Opinion
# 2017-053-525 Claim No. 128465 Motion No. M-89298 Cross-Motion No. CM-89299
05-26-2017
PERCY LUMPKIN v. STATE OF NEW YORK
LAW OFFICES OF ROSS AND HILL, PLLC By: James F. Ross, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Lawrence E. Kozar, Esq. Assistant Attorney General
Synopsis
The State's motion to dismiss for failure to timely serve the claim is granted. Claimant's cross-motion for permission to late file a claim alleging improper actions by New York City Police Officers relating to violation of an order of protection is denied.
Case information
| UID: | 2017-053-525 |
| Claimant(s): | PERCY LUMPKIN |
| Claimant short name: | LUMPKIN |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128465 |
| Motion number(s): | M-89298 |
| Cross-motion number(s): | CM-89299 |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | LAW OFFICES OF ROSS AND HILL, PLLC By: James F. Ross, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Lawrence E. Kozar, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 26, 2017 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
In claim no. 128465 claimant Percy Lumpkin seeks damages based on his October 30, 2015 arrest by New York City Police Officers for criminal contempt for violating an order of protection which had previously been vacated and replaced with an order of protection that merely prohibited claimant from being in contact with his wife while intoxicated. In lieu of answering the claim, defendant moves by motion no. M-89298 to dismiss the claim for lack of jurisdiction. On the very same date that defendant's motion was filed, claimant filed a motion for leave to late file a claim, which is designated as cross motion CM-89299. Claimant did not respond to defendant's motion to dismiss and defendant did not respond to claimant's cross motion for late claim relief. Each motion will be addressed separately.
a/k/a Percy Lumpsik (see claimant's affidavit annexed to his cross-motion). --------
Defendant's Motion to Dismiss (M-89298).
Court of Claims Act § 10 provides that a claim for damages must be filed and served upon the Attorney General within ninety (90) days of accrual of the claim unless within the same ninety (90) day period, the claimant serves upon the Attorney General a notice of intention to file a claim in which event the claim must be filed and served within one (1) year of accrual of an intentional tort or within two (2) years of accrual of a negligent or unintentional tort. The service and filing requirements of the Court of Claims Act are jurisdictional in nature (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). The failure to comply with the service requirements of the Court of Claims Act deprives the Court of jurisdiction, requiring dismissal of the claim (Byrne v State of New York, 104 AD2d 782 [1st Dept 1984], app denied 64 NY2d 607 [1985]). Defendant argues that no notice of intention was served and that the claim was filed and served more than ninety (90) days after accrual of the claim.
According to the claim, claimant was arrested by New York City Police Officers on October 30, 2015 allegedly due to an error by the Queens Criminal Court Clerk and released from custody on November 2, 2015. Utilizing November 2, 2015 as the latest possible accrual date, claimant had until February 1, 2016 within which to file and serve his claim. The claim was not filed or served until September 2, 2016, more than ninety (90) days after the latest accrual date. Accordingly, the Court is without jurisdiction and must dismiss the claim (Byrne, supra. at 784). The Court is also without discretionary power to grant claimant nunc pro tunc relief (Smith v State of New York, 53 AD2d 756 [3d Dept 1976], affd 41 NY2d 1063 [1977]).
Based on the foregoing, defendant's motion no. M-89298 is granted and claim no. 128465 is dismissed.
Claimant's Cross Motion for Permission to Late File a Claim (CM-89299).
Claimant cross moves for permission to late file a claim pursuant to Court of Claims Act § 10 (6). A motion to late file may be brought "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 civil practice law and rules" (see Court of Claims Act § 10 [6]). In the proposed claim, claimant generally alleges a cause of action for negligence and/or for wrongful confinement. Under the CPLR, a negligence cause of action has a three (3) year statute of limitations (CPLR 214) and a wrongful confinement cause of action has a one (1) year statute of limitations (CPLR 215 [3]). A wrongful confinement cause of action accrues on the date claimant is released from confinement (Davis v State of New York, 89 AD3d 1287 [3d Dept 2011]). Claimant was allegedly released on November 2, 2015. He filed his motion for late claim relief on October 4, 2016, within three (3) years of a negligence cause of action and within one (1) year of his release from confinement. Thus, claimant's motion is timely. In determining whether to grant permission to late file a claim, 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]). The enumerated statutory factors are not exhaustive and the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]).
The first factor to be considered by the Court is whether the delay in filing and serving a claim was excusable. Claimant's counsel candidly admits that the failure to timely file and serve a claim was due to law office failure, which is an inadequate excuse for the delay (see Langner v State of New York, 65 AD3d 780 [3d Dept 2009]). The lack of an excusable delay is, however, only one of the factors to be considered.
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]). Claimant argues that the State was aware of the clerical error allegedly made by the Criminal Court Clerk in failing to rescind the first order of protection on November 2, 2016 when claimant was released from custody and that all of the paperwork regarding the orders of protection are in the possession of Criminal Court. Insofar as defendant has failed to respond to claimant's cross motion, this Court will give claimant the benefit of the doubt on these factors.
Another factor to consider is whether Movant has another remedy available. It appears that claimant may not have an alternate remedy. Thus, this factor also supports claimant's application.
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 claimant's burden 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]).
The Court of Claims is a court of limited jurisdiction with the power to hear claims for monetary damages against the State for the torts of its officers or employees while acting as such officers or employees (see Court of Claims Act § 9). The Court does not have jurisdiction over claims brought against non-State entities such as New York City, New York City Police Officers, Queens County or Queens County employees (Perez v County of Suffolk, UID No. 2017-045-007 [Ct Cl, Lopez-Summa, J., April 7, 2017]).
Whether couched in terms of negligence or wrongful confinement, either potential cause of action is apparently based on claimant's allegation that the Criminal Court Clerk failed to enter in the Court's records that the September 11, 2015 order of protection had been rescinded and replaced with a less restrictive order of protection on September 18, 2015. Assuming for this motion only that the Court Clerk referred to in the proposed claim was an employee of the State as alleged in the claim, an assumption which may prove to be untrue, then the actions of the Court Clerk may be entitled to judicial immunity and considered judicial in nature and not merely administrative (see generally Barton v State of New York, UID No. 2015-038-583, DeBow, J., Dec. 9, 2015]).
In addition, the State is immune from liability for government action which is discretionary, i.e., conduct involving "the exercise of reasoned judgment" even if the conduct is the result of negligence or malice (Valdez v City of New York, 18 NY3d 69 [2011]; Tango v Tulevech, 61 NY2d 34 [1983]). If, however, the conduct is ministerial in nature, the State may be liable if the claimant demonstrates that the State owed him a special duty apart from the general duty owed to the public at large (McLean v City of New York, 12 NY3d 194 [2009]).
Claimant has failed to allege in the proposed claim or otherwise to even suggest the existence of a special duty owed directly to him as opposed to the general public. The Court is unable to discern from the proposed claim or from claimant's motion papers that a valid cause of action exists. Claimant's failure to demonstrate the potential merit of the proposed claim requires that his motion for late claim relief be denied as it would be futile to allow a defective claim to be filed even if the remaining factors enumerated in Court of Claims Act § 10 (6) supported his motion (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Gonzalez v State of New York, UID No. 2016-016-052 [Ct Cl, Marin, J., Sept. 13, 2016]; Sanchez v State of New York, UID No. 2016-015-198 [Ct Cl, Collins, J., Dec. 12, 2016]; Escudero v State of New York, UID No. 2015-015-096 [Ct Cl, Collins, J., Nov. 20, 2015]). Accordingly, claimant's cross motion for leave to file a late claim (CM-89299) is denied.
Based on the foregoing, defendant's motion (M-89298) to dismiss the claim is granted and claim no. 128465 is dismissed. Claimant's cross motion (CM-89299) for leave to file a late claim is denied.
May 26, 2017
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 no. M-89298 and affirmation of Assistant Attorney General Lawrence E. Kozar dated September 28, 2016, with annexed exhibit A; and 2. Notice of cross motion no. (CM-89299) and affidavit of Percy Lumpkin sworn to September 2, 2016, affirmation of James F. Ross, Esq. dated October 3, 2016, with annexed exhibits.