# 2019-032-074 Claim No. 132353 Motion No. M-94066 Cross-Motion No. CM-94285
Elefterakis, Elefterakis & Panek By: Baree N. Fett, Esq. and Oliver R. Tobias, Esq. Hon. Letitia James, Attorney General By: Cheryl M. Rameau, AAG
Motion to dismiss the claim for failure to allege the proper accrual date granted. Claimant's motion to amend is denied as jurisdictional defects cannot be cured by amendment. Claimant's late claim application granted in part.
V.V., an infant by her mother and natural guardian Veronica Vasicka, and Veronica Vasicka, individually
Claimant short name:
Footnote (claimant name) :
THE STATE OF NEW YORK
Footnote (defendant name) :
JUDITH A. HARD
Elefterakis, Elefterakis & Panek By: Baree N. Fett, Esq. and Oliver R. Tobias, Esq.
Hon. Letitia James, Attorney General By: Cheryl M. Rameau, AAG
Third-party defendant's attorney:
December 16, 2019
See also (multicaptioned case)
The instant claim was filed on December 4, 2018, asserting several causes of action arising from an incident that took place on June 6, 2018 at the East River State Park ("the Park") in Brooklyn, New York (Verified Claim ¶ 2). On that date, claimant Veronica Vasicka (hereinafter "claimant") and her daughter, claimant V.V. were walking their dog near the Park. At approximately 4:50 p.m., claimant tied the dog to the park gate and proceeded into the Park to get a lemonade for V.V. When claimant and V.V. returned to the park gate to untie their dog, they were approached by several New York State Parks Police Officers. The officers demanded identification from claimant. When claimant questioned the officers, they responded by handcuffing and assaulting claimant while V.V. stood by upset and crying. Officer Kerwin pinned claimant against a park bench to restrain her. The officers then put claimant in a Police vehicle. At this time, a stranger was holding V.V. and claimant vehemently objected to leaving V.V. --a three-year-old--with a stranger. The Officers then released claimant and issued her a summons. On October 1, 2018, the charges against claimant were adjourned in contemplation of dismissal and immediately sealed. The claim asserts causes of action for negligence, gross negligence, negligent and/or intentional infliction of emotional distress, false imprisonment, assault and battery, prima facie tort, failure to intervene, and negligent hiring, training, retention and supervision.
Claimant now moves to amend the claim to change the date of incident from June 6, 2018 to June 9, 2018. In the alternative, claimant moves for permission to file and serve a late claim. Defendant cross moves to dismiss the claim on the ground that the claim fails to allege the correct accrual date.
MOTION TO DISMISS
"Court of Claims Act § 11 (b) 'places five specific substantive conditions upon [defendant's] waiver of sovereign immunity by requiring the claim to specify: (1) the nature of the claim; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed' " (Davila v State of New York, 140 AD3d 1415, 1416 [3d Dept. 2016], quoting Lepkowski v State of New York, 1 NY3d 201, 206  [internal quotation marks omitted]). "Absolute exactness is not required, but the claim must enable prompt investigation and be sufficiently specific to enable [a] defendant to reasonably infer the basis for its alleged liability" (Davila v State of New York, 140 AD3d at 1416 [internal quotation marks and citations omitted]; see Morra v State of New York, 107 AD3d 1115, 1115 [3d Dept. 2013]; Deep v State of New York, 56 AD3d 1260, 1261 [4th Dept. 2008]). It is well settled that "[t]he State's waiver of immunity from suits for money damages is not absolute, but rather is contingent upon a claimant's compliance with specific conditions placed on the waiver by the Legislature" (Lepkowski v State of New York, 1 NY3d at 206; see Court of Claims Act § 8; Alston v State of New York, 97 NY2d 159, 163 ). Accordingly, "[f]ailure to strictly comply with these substantive pleading requirements is a jurisdictional defect warranting dismissal for lack of subject matter jurisdiction" (Signature Health Ctr., LLC v State of New York, 42 AD3d 678, 679 [3d Dept. 2007]; see Kolnacki v State of New York, 8 NY3d 277, 280 ; Lepkowski v State of New York, 1 NY3d at 207-208; Alston v State of New York, 97 NY2d at 164).
Here, counsel for claimant explains that during an initial in-person meeting with claimant that took place on June 20, 2018, claimant mistakenly informed counsel that the incident occurred on June 6, 2018 (Aff. in Support of Motion ¶ 23). This incorrect date was memorialized in the paperwork from that meeting and used in both the notice of intention to file a claim and the verified claim relating to the incident (id. ¶¶ 25-26). Counsel for claimant now acknowledges that the incident actually occurred on June 9, 2018 (id. ¶ 5). Because the verified claim alleges an incorrect accrual date, the claim is jurisdictionally defective and must be dismissed for its failure to comply with Court of Claims Act § 11 (b). Therefore, defendant's motion to dismiss the claim is granted. As jurisdictional defects cannot be cured by an amendment, claimant's motion to amend the claim is denied (Miller v State of New York, UID No. 2019-054-038 [Ct Cl, Rivera, J., July 19, 2019]).
LATE CLAIM APPLICATION
The Court will now address claimant's late claim application. The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept. 2002]). In making a determination to grant or deny such an application, the Court must determine whether the claim would be timely under Article 2 of the CPLR and then consider certain statutory factors (Court of Claims Act § 10 ). These factors are: (1) whether the delay in filing the claim was excusable; (2) whether the state had notice of the essential facts constituting the claim; (3) whether the state had an opportunity to investigate the circumstances underlying the claim; (4) whether the state was substantially prejudiced; (5) whether the claimant has any other available remedy; and (6) whether the claim appears to be meritorious (Court of Claims Act § 10 ). The presence or absence of any one of said factors is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 ). However, the last factor is the most decisive inasmuch as it is futile to proceed with a meritless claim even if the other factors support the granting of the claimant's application (Savino v State of New York, 199 AD2d 254 [2d Dept. 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept. 1986]).
First, the Court must determine whether claimant's causes of action are timely under CPLR Article 2 (Court of Claims Act § 10 ). The proposed claim accrued on June 9, 2018 and sets forth causes of action for negligence, gross negligence, negligent and/or intentional infliction of emotional distress, false imprisonment, assault and battery, prima facie tort, failure to intervene, and negligent hiring, training, retention and supervision. The claims for false imprisonment and assault and battery are intentional tort claims subject to the one year statute of limitations set forth in CPLR 215. The negligence claims are subject to the three year statute of limitations set forth in CPLR 214 (5). Because the late claim application was filed on June 7, 2019, all of the claims set forth therein are timely under the applicable statutes of limitation.
As to the first factor, claimant argues that the delay in filing is attributable to counsel's ministerial error in recording the correct date of the incident at the center of the claim. It is well-settled, however, that law office failure is not an adequate excuse for failing to meet statutory filing deadlines (see Langner v State of New York, 65 AD3d 780, 783 [3d Dept. 2009]; Matter of Magee v State of New York, 54 AD3d 1117, 1118 [3d Dept. 2008]; Matter of Bonaventure v New York State Thruway Auth., 114 AD2d 674, 674-675 , affd 67 NY2d 811 ). Nevertheless, the absence of an excuse for late filing is only one of the factors considered by the Court in reviewing a late claim application and does not necessarily preclude the relief sought here (see generally Williams v State of New York, 133 AD3d at 1357).
The three factors of defendant's notice of and opportunity to investigate the essential facts constituting the claim and the lack of substantial prejudice to be incurred by granting late claim relief are frequently analyzed together since they involve similar considerations. Claimant argues that defendant had notice of and an opportunity to investigate the essential facts constituting the claim because claimant served a copy of the summons issued by Officer Kerwin, medical records, photographs of claimant's injuries and video footage of the incident within months of the underlying incident. Therefore, claimant asserts that defendant would not be prejudiced if the Court allowed a late filing of the claim. Defendant does not argue otherwise, therefore the Court finds that these three factors weigh in claimant's favor.
Defendant argues that claimant has an alternative remedy available because she is suing Officer Kerwin in federal court. Thus, the Court finds that this factor does not weigh in claimant's favor.
Turning then to the final factor, in order to establish a meritorious cause of action, claimant must establish that his claim is not "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Court of Claims Act § 10 ; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). "While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require [claimant] to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit [him] to file a late claim" (Williams v State of New York, UID No. 2016-040-100 [Ct Cl, McCarthy, J., Nov. 16, 2016]; see Matter of Santana v New York State Thruway Auth., 92 Misc 2d at 11-12).
"[A] claim of false arrest or imprisonment requires that [claimant] 'establish that the defendant intended to confine [her], that [she] was conscious of the confinement and did not consent to the confinement, and that the confinement was not otherwise privileged' " (Krzyzak v Schaefer, 52 AD3d 979, 980 [3d Dept. 2008], quoting Martinez v City of Schenectady, 97 NY2d 78, 85 ; see Broughton v State of New York, 37 NY2d 451, 456 , cert denied sub nom. Schanbarger v Kellogg, 423 US 929 ). It is well settled that "the existence of probable cause to arrest, which is the dispositive issue herein, constitutes a complete defense to the claims of false arrest and unlawful imprisonment" (Marrero v City of New York, 33 AD3d 556, 557 [1st Dept. 2006]; see Martinez v City of Schenectady, 97 NY2d at 85; Broughton v State of New York, 37 NY2d at 457; Lewis v Caputo, 95 AD3d 262, 268-269 [1st Dept. 2012], revd on other grounds 20 NY3d 906 ; Strange v County of Westchester, 29 AD3d 676, 676 [2d Dept. 2006]; Molina v City of New York, 28 AD3d 372, 372 [1st Dept. 2006]).
The proposed amended claim states that on June 9, 2018, claimant tied her dog to a gate at the East River State Park and entered the park with her daughter, V.V. (Proposed Claim ¶¶ 2-3). When claimant returned to the gate to untie her dog, she was approached by several Parks Police Officers who demanded that she provide identification (id. ¶ 6). When claimant questioned the officers, they allegedly handcuffed and assaulted her (id. ¶ 6). Defendant argues that probable cause for claimant's arrest existed because she was acting in a "belligerent" manner and because she violated a New York State regulation that prohibits the possession of animals in State parks (Aff. in Opp. ¶¶ 15-16).
Significantly, claimant is not required to establish a prima facie case within the instant late claim application. Rather, claimant need only establish the appearance of merit (Rosario v State of New York, 8 Misc 3d 1007[A], 2005 NY Slip Op 50981[U], *10 [Ct Cl 2005]; see Witko v State of New York, 212 AD2d 889, 891 [3d Dept. 1995]). Although defendant argues that probable cause for claimant's arrest and detention existed, claimant argues that she did not violate any rules or laws that could form the basis for her arrest. Therefore, the Court finds that the allegations contained in the proposed claim relating to claimant's false arrest cause of action are not "patently groundless, frivolous or legally defective" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]).
Turning then to the claim of malicious prosecution, claimant is required to show " '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' " (Krzyzak v Schaefer, 52 AD3d at 980, quoting Martinez v City of Schenectady, 97 NY2d at 84; see Broughton v State of New York, 37 NY2d at 457 ). However, a claimant's acceptance of an adjournment in contemplation of dismissal bars recovery under a cause of action for malicious prosecution, as the ACOD fails to qualify as a favorable termination of the criminal proceeding (Smith-Hunter v Harvey, 95 NY2d 191, 197 ; Hollender v Trump Vil. Coop., 58 NY2d 420, 425-426 ). Here, because claimant's charges were adjourned in contemplation of dismissal (Proposed Claim ¶ 12), her cause of action for malicious prosecution cannot be maintained.
The Court also notes that, to the extent the proposed claim may be read to assert a cause of action for malicious prosecution, counsel for claimant avers that the proposed claim does not allege such a cause of action (Aff. in Opp. to Motion to Dismiss ¶ 98). --------
Assault and Battery
The State may be liable for an assault and battery committed by an employee in carrying out their duties under the theory of respondeat superior (Rivera v State of New York, -- NY3d --, 2019 NY Slip Op 08521 ; Jones v State of New York, 33 NY2d 275, 280 ). "[A]ssault and battery causes of action may be based on contact during an unlawful arrest" (Rodgers v City of New York, 106 AD3d 1068, 1069 [2d Dept. 2013], lv denied 21 NY3d 864 ). Because the Court has already found that claimant has established the appearance of merit of her claim for false arrest, the Court also finds that claimant has established the appearance of merit of her claims for assault and battery that occurred during the allegedly unlawful arrest (see Johnson v Suffolk County Police Dept., 245 AD2d 340, 341 [2d Dept. 1997] [finding that the plaintiff established a claim for battery when an Officer touched the plaintiff during an unlawful arrest]; Budgar v State of New York, 98 Misc 2d 588 [Ct Cl 1979] [finding that the physical force used during an unlawful arrest constituted an assault and battery]).
Failure to Intervene
Claimant's cause of action for failure to intervene is derivative of her cause of action for assault and battery. Like the claims for assault and battery, claimant's cause of action against the State's employees for failure to intervene may be established if claimant proves that there was no probable cause for her arrest (see Zabala v City of New York, 32 Misc 3d 695, 696 [Sup Ct, Kings County 2011]). Thus, claimant has established the appearance of merit of this cause of action.
Prima Facie Tort and Intentional Infliction of Emotional Harm
Claimant's cause of action for prima tort facie cannot be maintained against the State as public policy "prohibits the maintenance of a suit against the State or, by extension, an official acting in his or her official capacity for prima facie tort" (Cavanaugh v Doherty, 243 AD2d 92, 101 [3d Dept. 1998], citing Van Buskirk v Bleiler, 46 AD2d 707, 707-708 [3d Dept. 1974]; see also Retamozzo v City Univ. of New York, UID No. 2014-049-038 [Ct Cl, Weinstein, J., June 30, 2014]). It is also well-settled that for public policy reasons, the maintenance of lawsuits against the State for intentional infliction of emotional distress is prohibited (see Ellison v City of New Rochelle, 62 AD3d 830 [2d Dept. 2009]; Augat v State of New York, 244 AD2d 835 [3d Dept. 1997]). Thus, claimant failed to establish the appearance of merit for these causes of action.
Negligence, Negligent Hiring, Retention and Training and Negligent Infliction of Emotional Harm
Under a theory of negligent hiring and/or supervision, a claimant must establish that the employer knew or should have known of the employee's propensity for the type of conduct which injured the claimant (Johnson v State of New York, UID No. 2008-030-025 [Ct Cl, Scuccimarra, J., Nov. 25, 2008], citing Prentice v State of New York, UID No. 2004-009-01 [Ct Cl, Midey, J., Mar. 30, 2004]; Jablonski v State of New York, UID No. 2001-028-0010 [Ct Cl, Sise J., Apr. 10, 2001]). In order to prevail on a claim of negligent hiring and/or supervision, a claimant must also show that the employee acted outside their scope of employment (Johnson v State of New York, UID No. 2016-038-117 [Ct Cl, DeBow, J., Dec. 22, 2016], citing Passucci v Home Depot, Inc., 67 AD3d 1470, 1472 [4th Dept. 2009], lv denied 72 AD3d 1658  [additional citation omitted]). A cause of action for negligent hiring and/or supervision cannot lie where "the employee is acting within the scope of his or her employment, thereby rendering the employer liable for damages caused by the employee's negligence under the [alternative] theory of respondeat superior" (Passucci v Home Depot, Inc., 67 AD3d at 1472, quoting Drisdom v Niagara Falls Mem. Med. Ctr., 53 AD3d 1142, 1143 [4th Dept. 2008] [internal quotation marks omitted]). Here, the proposed claim states that "[t]he [O]fficers were employed by the State of New York and acting in the scope of their employment, rendering the State of New York liable for their tortious conduct under the theory of respondeat superior" (Proposed Claim ¶ 13). Moreover, the proposed claim alleges in a conclusory fashion that "[t]he [O]fficers were negligently hired, trained, retained and supervised" (id.), but does not allege that the State knew or should have known of any particular employee's propensity for the conduct that cause claimants' injuries. Simply labeling this cause of action as one for negligence without any factual support elsewhere in the claim is insufficient to establish the appearance of merit for this cause of action (see Borrerro v Haks Group, Inc., 165 AD3d 1216, 1218 [2d Dept. 2018]; see also Sanchez v State of New York, UID No. 2019-053-522 [Ct Cl, Sampson, J., June 28, 2019]). Further, where, as here, the alleged negligent hiring, training or supervision is based upon the activities of an arrest and detention, claimants must rely on the traditional remedies of false arrest and false imprisonment rather than the broader principles of negligence (Ray v County of Nassau, 100 AD3d 854 [2d Dept. 2012]; Stalteri v County of Monroe, 107 AD2d 1071 [4th Dept. 1985]).
Claims for negligent infliction of emotional distress cannot generally be maintained against the State or a governmental entity, but there are limited circumstances in which they may be maintained (Lauer v City of New York, 95 NY2d 95, 114 ). However, this cause of action presupposes that a claimant has established a claim of negligence against a defendant, which for the reasons stated above, claimants here have failed to do.
Therefore, the Court finds that claimant has failed to establish the appearance of merit for the causes of action sounding in negligence.
Infant V.V.'s Claim
Defendant argues that the Court should decline to allow the claims brought on behalf of V.V. because the proposed claim does not contain any allegations that a tortious act was committed against V.V., nor does the proposed claim establish that V.V. was within a "zone of danger" as required for a recovery (Johnson v Jamaica Hosp., 62 NY2d 523, 526 ). If claimant establishes her claim for false arrest, V.V. may also recover for the emotional injury suffered by witnessing the incident (see Pickett v State of New York, UID No. 2019-029-079 [Ct Cl, Mignano, J., Oct. 11, 2019] [awarding damages to the parents of claimant on the ground that they suffered emotional harm while watching their son's arrest and detention]). Contrary to defendant's contention that V.V. was not harmed during the subject incident, "[i]t is well established in New York that damages may be recovered for purely emotional harm, even where there is no physical injury involved, especially where such claims of harm rest upon evidence substantiating their genuineness" (Perrington v State of New York, UID No. 2010-030-038 [Ct Cl, Scuccimarra, J., Nov. 18, 2010]; see also Bovsun v Sanperi, 61 NY2d 219, 230-231 ). Whereas here, the allegations contained in the claim would support a likelihood of purely emotional harm if found to be true, the Court finds that infant claimant V.V.'s claim is potentially meritorious.
Accordingly, the Court finds that claimants have established the appearance of merit of the causes of action for false arrest, assault and battery, failure to intervene, and for the claims asserted by infant claimant V.V. and the Court finds that the balance of factors set forth in Court of Claims Act § 10 (6) weighs in favor of granting claimants' late claim application.
Based upon the foregoing it is hereby
ORDERED that defendant's cross motion to dismiss the claim (CM-94285) is GRANTED and claim number 132353 is DISMISSED; and it is further
ORDERED that claimant's motion for permission to amend the claim or in the alternative, to file and serve a late claim (M-94066) is DENIED insofar as claimant seeks to amend the claim and is otherwise GRANTED in part as set forth above; and it is further
ORDERED that claimant is directed to file and serve a verified claim identical to the claim provided in support of this motion, except that the claim to be filed shall assert only causes of action for false arrest, assault and battery, failure to intervene, and the claims asserted by infant claimant V.V., in compliance with the Court of Claims Act, including the payment of a filing fee in accordance with section 11-a thereof, within sixty (60) days of the filing of this Decision and Order.
December 16, 2019
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Verified Claim, filed on December 4, 2018. 2. Verified Answer, filed on January 25, 2019. 3. Notice of Motion for Leave to File an Amended Claim, or in the Alternative, to File a Late Claim, dated June 7, 2019; and Affirmation of Claimant's Attorney in Support of Motion, affirmed by Baree N. Fett, Esq. on June 7, 2019 with Exhibits A through J annexed thereto. 4. Notice of Cross-Motion to Dismiss Claim, dated July 9, 2019; and Affirmation in Support of Cross-Motion and in Opposition to Claimants' Motion, affirmed by Cheryl M. Rameau, AAG on July 9, 2019, with Exhibits A through C annexed thereto. 5. Affirmation in Opposition to Defendant's Cross-Motion and in Reply to Defendant's Opposition to Claimants' Motion, affirmed by Oliver R. Tobias, Esq. on September 3, 2019, with Exhibits A through K annexed thereto.