Opinion
# 2011-015-276 Claim No. 117968 Motion No. M-80086 Cross-Motion No. CM-80266
11-29-2011
MORRA v. THE STATE OF NEW YORK
Synopsis
Malicious prosecution claim was dismissed on grounds claim failed to meet pleading requirements of Court of Claims Act § 11 (b); that it was untimely; and lacked merit. Case information
UID: 2011-015-276 Claimant(s): GREGORY MORRA Claimant short name: MORRA Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant The caption is amended sua sponte to reflect the only name) : properly named defendant. Third-party claimant (s): Third-party defendant (s): Claim number(s): 117968 Motion number(s): M-80086 Cross-motion number(s): CM-80266 Judge: FRANCIS T. COLLINS Basch & Keegan, LLP Claimant's attorney: By: Maureen A. Keegan, Esquire and Derek J. Spada, Esquire Honorable Eric T. Schneiderman, Attorney General Defendant's attorney: By: Joan Matalavage, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: November 29, 2011 City: Saratoga Springs Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant moves for an Order compelling submission of the personnel records of an individual identified as New York State Trooper Bird for an in camera inspection and subsequent disclosure of non-privileged material relevant to the claim. Defendant opposes the motion and cross-moves for an Order dismissing the claim pursuant to CPLR 3211 (a) (1), (2), (5), (7) and CPLR 3212.
The claim, filed and served on February 1, 2010, alleges the following with respect to the date, time and place where the claim arose:
"From on or about October and/or November, 2006, and in a continuous manner throughout October, November and December, 2008, in Albany and Schoharie counties and in the areas surrounding in the State of New York" (defendant's Exhibit B, claim, ¶ 1).
With respect to the nature of the claim, claimant alleges, in pertinent part, the following:
"The New York State Police, its agents, servants, employees and/or offices carelessly, negligently and recklessly commenced and continued a criminal prosecution and proceeding against the claimant, when the respondents knew or should have known that there was no probable cause for such prosecution and/or proceeding, and that the respondents were acting with malice and/or a failure to have extrajudicial review of grand jury review and evaluation;
The New York State Police . . . negligently failed to monitor, investigate, supervise and have appropriate checks in place in connection with this investigation . . .
The New York State Police . . . negligently filed [sic] to supervise respondent, Bird, when they knew or should have known of the investigator's past bad investigations, wrongful arrests and improper use of his position as an employee of the respondent, New York State Police.
The respondents failed to properly evaluate and share with the prosecution exculpatory information which caused the continuation of the improper prosecution;
The respondents behaved tortiuously [sic], libelously and slanderously in their failure to conduct necessary interviews and investigations of all parties; and failed to provide statements and information in a proper, timely and unbiased manner . . ." (defendant's Exhibit B, ¶ 2).
Defendant contends the claim fails to meet the pleading requirements of Court of Claims Act § 11 (b), is time-barred by virtue of the time limitations set forth in both Court of Claims Act § 10 and CPLR 215 (3) and that it fails on the merits as a matter of law.
Initially, the Court agrees that the claim fails to meet the pleading requirements of Court of Claims Act § 11 (b) which requires that a claim state "the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury . . . the total sum claimed." The purpose of these pleading requirements " 'is to provide a sufficiently detailed description of the particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and extent of its liability' " (Jones v State of New York, 56 AD3d 906, 907 [2008], quoting Sinski v State of New York, 265 AD2d 319, 319 [1999]; see also Lepkowski v State of New York, 1 NY3d 201, 207 [2003]). Inasmuch as "the State is not responsible for uncovering information that the claimant is required to allege under section 11 (b)" (Kolnacki v State of New York, 8 NY3d 277, 280 [2007]; see also Dinerman v NYS Lottery, 69 AD3d 1145 [2010], lv dismissed 15 NY3d 911 [2010]), the failure to sufficiently detail the particulars of a claim is fatal.
Here, claimant failed to sufficiently allege not only the date the claim accrued but the facts which gave rise to the claim. Claimant's general allegation that the claim accrued "[f]rom on or about October and/or November, 2006, and in a continuous manner throughout October, November and December, 2008 in Albany and Schoharie counties and the areas surrounding in the State of New York" is insufficient to meet the requirements of § 11 (b) (see Jones v State of New York, supra). Nor does the claim set forth sufficient facts from which the date of accrual could be gleaned. In addition, the claim fails to state the facts giving rise to the causes of action asserted. The claim fails to set forth the nature of the criminal charges or the circumstances giving rise to the charges. As a result, the Court finds claimant failed to provide a sufficiently detailed description of the particulars of the claim to enable the defendant to investigate and promptly ascertain the existence and extent of its liability (Jones v State of New York, 56 AD3d at 907). Inasmuch as the pleading requirements of section 11 (b) are "substantive conditions upon the State's waiver of sovereign immunity" (Lepkowski v State of New York, 1 NY3d at 207), the failure to comply therewith is a jurisdictional defect requiring dismissal (Kolnacki v State of New York, 8 NY3d at 280-281 [2007]; Davis v State of New York, 64 AD3d 1197 [2009], lv denied 13 NY3d 717 [2010]; Wilson v State of New York, 61 AD3d 1367 [2009]; Hogan v State of New York, 59 AD3d 754 [2009]; Nasir v State of New York, 41 AD3d 677 [2007]). On this basis alone, dismissal of the claim is required.
Unlike the claim, the notice of intention alleges that the claim arose on or about November 12, 2006 and continued until "the acquittal of claimant, which was rendered by a jury on October 24, 2008, and a withdrawal of the remaining charges on December 9, 2008" (defendant's Exhibit A, Notice Of Intention, par. 3).
The above pleading defects aside, the claim fails as a matter of law for several additional reasons. In opposition to the defendant's motion, claimant has withdrawn his causes of action for defamation, libel, slander and false arrest, leaving for resolution, according to claimant's counsel, causes of action for "negligent hiring, negligent retention , negligent supervision and malicious prosecution" (claimant's counsel's affirmation in opposition to cross-motion, ¶ 9).
Nowhere in the claim, however, does the claimant state the words much less a cause of action for negligent hiring or retention.
Where it is undisputed that an employee was acting within the scope of his or her employment when the conduct giving rise to a claim occurred, a cause of action alleging negligent hiring, investigation, training or supervision must be dismissed as a matter of law (Leftenant v City of New York, 70 AD3d 596, 597 (2010); Passucci v Home Depot, Inc., 67 AD3d 1470 [2009], lv denied 72 AD3d 1658 [2010]; Russ v State Empls. Fed. Credit Union (SEFCU), 298 AD2d 791 [2002]). The undisputed allegations in the instant claim establish that Officer Bird was acting within the scope of his employment when the allegedly tortuous conduct occurred. In these circumstances, "claimant's only avenue of redress is by way of the traditional tort remedies of false arrest and malicious prosecution" (Coyne v State of New York, 120 AD2d 769, 770 [1986]; see also Simon v State of New York, 12 AD3d 171 [2004]; cf. Kinge v State of New York, 79 AD3d 1473 [2010] [police officer's falsification of fingerprint evidence provided basis for malicious prosecution action and his supervisor's failure to act when he knew or should have known of the falsification supported negligent supervision claim]; Brown v State of New York, 45 AD3d 15, 27 [2007], lv denied 9 NY3d 815 [2007] [even if officers were acting outside the scope of their employment, proof of negligent supervision was lacking]). The negligence causes of action must therefore be dismissed.
The claim alleges that "[t]he New York State Police, its agents, servants, employees and /or offices [sic] carelessly, negligently and recklessly commenced and continued a criminal prosecution and proceeding against the claimant, when the respondents knew or should have known that there was no probable cause . . ." (defendant's Exhibit B, par. 2).
Defendant next argues that claimant's cause of action for malicious prosecution is time-barred. It is well-established that a cause of action for malicious prosecution accrues when the underlying criminal action is dismissed or otherwise terminated in favor of the accused (347 Cent. Park Assoc., LLC v Pine Top Assoc., LLC, 83 AD3d 689, 690-691 [2011]; Bumbury v City of New York, 62 AD3d 621 [2009]; Town of Newfane v General Star Natl. Ins. Co., 14 AD3d 72 [2004]). Claimant alleges, albeit only in the notice of intention, that following a trial by jury on October 24, 2008 he was found not guilty of certain of the criminal charges brought against him and that the remaining charges were withdrawn on December 9, 2008. Court of Claims Act § 10 (3-b) requires that a claim alleging an intentional tort cause of action be filed and served within 90 days after accrual unless a notice of intention is served within such time "in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim." It is undisputed that although the notice of intention was timely served on January 20, 2009, the claim itself was not served until February 1, 2010, more than one year following its accrual (affirmation in support of cross-motion, ¶ 12). However, by failing to either raise this objection in a pre-answer dismissal motion or as a defense in its answer, defendant waived this defense (Court of Claims Act § 11 [c]).
Review of the Court's file reflects that the claim was filed on February 1, 2010.
While defendant did not assert the time limitations contained in Court of Claims Act § 10 as a defense, it did assert the statute of limitations as the fifth defense in its answer (defendant's Exhibit C). The New York State Constitution prohibits the payment of claims against the State "which, as between citizens of the state, would be barred by lapse of time" (NY Const, art III, § 19). As a result, the Appellate Division, Third Department, held in Trayer v State of New York (90 AD2d 263 [1982]) that, in addition to the time limitations contained in Court of Claims Act § 10 (3), those seeking to sue the State for intentional torts must also "comply with CPLR 215 (subd 3) or risk having their claim dismissed if a timely Statute of Limitations defense is raised" (Id. at 268). Thus, even where the defendant waives the defense that the claim was not served or filed within the time limitations set forth in Court of Claims Act § 10 (3-b), the failure to comply with the applicable statute of limitations may nevertheless result in dismissal if a timely statute of limitations defense is raised (see Firth v State of New York, 184 Misc 2d 105, 110 [Ct Cl 2000], affd 287 AD2d 771 [3d Dept 2001], affd 98 NY2d 365 [2002]). Here, defendant raised as its fifth defense "[t]hat this claim is barred by the statute of limitations" (defendant's Exhibit C). In this regard, defendant "was not required to identify the statutory section relied on or to specify the applicable period of limitations" (Immediate v St. John's Queens Hosp., 48 NY2d 671, 673 [1979]). CPLR 215 (3) requires that a claim for malicious prosecution be commenced within one year after accrual. Since it is undisputed that the instant claim was not served until February 1, 2010, more than one year after the claim accrued, the malicious prosecution claim must be dismissed as untimely.
When Trayer was decided, Court of Claims Act § 10 (3) governed claims for both intentional and unintentional conduct thereby raising the question whether or not an intentional tort claim, timely filed and served under Court of Claims Act § 10 (3), may nevertheless be barred by the one-year statute of limitations set forth in CPLR 215 (3). The Court held that it could, citing article III, § 19 of the NY Constitution.
Even if this Court were to address the merits of the malicious prosecution claim, it fails as a matter of law. To establish as a cause of action for malicious prosecution, 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 v City of Schenectady, 97 NY2d 78, 84 [2001], citing Broughton v State of New York, 37 NY2d 451, 457 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]). Here, defendant established the existence of probable cause, which claimant failed to overcome. The law is well-settled that a pretrial determination of probable cause creates a presumption of probable cause which may be overcome only upon a showing of fraud, perjury or the withholding of evidence (see Gisondi v Town of Harrison, 72 NY2d 280 [1988]; Colon v City of New York, 60 NY2d 78, 82-83 [1983];) Watson v City of Jamestown, 56 AD3d 1289 [2008]; Romero v State of New York, 294 AD2d 730, 732 [2002], lv denied 99 NY2d 503 [2002]). The underlying criminal proceedings at issue here were commenced by misdemeanor informations, which were required to be supported by non-hearsay allegations establishing "reasonable cause to believe that the defendant committed the offense charged . . ." (see CPL § 100.40 [1] [b]). The standard is the same as that applicable to a Grand Jury indictment (see CPL § 190.65 [1] [permitting a Grand Jury to indict a person where the "competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense"]). By Decision and Order dated March 11, 2008, the Hon. Herbert Needleman held that the misdemeanor informations were facially sufficient because sufficient non-hearsay allegations established reasonable cause to believe that the claimant committed the offenses charged (see defendant's Exhibit F). In opposition to defendant's cross-motion, claimant submitted not only the depositions taken by the police in support of the criminal charges, but affidavits from others, apparently taken by claimant's criminal defense counsel, tending to contradict these depositions. At best, this evidence establishes nothing more than that the police could have done more, which is insufficient to establish improper police conduct (see Gisondi v Town of Harrison 72 NY2d at 285; Harris v State of New York, 302 AD2d 716 [2003]; Boomer v State of New York, 288 AD2d 729 [2001]; cf. Hernandez v State of New York, 228 AD2d 902 [1996]). As the Court of Appeals explained in Gisondi "the police are not obligated to pursue every lead that may yield evidence beneficial to the accused . . . What is required is proof that the police conduct deviated egregiously from statutory requirements or accepted practices applicable in criminal cases" (72 NY2d at 285). No such showing has been made here. As a result, claimant failed to overcome the presumption of probable cause which attached following Judge Needleman's pre-trial determination of probable cause. The malicious prosecution cause of action therefore fails on the merits as a matter of law.
Based on the foregoing, defendant's cross-motion is granted, and the claim is dismissed. Claimant's motion is denied as moot.
November 29, 2011
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. Notice of motion dated July 11, 2011;
2. Affirmation of Maureen A. Keegan dated July 11, 2011 with exhibits;
3. Notice of cross-motion dated August 16, 2011;
4. Affirmation of Joan Matalavage sworn to August 16, 2011 with exhibits;
5. Affirmation of Derek J. Spada dated August 29, 2011 with exhibits;
6. Affidavit of Joan Matalavage sworn to August 31, 2011.