Opinion
# 2016-045-051 Claim No. 127329 Motion No. M-88376
10-06-2016
JASMINE ESPINO v. THE STATE OF NEW YORK
Raiser & Kenniff, P.C. By: James M. Ingoglia, Esq. Hon. Eric T. Schneiderman, Attorney General By: Daniel S. Hallak, Assistant Attorney General
Synopsis
Defendant's motion to dismiss false arrest, false imprisonment, excessive force, individually named officers, federal law, intentional infliction of emotional distress, negligent infliction of emotional distress and negligent hiring claims.
Case information
| UID: | 2016-045-051 |
| Claimant(s): | JASMINE ESPINO |
| Claimant short name: | ESPINO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127329 |
| Motion number(s): | M-88376 |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Raiser & Kenniff, P.C. By: James M. Ingoglia, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: Daniel S. Hallak, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 6, 2016 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on this motion: Defendant's Notice of Motion; Defendant's Affirmation in Support with annexed Exhibits A-B; and Claimant's Affirmation in Opposition.
Defendant, the State of New York, has brought this motion pursuant to CPLR 3211 (a) (2), (5), (7) and (8) as well as Court of Claims Act (CCA) §§ 8, 9, 10, and 11 seeking an order dismissing the claim. Claimant, Jasmine Espino, opposes the motion.
At the outset, the Court notes that the original caption in the claim lists "THE STATE OF NEW YORK, NEW YORK STATE POLICE DEPARTMENT, CHARLES C. WEILMINSTER, MICHAEL D. STAFFORD, and POLICE OFFICER JOHN DOE NUMBERS 1-10, Unknown And Intended To Be Other New York State Police Officers Involved In The Occurrence Herein, Both individually and in their respective capacities as members of the New York State Police Department" as defendants in this matter.
However, the Court of Claims is a court of limited jurisdiction wherein claims primarily seeking monetary damages against the State of New York are brought (see CCA § 9). The Court has the authority, inter alia, to hear and determine a claim against the State for the torts of its officers or employees, while acting as such officers or employees (CCA § 9 [2] ). It is well settled that claims against a State officer for conduct undertaken in an official capacity and in the exercise of an official governmental function are, in reality, claims against the State of New York (Morell v Balasubramanian, 70 NY2d 297 [1987]; Woodward v State of New York, 23 AD3d 852, 856 [3d Dept 2005]). The Court of Claims does not have jurisdiction over the named State officers or employees in tort for the breach of a duty owed individually by such officer or employee (id.; CCA § 9). Thus, the Court hereby dismisses such claims from this action. Accordingly, the Court amends the caption to reflect the State of New York as the only properly named defendant in this matter.
Claimant served a notice of intention in this matter upon defendant on January 9, 2015. Claimant filed a claim on January 7, 2016 and served the claim in this action upon defendant on February 9, 2016. Claimant alleges that on October 11, 2014 at 12:43 a.m. she was operating a motor vehicle on the Southern State Parkway. At that time she was stopped by two State Police Officers for allegedly speeding and drinking while driving. Claimant was told to exit her vehicle and was then shoved to the ground by the officers. Claimant contends, inter alia, that she was unlawfully handcuffed and taken into custody. She asserts that the officers did not allow her to notify her family of the stop and arrest.
The claim recites five causes of action: 1) Excessive force; 2) Title 42 U.S.C. 1983, et seq.; 3) Negligent hiring, training and supervision; 4) Intentional infliction of emotional distress; and 5) Negligent infliction of emotional distress.
Defendant initially seeks dismissal of the claim due to claimant's failure to comply with the time requirements contained within CCA § 10 (3-b).
CCA § 10 (3-b) requires that a claim sounding in intentional tort must be filed with the Court and served upon the Office of the Attorney General within 90 days after the accrual of such claim unless the claimant shall within such time serve a notice of intention to file a claim upon the Office of the Attorney General. If a claimant has served a notice of intention to file a claim, the claim shall be filed within one year after the accrual of an intentional tort.
The Court of Appeals has long held that "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]).
Claimant failed to file a claim in this matter within one year of the date of accrual. Claimant's failure to strictly comply with the statutory requirements set forth in Court of Claims Act §§ 10 (3) and 11 deprives this Court of jurisdiction over those portions of the claim wherein claimant asserts intentional torts in this action, such as excessive force or intentional infliction of emotional distress (Lepkowski v State of New York, 1 NY3d 201 [2003]; Weaver v State of New York, 82 AD3d 878 [2d Dept 2011]; see also Smiley v North Gen. Hosp., 59 AD3d 179 [2d Dept 2009]; Cagliostro v Madison Sq. Garden, Inc., 73 AD3d 534 [1st Dept 2010]; Schetzen v Robotsis, 273 AD2d 220 [2d Dept 2000]). Accordingly, those portions of the claim are dismissed.
Additionally, it is well settled that causes of action against the State alleging intentional infliction of emotional distress are prohibited as against public policy (Peterec v State of New York, 124 AD3d 858 [2d Dept 2015]; Afifi v City of New York, 104 AD3d 712 [2d Dept 2013]; Ellison v City of New Rochelle, 62 AD3d 830 [2d Dept 2009]; Wheeler v State of New York, 104 AD2d 496 [2d Dept 1984]). Further, claimant's allegation of negligent infliction of emotional distress is duplicative of other causes of action and cannot be maintained (Afifi v City of New York, 104 AD3d 712 [2d Dept 2013]). In addition, there is no claim in New York for negligent arrest or negligent assault (Peterec v State of New York, 124 AD3d 858 [2d Dept 2015]; Smiley v North Gen. Hosp., 59 AD3d 179 [2d Dept 2009]). Claimant's allegations do not transform this action into one for negligence.
In regard to claimant's claims based on violations of 42 USC § 1983, it is well settled that the State is not a "person" within the meaning of that section and cannot be liable in actions based on that section (Will v Michigan Dept. of State Police, 491 US 58 [1989], Jett v Dallas Ind. School Dist., 491 US 701 [1989]; Brown v State of New York, 89 NY2d 172 [1996]). Thus, claimant's claims asserting violations 42 USC § 1983 are dismissed.
To the extent claimant is alleging a violation of the federal constitution such a claim is beyond the jurisdiction of this court and must be dismissed (see Court of Claims Act § 9). Additionally, the Court of Claims should not imply a State Constitutional remedy when an alternative remedy is available to claimant (Peterec v State of New York, 124 AD3d 858 [2d Dept 2015]; Waxter v State of New York, 33 AD3d 1180 [3d Dept 2006]; Martinez v City of Schenectady, 97 NY2d 78 [2001]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]).
In regard to the claim for negligent hiring, supervision and training, defendant has failed to establish that claimant does not have a cause of action.
Lastly, defendant's argument regarding the failure of the claim to state a total sum claimed is without merit (CCA § 11 [b]).
Therefore, for the foregoing reasons, defendant's motion to dismiss is granted in part and denied in part to the extent stated herein. Accordingly, the only remaining cause of action in this action is for negligent hiring, training and supervision.
October 6, 2016
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims