Opinion
# 2018-053-553 Motion No. M-92086
09-28-2018
ARUN VISHWANATH v. STATE OF NEW YORK
LOTEMPIO P.C. LAW GROUP BY: Frank LoTempio, III, Esq. HON. BARBARA D. UNDERWOOD New York State Attorney General BY: Timothy J. Flynn, Esq. Assistant Attorney General
Synopsis
Movant, an Assistant Professor at SUNY Buffalo, brings a motion for permission to file a late claim. The Court denies the motion finding no reasonable excuse for failing to commence a timely action and that each cause of action asserted is either untimely or lacking in merit.
Case information
| UID: | 2018-053-553 |
| Claimant(s): | ARUN VISHWANATH |
| Claimant short name: | VISHWANATH |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended sua sponte to reflect the State of New York as the real party of interest. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-92086 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | LOTEMPIO P.C. LAW GROUP BY: Frank LoTempio, III, Esq. |
| Defendant's attorney: | HON. BARBARA D. UNDERWOOD New York State Attorney General BY: Timothy J. Flynn, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 28, 2018 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant, Dr. Arun Vishwanath, an Assistant Professor in the Communication Department at the State University of New York at Buffalo (SUNY Buffalo), brings motion no. M-92086 for permission to file a late claim pursuant to Court of Claims Act § 10 (6). In the proposed claim, Dr. Vishwanath alleges that Emily Dolan, a graduate student and teaching assistant, and Dr. Allison Shaw, a Visiting Assistant Professor in the Communication Department, wrongfully accused him of inappropriate sexual contact with Ms. Dolan on February 21, 2014. Defendant opposes the motion.
Court of Claims Act §§ 10 (3), 10 (3-b) and 11 (a) (i), require that a notice of intention to file a claim or the claim itself be served within ninety (90) days of accrual of the claim. A timely served notice of intention will extend the time within which to file and serve a claim to one year after the accrual of an intentional tort or to two years after accrual of a negligent tort. The filing and service requirements of the Court of Claims Act are jurisdictional in nature, and the failure to timely file and serve the claim deprives the Court of jurisdiction (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762 [3d Dept 1991], affd 81 NY2d 721 [1992]). Neither a notice of claim nor a claim was served within ninety (90) days of accrual. Accordingly, movant's proposed claim would have to be dismissed as being untimely unless this Court grants movant's motion for permission to late file his proposed claim.
A motion for permission to file and serve a late claim must be brought "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules" (Court of Claims Act § 10 [6]). A negligence action against a private citizen would have to be commenced within three years of accrual of the claim (CPLR 214), while an action based on an intentional tort must be brought within one year of accrual (CPLR 215). Accordingly, a motion for permission to late file a negligence claim must be brought within three years of accrual of the negligence and a motion to late file a claim based on an intentional tort must be brought within one year of accrual of the intentional tort.
Movant has alleged fifteen causes of action in his proposed claim. His causes of action sounding in defamation, libel, slander, disparagement and malicious prosecution are intentional torts which are subject to the one year statute of limitations of CPLR 215. Thus, if this motion for late claim relief was not brought within one year of accrual of the causes of action for defamation, libel, slander, disparagement and malicious prosecution, movant's motion for permission to file a late claim for any of these causes of action would have to be denied as untimely. The present motion was filed on April 6, 2018.
The first cause of action in the proposed claim alleges that Dr. Shaw and Emily Dolan drafted and published "the Timeline" (movant's Exhibit A) which allegedly included false and defamatory statements that Dr. Vishwanath sexually assaulted Ms. Dolan. According to paragraph 131 of the proposed claim, this time line was drafted and published by Dr. Shaw and Emily Dolan on May 2, 2016, approximately two years before this motion was filed. Accordingly, Dr. Vishwanath's motion for leave to bring a late claim for defamation and libel per se as alleged in his proposed claim must be denied as untimely.
The second, third and fourth causes of action in the proposed claim allege that Ms. Dolan drafted and published a written statement (movant's Exhibit B) which included allegedly false and defamatory statements that Dr. Vishwanath had sexually assaulted her and another graduate student, Jessica Covert, on August 22, 2014. The alleged defamatory statement is dated May 9, 2016, and was allegedly "filed in May of 2016, along with the notice of Discipline" (movant's Exhibit D), approximately two years before this motion was filed. Accordingly, movant's motion for leave to late file a claim for defamation, libel and/or disparagement as arising out of the May 9, 2016 statement of Ms. Dolan as alleged in the second, third and fourth causes of action in the proposed claim must be denied as untimely.
¶ 15 of the reply affidavit of Frank LoTempio, III, Esq. sworn to July 6, 2018.
The fifth and sixth causes of action in the proposed claim allege that Dr. Shaw drafted and published a written statement (movant's Exhibit C) which was false, defamatory and disparaging, containing comments that Dr. Vishwanath sexually assaulted Ms. Dolan and Ms. Covert on August 22, 2014. This statement is dated May 9, 2016, approximately two years before this motion was filed. Accordingly, Dr. Vishwanath's motion for leave to late file a claim for defamation, libel and/or disparagement as arising out of the May 9, 2016 statement of Dr. Shaw as alleged in the fifth and sixth causes of action in the proposed claim must be denied as untimely.
The seventh cause of action in the proposed claim alleges that Ms. Dolan testified at an arbitration hearing and that her testimony included false and defamatory statements that Dr. Vishwanath harassed and sexually assaulted her and sexually harassed Ms. Covert on August 22, 2014. The allegedly false testimony referred to was conducted on April 4 and 5, 2017 as part of a disciplinary arbitration hearing between Dr. Vishwanath and SUNY Buffalo (movant's Exhibit G), more than one year before this motion was filed. Accordingly, movant's motion for leave to late file a cause of action for defamation, libel and disparagement arising out of Ms. Dolan's testimony at a disciplinary hearing on April 4 and 5, 2017 must be denied as untimely.
The eighth cause of action in the proposed claim alleges that Ms. Shaw made false and defamatory statements when she testified on May 23, 2017 at the disciplinary arbitration hearing regarding her May 9, 2016 statement (¶¶ 206-207 and 213 of the proposed claim). Pursuant to the single publication rule, "a reading of libelous material by additional individuals after the original publication date does not change the accrual date for a defamation cause of action but, rather, the accrual date remains the time of the original publication" (Gelbard v Bodary, 270 AD2d 866, 866 [4th Dept 2000], lv denied 95 NY2d 756 [2000]). Thus, in Gelbard, the distribution of an allegedly defamatory letter to an ad hoc review committee to determine whether to terminate the plaintiff's staff privileges at a hospital was not a separate publication, and because the defendant's physician testified regarding the contents of the allegedly defamatory letter at the hearing, the accrual date for the causes of action sounding in libel and slander remained the date the allegedly defamatory letter was first published (Id. at 867). Here, Dr. Shaw testified at the disciplinary arbitration hearing regarding the contents of her May 9, 2016 statement. Thus, under Gelbard, her testimony is entitled to the original publication of her statement, and movant's motion for leave to late file a cause of action based on her testimony at this hearing must be denied as untimely.
Dr. Vishwanath argues that the statements referred to in the proposed claim were repeatedly republished and that any time any defamatory statement is republished, the statute of limitations accrues anew from the date of the republication. In support, movant cites to cases addressing the concept of republication when, for example, the subsequent publication was intended to and actually reached a new audience (Firth v State of New York, 306 AD2d 666 [3d Dept 2003]), when the republication occurred on a different occasion, not merely a delayed circulation of the original edition, or when the republished statement has been modified and the defendant had control over the decision to republish (Hoesten v Best, 34 AD3d 143 [1st Dept 2006]). None of the exceptions to the single publication rule apply herein. In addition, as will be discussed, infra, nothing in the proposed claim alleges a republication or gives the time and place or particulars of any alleged republication in contravention of Court of Claims Act § 11 (b). Accordingly, Dr. Vishwanath's motion for permission to late file the first through the eighth causes of action as alleged in the proposed claim must be denied as untimely.
Defendant further argues in its opposing papers that Dr. Vishwanath's motion to late file the ninth cause of action as alleged in the proposed claim for malicious prosecution is also time barred, arguing that the motion to late file was not brought within one year of accrual of a cause of action for malicious prosecution. Contrary to this argument, a cause of action for malicious prosecution accrues when the underlying action, or in this case the underlying disciplinary hearing, terminates in movant's favor (Williams v CVS Pharmacy, Inc., 126 AD3d 890 [2d Dept 2015]). The underlying disciplinary hearing terminated in Dr. Vishwanath's favor on February 12, 2018 (movant's Exhibit K), within one year of bringing this motion. Thus, Dr. Vishwanath's motion for permission to late file a cause of action for malicious prosecution is timely.
The Court will address the remaining causes of action pursuant to Court of Claims Act § 10 (6). In so doing, the Court is vested with broad discretion to grant or deny permission to late file a claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). In determining whether to grant permission to late file a claim under Court of Claims Act § 10 (6), the Court must consider, among other factors, "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 [movant] has any other available remedy" (Court of Claims Act § 10 [6]). Defendant argues that none of the statutory factors weigh in favor of granting Dr. Vishwanath late claim relief.
The first factor to be considered by the Court is whether the delay in filing the claim was excusable. Dr. Vishwanath argues that the delay was excusable as he waited until his malicious prosecution cause of action accrued, when he received the arbitration award in his favor, as all of his remaining causes of action would have been compromised if the arbitration decision had gone against him. None of the remaining causes of action, however, have an accrual date that depends on a favorable decision in another forum. If Dr. Vishwanath felt he had viable causes of action, he could have served a notice of intention to file a claim to effectively extend his time to file and serve a claim. The lack of knowledge regarding one's rights or the legal requirements of a potential claim are not acceptable excuses for failing to file a timely claim (Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv denied 99 NY2d 589 [2003]). This factor weighs against granting of the motion.
The next three factors of notice, opportunity to investigate and prejudice are intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337 [Ct Cl, 1998]). Dr. Vishwanath argues that the defendant had notice and an opportunity to investigate and did investigate throughout the arbitration process. The Court agrees. Insofar as the defendant had notice and an opportunity to investigate, there is no prejudice to the defendant. These three factors support the application for late claim relief.
The most important factor to consider is merit as it would be futile to permit a claim to be filed which was subject to dismissal (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]. It is Dr. Vishwanath's burden as the movant to show that the proposed claim is not patently groundless, frivolous or legally defective and that there is a reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). This standard does not require Dr. Vishwanath to establish the merit of his claim or to overcome all legal objections before the Court will permit the filing of a late claim (Id. at 11-12.).
Section 10 (6) of the Court of Claims Act further requires that the claim proposed to be filed contain all of the information set forth in section eleven of this act. Pursuant to Court of Claims Act §11 (b), "[t]he claim shall state the time when and place where such claim arose [and] the nature of same . . ." In the proposed claim, Dr. Vishwanath generally alleges multiple causes of action. The Court will consider the remaining causes of action to determine if they are meritorious and meet the pleading requirements of Court of Claims Act § 11 (b).
The seventh and eighth causes of action in the proposed claim allege causes of action sounding in defamation, libel and disparagement arising out of the testimony of Ms. Dolan and Dr. Shaw at the disciplinary arbitration of Dr. Vishwanath. Defendant argues that their testimony is privileged. Absolute privilege shields a person from liability in a defamation action, regardless of motive. Absolute privilege is reserved for communications made in a judicial, legislative, or executive proceeding (Toker v Pollak, 44 NY2d 211 [1978]). A statement is subject to a qualified privilege when "it is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his [or her] own affairs, in a matter where his [or her] interest is concerned" (Stega v New York Downtown Hosp., 2018 N.Y. LEXIS 1543 [June 27, 2018], citing Toker, supra at 219).
While defendant only alleges that a qualified privilege applies, there is ample support for a finding that the privilege is absolute. For an absolute privilege to apply to a quasi-judicial or administrative proceeding, there must be a means by which the person alleging defamation can challenge the allegedly false statements (Id. at 222-223; see also Rosenberg v Metlife, Inc., 8 NY3d 359 [2007]). Here, Dr. Vishwanath was provided with the "Timeline" of events and the statements of Ms. Dolan and Dr. Shaw before the hearing. In addition, he was represented at the disciplinary arbitration by counsel who vigorously cross-examined Ms. Dolan and Dr. Shaw, thus providing him ample safeguards.
Defendant argues that Ms. Dolan and Dr. Shaw are entitled to a qualified privilege as their statements formed the bases of the Notice of Discipline against Dr. Vishwanath and as their testimony was made in the discharge of a duty, legal or moral (Park Knoll Assoc. v Schmidt, 59 NY2d 205, 210 [1983], citing Toker, supra at 219). The Court agrees. As a result of the privilege, Dr. Vishwanath has the burden to prove that they acted out of malice (Park Knoll Associates, supra at 211). While malice has been generally alleged, nowhere does Dr. Vishwanath show sufficient facts to establish malice. Accordingly, Dr. Vishwanath's motion to late file a claim alleging the seventh and eighth causes of action must be denied as they do not have the appearance of merit.
The ninth cause of action in the proposed claim alleges a cause of action for malicious prosecution. Usually, such a cause of action is predicated upon a criminal prosecution. Here, however, the proceeding complained of is a disciplinary arbitration conducted before Arbitrator Tia Schneider Denenberg pursuant to the Collective Bargaining Agreement to determine whether Dr. Vishwanath was guilty of the charge of sexual assault contained in the Notice of Discipline dated May 27, 2016. "The gravamen of a civil malicious prosecution cause of action is the wrongful initiation, procurement or continuation of a legal proceeding" (Campion Funeral Home v State of New York, 166 AD2d 32, 36 [3d Dept 1991], lv denied 78 NY2d 859 [1991]). Dr. Vishwanath must show that the defendant initiated a proceeding that terminated in his favor, that there was no probable cause for the proceeding, that defendant acted with malice, and that the proceeding caused claimant special injury (Black v Green Harbour Homeowners' Assn., Inc., 37 AD3d 1013 [3d Dept 2007]).
Movant's Exhibit K, Opinion and Award dated February 22, 2018.
At the conclusion of the arbitration hearing, the arbitrator concluded that the Dr. Vishwanath was not guilty of the charges contained in the notice of discipline and that his termination was not for just cause. Dr. Vishwanath was to be reinstated to his former position and the arbitrator awarded him back pay and benefits. Thus, the disciplinary hearing terminated in his favor.
By ruling in Dr. Vishwanath's favor, the arbitrator noted that she was constrained to apply that provision of the Collective Bargaining Agreement, Article 16, Section 9 entitled "Limitations," which stated that an employee could not be disciplined, except for acts constituting a crime, which occurred more than one year before the service of the notice of discipline. She further noted that her determination "should not be construed . . . as condoning the [Dr. Vishwanath's] conduct" and that her decision should not be "construed as expressing any opinion on what would have been the result if the Notice of Discipline had been served within one year of the acts alleged in the charges, thereby rendering inapplicable the "crime" limitation of Article19, Section 9 of the parties' collective bargaining agreement." Finally, the arbitrator noted that there was probable cause to suspend Dr. Vishwanath without pay.
Movant's Exhibit K, p. 22, arbitrator's summary.
While the disciplinary arbitration technically ended in Dr. Vishwanath's favor, the arbitrator went out of her way to qualify the victory. And, while Dr. Vishwanath generally alleges in the proposed claim that the disciplinary hearing was prosecuted maliciously to inure some unspecified "benefit" to the defendant, nothing in the record supports this general allegation. Moreover, the arbitrator specifically found probable cause and no special injury is even alleged as a result of the disciplinary hearing. Accordingly, Dr. Vishwanath has failed to show that the malicious prosecution cause of action in the proposed claim alleges a viable cause of action (Id. at 1014) and his motion for permission to file a late claim for malicious prosecution must be denied as it lacks the appearance of merit.
The tenth cause of action in the proposed claim alleges a cause of action for the intentional infliction of emotional distress. Claims of intentional infliction of emotional distress against governmental entities are barred as a matter of public policy (Moore v Melesky, 14 AD3d 757 [3d Dept 2005]; Augat v State of New York, 244 AD2d 835 [3d Dept 1997], lv denied 91 NY2d 814 [1998]). Accordingly, movant's motion to late file a cause of action for the intentional infliction of emotional distress must be denied as it lacks merit.
The eleventh cause of action in the proposed claim allege a cause of action for the reckless infliction of emotional distress. A reckless infliction of emotional distress is encompassed within the tort of intentional infliction of emotional distress (Dana v Oak Park Marina, 230 AD2d 204 [4th Dept 1997]). Accordingly, movant's motion to late file a cause of action for reckless infliction of emotional distress must also be denied as it lacks the appearance of merit.
The twelfth cause of action in the proposed claim asserts a cause of action for the negligent infliction of emotional distress. Liability for negligent infliction of emotional distress is limited to situations where a breach of duty owed directly to the movant results in psychological trauma accompanied by "residual physical manifestations" (Johnson v State of New York, 37 NY2d 378, 381 [1975], citing Battalla v State of New York, 10 NY2d 237, 238-239). Without physical manifestations, liability has been limited to such egregious situations as incorrectly informing someone of a death or the mishandling of a corpse (Johnson v State of New York, supra at 382). Dr. Vishwanath alleges no physical manifestations of injury and the situation herein is not so egregious as to lead to an inference of injury without physical harm (Williams v State of New York,UID No. 2018-015-151 [Ct Cl, Collins, J., Aug. 23, 2018]). The twelfth cause of action in the proposed claim for negligent infliction of emotional distress lacks the appearance of merit. Accordingly, movant's motion to late file a claim including a cause of action for negligent infliction of emotional distress must be denied.
The thirteenth and fourteenth causes of action in the proposed claim allege intentional and negligent prima facie torts. In order to state a cause of action for a prima facie tort, the movant must allege "(1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful" (Freihofer v Hearst Corp., 65 NY2d 135, 142-143 [1985]). Dr. Vishwanath has failed to sufficiently plead a cause of action for prima facie tort. While generally alleging that he is entitled to damages in the amount of $10,000,000, he fails to state that he has sustained any special damages, "with sufficient particularity as to identify and causally relate the actual losses to the allegedly tortious acts"(Broadway & 67th St. Corp. v City of New York, 100 AD2d 478 [1st Dept 1984]). There is also no recovery in prima facie tort unless malevolence is the sole motive for defendant's otherwise lawful acts (Cusimano v United Health Servs. Hosps., Inc. 91 AD3d 1149, 1153 [2012], lv denied19 NY3d 801 [2012]). No such allegation is contained in the proposed claim. Contrary to Dr. Vishwanath's argument, the specifics of a cause of action cannot simply be "fleshed out in the discovery process." The Court of Claims Act does not require the defendant "to ferret out or assemble information that section 11 (b) obligates the [movant] to allege" (Lepkowski v State of New York, 1 NY3d 201, 206 [2003]).
Because movant must allege the intentional infliction of harm in order to state a cause of action for a prima facie tort, it necessarily follows that a prima facie tort is an intentional and not a negligent tort.
¶ 35 of the Reply affidavit of Frank LoTempio, III, sworn to July 6, 2018. --------
In addition, New York Courts have consistently refused to allow retaliatory lawsuits based on prima facie tort predicated on the malicious institution of a prior civil action or, in this case, on a prior disciplinary arbitration (see Howard v Block, 90 AD2d 455 [1st Dept 1982] ). Moreover, it has been held that "public policy prohibits the maintenance of a suit against the State or, by extension, an official acting in his or her official capacity for prima facie tort" (Cavanaugh v Doherty, 243 AD2d 92, 101 [3d Dept 1998]; Van Buskirk v Bleiler, 46 AD2d 707 [3d Dept 1974]). The thirteenth and fourteenth causes of action in the proposed claim lack the appearance of merit. Accordingly, movant's motion to late file a claim asserting causes of action for prima facie tort must be denied.
The fifteenth cause of action in the proposed claim alleges a cause of action for retaliation. This cause of action is contained in four cryptic paragraphs (¶¶ 256 - 259). At paragraphs 257 and 258, it is generally alleged that Dr. Vishwanath was "again suspended . . . for something not on campus and not related to SUNY" which was in "retaliation for prevailing on the arbitration and for exercising his union and constitutional rights." No cause of action has been pled by these few allegations. No time or place of occurrence is mentioned, nor any particulars as to what happened or how the State was involved. These conclusory allegations without any supportive bases fail to comply with the pleading requirements of Court of Claims Act § 11 (b) and thus fail to allege a viable cause of action.
Dr. Vishwanath alleges for the first time in the reply affidavit of his counsel that his proposed cause of action for retaliation is, in fact, a cause of action pursuant to Civil Service Law 75-b entitled "Retaliatory action by public employers" commonly known as the Whistleblower Statute. Pursuant to Civil Service Law 75-b (2) (a) (ii), a public employer may not take adverse action against a public employee based on that employee's disclosure to a governmental body information "(i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action." Dr. Vishwanath has failed to allege in his proposed claim that he disclosed to a governmental body the violation of any rule, law or regulation which presented a danger to the public health or safety or which he reasonably believed constituted an improper governmental action (see generally Zielonka v Town of Sardinia, 120 AD3d 925 [4th Dept 2014]). The proposed claim has failed to allege a cause of action pursuant to Civil Service Law § 75-b and, accordingly, movant's motion to late file a cause of action under the Whistleblower Statute must be denied. Accordingly, after carefully reviewing all fifteen of the causes of action alleged in the proposed claim, this Court has not discerned even one cause of action that is not time-barred or that states a viable cause of action. Thus, the most important factor of merit weighs against the granting of Dr. Vishwanath's motion for late claim relief.
The final factor which this Court must consider is whether Dr. Vishwanath has any alternate remedies. Defendant has named six separate actions or proceedings that have already been commenced that arise out of this claim. Thus, the final factor weighs against granting the motion.
Based on the foregoing and after balancing the factors to be considered with respect to a late claim application as provided by Court of Claims Act § 10 (6), the Court concludes that granting permission to late file a claim would not be an appropriate exercise of discretion as there was no reasonable excuse for failing to commence a timely action and because each of the fifteen causes of action alleged in the proposed claim are either untimely or are lacking in merit.
Accordingly, movant's motion no. M-92086 is denied in its entirety.
September 28, 2018
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Notice of motion and affidavit of Frank LoTempio, III, Esq. sworn to March 26, 2018, with proposed claim annexed thereto and Exhibits A- K; 2. Opposing affidavit of Assistant Attorney General Timothy J. Flynn sworn to on June 5, 2018, with annexed Exhibit A; and 3. Reply affidavit of Frank LoTempio, III, Esq. sworn to July 6, 2018, with annexed Exhibits A-C.