Opinion
# 2015-047-115 Claim No. 125216 Motion No. M-85975 Cross-Motion No. CM-86036
05-26-2015
CEDRIC REID v. THE STATE OF NEW YORK
LucasHanschke, P.C. By: Peter Hanschke, Esq., of counsel Eric T. Schneiderman, Attorney General of the State of New York By: John M. Hunter, AAG
Synopsis
The Motion to Dismiss, filed by the State of New York was granted, on the ground that the claim was untimely. Claimant's cross-motion seeking leave to file a late claim was denied without prejudice, after an evaluation of the filed claim pursuant to the factors listed in Court of Claims Act § 10 (6).
Case information
| UID: | 2015-047-115 |
| Claimant(s): | CEDRIC REID |
| Claimant short name: | REID |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended sua sponte to reflect the State of New York as the only proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125216 |
|---|---|
| Motion number(s): | M-85975 |
| Cross-motion number(s): | CM-86036 |
| Judge: | O. PETER SHERWOOD |
| Claimant's attorney: | LucasHanschke, P.C. By: Peter Hanschke, Esq., of counsel |
| Defendant's attorney: | Eric T. Schneiderman, Attorney General of the State of New York By: John M. Hunter, AAG |
| Third-party defendant's attorney: | |
| Signature date: | May 26, 2015 |
| City: | New York |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Cedric Reid filed the instant claim on November 5, 2014. On November 25, 2014, the defendant, the State of New York, filed a Motion to Dismiss on the ground that the claim was untimely (M-85975). Reid opposed that motion and filed a Cross-Motion for Leave to File a Late Claim on December 10, 2014 (CM-86036).
In connection with these motions, the court read and considered the Verified Claim (NYSCEF Doc. No. 1), the Notice of Motion (NYSCEF Doc. No. 5), the Affirmation in Support (NYSCEF Doc. No. 6), the Notice of Cross-Motion (NYSCEF Doc. No. 10), the Affirmation in Support of Motion for Permission to File Late Claim and in Opposition to Motion to Dismiss (NYSCEF Doc. No. 11), the Affirmation in Opposition to the Cross-Motion (NYSCEF Doc. No. 17), the Affirmation in Reply to Opposition to Cross-Motion (NYSCEF Doc. No. 19), and exhibits attached to the abovementioned documents.
Reid's claim alleges damages from his arrest, prosecution, and imprisonment while he was on parole. Reid states his claim accrued on March 3, 2014, at approximately 1:00 p.m. He was accused of violating the rules of his release. On March 17, 2014, the charges were dismissed, and the hearing officer found "there was no probable cause that Mr. Reid violated any of the [r]ules [g]overning his [r]elease" (Verified Claim at ¶ 5). Reid alleges he was released two days later. He was imprisoned for over sixteen days, in total. Reid alleges a variety of injuries, including emotional injuries, pain and suffering, loss of liberty, and humiliation.
The State moves to dismiss on the grounds that the claim is untimely. Reid served the State with a notice of intention on June 2, 2014, which was rejected for lack of verification. Reid served a new notice of intention on the State on June 9, 2014. The new notice of intention included the required verification. However, June 9 is more than ninety days from the date of the claim's accrual.
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 that a claim or a notice of intention to file a claim be served upon the Attorney General within 90 days after accrual of the claim. Section 11 (a) (i) specifies that "[s]ervice by certified mail, return receipt requested, upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general." As the claim is alleged to have accrued on March 3, 2014, but notice was not served until June 9, 2014, this claim is late.
A claimant who fails to file a timely claim or notice of intention to file a claim "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]). The parties do not dispute that the cross motion for leave to file a late claim was filed within the limitations period, leaving it to the court's discretion to decide whether to allow the late claim.
The factors to be considered in exercising the court's discretion 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]).
Considering the factors in section 10 (6), the first factor weighs against granting the motion. Reid claims his failure to timely serve the notice of intention was caused by attorney error in scanning the notice and by process server delay. As to the second factor, the State admits that the Attorney General received the unverified notice of intention on June 2, 2014, within the 90-day period, providing the State with notice of the facts constituting the claim. Additionally, as the verified notice of intention was served on June 9, 2014, the delay was minimal. The State does not claim it has suffered prejudice as a result. Nor does the State argue the seven-day delay makes it more difficult to investigate the circumstances underlying the claim. Accordingly, factors three and five weigh in favor of allowing the late claim. The State does claim Reid has another remedy, an Article 78 proceeding in the Supreme Court. Reid points out that Article 78 only allows him to appeal the hearing officer's decision. As that decision was in Reid's favor, an appeal would provide no satisfaction. The sixth factor weighs in favor of allowing the late claim. 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]).
Reid has provided a very brief claim. He alleges, without detail, that he was arrested and imprisoned for allegedly violating the terms of his parole, that the assigned hearing officer dismissed the charges on the ground that there was no probable cause for his arrest, that Reid was released two days later, and that he suffered damages as a result. Reid provides only bare bones allegations in the claim, with no details about the arrest, imprisonment, charges, or hearing, and attaches neither affidavits with additional facts nor documentary evidence to the cross-motion.
In addition to the lack of specificity, several claims fail to state a claim for which relief can be granted. Claimant asserts a claim for the intentional infliction of emotional distress. However, New York State "is an entity, incapable of forming the requisite intent" to be liable for the intentional infliction of emotional distress (Veloz v State of New York, UID No. 2003-030-525 [Ct Cl, Scuccimarra, J., March 27, 2003]). Furthermore, "it is well-settled that public policy prohibits recovery against the State" for intentional infliction of emotional distress (Mosely v State of New York, UID No. 2002-013-031 [Ct Cl, Patti, J., Sept. 19, 2002] citing Wheeler v State of New York, 104 AD2d 496, 498 [2d Dept 1984]; De Lesline v State of New York, 91 AD2d 785, 785 [3d Dept 1982] lv denied 58 NY2d 610 [1983]). Claimant also asserts a cause of action for "various civil rights violations," without specifying what those are. This court notes that as far as claimant is alleging violations of his civil rights pursuant to 42 U.S.C. Section 1983, or similar statutes, those statutes do not create cognizable claims against the State (see Will v Michigan Dept. of State Police, 491 US 58 [1989]; Davis v State of New York, 124 AD2d 420 [3d Dept 1986]).
Claimant also alleges a claim for false imprisonment (Claim, ¶ 3). To state a claim for wrongful confinement, a claimant must allege "(1) the defendant intended to confine him, (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]; Krzyzak v Schaefer, 52 AD3d 979 [3d Dept 2008]). With respect to the final element, "where a facially valid order issued by a court with proper jurisdiction directs confinement, that confinement is privileged . . . and everyone connected with the matter is protected from liability for false imprisonment" (Holmberg v County of Albany, 291 AD2d 610, 612 [3d Dept 2002], lv denied 98 NY2d 604 [2002]). Such imprisonment is also "privileged to the extent that it was under color of law or regulation" (Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]). While claimant has alleged the first three elements, he has made no allegations to support the fourth element.
For another example, claimant has alleged a claim for malicious prosecution (Claim, ¶ 3). "The elements of the tort of malicious prosecution are: (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (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" (Broughton v State of New York, 37 NY2d 451, 457 [1975], cert. denied sub nom., Schanbarger v Kellogg, 423 US 929 [1975]; see also Martinez v City of Schenectady, 97 NY2d 78, 84 [2001]; Smith-Hunter v Harvey, 95 NY2d 191, 195 [2000]). Malice "may be inferred if the defendant has acted with a reckless or grossly negligent disregard of the [claimant's rights]" (Guntlow v Barbera, 76 AD3d 760, 766 [3d Dept 2010], appeal dismissed 15 NY3d 906 [ 2010] quoting Harris v State of New York, 302 AD2d 716, 717 [3d Dept 2003]; see also Kinge v State of New York, 79 AD3d at 1481; Putnam v County of Steuben, 61 AD3d 1369, 1370 [4th Dept 2009]; cf. Brownell v LeClaire, 96 AD3d 1336, 1338 [3d Dept 2012]). The claimant here, however, has made no allegations supporting the malice element of the claim.
Claimant has not satisfied his burden on a motion for leave to file a late claim of showing that the claim appears to have merit. On the record provided, the court cannot find reasonable cause to believe a meritorious cause of action exists. Therefore, while delay was minimal and movant lacks an alternative remedy, other factors, including the most important factor of merit, weigh against allowing Reid to file this late claim.
Accordingly, it is
ORDERED, that motion number M-85975, seeking dismissal of the claim as untimely, is GRANTED; and it is further
ORDERED that cross-motion number CM-86036, seeking leave to file a late claim, is DENIED without prejudice to a new motion accompanied by a claim that is adequately pleaded.
May 26, 2015
New York, New York
O. PETER SHERWOOD
Judge of the Court of Claims