Opinion
M-95134
05-15-2020
Roderick JACKSON, Claimant, v. STATE of New York, Court Officers John Doe No.1-4 (Fictitious Names Because Their Identities Are Unknown) from the Supreme Court of the New York Family Court, Defendants.
R-Square, Esq, PLLC, By: Royce Russell, Esq. , 350 Fifth Avenue, 59th Floor, New York, New York 10118, Attorney for Claimant Letitia James, New York State Attorney General, By: Joshua Lee, Esq., 28 Liberty Street, New York, NY 10005, Attorney for Defendant
R-Square, Esq, PLLC, By: Royce Russell, Esq. , 350 Fifth Avenue, 59th Floor, New York, New York 10118, Attorney for Claimant
Letitia James, New York State Attorney General, By: Joshua Lee, Esq., 28 Liberty Street, New York, NY 10005, Attorney for Defendant
David A. Weinstein, J.
Claimant Roderick Jackson filed the present motion on January 31, 2020, seeking to file and serve a late claim pursuant to section 10(6) of the Court of Claims Act upon defendants State of New York and certain State Supreme Court Officers from the Kings County Family Court, referred to as John Doe #1-4, whose identities are unknown (Affirmation of Royce Russell, Esq., dated December 30, 2019 ["Russell Aff"] ¶ 2). Claimant also characterizes his motion as one for "leave to serve a late Notice of Intention to File a Claim upon the State of New York nunc pro tunc, in accordance with 42 U.S.C. § 1983 ...." (Affidavit in Support of Roderick Jackson dated December 30, 2019 ["Jackson Aff"] ¶ 1).
The affidavit provided by Jackson contains paragraphs that are not numbered. For ease of reference, I have assumed the numbering of theses paragraphs is from one through eight.
Attached to the motion papers are claimant's affidavit, the affirmation of counsel, and a proposed claim. Jackson's allegations are that on June 7, 2019 at approximately 2:30 p.m. he and his wife were visiting the Kings County Family Court, 33 Jay Street Brooklyn, New York (Proposed Claim ["Claim"] ¶ 8). His wife was approached by a court officer who advised her that she could not stand near a particular courtroom door (id. ¶ 9). Jackson approached the officer and asked "why are you talking to my wife like that?" (id. ¶ 10). He asserts that, in response to his inquiry, the officer said "fuck you motherfucker" to which claimant advised that he did not want to be addressed in such a manner (id. ¶ 11). Suddenly, without provocation, the officer grabbed Jackson by the arm, twisted it behind his back and "at least ten other Court Officers rushed to Claimant and began punching him in the face, head, body, arms and legs" (id. ¶ 12).
The claim is verified by counsel, and thus does not contain evidence given on personal knowledge. The material allegations in the claim essentially mirror those in Jackson's affidavit.
Jackson fell to the ground and lost consciousness during the beating, and was then taken to a room in the courthouse, where he was "antagonized by several Court Officers with some spitting in the Claimant's direction and telling him ‘look where you are now’ " (id. ¶ 13). He claims he was taken to a "local hospital" in handcuffs and "realized he sustained broken ribs as a result of the excessive force used against him either at the courthouse and/or hospital" when "he was forcibly pushed down against the hospital bed by said Court Officer" (id. ¶ 14).
According to Jackson, following the visit to the hospital he was taken to a local police precinct and then to Kings County Central Booking "where he spent a [night] awaiting arraignment" (id. ¶ 15). He learned that he had been arrested for "Disorderly Conduct, Resisting Arrest, and Indecent Exposure," charges which he claims were fabricated by the court officers (id. ¶ 16). According to Claimant's counsel, the Kings County District Attorney agreed to adjourn the proceedings against Jackson in contemplation of dismissal of all charges ("ACD") (Russell Aff ¶ 3). In his claim, Jackson confirms that he was given an ACD and further asserts that the case was ultimately dismissed (Claim ¶ 16).
Section 170.55 of the Criminal Procedure Law codifies the pre-CPL informal practice of "D.O.R.", discharge on own recognizance (Preiser, Practice Commentaries, McKinney's Cons. Law of NY, Book 11A, CPL 170.55, p. 93 [1993] ). It provides that in certain designated instances, the court "may, upon motion of the people or the defendant and with the consent of the other party, or upon the court's own motion with the consent of both the people and the defendant, order that the action be ‘adjourned in contemplation of dismissal’ " (CPL Section 170.55[1] ). Through the ACD, the action is adjourned sine die "with a view to ultimate dismissal of the accusatory instrument in furtherance of justice," and the court releases the defendant on his own recognizance (CPL Section 170.55[2] ; see also People v. Meyerson , 165 Misc 2d 476, 478-479 [Crim Court Bronx County 1995] [providing history of CPL § 170.55 ] ). The People may move, within six months, to restore the action to the calendar. Presently, a court may deny the application, or grant it if it determines, in its discretion, that a dismissal "would not be in furtherance of justice" (CPL Section 170.55[2] ). If the action is not restored, at the end of the six month period the accusatory instrument is deemed to have been dismissed by the court in furtherance of justice. Upon dismissal, "the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before arrest and prosecution" (CPL Section 170.55[8] ; see also People v. Miterko , 186 Misc 2d 337, 340-341 [Sup Ct, Kings County 2000] [discussing practice and procedure under CPL § 170.55 ] ).
Claimant contends that he was the victim of the unconstitutional policies, customs or practices of the State of New York stemming from its "inadequate screening, hiring retraining and supervision of its employees and deliberate indifference as to punishment for misconduct against [claimant]" (Claim ¶ 17). As a result of these alleged events, claimant asserts causes of action for (1) false arrest and false imprisonment; (2) assault, battery and excessive force; (3) abuse of process and authority; (4) negligence; (5) negligent hiring, screening, retention, supervision and training; (6) constitutional tort; (7) malicious prosecution; and (8) violation of claimant's civil rights pursuant to 42 USC § 1983 (id. ¶ 19-41; see also Jackson Aff ¶¶ 2, 6).
In his supporting affidavit, Jackson contends, in addition to the allegations recounted in the Proposed Claim, that at the time of the alleged tortious actions of the officers, he was "not engaged in any criminal conduct, nor was he engaged in suspicious conduct" (Jackson Aff ¶ 4). He also asserts that the conduct alleged to have occurred the following day, on June 8, 2019, gave rise to his claims for malicious prosecution and violation of 42 USC § 1983 (id. ¶ 6). As an explanation for his failure to file a timely claim, Jackson contends that he received misleading advice from his former legal counsel, which caused him to believe that he could wait until his criminal proceedings were complete to file his claim (id. ¶ 7).
Through his counsel, claimant argues that defendant New York State, due to the criminal prosecution of this matter, was aware of the alleged incident throughout the pendency of the criminal action, and thus it had notice of the claim and an opportunity to investigate, and will not be prejudiced by the granting of claimant's late claim application (Russell Aff ¶¶ 19-21). Claimant further maintains that the facts alleged in his proposed claim demonstrate that his causes of action have merit (id. ¶ 24). Claiming to have no alternative remedy for his alleged grievances, Jackson requests permission to file and serve his late claim.
In its opposition papers, defendant raises various legal challenges, discussed in more detail below. It also argues that claimant has not demonstrated a reasonable excuse for late filing, knowledge on the part of the State of the circumstances giving rise to the claim, the appearance of merit, and the lack of an alternative remedy (Affirmation of Joshua Lee, Esq., filed January 31, 2020 ["Lee Aff"] ¶¶ 7-15).
Discussion
Before getting to the substance of claimant's motion under section 10(6), I must address certain preliminary matters. First, as defense counsel correctly notes, Jackson is not entitled to the relief sought to the extent that he seeks to file his claim nunc pro tunc, since there is no vehicle in the Court of Claims for such a remedy (see Chaudry v. State , 167 AD3d 704, 704 [2d Dept 2018] ["the Court of Claims has no discretion to grant relief nunc pro tunc"]; Byrne v. State of New York , 104 AD2d 782 [2d Dept 1984], lv denied 64 NY2d 607 [1985] ["a claimant may not be relieved from complete compliance with the prescribed statutory procedures for the filing and service of a claim or notice of intention to file as such failure creates a jurisdictional defect and the court is without discretionary power to grant nunc pro tunc relief"] ).
Technically, claimant asks to file a Notice of Intention nunc pro tunc — a device used to extend the filing date. The outcome is the same when considered in this light: there is no such relief which a claimant can seek in this Court (see Byrne , infra ).
In addition, the State is the only appropriate defendant in this action, and the claims against the unidentified officers cannot be considered, since individuals cannot be sued in this forum (see Smith v. State of New York , 72 AD2d 937, 938 [4th Dept 1979] ). As a result, I address the section 10(6) motion solely as it concerns the State.
Claimant's motion was filed within the relevant one year statute of limitations , and the Court therefore has jurisdiction to entertain late claim relief under Court of Claims Act § 10(6). In determining whether such relief is warranted, the Court must consider the factors listed in the statute (see Bay Terrace Coop. Section IV v. New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys. , 55 NY2d 979, 981 [1982] ). Those factors are whether: the delay in filing the claim was excusable; defendant had notice of the essential facts constituting the claim; defendant had an opportunity to investigate; defendant was substantially prejudiced; the claim appears to be meritorious; and whether the claimant has any other available remedy ( Court of Claims Act § 10 [6] ).
The statute of limitations applicable to intentional tort claims such as false arrest, false imprisonment and malicious prosecution is one year in accordance with CPLR 215[3] (see Ndemenoh v. City Univ. of New York-City Coll. , 180 AD3d 576 [1st Dept Feb 20, 2020] [Court of Claims properly applied CPLR 215 to claimant's intentional tort causes of action] ). Defendant correctly points out that claimant cites in error the 1 year and 90 day limitations period applicable under the General Municipal Law (Lee Aff ¶ 6). Defendant does not assert, however, that the motion is time-barred, and so this discrepancy is immaterial.
I. Appearance of Merit
The "most significant factor" is the appearance of merit, since "it would be futile to permit the filing of a legally deficient claim which would be subject to immediate dismissal, even if the other factors tend to favor the granting of the request" (see Phillips v. State , 179 AD3d 1497, 1498 [4th Dept 2020], citing Prusack v. State of New York , 117 AD2d 729, 730 [2d Dept 1986] ). Thus, the motion may be denied on that ground alone ( Prusack , 117 AD2d at 730 ; see also McCarthy v. New York State Canal Corp. , 244 AD2d 57, 60 [3d Dept 1998], lv denied 92 NY2d 815 [1998] ["in the absence of the appearance of merit to claimant's claim, the request to file a late notice of claim ... should have been denied"] ). I will therefore address this factor first.
In determining whether the proposed claim has the appearance of merit, I must focus on "the substance of the claim, rather than to the formal sufficiency of the pleadings" (Matter of Santana v. New York State Thruway Auth. , 92 Misc 2d 1, 10 [Ct Cl 1977] ). Claimant need not prove his prima facie case, but must demonstrate that the action is not "patently groundless, frivolous or legally defective, and ... upon consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists ( id. at 11 ; see also Sands v. State of New York , 49 AD3d 444, 444 [1st Dept 2008] [citing Santana standard] ).
While a there is no specific requirement that a party seeking relief under section 10(6) submit any particular quantum of evidence in support of the factual allegations in the proposed claim, courts have denied such applications when they are found lacking in evidentiary support (see Hyatt v. State , 180 AD3d 764, 766 [2d Dept 2020] [rejecting claim, in part, because claimant "did not proffer any evidence that tends to substantiate his conclusory allegations"] ). In this case, while claimant attests that he was hospitalized as a result of his injuries, he presents no hospital records. Further, although his wife allegedly witnessed the events at issue, no affidavit from her is included. He does not explain why, given the events as described, he is able to adduce no proof corroborating what occurred beyond his own affidavit. While I do not find that the claim lacks an appearance of merit on this ground, alone, it is the backdrop against which I consider the individual causes of action at issue.
Respondeat Superior
In his proposed claim, claimant asserts in summary fashion that the State is vicariously liable for the alleged intentional torts committed by the court officers, under the doctrine of respondeat superior, because they were acting within the scope of their authority (Claim ¶¶ 5-6). At the same time, Jackson maintains that the officers acted with no justification whatsoever for the attack on him, as he was "not engaged in any criminal conduct, nor was he engaged in any suspicious conduct" (Jackson Aff ¶ 4).
Under the doctrine of respondeat superior, an employer, including the State, may be held vicariously liable "when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment" ( Rivera v. State , 34 NY3d 383, 389 [2019] [internal quotation and citation omitted] ). However, "[l]iabilty attaches ‘for the tortious acts of employees only if those acts were committed in furtherance of the employer's business and within the scope of employment’ " (id. [citations and quotations omitted] ). Therefore, "if an employee for purposes of their own departs from the line of duty so that for the time being their acts constitute an abandonment of service, the employer is not liable" (id. [internal citation and quotation omitted] ).
Typically, the issue of whether an employee acted within the scope of employment is a fact-based inquiry , but the question may be resolved where the material facts are undisputed (see Rivera , supra ). In this case, the facts alleged in claimant's own application make clear that he cannot establish the appearance of merit for his invocation of the doctrine of respondeat superior. Although he alleges that the officers were on duty and the tortious actions occurred in the courthouse where the officers were providing security, the brutal beating, false imprisonment and torture described by Jackson—which he says continued at the hospital and police precinct (Claim ¶¶ 11-15)—cannot be characterized as an "irregular performance of duty nor a mere disregard of instructions" ( Rivera , 34 NY3d at 390 [citation omitted] ).
Factors to consider include "the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated" (Rivera , 34 NY3d at 390 [internal quotation and citation omitted] ).
By Jackson's own account, the attack and false imprisonment were not in furtherance of any employer-related goal whatsoever. Jackson "was not engaged in any criminal conduct, nor was he engaged in any suspicious conduct at the time of the incident" (Jackson Aff ¶ 4), and thus the described gratuitous and unauthorized use of force against him—which involved "at least ten other Court Officers .. punching him in the face, head, body, arms and legs ... spitting at .. and push[ing] [claimant] down against the hospital bed"—constitutes a significant departure from the normal methods of performance of the duties of a court officer as a matter of law (see Rivera, 34 NY3d 391 [claimant could not sue State under doctrine of respondeat superior for "flagrant and unjustified use of force," in which correction officers held down and "repeatedly punched and kicked him during a prolonged assault" since there was no evidence it could reasonably have been anticipated by defendant's agency] ).
Court officers' duties include "removing or restraining disruptive individuals and providing security in the courtroom" (see Kilbride v. New York State Comptroller , 95 AD3d 1496, 1496 [3d Dept 2012], lv denied 19 NY3d 813 [2012] ).
Thus, the aspect of claimant's motion that seeks to file a late claim asserting causes of action against the State under a theory of respondeat superior (false arrest, false imprisonment, assault, battery, abuse of process, excessive force, and negligence) arising out of the tortious actions of the court officers does not have the appearance of merit. The proper remedy, to the extent the conduct at issue gives rise to liability in regard to those alleged to be involved, is to pursue any claims Jackson has against the individual officers in either State Supreme or Federal Court—which, according to defendant's opposition, has already occurred (Lee Aff ¶ 15).
Certain causes of action asserted in Jackson's proposed claim do not rely on a theory of respondeat superior — negligent hiring, screening, supervision and training and constitutional claims. These are addressed below.
Constitutional Claims
Claimant has asserted causes of action for violation of his rights under the state constitution, as well as the federal constitution by asserting a 42 USC § 1983 civil rights claim.
The Court of Claims, however, does not have jurisdiction over federal constitutional claims " ‘given that the statutory basis for such claims, 42 USC § 1983, authorizes claims only against a ‘person’ and [the State] is not a person within the meaning of this statute’ " ( DeMaille v. State , 166 AD3d 1405, 1408, [3d Dept 2018] quoting Oppenheimer v. State of New York , 152 AD3d 1006, 1008 [3d Dept 2017] ; see also Brown v. State of New York , 89 NY2d 172, 184-185 [1996] [the State is not a person for purposes of § 1983 relief] ).
As for the state constitutional claims, they may be asserted in the Court of Claims, but only in limited circumstances and "are barred when a claimant has an alternative legal remedy to protect his or her constitutional rights" ( Oppenheimer , 152 AD3d at 1008—1009 [internal quotation marks and citation omitted]; see also Blake v. State of New York , 157 AD3d 1019, 1020 [3d Dept 2018] [same], lv denied 31 NY3d 905 [2018] ). Because claimant can protect his state constitutional rights through an alternative action in State Supreme Court—and apparently has done so—such claims are not actionable in this forum. Based on the foregoing, claimant's late claim application seeking to file claims for alleged violations of this state and federal constitutional rights must be denied.
Negligent Hiring, Screening, Retention, Supervision and Training
Claimant's remaining cause of action for negligent hiring, training or supervision may be brought in the Court of Claims, and does not implicate respondeat superior (see Rivera , 34 NY3d at 392 [where respondent superior liability unavailable, claimant may seek redress in Court of Claims for negligent hiring, training or supervision] ). Claimant, however, has again alleged no specific facts, and presented no evidence in support of this contention (see Claim ¶¶ 36-39; Jackson Aff ¶¶ 5, 8). A mere, conclusory allegation does not establish the appearance of merit on a late claim motion (see Olsen v. State of New York , 45 AD3d 824, 824 [2d Dept 2007] [denying late claim, in part, because "claimant failed to adequately set forth sufficient facts demonstrating that his claim was meritorious"]; Witko v. State of New York , 212 AD2d 889, 891 [3d Dept 1995] [allegation, "lacking supportive facts" and "conclusory in nature," along with "general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action"] [citations omitted] ).
Moreover, under the theory of negligent hiring or supervision, an employer many be held liable only "if an employee commits an independent act of negligence outside the scope of employment and the employer was aware of, or reasonably should have foreseen, the employee's propensity to commit such an act" ( Medical Care of Western New York v. Allstate Ins. Co. , 175 AD3d 878, 880 [4th Dept 2019] ). In pleading this cause of action, one must allege that "the employer knew or should have known of the employee's propensity for the conduct which caused the injury" ( Shu Yuan Huang v. St. John's Evangelical Lutheran Church , 129 AD3d 1053, 1054 [2nd Dept 2015] [affirming dismissal under CPLR 3211(a)(7) for failure to sufficiently allege that defendants knew or should have known of a employee's propensity to engage in wrongful acts]; see also Kerzhner v. G4S Govt. Solutions, Inc ., 138 AD3d 564, 565 [1st Dept 2016] [inclusion of such language was sufficient at the pleading stage] ). This allegation is absent from the claim which opens the cause of action to dismissal, and thus, in the context of a late claim motion, warrants denial of the application (see Williams v. State , 52 Misc 3d 1124[a], at *6 [Ct Cl, 2012] [claim for negligent hiring, screening, training retention and supervision lacked appearance of merit due to failure to allege defendant had notice of a propensity of its employees to engage in the conduct that caused the alleged injuries] ).
Abuse of Process and Malicious Prosecution
Finally, claimant's abuse of process cause of action — in addition to the defects in claimant's respondeat superior theory — is defective on other grounds as well.
Claimant pleads his cause of action for abuse of process in pertinent part as follows:
"[T]he agents and employees of Respondent[ ] New York State Unified Court System ... regularly issued process against Complainant compelling the performance or forbearance of prescribed acts. The purpose of activating the process was intent to harm Claimant without social or justification, and the employees of Respondent[ ] New York State Unified Court System were seeking a collateral advantage or corresponding detriment to Claimant which was outside the legitimate ends of the process..." (Claim ¶ 29).
This essentially recites the elements of this claim, which requires a showing that defendant "(1) regularly issued process, either civil or criminal," with (2) an intent to do harm without excuse or justification, and (3) use[d] process in a perverted manner to obtain a collateral objective" ( Ettienne v. Hochman , 83 AD3d 888, 888 [2d Dept 2011] [citation omitted] ). But claimant provides no detail at all—it is unclear what process he is referencing, or what collateral objective defendant (i.e., the State) sought to achieve. Since claimant cannot simply engage in notice pleading at this stage, but must show the appearance of merit, this is clearly insufficient.
To the extent the allegation may be read as tantamount to a malicious prosecution claim, it cannot be sustained. For one thing, the prosecuting entity in this case was the District Attorney, who is not a State official and for whose conduct the State may not be sued (see Fisher v. State of New York , 10 NY2d 60 [1961] ; Whitmore v. State of New York , 55 AD2d 745, 746 [3d Dept 1976], lv denied 42 NY2d 810 [1977] ). Further, claimant must show that the proceeding terminated in his favor to sustain a claim (see Cantalino v. Danner , 96 NY2d 391, 394 (2001) ; Batten v. City of New York , 133 AD3d 803, 805 [2d Dept 2015], lv denied 28 NY3d 902 [2016] ). The resolution of Jackson's criminal case via ACD prior to dismissal precludes such a showing (see Brown v. City of New York , 56 Misc 3d 1218[A], *12 [Sup Ct Bronx County 2017], affd 170 AD3d 596 [1st Dept 2019] [where plaintiffs case was dismissed following ACD, there could be "no claim for malicious prosecution as a matter of law"]; see also Melendez v. City of New York , 62 Misc 3d 1206[A] [Sup Ct Kings County 2019] [same] ).
For all these reasons, Jackson has failed to establish the appearance of merit, and his motion may be denied on that ground alone.
II. Other Factors
Consideration of the other section 10(6) factors also supports denial of claimant's motion.
Claimant has not offered a reasonable excuse for filing a late claim, beyond the assertion of what amounts to law office failure (Jackson Aff ¶ 7). That is insufficient for purposes of § 10(6) (see Casey v. State of NY , 161 AD3d 720, 721 [2d Dept 2018] [law office failure is not an acceptable excuse for filing late claim]; E.K. v. State , 235 AD2d 540, 541 [2d Dept 1997], lv denied 89 NY2d 815 [1997] [ignorance of the filing requirements under Court of Claims Act not a reasonable excuse] ). This factor therefore weighs in defendant's favor.
In regard to whether defendant had notice of the essential facts, an opportunity to investigate, or would be prejudiced by the granting of this application, such factors are closely related and will be considered together (see Brewer v. State of New York , 176 Misc 2d 337, 342 [Ct Cl 1998] ). On these issues, Jackson claims that the court officers and the New York City Police Department, as agents and employees of the State, had notice of and an opportunity to investigate Jackson's claims, and thus defendant will not be prejudiced by the granting of the late claim application (Russell Aff ¶¶ 19-20).
However, "notice will not be imputed to the State where, as here, the claimed knowledge is that of the alleged tortfeasor [the court officers] and not that of a person possessing the supervisory authority to initiate an investigation into the claim" ( Witko , 212 AD2d at 890 ). Moreover, claimant's contention that the New York City Police Department is an agency of the State is incorrect and, therefore, cannot serve as a basis to impute knowledge to the State (see Whitmore v. State , 55 AD2d 745, 746 [3d Dept 1976], lv denied 42 NY2d 810 [1977] [noting that members of the police department in every city are local officers because of the source of their appointment and the local limitation of their powers, and are not employees or agents of the State] ). Thus, the factors of notice to the State, its opportunity to investigate and whether such late filing and service would result in prejudice, weigh in defendant's favor.
Claimant also has an alternative remedy: to sue the alleged individual assailants. Indeed, the State indicates without contradiction that this has been utilized by Jackson, in that he commenced an action in Kings County Supreme Court arising out of the same incident (Index No. 527897-19) (Lee Aff ¶ 15). As a result, this factor too weighs against claimant's motion.
In light of the foregoing analysis, I find that the section 10(6) support the motion's denial.
Accordingly, it is hereby
ORDERED that claimant's motion (M-95134) for leave to file and serve the proposed late claim is denied.
Papers Considered:
1. Notice of Motion dated December 30, 2019, with appended Affidavit of Roderick Jackson, and affirmation of Royce Russell, Esq. and proposed Claim.
2. Affirmation in Opposition of Assistant Attorney General Joshua Lee, Esq., dated January 29, 2020.