Opinion
# 2015-047-132 Claim No. None Motion No. M-86480
09-09-2015
ETAN LEIBOVITZ v. THE STATE OF NEW YORK
Etan Leibovitz, pro se Eric T. Schneiderman, Attorney General of the State of New York By: Suzette Corinne Rivera, AAG
Synopsis
Motion for leave to file a late claim for damages accruing from claimant's arrest and prosecution was denied after a review of the factors in Court of Claims Act section 10 (6).
Case information
| UID: | 2015-047-132 |
| Claimant(s): | ETAN LEIBOVITZ |
| Claimant short name: | LEIBOVITZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | None |
| Motion number(s): | M-86480 |
| Cross-motion number(s): | |
| Judge: | O. Peter Sherwood |
| Claimant's attorney: | Etan Leibovitz, pro se |
| Defendant's attorney: | Eric T. Schneiderman, Attorney General of the State of New York By: Suzette Corinne Rivera, AAG |
| Third-party defendant's attorney: | |
| Signature date: | September 9, 2015 |
| City: | New York |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant Etan Leibovitz filed the instant motion to file a late claim with the Court of Claims on March 20, 2015. Leibovitz seeks leave to file a late claim for damages accruing from his arrest and prosecution for aggravated harassment in the second degree and criminal contempt in the second degree. The charges were based, according to the proposed claim, on statements made by Alana Gardner, the court attorney for Judge Erika Edwards. Judge Edwards was originally assigned to movant's prior criminal case. During the pendency of the case, Leibovitz made several calls to Gardner in which he raised his voice and used profanity. According to the claim, Judge Edwards eventually recused herself. Movant's prosecution was then reassigned to Judge Anthony J. Ferrara.
In connection with this motion, the court read and considered the Notice of Motion for Untimely Claim, Memorandum of Law in Support, Affidavit in Support, and proposed Verified Claim (filed March 20, 2015), and the Affirmation in Opposition to Motion (filed April 8, 2015), and exhibits attached to the abovementioned documents.
At their first meeting, Judge Ferrara instructed Leibovitz that he "will have no further communications with [Judge Edwards] or her court attorney" (claim, ¶ 63). Movant indicated he understood the instruction (id.). Movant subsequently made a telephone call to Gardner in an attempt to obtain a subpoena (id., ¶ 76). Gardner terminated the call (id.). Movant called again, asking Gardner for the proper spelling for the names of various court staff, including her own, for the purpose of filing suit against them (id., ¶ 77). Movant alleges that Gardner then reached out to ADA Bartolomey, the prosecutor on his criminal case, and told Bartolomey that movant had called her (id., ¶ 78). Bartolomey then obtained a bench warrant for movant's arrest. After discovering the warrant existed, Leibovitz called Gardner yet again, to inquire if she was responsible (id. ¶ 100). Movant Leibovitz alleges Gardner then spoke to Detective Valle, who was investigating Leibovitz, about the calls. Leibovitz alleges Gardner failed to tell Valle that Leibovitz's first call made after the transfer of the case was an attempt to get a subpoena, and not to harass or annoy her (id. ¶ 109-110). After the conversation, Valle obtained another warrant for movant's arrest.
Leibovitz was arrested on September 23, 2013. Gardner filed a criminal complaint against Leibovitz on September 24, 2013. Leibovitz was released on bail on October 4, 2013. The criminal contempt charge was dismissed on January 31, 2014, on the ground that the court's "discussion with Mr. Leibovitz as to how he would have to comport himself . . . did not constitute a lawful order of the court or a legal mandate" so a failure to abide by the instruction did not constitute criminal contempt (id. ¶ 160[B]). The charge of aggravated harassment in the second degree, brought pursuant to Penal Law section 240.30(1)(a), was dropped on May 19, 2014, as the New York State Court of Appeals had recently determined that the statute was unconstitutional (see People v Golb, 23 NY3d 455, 467 [2014], rearg denied 24 NY3d 932 [2014], cert denied sub nom. Golb v New York, 135 S Ct 1009 [2015]).
Leibovitz brought two claims based on the same events prior to making the instant motion. His first action, assigned claim number 124629, was dismissed on the grounds that some causes of action were untimely, other causes of action failed to state a claim for which relief may be granted, and for lack of jurisdiction over certain defendants (Leibovitz v State of New York [Ct Cl, Jan. 16, 2015, Sherwood, J., M-85529]). Movant's claim numbered 125606 was also dismissed as untimely (Leibovitz v State of New York [Ct Cl, July 10, 2015, Sherwood, J., M-86433]).
It is well established that the filing and service requirements of the Court of Claims Act are jurisdictional in nature, and a failure to timely serve the claim upon the Attorney General deprives the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 762-763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Locantore v State of New York, UID No. 2009-038-517 [Ct Cl, DeBow, J., Feb. 11, 2009]). Court of Claims Act Sections 10 (3-b) and 11 (a) (i) require, inter alia, that a claim or a notice of intention to file a claim be served upon the Attorney General within 90 days after the accrual of the claim. Where a claimant fails to file a timely claim or notice of intention to file a claim, the claimant "may nevertheless, in the discretion of the court, be permitted to file such claim 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 [CPLR]" provided that there are sufficient grounds given to excuse the failure to file within the time provided in the Court of Claims Act (id., § 10 [6]). Movant now seeks leave to file a late claim pursuant to Court of Claims Act section 10 (6).
Leibovitz's proposed claim alleges causes of action for (1) malicious prosecution and (2) malicious abuse of process against Gardner, for which he holds the State responsible under the principle of respondeat superior, (3) the negligent hiring, training, discipline, and retention of Gardner by the State, and (4) the deprivation of his rights as guaranteed by the New York State Constitution, specifically the rights to due process, free speech, equal protection, and against unreasonable searches and seizures (claim, ¶ 209). As it is not asserted that the statutes of limitations for these causes of action have run, the factors to be considered by the courts in determining whether to exercise its discretion to allow the late claim are:
"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 claimant has any other available remedy"
(Court of Claims Act § 10 [6]).
Movant has proffered no excuse for his delay in filing this claim, so the first factor weighs against granting leave. As to the second and third factors, whether the state had notice of the essential facts of the claim and an opportunity to investigate, movant argues that his initial claim based on these facts, which was filed on July 7, 2014, provided sufficient notice and opportunity. However, that suit was dismissed for failure to state a claim and as untimely. The subsequent claim was also dismissed. Therefore, these factors provide the movant with little support. As to prejudice and the existence of an alternative remedy, it appears prejudice to the state is minimal, which weighs in favor of allowing the late claim. However, movant does appear to have an alternative remedy. As far as he believes Gardner's actions were outside her official role, nothing prevents him from pursuing a remedy against her in Supreme Court.
The most significant issue to be considered is that of merit. To permit the filing of a legally deficient claim would be a pointless exercise (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).
"In order for a claim to 'appear to be meritorious': (1) it must not be patently groundless, frivolous, or legally defective and (2) the court must find, upon a 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 . . . . The court need only determine whether to allow the filing of the claim, leaving the actual merits of the case to be decided in due course. While this standard clearly places a heavier burden on a claimant who has filed late than upon one whose claim is timely, it does not, and should not, require him to definitively establish the merits of his claim, or overcome all legal objections thereto, before the court will permit him to file"
(Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11-12 [Ct Cl 1977]).
Movant alleges Gardner filed a criminal complaint against the movant "in her capacity as a court attorney for Judge Erika Edwards, with all of the actual and/or apparent authority attendant thereto" (Memo of Law at 5). However, a court attorney, acting in her official capacity, receives quasi-judicial immunity, so is not subject to suit for those actions (see Tarter v State of New York, 68 NY2d 511, 518 [1986], Weiner v State of New York, 273 AD2d 95, 97-98 [1st Dept 2000] ["judicial immunity applies to all acts of auxiliary court personnel that are basic and integral parts of the judicial function, unless those acts are done in the clear absence of all jurisdiction" (internal quotations omitted)]). However, movant also argues that Gardner "performed a function of a complaining witness rather than a court attorney" and so "should not be protected by 'quasi-judicial' immunity" (id., n 1). In that case, if Gardner was acting in her individual capacity in making the complaint, the State cannot be held liable under the doctrine of respondeat superior (see Brown v State of New York, 125 AD2d 750, 752 [3d Dept 1986][to hold the State liable, employee must have performed the offending conduct in his official capacity], citing Ryan v State of New York, 56 NY2d 561 [1982]; Becker v City of New York, 2 NY2d 226 [1957]). Accordingly, the claims against the State for malicious prosecution and abuse of process based on Gardner's actions in making the criminal complaint are without merit.
Leibovitz wishes to bring claims for asserted violations of his "rights guaranteed to him by the New York State Constitution" (claim, ¶ 209). He specifically asserts that Gardner's and the State's actions violated his rights "to be free from being deprived of life, liberty or property without due process," "to freely speak," to "the equal protection of the laws of this state," and "to be secure . . . against unreasonable searches and seizures" (id., citing NY Const, art I, §§ 6, 8, 11, and 12). "New York has no enabling statute similar to those contained in the Federal civil rights statutes permitting damage actions for the deprivation of constitutional rights" (Brown v State of New York, 89 NY2d 172, 186 [1996]). However, the Court of Appeals has recognized a limited state constitutional tort for violations of sections 11 and 12 of article I of the State Constitution (id. at 192). In Brown, the claimants, who were stopped by police officers during an investigation into an assault but never charged with a crime, sought money damages for allegedly unconstitutional acts by the State and various other entities. Those claims were allowed to continue. However, the holding in Brown was narrow. It was central to that case's determination that the defendants in Brown had never been charged with a crime, leaving them without an alternative remedy (id. at 192).
Following Brown, in Martinez v City of Schenectady, the Court of Appeals held that no constitutional tort claim was available to a plaintiff who had been convicted using evidence obtained by use of a faulty warrant, when the plaintiff's conviction had been reversed after the Court of Appeals held the warrant to be invalid (97 NY2d 78, 82 [2001]). That court noted that the Brown decision allowing a cause of action for a constitutional tort served two purposes, one public, one private (id. at 83). The public interest is to provide a deterrent against future violations of these rights (id.). The private interest is to provide some form of remedy to individuals whose rights are violated (id.). The Court of Appeals deemed the reversal of Martinez's conviction to be sufficient disincentive to perform illegal searches to satisfy the public interest (id. at 84). The Court of Appeals also noted Martinez had failed to show how money damages were appropriate, as she had already obtained the dismissal of her case and her release (id.). According to the Court of Appeals, her case was no different from that of "any criminal defendant who has been granted suppression, or reversal of a conviction . . . . Plaintiff has shown no grounds that would entitle her to a damage remedy in addition to the substantial benefit she already has received from dismissal of the indictment and release from incarceration" (id.).
Here, the charges were dismissed against movant Leibovitz. He has already received relief, and, like Martinez, failed to show any distinction between his case and that of any criminal defendant against whom charges are dropped. For Leibovitz, it is not, as it was in Brown, "damages or nothing" (Brown, 89 NY2d at 192). Leibovitz has failed to meet his burden to show that his constitutional tort claims have merit.
The claim for negligent hiring, training, discipline, or retention also appears to lack merit. No allegations are made, or evidence brought, to support the claim that the State was negligent in hiring, training, or disciplining Gardner, other than the allegations of Gardner's actions in dealing with the movant (see Povoski v State of New York, UID No. 2014-041-501 [Ct Cl, Milano, J., Jan. 9, 2014]). On the record provided, the court cannot find reasonable cause to believe a valid cause of action for malicious prosecution, malicious abuse of process, negligent hiring, training, discipline, or retention, or a constitutional tort exists against the State.
While prejudice to the State is limited, the other factors, including the most important factor of merit, weigh against allowing Leibovitz to file this late claim.
Accordingly, it is
ORDERED, that motion number M-86480, seeking leave to file a late claim, is DENIED.
September 9, 2015
New York, New York
O. Peter Sherwood
Judge of the Court of Claims