Opinion
No. 134192
01-11-2023
Kevin Tillman, Claimant, v. The State of New York [1], Defendant
For Claimant: STEVENS & TRAUB, PLLC By: Peter Traub, Esq. For Defendant: LETITIA JAMES, ATTORNEY GENERAL By: Joshua Lee, Esq. Assistant Attorney General
For Claimant: STEVENS & TRAUB, PLLC By: Peter Traub, Esq.
For Defendant: LETITIA JAMES, ATTORNEY GENERAL By: Joshua Lee, Esq. Assistant Attorney General
Linda K. Mejias-Glover, J.
Claimant, Kevin Tillman (hereinafter "Claimant") filed a Notice of Motion dated July 5, 2022, seeking an order pursuant to CPLR §3212 granting summary judgment in favor of Claimant against Defendant for the relief requested, dismissing all affirmative defenses and for costs and reasonable attorney's fees. Defendant, the State of New York (hereinafter, the "Defendant" or the "State"), moves by Notice of Motion dated July 15, 2022, pursuant to CPLR §§ 3211(a)(1), (a)(7), and 3212 seeking, inter alia, an order granting the State summary judgment as a matter law and dismissal of the claim in its entirety. Both motions have been fully briefed.
Now, having carefully reviewed the papers and exhibits filed, Defendant's motion is granted, and Claimant's motion is denied for the reasons more specifically set forth herein below.
Relevant Factual and Procedural Background
On September 12, 2019, Claimant served a notice of intention to file a claim for monetary damages for personal injuries caused by the "gross negligence" of the State of New York, Division of Criminal Justice Services ("DCJS"). Specifically, Claimant alleges that he was caused to sustain "serious and permanent physical and psychological injuries; damage to his reputation and standing in the community"; and loss of housing opportunities with the New York City Housing Authority (hereinafter, the "Housing Authority") due to the DCJS transmitting false information to the Housing Authority. Claimant alleges that the DCJS advised the Housing Authority that Claimant was a level 2 violent sex offender, when in fact he had never been a convicted sex offender. Claimant further avers that the cause of action accrued on July 11, 2019, when the DCJS transmitted false information to the Housing Authority.
Thereafter, Claimant filed a Verified Claim on December 20, 2019 (hereinafter, the "Claim"), alleging, in sum and substance, that: 1) Jeffrey Washington was the actual sex offender; 2) the DCJS acted with gross negligence pursuant to Corrections Law Section 168-r in causing Claimant to be erroneously registered as a sex offender without distinguishing "which was the alias and which was the real party in interest"; 3) the DCJS was required pursuant to Corrections Law Section 168-b(1)(a) to list each appropriate sex offender and all aliases used by said sex offender; and 4) "Corrections Law Section 168-b(1)(a) does not, nor any other provision thereof, authorize the State of New York to place an alias name separately on the Sex Offender Registry as an actual offender" nor empower the State "to list an alias of a registered sex offender as a separate and distinct person." Claimant seeks damages in the amount of $5 Million.
On March 13, 2020, the State filed a verified answer with general denials of the material allegations contained in the Claim and denying knowledge or information sufficient to form a belief as to the other allegations (hereinafter, the "Verified Answer"). In addition, the State raised several affirmative defenses alleging, in pertinent part, that: 1) the injuries or damages complained of were caused in whole or part by others for whom the defendant has no legal responsibility; 2) the State through its agents and/or employees took actions which were privileged as being discretionary determinations made by such agents or employees while acting within the scope of their duties as public officials; 3) the acts complained of were privileged in nature in that they were activities mandated by statute in the course of the State's business for which the State has an absolute or qualified privilege; 4) the State is immune from liability as the State owed no special duty to Claimant, in contrast to a general duty owed to the public; 5) the State through its employees, acted properly, lawfully, without malice, with reasonable and probable cause, in good faith and with legal justification; 6) Claimant suffered no damages that are compensable by law; and 7) the Claim fails to state a cause of action.
The note of issue was filed on April 7, 2022. At a court conference with the Court and the parties' respective counsel, counsel agreed there were issues of law that would determine the outcome of the case. Counsel further agreed, with the Court's consent, to submit joint exhibits and simultaneous motions for summary judgment on July 13, 2022. The date was adjourned for reasons not germane to this decision. Despite Claimant's counsel's contention, the Court did not order the parties to submit counter proposed statements of facts.
The following facts are undisputed, as set forth in Claimant's Statement of Facts : 1) from 2008 (and no later than 2011) to August of 2019, the State published as fact (on the State of New York Sex Offenders Registry ["SOR"]) that Claimant had, among other things, actual sexual intercourse with a 5 year old girl on April 11, 1991; 2) from 2008 (and no later than 2011) to August of 2019 the State of New York published as fact (on the SOR) that Kevin Tillman had actual deviant sexual intercourse with a 5-year-old girl on April 11, 1991; 3) from 2008 (and no later than 2011) to August of 2019 the State of New York published as fact (on the SOR) that Kevin Tillman was convicted of, among other things, having actual sexual intercourse with a 5-year-old girl on July 7, 1993. It is further undisputed that Jeffrey Washington is a level 2 sex offender, who was convicted of two or more violations of Penal Law Section 130.35, making him a predicate sexual violent offender who will remain in the public domain for the remainder of his life.
The Court notes that Claimant argues that Defendant violated 22 NYCRR 202.8-g by failing to file a Statement of Facts in support of its motion for summary judgment, however the Court of Claims is guided, but not bound by the rule, and therefore, will not reject the State's motion.
At his deposition, Claimant testified that, at that time, he was 56 years old and unemployed. Claimant currently lives alone in public housing, in the Bronx, New York, since September 15, 2019. Prior to living in public housing, Claimant had been admitted to a hospital in January 2019, where he had his leg amputated and was later transported to a rehabilitation center where he resided until receiving public housing in September 2019. Claimant testified that he was homeless for approximately 15 to 20 years, staying on the roof of his aunt's building in the Bronx and "couch surfing" two days out of the week. Before moving to New York, he had also lived in Colorado for approximately 11 years where he had been stationed in Fort Carson, Colorado, as an army supply clerk for three years and worked at a car dealership after being discharged from the military.
Claimant learned of his status as a sex offender sometime in or about July 2019, when he received communications from the Housing Authority in connection with his application for public housing. Pursuant to those communications, Claimant learned that his application for public housing was denied because his name was listed in the online public sex offender registry. Thereafter, Claimant was asked to meet with Mr. David Combs, an employee from the Housing Authority, who allegedly advised him that his picture was on the online public registry. After seeing the picture, Claimant advised Mr. Combs that the person identified on the online public registry was in fact his cousin, Mr. Jeffrey Washington, and provided a description of his cousin's height, a photograph of his cousin and descriptions of his cousin's tattoos.
Thereafter, Claimant went down to the police station, and submitted his fingerprint card to Ms. Corrina Gordon, an employee with the New York State Division of Criminal Justice Services, Sex Offender Registry, for comparison with the fingerprints on file for his cousin. On or about August 26, 2019, the DCJS completed a fingerprint comparison between Claimant, and his cousin who was registered as a sex offender using Claimant's name, Kevin Tillman. The DCJS then issued a fingerprint comparison report on the same date, which found that Claimant's fingerprints were not the same fingerprints on file for Jeffrey Washington. Thereafter, Claimant was accepted into the housing unit. Therefore, it is undisputed that Jeffrey Washington used Kevin Tillman's name as an alias which placed him on a level two sex offender list, and which resulted in his denial into housing.
The only issues to be determined are whether the State was negligent in its publication of Claimant's name in the SOR, whether such publication is defamation per se and therefore, outside the scope of the State's immunity, and whether the State is immune from liability because its actions were governmental functions and there is no special duty owed to Claimant.
Decision and Order
The moving party must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient admissible evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). The court must carefully scrutinize the motion papers in a light most favorable to the party opposing the motion (Vega v Restani Constr. Corp., 18 N.Y.3d 499, 502 [2012]). If the moving party fails, the court must deny the motion. If the moving party succeeds, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see id.; Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]).
Governmental functions are those undertaken by the State for the protection and safety of the public (Applewhite v. Accuhealth Inc., 21 N.Y.3d 420 [2013]). Governmental functions include providing security, oversight of juvenile delinquents, issuance of building permits, certifying compliance with fire safety codes, teacher supervision of school playgrounds, boat inspections, garbage collection and other functions that serve to ensure the safety of the public (id. at 426). If it is determined that the State was undertaking a "governmental function," then the State is immune from any liability for negligent acts arising from its governmental function, unless Claimant can show that the State owed him a special duty (id.). "[T]he duty breached must be more than that owed the public generally [citations omitted]."
When a negligence claim is asserted against a municipality acting in a governmental capacity, - the plaintiff must prove the existence of a special duty (see Ferreira v City of Binghamton, 38 N.Y.3d 298, 308-310 [2022]; Turturro v City of New York, 28 N.Y.3d 469, 477-478 [2016]). The Court has recognized that a special duty may arise in three situations: where "(1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous [*4]safety condition" (Maldovan v. Cnty. of Erie, 2022 NY Slip Op. 6632 [NY 2022]; Tara N.P. v Western Suffolk Bd. Of Coop. Educ. Servs., 28 N.Y.3d 709, 714 [2017] [internal quotation marks omitted]).
The Court notes that this recently decided Court of Appeals case that cites the McLean case and has affirmed the holding therein.
To establish that the government voluntarily assumed a special duty to the Claimant beyond what it generally owes to the public, the Claimant must establish:
(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking" . "[A]ll four elements must be present for a special duty to attach"(Tara N.P., 28 N.Y.3d at 715 [internal citations omitted]).
Here, Defendant argues that Claimant cannot show that the State owed him a special duty because he was not a member of the class of persons whom the Legislature intended to benefit from the enactment of Section 168-r of the Correction Law citing to McLean v. City of New York, 12 N.Y.3d 194, 200 (2009). Counsel goes on to argue that "the legislative history reveals that the Legislature intended to waive the State's sovereign immunity only in situations where the Department of Criminal Justice Services ("DCJS") releases information with gross negligence through the special telephone number (see Corrections Law § 168-r[1]).
The relevant portion of the statute states: "no official, employee or agency, whether public or private, shall be subject to any civil or criminal liability for damages for any discretionary decision to release relevant and necessary information pursuant to this section, unless it is shown that such official, employee or agency acted with gross negligence or in bad faith. The immunity provided under this section applies to the release of relevant information to other employees or officials or to the general public" Correction Law § 168-r(1).
Counsel next argues that "as Claimant readily admits in his papers, the plain language of Section 168-r provides qualified immunity for damages for any discretionary decision to release relevant and necessary information by public or private actors on the condition that said actors acted with gross negligence or in bad faith." In its motion, the State references various sections of the Corrections Law Section as follows:
The division shall decide whether the named person reasonably appears to be a person listed, based upon information from the caller providing information that shall include (a) an exact street address, including apartment number, driver's license number or birth date, the internet posting of information (i.e, online public registry) pertaining to level 2 and level 3 sex offenders was not part of the original Bill. The Bill was amended in 2000 to authorize the DCJS to post information concerning level 2 and level 3 sex offenders. Correction Law § 168-q. along with additional information that may include social security number, hair color, eye color, height, weight, distinctive markings, ethnicity; or (b) any combination of the above listed characteristics if an exact birth date or address is not available. If three of the characteristics provided include ethnicity, hair color, and eye color, other identifying characteristics shall be provided.
Counsel contends that there are no other provisions that authorize DCJS to disseminate information on a discretionary basis.
Furthermore, Defendant's counsel asserts that there is no similar provision granting the DCJS discretion in posting information on the online public registry due to the nature of characteristics and features listed about the sex offender, which seeks to eliminate or reduce the risk of misidentification (Correction Law § 168-q). The information that is required to be produced and made public on the online public registry, is standard and DCJS has no discretion . To that end, Defendant's counsel argues that "here, the Claimant cannot establish that he is a member of the class of persons who stands to benefit from the statute's enactment because the legislature only intended for victims of vigilantism and harassment to recover damages, and only when such damage is caused by DCJS's gross negligence in disseminating unauthorized information over the special telephone number. Nor is this a case where the State owed Claimant a duty beyond the duty of care owed to the general public. Thus, the legislature did not intend to extend liability to government actors where a convicted sex offender assumes the identity of another and causes reputational and economic harm to an innocent party."
See Correction Law §§ 168-l (6)(b) and (c) (allowing law enforcement agencies to collect and disseminate information of level 2 and level 3 sex offenders, including "all aliases used," and requiring such information to be posted in the online public registry when it is disclosed by law enforcement agencies).
Claimant argues that the Court of Appeals in Bernardine v City of New York, 294 NY 361 (1945), affirmed a finding that the doctrine of "governmental function" is inapplicable where the governmental entity committed a tort like any other citizen (permitting a police horse to run away causing injury). Counsel goes on to argue that to the defense of "governmental function", the Court noted: "the plea which was most often made for the immunity of the civil divisions of the State was an assertion that officers and employees thereof when engaged in the discharge of so-called governmental functions acted as delegates of the State and not on behalf of any municipal master" (Murtha v New York Homeopathic Medical College & Flower Hospital, 228 NY 183 [1920]).
Claimant's counsel argues that, in this case, "the State's attempt to raise [the] governmental function defense to their actual defamation of Kevin Tillman is a 'front' ". Claimant contends that the State defamed the Claimant when it published as fact that Claimant "raped, sodomized and sexually assaulted a 5-year old girl." Moreover, Counsel contends that "the Claimant has alleged and proven beyond any doubt that the State violated Correction Law Section 168-a, which mandates that the State create a sex offender profile under the sex offender's 'name' ". Counsel argues that this was not a discretionary act as the statute provides no discretion to publish an offender's name under an assumed or known alias and therefore, the creation of the SOR under the Claimant's name rather than Jeffrey Washington was a violation of Corrections Law 168-a. Therefore, and based on the ]foregoing, Defendant concludes that it is not governmental function.
With respect to Defendant's reference to the McClean case, Claimant's counsel argues that the State's reliance on this case is misplaced as the issue in that case is distinguishable from this case. Counsel contends that the issue for this Court to determine in the case at bar is whether "the State committed an affirmative tort directly against Kevin Tillman, in that they per se defamed and continue to defame him." Counsel goes on to argue that the State's defamation of Claimant was due to their failure to review his file to discover that "every sexual offense conviction was under the name of Jeffrey Washington." Counsel contends that in doing so, not only did they violate the common law of defamation per se, but the State violated Corrections Law 168-a by failing to create a sex offender profile in the actual, known name of the sex offender.
Here, Claimant alleges that the failure of the State to do its job has caused him immense harm under heartbreaking circumstances; this is unfortunately not unusual in special duty cases (see Tara N.P., 28 N.Y.3d at 716; McLean, 12 N.Y.3d at 197). As the Court of Appeals recognized in McLean, however, the special duty rule is based on the rationale that exposing municipalities to tort liability may "render them less, not more, effective in protecting their citizens" (McClean, 12 N.Y.3d at 204). McLean dealt with the government's failure to remove a citizen from a registry left a citizen injured. In that case, the plaintiff argued, in part, that "the helplessness of young children, and the State's powerful interest in protecting them from neglect or abuse, should lead [the Court] to announce the existence of a special relationship between those who registered for child care providers and parents and children who need child care" (Id. at 204). The Court rejected that assertion: "this is, in substance, an invitation to relax the special relationship rule to accommodate an especially appealing class of cases. We decline the invitation. A well settled rule of law denies recovery in cases like this, and that rule, by its nature, bars recovery even where a government blunder results in injury to people deserving of the government's protection" (id.).
Here, as in McLean and Maldovan, the Court must decline the "invitation to relax the special relationship rule to accommodate an especially appealing class of cases," out of concern for the possibility that "exposing municipalities to tort liability would be likely to render them less, not more effective in protecting their citizens" (id.). The Court cannot impose liability on the State where Claimant is not within the class of persons the statute intended to protect. Furthermore, the State here did not voluntarily assume a duty to the Claimant beyond what was owed to the public generally nor did the State take control of a known and dangerous safety condition. Therefore, the Court cannot find that Claimant falls within the special duty relationship exception, which would lead to the erroneous conclusion that the government is not immune from conducting its ministerial duties.
Claimant further argues that the publication of Claimant's name in the SOR constitutes defamation per se. Counsel relies on the New York Court of Appeals in Liberman v Gelstein (80 N.Y.2d 429, 434-435 [1992]), which laid out the differences and requirements of Defamation per se:
Slander as a rule is not actionable unless the plaintiff suffers special damage (see, Aronson v. Wiersma, 65 N.Y.2d 592, 594 [1985]; Matherson v. Marchello, 100 A.D.2d 233, 236 [2d Dept 1982], [Titone, J.P.]; Restatement [Second] of Torts [Restatement] § 575). Special damages contemplate "the loss of something having economic or pecuniary value" (Restatement § 575, comment b; see, Prosser and Keeton, Torts [Prosser] § 112, at 794 [5th ed.]). Plaintiff has not alleged special damages, and thus his slander claims are not sustainable unless they fall within one of the exceptions to the rule. The four established exceptions (collectively "slander per se") consist of statements (i) charging plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman (see, Moore v. Francis, 121 NY 199, 203 [1890]; Privitera v. Town of Phelps, 79 A.D.2d 1, 3 [4th Dept 1981]; Civ Rights Law § 77; 2 Seelman, Libel and Slander in the State of New York, at 869-907 [1964]; Restatement §§ 570-573; Smolla, Defamation § 7.05). When statements fall within one of these categories, the law presumes that damages will result, and they need not be alleged or proven.
Counsel argues that "[d]efamation per se does not require proof of actual financial losses, as they are presumed by the heinous nature of the defamation. For instance, in this matter, Kevin Tillman served in our Country's military for many years and was honorably discharged from the armed forces in the early 1990's. Originally locating himself in Denver, Colorado, he held a job with a major car rental company, until he chose to return to New York. Shortly after coming back to New York City, he could not find employment, housing, etc., inexplicably being denied at every turn. He was even denied housing at a NYC homeless shelter without explanation. Mr. Tillman then proceeded to earn a living selling wool hats, gloves and other sundry articles on the street as a vendor. While sleeping on a roof of a building in the winter of 2019, as occupancy in a homeless shelter was denied to him, he slipped into a coma due to the cold weather and his untreated diabetes, which resulted in his leg being amputated. When he applied for public housing, he was denied same because his name appeared in the Sex Offenders Registry. Whilst these calamities lend themselves to suspect they were all related to the false publication by the State of New York that Mr. Tillman was a convicted sex offender who raped, sodomized and sexually assaulted a 5-year-old girl; under the rules of defamation per se, we do not need to specifically prove such pecuniary losses, as they are presumed."
Defendant, in turn, argues that the State cannot be held liable for defamation per se to Claimant as the State acted reasonably and in good faith. It further argues that there is no question that the real party at fault is Jeffrey Washington, who assumed the identity of Claimant. The State relied upon court conviction records, criminal history records, and sex offender registration records when it published Claimant's information on the online public registry and had no intention of injuring the Claimant in anyway. Further, the State possesses a statutory duty to publicly publish the aliases of level 2 sex- offenders such as Jeffrey Washington on its website. Also, state agencies followed their respective internal guidelines from the time Jeffrey Washington was received or placed in State custody to the time he was registered as a sex offender.
In reply, Claimant reiterates its underlying arguments and further argues that in this case, although the Claimant does not need to establish gross negligence, the State has violated its absolute duty to create a profile in the name of the sex offender. The Claimant further argues that "sex offender profiles were bound by statute to contain statements of fact pertaining to the conviction of a sex crime premised upon heinous facts, as all such crimes must necessarily entail." Claimant reiterates that this is a defamation action that occurred because the State did not comply with Corrections Law 168-a et seq or set up protocols to ensure they properly complied with Corrections Law 168 et seq.
In reply, Claimant further reiterates its argument to this Court that this case involves purely ministerial acts, which is an exception to the government immunity defense. Claimant argues that the "State concedes that the events in this case did not involve discretionary actions. Under these circumstances, not only is the governmental immunity defense unavailing to the State, but the State's concession in this regard obviates the defense afforded to the State in Cor. Law 168-r." Counsel argues that "Claimant has amply demonstrated the State's lack of minimal standards, and in fact, the record demonstrates there are no standards whatsoever at the SOR. When there is a complete lack of any care, as established beyond contestation herein, the failure to employ minimal standards rises to the level of gross negligence as a matter of law."
Defendant, in response, argues that "it is well accepted law that the State still enjoys absolute immunity for discretionary acts and qualified immunity for ministerial acts, unless the [C]laimant can show that the State owed him a special duty, apart from that owed to the public in general." The State further argues that Claimant failed to identify what, if any, duty of care was owed to him specifically by the State. To that end, and in rebuttal to Claimant's alternative argument that the State should be found liable because it committed "ministerial negligence," Claimant did not establish that the State owed Claimant a special duty.
While the Court acknowledges and sympathizes that Claimant may have been injured by his name being placed on the registry list, it finds that the State has not acted in bad faith as a result of Claimant's name being placed on the SOR and therefore, it cannot hold that the State was grossly negligent or defamatory pe se. In addition, the Court finds that based on the foregoing, Claimant did not prove that the State owed him a special duty apart from that owed to the public and therefore, the State is entitled to absolute immune from discretionary acts and cannot be held liable. Thus, the Court must dismiss the Claim accordingly.
Accordingly, and based on the foregoing, it is hereby
ORDERED, that Defendant's motion (M-98353) is GRANTED in its entirety and Claim Number 134192 is DISMISSED; and it is further
ORDERED, that Claimant's motion (M-98354) is DENIED in its entirety.
HON. LINDA K. MEJIAS-GLOVER, Judge of the Court of Claims
Papers Read on this Motion:
1.Notice of Motion, Affirmation in Support, Memorandum of Law in Support
2. Notice of Motion, Affirmation in Support, Statement of Facts, Exhibit Annexed
3. Opposition to Defendant's Notice of Motion
4. Opposition to Claimant's Notice of Motion
5. Affirmation in Reply of Claimant
6. Affirmation in Reply of Defendant