Opinion
# 2016-018-703 Claim No. 126253 Motion No. M-86983 Motion No. M-87492
02-05-2016
LISE Y. MOORE, SABRIA MOORE, and JALIA GRAHAM v. STATE OF NEW YORK
SIDNEY P. COMINSKY TRIAL LAWYERS, LLC By: Sidney P. Cominsky, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Bonnie Gail Levy, Esquire Assistant Attorney General
Synopsis
Defendant's motion to dismiss claim granted for untimeliness and failure to comply with 11 (b). Defendant's motion to dismiss amended claim denied in part, as timely filed and served claim for one cause of action. Infant had two years from majority to bring claim.
Case information
| UID: | 2016-018-703 |
| Claimant(s): | LISE Y. MOORE, SABRIA MOORE, and JALIA GRAHAM |
| Claimant short name: | MOORE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The Court, in this Decision and Order has granted Defendant's request to amend the caption to reflect the State of New York as the only proper Defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126253 |
| Motion number(s): | M-86983, M-87492 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | SIDNEY P. COMINSKY TRIAL LAWYERS, LLC By: Sidney P. Cominsky, Esquire |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Bonnie Gail Levy, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 5, 2016 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant brings two motions to dismiss. The first motion (M-86983) seeks to dismiss the claim filed and served on June 5, 2015. Claimants oppose that motion and have served an "amended claim." Defendant brings a second motion (M-87492) to dismiss the "amended claim" and Claimants also oppose that motion.
It is necessary to first review the procedural history of the claim and "amended claim." Procedural History
On September 3, 2013, Claimants pro se, personally served a verified notice of intention to file a claim, containing 8 pages and 27 paragraphs. In that notice of intention, they assert an intent to bring a claim for personal injuries, false arrest, false imprisonment, malicious prosecution, intentional and negligent infliction of emotional distress, abuse of process, libel, slander, defamation of character, negligent hiring, training and supervision, violations of New York Civil Rights Law, violations of Gun Control Act of 1968, violations of New York Mental Hygiene Law, violations of 42 USC section 1983, and violations of the New York State Constitution and the United States Constitution. There are also allegations sounding in medical malpractice.
The notice of intention includes another Claimant, Michael Moore, and his allegations of wrongdoing. For purposes of these motions, the focus will be on only the allegations involving these Claimants.
On June 5, 2015, a second notice of intention to file a claim was personally served. This notice of intention was prepared by counsel, names only these Claimants and indicates an intention to file a claim seeking damages for personal injuries, false arrest, false imprisonment, malicious prosecution, intentional and negligent infliction of emotional distress, abuse of process, libel, slander, defamation of character, negligent hiring, training and supervision, violations of New York Civil Rights Law, violations of New York Mental Hygiene Law, violations of 42 USC section 1983, violations of the New York State Constitution and the United States Constitution. This notice of intention to file a claim was not verified by Claimant, Sabria Moore. Defendant, by letter addressed to Claimants' counsel dated June 5, 2015, rejected this notice of intention, treating it as null and void because Sabria Moore failed to verify it.
Also on June 5, 2015, Claimants personally served a document entitled "Summons with Notice" and filed it with the Clerk of the Court of Claims. The Clerk of the Court treated the "Summons with Notice" as a claim, and it will be referred to herein as the claim. This document has two pages with four, single-spaced paragraphs. The second paragraph sets forth the nature of the action as a violation of 42 USC section 1982, malicious prosecution and excessive force, negligent infliction of emotional distress, negligent hiring and negligence. It goes on to assert that Defendants commenced a judicial proceeding without probable cause and with malice against plaintiffs [Claimants] which terminated in their favor; used excessive and unreasonable force in restraining and arresting Claimants; and failed to hire, train and/or supervise their employees, officers or servants. It alleges that plaintiffs' rights under the United States Constitution, the New York Constitution and the New York Civil Rights Law were violated. This claim also was not verified by Claimant, Sabria Moore.
Defendant, by a separate letter addressed to Claimants' counsel also dated June 5, 2015, rejected the document labeled "Summons With Notice," treating it as null and void because it was not verified by Sabria Moore.
On June 16, 2015, Claimants served the Attorney General's office with an identical copy of the June 5, 2015 notice of intention to file a claim, except that this notice was verified by Claimant, Sabria Moore, as well as the two other Claimants.
Prior to answering the claim, Defendant brought the first motion to dismiss (M-86983) arguing that the claim should be dismissed for several reasons. First, that the claim fails to comply with CPLR 3013 and 3014, by failing to contain plain and concise statements in consecutively numbered paragraphs. Sabria Moore's claim was not properly verified, Defendant gave notice of this defect, and Sabria has failed to serve a verified claim. Defendant also argues that under CPLR 3211 (a) (2) and (8) and Court of Claims Act sections 8, 9, and 11 (b), the Court lacks subject matter jurisdiction over several of Claimants' causes of action and damages requests, and the claim fails to set forth the necessary allegations under the Court of Claims Act. Defendant also alleges that the Court lacks both personal and subject matter jurisdiction because no claim was timely served. Finally, Defendant seeks amendment of the caption to include only the State of New York.
In response to Defendant's first motion to dismiss, on August 25, 2015, Claimants personally served the Attorney General with a verified "amended claim" verified by all Claimants. The verified "amended claim" dated August 19, 2015, seems to assert these eight causes of action: malicious prosecution; intentional infliction of emotional distress; negligent hiring, training and supervision; negligent infliction of emotional distress; violation of their rights under the New York State Constitution; excessive force; assault and battery; and false arrest/imprisonment.
In opposition to the Defendant's first motion to dismiss, Claimants submit the affidavit of their counsel. Claimants argue that by serving an "amended claim" as of right, before Defendant's time to answer has expired, the "amended claim" supercedes the originally filed and served claim, and the "amended claim" sufficiently pleads the causes of action alleged and is in compliance with the Court of Claims Act. Claimant, Sabria Moore, argues that the properly verified "amended claim" renders Defendant's argument that the initial claim should be dismissed for her failure to verify it moot. Claimants also contend that the verified "amended claim" sufficiently pleads all causes of action and is timely, because it was served before Defendant submitted a responsive pleading. Claimants argue that Jalia Graham's claim is timely because she was an infant until she turned eighteen on July 9, 2014. Under Court of Claims Act section 10 (5), infancy is a legal disability that here was not removed until July 9, 2014 and, therefore, Claimant, Jalia Graham, has two years from that date to bring her claim, including her claim for intentional torts. Claimants also assert that their claim for malicious prosecution did not accrue until the legal proceedings against them terminated and that did not happen until April 28, 2015. As a result, Claimants argue that the notices of intention served on June 5, 2015 and June 16, 2015, were timely and the "amended claim" is also timely. It is Claimants' position that all the notices of intention were timely and adequately meet the requirements of Court of Claims Act section 11 (b).
Defendant brings a second motion to dismiss (M-87492) addressed to the "amended claim." In this motion, Defendant argues that the Court of Claims lacks subject matter jurisdiction over the causes of action for attorney's fees, costs and disbursements, and it fails to state a cause of action for violations of the New York State Constitution. According to Defendant the "amended claim" is untimely in that it asserts that the causes of action arose on June 7, 2013, and since no claim was filed and served by June 7, 2014, all intentional causes of action under Court of Claims Act section 10 (3-b) are untimely. Defendant also argues that Claimants cannot avoid the time limitations of the Court of Claims Act and the CPLR by pleading the alleged intentional conduct as a negligence cause of action, and even pleading negligence the "amended claim" filed and served on August 25, 2015 is untimely. As to the malicious prosecution cause of action, Defendant alleges that the notices of intention served on June 5, 2015 and June 16, 2015, are defective because neither sets forth sufficient facts other than the boilerplate language. Defendant maintains that since the notices of intention were defective, Claimants get no extension of time to file a claim so the "amended claim" filed and served on August 25, 2015, was not served within 90 days of the conclusion of the criminal proceeding and, therefore, it is untimely. The cause of action for negligent hiring, training and supervision fails to describe the manner in which Defendant was negligent and fails to allege that the employees were acting outside the scope of their employment. Defendant argues that if the employees were acting within the scope of their employment, this cause of action must be dismissed. Defendant also continues to seek amendment of the caption.
Claimants submit their attorney's affirmation in opposition to this motion reiterating many of their previously asserted arguments against dismissal. Specifically, that the "amended claim" adequately pleads all eight causes of action, and the requests for attorney's fees are a component of the malicious prosecution claim as compensatory damages for the attorney's fees and costs incurred in defending Claimants in the criminal proceeding. Claimants also assert that the "amended claim" is timely and the sixth, seventh and eighth causes of action are timely because Jalia Graham was an infant until July 9, 2014, and the only intentional tort cause of action alleged on behalf of all three Claimants is the malicious prosecution claim (the First Cause of Action). Claimants also allege that the notices of intention to file a claim were timely served and sufficient under Court of Claims Act section 11 (b) and, therefore, the "amended claim" is timely. Since the "amended claim" raises causes of action asserted in the previously filed claim, it relates back to the June 5, 2015 date that the claim was served and filed making the "amended claim" also timely for those causes of action. The Alleged Facts
See Claimants' attorney's affidavit ¶ 47-51.
On June 7, 2013, Claimants, Lise Y. Moore, the wife of Michael Moore, Sabria Moore and Jalia Graham, the couple's two daughters, went to the State University of New York (SUNY) Upstate University Hospital to visit Michael Moore, who was a patient at the hospital for injuries he suffered during a motor vehicle accident on June 4, 2013. On June 7, Michael Moore sought to sign himself out of the hospital. His request to be discharged was denied. At approximately 10:00 p.m. that day, Claimants, accompanied by Michael Moore, began walking out of the hospital when they were confronted by SUNY Upstate University police or security guards and prevented from leaving. Claimants allege that these police or security guards tackled Michael Moore to the floor, physically restrained him, and forced him to return to his hospital room against his will, where he was involuntarily sedated.
As Mr. Moore was being restrained, Claimant, Lise Y. Moore, approached her husband and was then also physically restrained. It is alleged that Claimants, Sabria Moore and Jalia Graham, were also physically restrained and all three Claimants were arrested. Claimants were then transported to the Onondaga County Justice Center in Syracuse and held overnight. On June 8, 2013, Claimants allege they were presented in court in arm and leg shackles, and Lise Y. Moore and Jalia Graham were charged with criminal trespass, New York Penal Law section 205.30, and resisting arrest New York Penal Law section 140.05. Claimant, Sabria Moore, was only charged with trespass under New York Penal Law section 140.05. Claimants appeared for approximately 20 court appearances until the charges were dismissed on April 28, 2015. Claimant, Lise Y. Moore's handgun was also seized from her residence after her arrest.
Timeliness and Sufficiency of the Notices of Intention, Claim and "Amended Claim" Under Court of Claims Act
Court of Claims Act section 10 (3) provides that a claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the State while acting as an officer or employee shall be filed and served upon the Attorney General within 90 days after the accrual of the claim, unless a notice of intention to file a claim is served within those 90 days, in which case a claim shall then be filed and served upon the Attorney General within two years of the date of accrual. Court of Claims Act section 10 (3-b) provides that a claim for an intentional tort of an employee or officer of the State must be filed and served within 90 days of the date of accrual unless a notice of intention has been served, in which case, a claim must be filed and served within one year from the date of accrual. Section 11 (b) of the Court of Claims Act sets forth what information must be contained in the claim and notice of intention.
The Court of Claims is a court of limited jurisdiction, which may only hear and determine claims filed in compliance with sections 10 and 11 of the Court of Claims Act as conditions to the State's waiver of its sovereign immunity (Court of Claims Act § 8; Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). Those provisions are strictly construed (Lepkowski v State of New York, 1 NY3d 201, 206-207 [2003]; Hatzfeld v State of New York, 104 AD3d 1165 [4th Dept 2013]). Since whether a claim or notice of intention is timely or whether the notice of intention, claim, and "amended claim" meet the requirements of Court of Claims Act section 11 (b) raise issues of this Court's subject matter jurisdiction (see Hatzfeld, 104 AD3d at 1165; Hughes v State of New York, 105 AD3d 907 [2d Dept 2013]; City of New York v State of New York, 46 AD3d 1168 [3d Dept 2007]) these issues will be addressed first.
Timeliness and Sufficiency of September 3, 2013 Notice of Intention
Court of Claims Act section 11 (b) requires that a notice of intention to file a claim must contain all of the information required for a claim, except for the items of damages or injuries and the total sum claimed. The notice of intention must set forth the time, place, and nature of the claim (Court of Claims Act § 11 [b]). It also must be served within 90 days of the date of accrual (Court of Claims Act §§ 10 [3] and [3-b]).
Keeping in mind that the notice of intention is not a pleading (Cendales v State of New York, 2 AD3d 1165, 1167 [3d Dept 2003]), this notice of intention was timely and properly served and adequately meets the requirements of Court of Claims Act section 11 (b).
Timeliness and Sufficiency of June 5, 2015 and June 16, 2015, Notices of Intention
Given the timeliness and sufficiency of the September 3, 2013 notice of intention, Claimants have no reason to rely upon the timing or sufficiency of these notices of intention. This is important since neither of these notices of intention were served within 90 days of June 7 and 8, 2013, the dates of wrongdoing that Claimants contend support all of the alleged causes of action except malicious prosecution. The September 3, 2013, notice of intention gave sufficient notice of Claimants intent to bring a malicious prosecution cause of action. Since a malicious prosecution cause of action accrues when the criminal proceeding terminates in favor of the accused and, here, the criminal proceedings were not dismissed until April 28, 2015, both the June 5 and June 16, notices of intention are timely for this cause of action (Court of Claims Act § 10 [3-b]; Syllman v Nissan, 18 AD3d 221 [1st Dept 2005]; Dudick v Gulyas, 277 AD2d 686, 688 [3d Dept 2000]). Moreover, although the June 5, 2015, notice of intention is jurisdictionally defective for Sabria Moore, because she did not verify it which Defendant timely and properly raised in the letter sent to Claimants' counsel dated June 5, 2015, and by the first motion to dismiss (see Court of Claims Act § 11 (b); CPLR 3020-3022; Lepkowski v State of New York, 1 NY3d 201, 210 [2003]; Spirles v State of New York, 28 AD3d 952 [3d Dept 2006]), this defect was cured by service of the properly verified notice of intention to file a claim on June 16, 2015. Substantively, both of these notices of intention meet the requirements of Court of Claims Act section 11(b).
Timeliness and Sufficiency of June 5, 2015, Claim
Claimants argue that the original claim (June 5, 2015) was timely but is superceded by the "amended claim" served and filed on August 25, 2015, as a matter of right before Defendant's time to answer expired. In the Court of Claims, a Defendant typically has 40 days after service of a claim to interpose an answer to it (Uniform Rules for the Court of Claims [22 NYCRR] § 206.7 [a]). A claim may be amended as of right without leave of Court within those 40 days or within 40 days after service of a pleading responding to it (Uniform Rules for the Court of Claims [22 NYCRR] § 206.7 [b]; CPLR 3025). Here, Defendant did not answer the claim, but instead brought a pre-answer motion to dismiss which thereby extended Claimants' time to file and serve an "amended claim" as of right (CPLR 3211[f]; Aikens Constr. of Rome v Simons, 284 AD2d 946 [4th Dept 2001]; STS Mgt. Dev. v New York State Dept of Taxation & Fin., 254 AD2d 409 [2d Dept 1998]). Claimants' amended pleading was served before this motion was heard and, therefore, was timely served without leave of Court. Although Claimants are correct that an amended pleading usually supercedes the original and becomes the only pleading (St. Lawrence Explosives Corp. v Law Bros. Contr. Corp., 170 AD2d 957 [4th Dept 1991]), the jurisdictional sufficiency of the original pleading must be established because a claim may not be amended to cure a jurisdictional defect in the Court of Claims (Nasir v State of New York, 41 AD3d 677, 677 [2d Dept 2007]; Grande v State of New York, 160 Misc 2d 383, 385 [Ct Cl 1994]).
Since the notice of intention served on September 3, 2013 was timely and substantively sufficient for purposes of Court of Claims Act section 11 (b), this extended Claimants' time to serve and file a claim until one year from the date of accrual for all intentional causes of action and two years for any negligence or unintentional cause of action (Court of Claims Act § 10 [3-b]). No claim was served within one year of June 4-8, 2013 and, therefore, any cause of action accruing on those dates and based upon an intentional tort -false arrest, false imprisonment, excessive force, intentional infliction of emotional distress, abuse of process, libel, slander and defamation is untimely and cannot be maintained on behalf of Lise Y. Moore and Sabria Moore. Only the malicious prosecution, negligence, and unintentional tort causes of action are timely.
Defendant also argues that the claim is jurisdictionally deficient because it fails to set forth the allegations and factual information required by Court of Claims Act section 11 (b).
Court of Claims Act section 11 (b) demands that a claim: "state the [1] time when and [2] place where such claim arose, [3] the nature of the same, and the [4] items of damage or injuries claimed to have been sustained." (Court of Claims Act § 11 [b]). Court of Claims Act section 11 (b) also requires that a claim be verified in the same manner as a complaint in a supreme court action. These four requirements are "substantive conditions upon the State's waiver of sovereign immunity." (Lepkowski v State of New York, 1 NY3d 201 [2003]). The failure to provide any item of information required by Court of Claims Act section 11 (b) is a jurisdictional defect (Kolnacki v State of New York, 8 NY3d 277 [2007]). Yet, if the four requirements are met, jurisdiction is established and the claim "may always be amended at a later time, if necessary." (Id., at 281 [referring to amending the amount of damages demanded after the claim is filed and served if necessary]; Asbery v State of New York, UID No. 2014-029-010 [Ct Cl, Mignano, J., Feb. 4, 2014]). For a defect in verification, the burden is on defendant to notify the claimant in accordance with CPLR 3022 with prompt notice and compliance with Court of Claims Act section 11 (c).
In Lepkowski, 1 NY3d at 207, the Court of Appeals refers to the Court of Claims Act section 11 (b) placing five specific substantive conditions upon the State's waiver of sovereign immunity. The fifth condition referred to is the total sum claimed, however, after Lepkowski and Kolnacki v State of New York, 8 NY3d 277 [2007], the statute was amended relieving claimants of the obligation to set froth the total sum claimed in personal injury, medical malpractice, and wrongful death cases.
This claim has two pages with four, single-spaced paragraphs. The second paragraph describes the nature of the action as a series of conclusory allegations of wrongdoing devoid of any factual detail. No date, time or location is provided. This claim also was not verified by Claimant, Sabria Moore. The State timely raised the absence of Sabria Moore's verification by letter dated June 5, 2015 and by bringing this motion (Court of Claims Act § 11 [b] and [c]; Lepkowski, 1 NY3d at 210; Spirles, 28 AD3d at 952). The failure of the document to provide these requirements renders the claim jurisdictionally deficient and no amendment is permitted to cure such a deficiency (Kolnacki, 8 NY3d at 281; Wilson v State of New York, 61 AD3d 1367 [4th Dept 2009]; Nasir, 41 AD3d at 677; Grande 160 Misc 2d at 385). Moreover, "a lack of prejudice to the State is an immaterial factor." (Wilson, 61 AD3d at 1368). As a result, this claim must be dismissed in its entirety for all Claimants. Since the claim was jurisdictionally defective, no amendment is permitted.
Sufficiency of the "Amended Claim"
Although the "amended claim" cannot be relied upon as an amendment to the claim filed on June 5, 2015, it will now be considered for purposes of an original claim.
As explained above, since the June 5, 2015 claim could not be amended, the "amended claim" having been served on August 25, 2015, is clearly untimely for all causes of action, other than malicious prosecution (Court of Claims Act § 10 [3], [3-b]). The "amended claim" was filed on August 26, 2015, as an exhibit with Claimants' opposition to Defendant's first motion to dismiss. The amended claim is timely, given the sufficiency of the notices of intention, for purposes of the malicious prosecution cause of action for all Claimants, since this cause of action accrues upon termination of the criminal proceeding, here, April 28, 2015 (10 Ellicott Sq. Ct. Corp. v Violet Realty, Inc., 81 AD3d 1366, 1368 [4th Dept 2011]).
No filing fee was paid, as it was presented as an amended claim to the June 5, 2015 claim. Failure to pay the filing fee is a non-jurisdictional defect correctable under CPLR 2001 (Cf., Gardner v City University of New York, UID No. 2013-049-038 [Ct Cl, Weinstein, J. July 16, 2013]).
The Court turns now to the sufficiency of the allegations in the first cause of action. In deciding a motion to dismiss a pleading under CPLR 3211 [a] [7], the allegations are deemed true for purposes of the motion and all reasonable inferences are drawn in favor of the claimant (Cron v Hargro Fabrics, 91 NY2d 366, 366 [1998]). The elements necessary to state a cause of action for malicious prosecution are: (1) commencement or continuation of a criminal proceeding by defendant against claimant; (2) termination of the proceeding in favor of claimant; (3) absence of probable cause for the criminal proceeding and (4) actual malice (Broughton v State of New York, 37 NY2d 451, 457 cert denied sub nom. Schanbarger v Kellogg,423 US 929 [1975]). Claimants have asserted all four elements in the first cause of action in their "amended claim" and the facts as alleged, giving them the benefit of every reasonable inference, are sufficient at this juncture. Moreover, the attorney's fees incurred in defense of the criminal proceeding may be a component of compensatory damages in a malicious prosecution claim (Avildsen v Prustay, 204 AD2d 154, 155 [1st Dept 1994]; 59 NY Jur 2d, False Imprisonment § 155). Although attorney's fees are not otherwise recoverable (Court of Claims Act § 27).
The remaining seven causes of action in the "amended claim" must now be considered in light of the assertion that Jalia Graham was under a legal disability as an infant until July 9, 2014. Under the Court of Claims Act section 10 (5), if a claimant is under a legal disability then the claim may be presented within two years after the disability is removed. The Court of Claims Act does not define a legal disability, but CPLR 208 recognizes infancy and insanity as legal disabilities. Since, for matters not addressed by the Court of Claims Act, the CPLR applies, infancy and insanity have also been recognized as legal disabilities in this Court for actions against the State (22 NYCRR [Rules for the Court of Claims] 206.1 [c]: Crawford v State of New York, 37 AD2d 450 [4th Dept 1971]; Weber v State of New York, 267 App. Div. 325 [3d Dept 1944]).
A notice of intention need not be served within 90 days of accrual where the claimant is under a disability (Boland v State of New York, 30 NY2d 337 [1972]). The only requirement is that a claim be served within two years of the date the disability is removed, in this case by July 9, 2016. This is true for both intentional and unintentional torts, despite the fact that claimants without a disability have only one year, when a timely notice of intention has been served, to file and serve a claim for an intentional tort and actions brought between citizens of the State are also limited to only one year for an intentional tort action (Court of Claims Act § 10 [3-b]; CPLR 215). Even the toll for a disability under the CPLR extends the time for commencing an action for an intentional tort after the disability ends to only one year (CPLR 208, 215). The statute seems inconsistent in this regard given the statutory direction that no judgment shall be awarded to any claimant against the State which would be barred by a lapse of time as against citizens of the State (Court of Claims Act § 19 [2]). An interdiction is also set forth in the New York State Constitution (NY Const. art III, § 19). Yet, an exception is specifically made in the Constitution allowing a claim to be presented within two years after a legal disability is removed (Id.). Therefore, for Jalia Graham the August 25, 2015 "amended claim" was timely presented for both intentional and negligent causes of action.
Accordingly, Defendant's motion to dismiss the "amended claim" will be addressed to each cause of action for Claimant, Jalia Graham.
Second Cause of Action:
Claimant, Jalia Graham, asserts that this second cause of action is for negligent infliction of emotional distress. She alleges that Defendant was negligent in its supervision and control of its agents, servants, employees, subcontractors, and those under its supervision and control in throwing Claimant to the floor, restraining her, using excessive force, arresting her, and bringing criminal charges against her for trespass. Claimant also alleges that this conduct endangered her physical safety and made her fear for her physical safety. To set forth a negligent infliction of emotional distress cause of action, a claimant must allege and ultimately establish that "defendant['s] negligence unreasonably endangered the physical safety of [claimant] or caused [her] to fear for [her] safety." (Nicholson v A. Anastasio & Sons Trucking Co., 77 AD3d 1330, 1331 [4th Dept 2010]; see also Kennedy v McKesson Co., 58 NY2d 500, 506 [1983]). Given the alleged facts involving Defendant's restraint of Claimant, Jalia Graham, and her family members, she has stated a cause of action for negligent infliction of emotional distress.
Third Cause of Action:
In this cause of action, Claimant, Jalia Graham, seeks to assert a claim for negligent hiring, training and supervision. Claimant, Jalia Graham, alleges that Defendant's officers, agents, servants, employees, subcontractors, and those under its supervision and control were acting outside the scope of their employment when they tackled Claimant, Jalia Graham, to the ground using excessive force, physically restrained and arrested her, and Defendant knew of their propensity to use improper physical force to restrain visitors to SUNY Upstate University Hospital. Claimant, Jalia Graham, alleges that Defendant was negligent in its hiring, training, and supervision, and this proximately caused her injury.
Although where an employee is acting within the scope of his or her employment and liability is premised upon theories of respondeat superior, a cause of action for negligent hiring, training, and supervision may not be maintained (see Porcelli v Key Food Stores Co-op, 44 AD3d 1020,1021 [2d Dept 2007]; Karoon v New York City Tr. Auth., 241 AD2d 323, 324 [1st Dept 1997]), here, Claimant, Jalia Graham, has also alleged that the State contracted with Securitas to provide security services at SUNY Upstate University Hospital. To the extent that those officers were independent contractors, a negligent hiring, training, and supervision cause of action may be appropriately alleged at this stage of the proceedings (see Saint Robert v BHAP Hous. Dev. Fund Co., 124 AD3d 752 [2d Dept 2015]).
Fourth Cause of Action:
Claimant, Jalia Graham, alleges that Defendant negligently used excessive force against her causing her injuries. This is really an action for negligent assault, since the alleged excessive force was asserted to have been committed by either Defendant's hospital employees or the private security entity with which it contracted to provide security. Under these circumstances, no cause of action for negligent use of excessive force may be maintained, where what is really alleged is intentional wrongdoing (see Smiley v North Gen. Hosp., 59 AD3d 179 [1st Dept 2009]; Mazzaferro v Albany Motel Enters., 127 AD2d 374 [3d Dept 1987]).
Fifth Cause of Action:
Claimant, Jalia Graham, asserts that she was denied her rights under the New York State Constitution. This cause of action must be dismissed. A constitutional tort cause of action may be maintained if (1) the constitutional provision is self-executing; (2) substantial right is firmly established; (3) it is necessary to imply the constitutional tort to ensure the effectiveness of the constitutional provision; and (4) there is no common law or statutory remedy available (Brown v State of New York, 89 NY2d 172 [1996]; Remley v State of New York 174 Misc 2d 523, 526 [Ct Cl 1997]; Zulu v State of New York, UID No. 2001-013-006 [Ct Cl, Patti, J., May 21, 2001]). Here, Claimant, Jalia Graham, has failed to assert any specific provision of the New York State Constitution that has been violated, and she clearly has other avenues of redress making it unnecessary to resort to a constitutional tort cause of action.
Sixth Cause of Action:
This cause of action asserts an intentional use of excessive force or a battery committed during the performance of a public duty or authority (see 2A NY PJI2d 3:4). Claimant, Jalia Graham, alleges that she was thrown to the ground, which was conduct that is objectively unreasonable. Claimant also alleges the improper use of arm and leg shackles at her arraignment in Syracuse City Court on June 8, 2013. This allegation lacks any facts to support that a State actor or officer had any involvement in the use of arm or leg shackles on Claimant in Syracuse City Court. Nor was Claimant, Jalia Graham, on State property at that time.
The "objective reasonableness" standard is used to evaluate under the Fourth Amendment of the United States Constitution, whether law enforcement, a public official, or a private person used excessive force in the course of making an arrest or "seizure" of the person (Criminal Procedure Law § 35.30; Graham v Connor, 490 US 386 [1989]; Mazzariello v Town of Cheektowaga, 305 AD2d 1118 [4th Dept 2003]; Passino v State of New York, 260 AD2d 915 [3d Dept 1999]). There is no allegation that law enforcement officers were involved in Claimant, Jalia Graham's altercation at SUNY Upstate University Hospital on June 7, 2013, rather, the allegations involve either hospital security personnel or officers employed by a private contractor hired to provide security to the hospital. Whether these actors had the authority to arrest or restrain Claimant, Jalia Graham, for purposes of this cause of action, and whether their actions were reasonable are factual issues to be determined. For purposes of this motion, Claimant, Jalia Graham, has stated a cause of action.
Seventh Cause of Action:
Claimant, Jalia Graham's seventh cause of action asserts a battery cause of action. She alleged that, without her consent, Defendant made intentional wrongful bodily contact with her by throwing her to the ground and restraining her. Claimant, Jalia Graham, has adequately set forth a cause of action for battery (2A NY PJI2d 3:3).
Eighth Cause of Action:
Claimant, Jalia Graham, alleges a cause of action for false arrest. The elements of a claim for false arrest are (1) an intent to confine claimant; (2) claimant was conscious of the confinement; (3) claimant did not consent to the confinement; and (4) the confinement was not privileged (Broughton, 37 NY2d at 456). She has set forth sufficient allegations to state a cause of action for false arrest (Id., Martinez v City of Schenectady, 97 NY2d 78 [2001]).
Accordingly, based upon the foregoing, Defendant's motion (M-86983) is GRANTED and the claim filed June 5, 2015 entitled "Summons with Notice" is DISMISSED. Defendant's motion (M-87492) is GRANTED IN PART, in that all causes of action, other than malicious prosecution, in the "amended claim" are DISMISSED as brought by Claimants, Lise Y. Moore and Sabria Moore. The motion is DENIED to the extent that the "amended claim" stands as the claim for all Claimants for the first cause of action for malicious prosecution and also for Jalia Graham for the second, third, sixth, seventh, and eighth causes of action. The fourth and fifth causes of action are DISMISSED in their entirety. Defendant's motion to amend the caption is GRANTED, and the caption is amended to reflect the "State of New York" as the only proper Defendant.
The Clerk of the Court is directed to assign a new claim number to the "amended claim" as filed on August 26, 2015. Claimants are directed to pay the filing fee within 20 days after the filing of this Decision and Order, or make a proper application in accordance with Court of Claims Act section 11-a for the "amended claim" to be the claim. Defendant shall have 40 days after filing of a copy of this Decision and Order to interpose an answer to that claim.
February 5, 2016
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding these motions:
M-86983
1) Notice of Motion. 2) Affirmation of Bonnie Gail Levy, Esquire, Assistant Attorney General, in support, with exhibits attached thereto. 3) Unsworn Affidavit of Sidney P. Cominsky, Esquire, dated August 26, 2015, in opposition, and Memorandum of Law, with exhibit attached thereto.
M-87492
4) Notice of Motion. 5) Affirmation of Bonnie Gail Levy, Esquire, Assistant Attorney General, in support, with exhibits attached thereto. 6) Unsworn Affidavit of Sidney P. Cominsky, Esquire, dated October 28, 2015, in opposition, and Memorandum of Law, with exhibit attached thereto.