to dismiss.
CLAIMANT'S CROSS MOTION FOR LATE CLAIM RELIEF
As mentioned at the outset, in response to this motion to dismiss, claimant submitted a cross motion (CM-85503) seeking late claim relief. Claimant's affidavit in support of his cross motion, however, failed to address any of the statutory factors set forth in Court of Claims Act § 10 (6) that must be considered by the Court in any application seeking late claim relief. Claimant's cross motion must be denied on this basis.
Additionally, and of even greater significance, Section 10 (6) requires that an application for late claim relief may be considered only if it is made "at any time 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."
In this particular matter, the Court has found that claimant's causes of action for false arrest and malicious prosecution were not timely served and filed. The Court also has found that claimant's cause of action for false arrest accrued on September 21, 2009, and his malicious prosecution cause of action accrued on March 13, 2013. Since the statute of limitations under CPLR 215 (3) is one year for each of these causes of action, claimant's application for late claim relief was not made within the appropriate statute of limitations period, thereby depriving this Court of any jurisdiction whatsoever to consider his claim for late claim relief. The cross motion must therefore be denied.
CLAIMANT'S MOTION TO STRIKE DEFENDANT'S MOTION TO DISMISS
Claimant has instituted this separate motion (M-87338) requesting that the Court dismiss or strike defendant's motion to dismiss (M-85147), contending that defendant's attorney utilized "a false and fraudulent exhibit without use of any disclaimer as to the veracity of said exhibit" in support of its motion to dismiss (Item 6, "Wherefore" clause). The specific exhibit objected to by the claimant is a "Certificate of Conviction" issued by Hon. Kim M. Bennett, Genoa Town Justice, dated May 15, 2014, and set forth by the defendant as Exhibit B in its motion to dismiss.
Claimant has also served and filed a separate claim (claim No. 126427) seeking damages based upon the State's use of this document in its motion to dismiss. This claim is the subject of a separate motion to dismiss brought by the defendant (M-87244). --------
Claimant contends that this certificate contains numerous errors that affect the timeliness issues of his false arrest and malicious prosecution claims. It appears to this Court that claimant's primary objection is that the certificate shows that claimant was convicted of DWI on August 4, 2009, even though his conviction was later vacated by the Cayuga County Court.
Claimant also contends that the certificate incorrectly indicates that he was convicted of a breath test violation (Vehicle and Traffic Law § 1194 [1][B]) at his trial on May 21, 2009, and that the five other vehicle and traffic infractions were not dismissed by the Town of Genoa Justice Court (as indicated on the certificate) but instead were divested to Auburn City Court with his DWI charge. Upon its review of the Certificate of Conviction, this Court notes that the certificate is correct to the extent that it reflects claimant's conviction of Driving While Intoxicated on May 21, 2009, and his sentencing of this conviction on August 4, 2009. This Court is well aware that this conviction was subsequently reversed and vacated by the Cayuga County Court. As for the other vehicle and traffic infractions, it does appear that claimant is correct in his contentions as documents produced by him indicate that these charges were in fact divested to Auburn City Court.
Claimant's reliance upon the inaccuracies set forth in the Certificate of Conviction, however, is misplaced, since this certificate, and the information contained therein, has absolutely no relevance to the timeliness issues for claimant's false arrest and malicious prosecution causes of action. As indicated above, claimant's false arrest cause of action accrued when he was released from custody on September 21, 2009, and his cause of action for malicious prosecution accrued on March 13, 2013, upon Judge McKeon's "Order Coram Nobis" dismissing the DWI charge.
As a result, this Certificate of Conviction has played no role whatsoever in this Court's consideration of defendant's motion to dismiss, and therefore provides no basis on which to strike defendant's motion. Accordingly, this motion by the claimant is denied.
In conclusion, therefore, it is
ORDERED, that defendant's motion to dismiss (M-85147) is hereby GRANTED, IN PART, and claimant's causes of action asserting false arrest and malicious prosecution are hereby dismissed as untimely; and it is further
ORDERED, that defendant's motion to dismiss (M-85147) with respect to claimant's cause of action asserting negligent supervision is hereby DENIED; and it is further
ORDERED, that claimant's cross motion (CM-85503) seeking late claim relief and claimant's motion (M-87338) seeking an order striking defendant's motion to dismiss are both hereby DENIED.
September 15, 2016
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims