Opinion
# 2017-040-122 Claim No. 126871 Motion No. M-89995
09-14-2017
RICARDO RAMIREZ v. THE STATE OF NEW YORK
FRANZBLAU DRATCH, P.C. By: Brian M. Dratch, Esq. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Senior Attorney
Synopsis
State's Motion: (1) to dismiss false arrest/false imprisonment cause of action as untimely granted; and (2) for summary judgment on malicious prosecution cause of action on the basis State had probable cause granted.
Case information
| UID: | 2017-040-122 |
| Claimant(s): | RICARDO RAMIREZ |
| Claimant short name: | RAMIREZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126871 |
| Motion number(s): | M-89995 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | FRANZBLAU DRATCH, P.C. By: Brian M. Dratch, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Senior Attorney |
| Third-party defendant's attorney: | |
| Signature date: | September 14, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's Motion: (1) to dismiss the false arrest/false imprisonment portion of the Claim, pursuant to CPLR 3211(a)(2) and (8), on the basis that the Court lacks subject matter jurisdiction over the Claim and personal jurisdiction over Defendant, as a result of Claimant's failure to timely serve the Notice of Intention to File a Claim and the Claim as required by Court of Claims Act §§ 10(3), (3-b) and 11(a)(i); and (2) for summary judgment pursuant to CPLR 3212 with regard to the malicious prosecution portion of the Claim on the basis that Defendant had probable cause, is granted.
This Claim, which was filed with the office of the Clerk of the Court on October 13, 2015, asserts that, on October 13, 2013 at approximately 2:30 p.m. at Mid-State Correctional Facility, Claimant was negligently and wrongfully accused, arrested, prosecuted, confined and imprisoned for promoting contraband in the facility when two hand-rolled cigarettes allegedly tested positive for morphine when Defendant's employees improperly utilized a NIK drug test kit (Claim, ¶ 2). It is further asserted that Claimant was formally charged by the Office of the District Attorney and indicted by a grand jury for promoting contraband and criminal possession of a controlled substance. Claimant was arrested, fingerprinted, and was required to appear in Oneida County Supreme Court. On November 3, 2014, a Justice of the Supreme Court in Oneida County dismissed and sealed the charges against Claimant because the New York State Police Forensic Investigation Center issued a report which indicated that the hand-rolled cigarettes did not contain a controlled substance (id., ¶ 3). In addition, two Misbehavior Reports were written on October 13, 2013, the first alleging Claimant possessed contraband and the other charging Claimant with Drug Possession (Affirmation of Thomas Trace, Esq. [hereinafter, "Trace Affirmation"], ¶ 5 and Ex. E, pp. 4, 5 attached). Claimant was found guilty of those charges in both Misbehavior Reports following a Tier III Hearing, that concluded October 24, 2013 (id. and Ex. E, pp. 1, 2, 3). Among other penalties, Claimant was confined to the Special Housing Unit (hereinafter, "SHU"). He was released from SHU to the general population at Riverview Correctional Facility on March 14, 2014 (id. and Ex. F, p. 4 [where indicated, showing the Claimant's service dates and transfer to general population]).
Pursuant to the Court of Claims Act provisions applicable to personal injury actions, Claimant was required to file and serve his Claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim (to the extent Claimant asserts injuries caused by negligence or unintentional torts) or within one year (to the extent he asserts intentional torts of State employees) (Court of Claims Act §§ 10[3], 10[3-b]; Matter of Kairis v State of New York (113 AD3d 942 [3d Dept 2014]). In either case, Claimant was required to initiate action within 90 days of the Claim's accrual. Here, Claimant asserts causes of action for false imprisonment and malicious prosecution, both intentional torts (CPLR § 215[3]).
Court of Claims Act § 11(a)(i) provides that the Claim shall be filed with the Clerk of the Court and that a copy shall be served upon the Attorney General within the time period provided in Section 10 of the Court of Claims Act, either personally or by certified mail, return receipt requested. The statute further provides that service by certified mail, return receipt requested, is not complete until the Claim or Notice of Intention to File a Claim is received by the Attorney General. It is well established that failure to timely serve the Attorney General in strict compliance with Court of Claims Act § 11 gives rise to a jurisdictional defect (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]).
Pursuant to Court of Claims Act § 11(c), however, any such defect is waived unless it is raised with particularity as an affirmative defense, either by motion to dismiss prior to service of the responsive pleading or in the responsive pleading itself (see Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
In its Answer, filed with the office of the Clerk of the Court on November 19, 2015, Defendant asserted as its Fifth Affirmative Defense that "[t]his Court lacks subject matter jurisdiction over the [C]laim and personal jurisdiction over the Defendant, the State of New York, as the [C]laim is untimely in that neither the [C]laim nor a [N]otice of [I]ntention was served within ninety (90) days of the accrual(s) of the [C]laim as required by Court of Claims Act § 11 and Court of Claims Act §§ 10 (3) and 10 (3-b)."
In his affirmation submitted in support of the State's Motion, Defense counsel asserts that the cause of action for false imprisonment accrued on March 14, 2014, when Claimant was released from SHU, and, thus, a Notice of Intention to File a Claim, or Claim, was required to be served upon Defendant on or before June 12, 2014 (Trace Affirmation, ¶ 8). Counsel further states that Claimant served a Notice of Intention to File a Claim upon Defendant on January 9, 2015 (id.). The Court notes that Claimant asserts an even earlier date, January 6, 2015 (Affirmation of Brian M. Dratch, Esq. [hereinafter, "Dratch Affirmation"], ¶15). Those dates are six months past the deadline. Claimant asserts that Defendant is incorrect in asserting that the false imprisonment cause of action accrued when Claimant was released from SHU. He asserts that the cause of action accrued on November 3, 2014, when the criminal case against Claimant was dismissed (Dratch Affirmation, ¶ 16 and Ex. H attached). Claimant was not imprisoned, however, for the charges contained in the August 14, 2014 indictment per the Order of Acting Supreme Court Justice Barry M. Donalty (Ex. K attached to Trace Affirmation). Rather, the only alleged false imprisonment in this Claim is associated with Claimant's administrative confinement to SHU. He was released from SHU on March 14, 2014 (Trace Affirmation, ¶¶ 5, 8 and Ex. F attached). A cause of action for wrongful confinement accrues when the restrictive confinement ends (Campos v State of New York, 139 AD3d 1276 [3d Dept 2016]; Matter of Kairis v State of New York, supra; Davis v State of New York, 89 AD3d 1287 [3d Dept 2011]; Santiago v City of Rochester, 19 AD3d 1061 [4th Dept 2005], lv denied 5 NY3d 710 [2005]; Charnis v Shohet, 2 AD3d 663 [2d Dept 2003]). Here, based upon the proof submitted, that date is March 14, 2014. Thus, the ninetieth day after accrual was June 12, 2014 as stated by Defense counsel.
Court of Claims Act § 10 is more than a statute of limitations; it is a jurisdictional prerequisite to bringing and maintaining an action in this Court (Mallory v State of New York, 196 AD2d 925, 926 [3d Dept 1993]; DeMarco v State of New York, 43 AD2d 786 [4th Dept 1973], affd 37 NY2d 735 [1975]; Antoine v State of New York, 103 Misc 2d 664 [Ct Cl 1980]). Failure to timely comply with the statutory service and filing requirements of the Court of Claims Act constitutes a fatal jurisdictional defect requiring dismissal (Lyles v State of New York, 3 NY3d 396, 400-401 [2004]; Buckles v State of New York, 221 NY 418 [1917]; Langner v State of New York, 65 AD3d 780, 781 [3d Dept 2009]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]). The Court cannot waive a defect in jurisdiction that has been timely raised (see Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). The defect asserted was timely and properly raised with particularity in Defendant's verified Answer as set forth above, in accordance with Court of Claims Act § 11(c) (Czynski v State of New York, 53 AD3d 881, 882 [3d Dept 2008], lv denied 11 NY3d 715 [2009]; Villa v State of New York, 228 AD2d 930, 931 [3d Dept 1996], lv denied 88 NY2d 815 [1996]).
Based upon the foregoing, Defendant's Motion to dismiss the false arrest/false imprisonment causes of action is granted and that portion of the Claim is dismissed for failure to timely serve it in accordance with Court of Claims Act §§ 10(3), 10(3-b), and 11(a)(i).
The Court now turns to Defendant's Motion that seeks summary judgment dismissing the malicious prosecution cause of action. Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., supra at 324; see Winegrad v New York Univ. Med. Center, supra at 853).
"The law … places a heavy burden on malicious prosecution [claimants], requiring that they establish four elements: '(1) the commencement or continuation of a criminal proceeding by the defendant against the [claimant], (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice' " (Smith-Hunter v Harvey, 95 NY2d 191, 195 [2000], quoting Broughton v State of New York, 37 NY2d 451, 457 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]; see DeLourdes Torres v Jones, 26 NY3d 742, 760 [2016]). "Actual malice is generally shown by establishing that the criminal proceeding was commenced for an improper motive (see Boose v City of Rochester, 71 AD2d 59 [, 69 [4th Dept 1979]]; Blanchfield v State of New York, 104 Misc 2d 21 [, 28 [Ct Cl 1980]]) and in this regard is somewhat intertwined with the question of probable cause because an absence of probable cause to initiate the prosecution can infer that it was, therefore, commenced for an improper reason (see Martin v City of Albany, 42 NY2d 13, 17-18 [1977]; Restatement [Second] of Torts § 669)" (Ferran v State of New York, UID No. 2008-032-113 [Ct Cl, Hard, J., Sept. 4, 2008]).
While it is true that a court must accept the facts as alleged in the Claim as true and accord Claimant the benefit of every favorable inference, a cause of action for malicious prosecution will fail where no specific facts are alleged to overcome the presumption of probable cause which attached by the Grand Jury's indictment (Hornstein v Wolf, 67 NY2d 721 [1986]; Miller v Allstate Indem. Co., 132 AD3d 1306, 1307 [4th Dept 2015]; Facebook, Inc. v DLA Piper LLP (US), 134 AD 3d 610, 614 [1st Dept 2015]; Phillips v City of Syracuse, 84 AD2d 957 [4th Dept 1981], affd 57 NY2d 996 [1982]). "The rule is founded upon the premise that the Grand Jury acts judicially and it may be presumed that it has acted regularly. The presumption may be overcome only by evidence establishing that the police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or otherwise acted in bad faith" (Colon v City of New York, 60 NY2d 78, 82-83 [1983]). If Claimant is to succeed in his malicious prosecution cause of action after he has been indicted, "he must establish that the indictment was produced by fraud, perjury, the suppression of evidence or other policy conduct undertaken in bad faith" (id. at 83). Moreover, even if Claimant shows a sufficiently serious lack of cause for the prosecution and rebuts the presumption, he still must prove that Defendant acted with malice, i.e., that Defendant "must have commenced the prior criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served" (DeLourdes Torres v Jones, supra at 761, quoting Nardelli v Stamberg, 44 NY2d 500, 503 [1978]).
Here, Defendant asserts that State Police Investigator Vanderlin found probable cause to file two criminal complaints against Claimant on March 10, 2014 (Trace Affirmation, ¶¶ 6, 12 and Ex. G attached). Defendant asserts that probable cause is based on the NIK test performed by Correction Officer Laramie, a certified and experienced NIK test operator (Ex. D, p. 1, attached to Trace Affirmation). Moreover, Claimant was subsequently indicted on the charges by a Grand Jury (Ex. H attached to Trace Affirmation). As stated above, this indictment provides a presumption of probable cause (Hornstein v Wolf, supra).
The Court concludes, based upon Defendant's submission, that Defendant has met its initial burden of establishing that the malicious prosecution cause of action should be dismissed as there was probable cause for the criminal proceeding. Thus, the burden shifted to Claimant to raise a triable issue of fact as to whether there is an absence of probable cause. In opposition to the Motion, Claimant has not submitted any proof to establish a question of fact exists regarding the absence of probable cause for the criminal proceeding.
Therefore, based upon the foregoing, the portion of the State's Motion seeking summary judgment dismissing the malicious prosecution cause of action is granted. As the Court has dismissed the false arrest/false imprisonment cause of action as untimely and the malicious prosecution cause of action as set forth above, the Claim is dismissed.
September 14, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on the State's Motion: Papers Numbered Notice of Motion, Affirmation in Support and Exhibits Attached 1 Affirmation in Opposition and Exhibits Attached 2 Filed papers: Claim, Answer