Opinion
# 2017-044-559 Claim No. None Motion No. M-90214
08-08-2017
T.G. v. THE STATE OF NEW YORK
JONATHAN S. FOLLENDER, P.C. BY: Jonathan S. Follender, Esq., of counsel HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Joseph F. Romani, Assistant Attorney General
Synopsis
Motion for permission to file/serve late claim for malicious prosecution granted.
Case information
| UID: | 2017-044-559 |
| Claimant(s): | T.G. |
| Claimant short name: | T.G. |
| Footnote (claimant name) : | Because the proposed claim contains allegations which could identity a minor as a purported victim of a sexual offense, the Court has sua sponte amended the caption to reflect a fictitious name in order to protect her identity. The Chief Clerk is directed to seal the file in Motion No. M-90214 pursuant to Civil Rights Law § 50-b. |
| 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-90214 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | JONATHAN S. FOLLENDER, P.C. BY: Jonathan S. Follender, Esq., of counsel |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Joseph F. Romani, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 8, 2017 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant moves for permission to file and serve a late claim to recover for damages based upon a cause of action for malicious prosecution. Defendant State of New York (defendant) opposes the motion. Movant replies.
Before addressing the merits of this motion, some factual background is necessary. Cynthia Bogdan-Cumpston, a Delaware County Child Protective Service case worker, apparently received a referral that a six-year old female child (the Child) may have been neglected. On December 17, 2015 and during the course of Bogdan-Cumpston's interview with the Child at a Margaretville Central School District school, the Child allegedly indicated that movant had touched her "on her front private parts on more than one occasion." Bogdan-Cumpston contacted the State Police concerning these allegations, and two investigators (collectively, the Investigators) and a trooper responded to the school. The Investigators then interviewed the Child in the presence of her mother, and received "negative results" pertaining to the alleged inappropriate touching. Bogdan-Cumpston thereafter re-interviewed the Child without anyone else present and told the Investigators that the Child told her that movant had inappropriately touched her when she was in kindergarten.
Affirmation of Jonathan S. Follender, Esq., dated Apr. 4, 2017, in Support of Motion, Exhibit A at 4.
Id.
Later the same day, the Investigators found movant at his residence and he agreed to be interviewed at the State Police barracks. After interviewing movant, Investigator Hahl contacted Delaware County Assistant District Attorney Hubbard. Hubbard allegedly advised Hahl that an arrest was warranted. As a result, movant was arrested and a felony complaint was filed, charging him with one count of sexual abuse in the first degree (Penal Law §130.65).
On March 16, 2016, counsel for movant served a "notice of claim" specifically alleging, causes of action for false arrest and/or false imprisonment, infliction of emotional distress, and invasion of privacy all in violation of movant's constitutional rights based upon his arrest by the State Police. However, movant did not timely file or serve a corresponding claim. On September 21, 2016, the criminal charge against movant was dismissed and the record sealed. However, movant neither timely served a notice of intention nor timely filed and served a claim for malicious prosecution and he now seeks late claim relief.
Although counsel for movant states that the document served was a notice of claim, it was clearly labeled "Claim." The Court notes that counsel has apparently confused the terminology for practice in the Court of Claims with the terminology used for actions against municipalities in Supreme Court pursuant to General Municipal Law Article 4. In any event, counsel indicates that he intended the document to be a notice of intention to file a claim. Moreover, counsel for movant did not file the document with the Clerk of the Court as he would if it were a claim. It also appears that, for some unknown reason, the Attorney General's Office interpreted the document as a notice of intention, as there is no evidence that defendant filed or served an answer. Accordingly, the Court will refer to the document as the notice of intention.
A motion seeking permission to file and serve a late claim must be brought within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act § 10 [6]). A malicious prosecution cause of action accrues when the criminal proceeding terminates in the claimant's favor (Martinez v City of Schenectady, 97 NY2d 78, 84 [2001]), and the applicable statute of limitations is one year (CPLR 215 [3]). The felony charge against movant was dismissed on September 21, 2016 and this motion mailed on April 6, 2017 is timely (see Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2d Dept 2001]).
To the extent that movant may be alleging causes of action based upon violations of the Federal Constitution, the Court of Claims does not have jurisdiction to consider Federal Constitutional claims, including civil rights violations brought pursuant to 42 USC § 1983 (see e.g. Brown v State of New York, 89 NY2d 172, 184-185 [1996]). Moreover, because movant has an adequate remedy available in the form of causes of action for false arrest and/or imprisonment (even though they are now untimely) as well as malicious prosecution, this Court need not recognize a tort cause of action under the State Constitution (see Martinez, 97 NY2d at 83-84).
Having determined that the motion is timely, the Court turns to a consideration of the merits of the motion itself. The factors that the Court must consider under Court of Claims Act § 10 (6) in determining a motion to permit a late filing of a claim are whether:
1) the delay in filing the claim was excusable;
2) defendant had notice of the essential facts constituting the claim;
3) defendant had an opportunity to investigate the circumstances underlying the claim;
4) the claim appears to be meritorious;
5) 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 defendant; and
6) Movant has any other available remedy.
Counsel for movant candidly admits that he did not timely serve a notice of intention or timely file and serve a claim with respect to a cause of action for malicious prosecution because he mistakenly believed that the notice of intention served on March 16, 2016 was sufficient. Neither ignorance of the law (Matter of E.K. v State of New York, 235 AD2d 540, 541 [2d Dept 1997], lv denied 89 NY2d 815 [1997]; Sevillia v State of New York, 91 AD2d 792 [3d Dept 1982]) nor law office failure are adequate excuses for failing to comply with the filing or service requirements of Court of Claims Act § 10 (see Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]; Nyberg v State of New York, 154 Misc 2d 199, 200 [Ct Cl 1992]). Accordingly, this factor weighs against movant.
The three factors of notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice are frequently analyzed together since they involve similar considerations. Movant alleges that based upon the notice of intention served on March 16, 2016, defendant also had notice of a potential cause of action for malicious prosecution. Movant further indicates that he commenced an action in Supreme Court (the Supreme Court Action) against, among others, the Delaware County Department of Social Services and the Margaretville Central School District (the Municipal Defendants), as well as the Investigators in both their individual and official capacities. Movant asserts that an investigator from the Attorney General's Office was present when he testified at a General Municipal Law § 50-h hearing held by the Municipal Defendants in the Supreme Court Action.
This Supreme Court Action has since been removed to Federal District Court. Nevertheless, the Court will refer to it as the Supreme Court Action throughout the remainder of this Decision and Order.
Defendant admits that it had received the notice of intention as well as notice of the Supreme Court Action. Defendant concedes that an investigator attended the General Municipal Law § 50-h hearing, but indicates that she was only observing the hearing rather than participating in it. Defendant contends that if the felony complaint was dismissed, all pertinent records will be sealed and defendant may be prejudiced.
Defendant correctly notes that movant initially did not submit documentation with his motion papers which would establish termination of the criminal proceeding. Apparently, the document was inadvertently not included in the motion papers, but counsel has since submitted a copy of the letter of dismissal from Town of Middletown Justice Court as Exhibit B to his reply affirmation.
Although the criminal action had not been dismissed at the time the notice of intention was served, defendant had notice that movant was asserting he was arrested without probable cause based solely upon a case worker's hearsay statement. Defendant received additional notice of the facts of the proposed claim during the General Municipal Law § 50-h hearing. Defendant now has an opportunity to investigate the facts. The Court discerns no prejudice at this time as a copy of the State Police Incident Report was attached to the notice of intention. Moreover, if the contents of movant's criminal file become necessary, an application may be made to Justice Court to unseal the file. Thus, the three factors of notice, an opportunity to investigate and the lack of prejudice all weigh in favor of movant.
In general, the criminal file is usually sealed when the charge is dismissed (see CPL 160.50 [1], [3] [b]). Accordingly, defendant will not suffer any greater prejudice in defending this proposed claim for malicious prosecution than it would in a timely filed and served claim for malicious prosecution.
Another factor to be considered is whether movant has any other available remedy. Movant is seeking damages for malicious prosecution based upon his arrest by members of the State Police. Defendant asserts that because movant has commenced the Supreme Court Action against the Investigators, he has an alternative remedy in another forum. Conversely, movant argues that the Supreme Court Action does not contain a claim for common-law malicious prosecution. The Court finds that the existence of the Supreme Court Action indicates that there is an alternate remedy available. Accordingly, this factor weighs against movant.
The issue of whether the proposed claim appears meritorious is the most crucial component in determining a motion under Court of Claims Act § 10 (6), since it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In order to establish a meritorious claim, a movant must demonstrate that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (id. at 11). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg, 154 Misc 2d at 202-203).
In order to set forth a cause of action for malicious prosecution, a claimant "must establish that a criminal proceeding was commenced, that it was terminated in favor of the accused, that it lacked probable cause, and that the proceeding was brought out of actual malice" (Martinez, 97 NY2d at 84). In this case, there is no dispute that a criminal proceeding was commenced against movant and that it was terminated in his favor. Therefore, the only remaining issues are whether defendant lacked probable cause and whether defendant initiated the proceeding out of actual malice.
It is well-settled that "[p]robable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe [movant] guilty" (Colon v City of New York, 60 NY2d 78, 82 [1983] [citations omitted]). In his proposed claim, movant alleges that once the Investigators received negative results for inappropriate touching, the Child should have been returned to her class. Movant asserts that the Investigators violated "all state of the art child forensic interviewing techniques and recommendations found in New York Social Services Law" by allowing Bogdan-Cumpston to interview the child alone. He indicates that Bogdan-Cumpston was undertrained in the field of child forensic interviewing and she used leading and suggestive questioning. He also notes that she failed to move the interview from the school to a child advocacy center as suggested in Social Services Law §§ 423 and 423-a. Movant argues that during the felony hearing in his criminal case, Investigator Hahl testified that he contacted the child's mother to schedule yet another interview in order to "confirm[] the wrongful touching." Investigator Hahl also admitted that without such an interview - which did not take place - "there would be no case [against movant]." Movant indicates that by abdicating their investigation to Bogdan-Cumpston and then adopting her flawed conclusion, the Investigators did not have probable cause for his arrest. He further notes that the felony charge was dismissed because the People were unable to provide non-hearsay evidence which could supply reasonable cause to believe that he had committed a crime.
Although the proposed claim is not verified as required by Court of Claims Act § 11 (b), it is signed by counsel for movant. The Court notes that counsel was also movant's counsel in the criminal action and thus has first-hand knowledge of the facts in question. Counsel has also submitted an affirmation in support of this motion which movant has adopted by reference in his affidavit in support of the motion.
Proposed Claim, ¶ 3 at 2.
Id. at 3 (internal quotation marks omitted).
Id. at 4 (internal quotation marks omitted).
In his affidavit, movant reiterates allegations contained in the proposed claim. He states that he did not initially know why the Investigators wanted to talk to him. He also denies having told the investigators during his questioning that he touched the child in a private area over her clothes. As set forth previously, movant also adopts the statements set forth in counsel's affirmation. In particular, counsel indicates that the felony hearing held four months after movant's arrest was to determine if there was "probable cause to hold [movant] over for action by the Grand Jury." Counsel indicates that the felony charge was dismissed based upon the People's failure to supply non-hearsay evidence showing reasonable cause to believe movant committed the felony.
Affirmation of Jonathan S. Follender, Esq., dated Apr. 4, 2017, in Support of Motion, ¶ 16.
Counsel also states that the People failed to initiate prosecution within 180 days of movant's arrest in violation of his right to a speedy trial. --------
Movant's assertions that that there was no probable cause for his prosecution - at least in part because the Investigators did not confirm the allegedly inappropriate touching - have not been contradicted or denied in an answering affidavit by a representative of defendant with personal knowledge of the situation. Accordingly, these statements are deemed true for the purposes of this motion (see 247-59 W., LLC v State of New York, 27 Misc 3d 570 [Ct Cl 2010]; Nyberg, 154 Misc 2d at 202; see also Schweickert v State of New York, 64 AD2d 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]). In light of these statements, as well as the dismissal of the felony complaint, the Court finds that movant has set forth sufficient evidence that there was no probable cause for his arrest and prosecution.
The final issue to be addressed in the proposed cause of action for malicious prosecution is whether the proceeding was initiated with actual malice. "[T]here is no requirement that the defendant's acts be purposely evil or intended to harm, since malice may be inferred if the defendant has acted with a reckless or grossly negligent disregard of the [claimant's] rights" (Hernandez v State of New York, 228 AD2d 902, 904 [3d Dept 1996]). Malice may also be inferred in a situation where "probable cause to initiate the criminal proceeding [is] so totally lacking as to reasonably permit an inference that the proceeding was maliciously instituted" (Martin v City of Albany, 42 NY2d 13, 17 [1977]).
Movant has alleged that the Investigators violated recommended child forensic interviewing techniques by not taking the Child to a child advocacy center and by allowing Bogdan-Cumpston to interview the Child alone, again without contradiction. He also asserts that the Investigators accepted Bogdan-Cumpston's conclusion that movant inappropriately touched the Child in further violation of the accepted standards. The Court finds that movant has set forth sufficient evidence from which malice may be inferred. Accordingly, the Court finds that at this stage in the litigation, movant's proposed cause of action for malicious prosecution has at least the initial appearance of merit, and the factor of merit therefore weighs in movant's favor.
Four of the six statutory factors including the all-important factor of merit weigh in favor of movant. Movant's motion for permission to file and serve a late claim is hereby granted to assert a cause of action for malicious prosecution. Movant shall file a claim in compliance with Court of Claims Act § 11. Movant shall file said claim and serve a copy of it upon the Attorney General within forty (40) days from the date of filing of this Decision and Order in the Office of the Clerk of the Court. The service and filing of the claim shall be pursuant to the strict requirements of the Court of Claims Act.
When drafting the claim, counsel is directed to use the same fictitious name for the claimant and to eliminate any allegations and/or information which could potentially identify the Child who had been alleged to be a victim of a sexual offense in the related criminal proceeding (see n 1, supra).
August 8, 2017
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on movant's motion: 1) Notice of Motion filed on April 10, 2017; Affirmation of Jonathan S. Follender, Esq., dated April 4, 2017, and attached exhibits; Affidavit of T.G., sworn to March 26, 2017. 2) Affirmation in Opposition of Joseph F. Romani, Assistant Attorney General, dated May 3, 2017, and attached exhibits. 3) Reply Affirmation of Jonathan S. Follender, Esq., dated May 8, 2017, and attached exhibits.