Opinion
# 2019-015-178 Claim No. 133070 Claim No. 133072 Claim No. 133073 Claim No. 133074 Motion No. M-94147 Motion No. M-94146 Motion No. M-94145 Motion No. M-94148
10-01-2019
DAVID M. BUCHANAN, ROBERT DEPAOLO, DANIEL W. TAGGART, and JASON A. HOFMANN v. THE STATE OF NEW YORK
Douglas Walter Drazen, Esq. Honorable Letitia James, Attorney General By: James E. Shoemaker, Esq., Assistant Attorney General
Synopsis
Correction Officers' claims arising from the prosecution of a disciplinary action were dismissed for the second time for failing to state a cause of action.
Case information
| UID: | 2019-015-178 |
| Claimant(s): | DAVID M. BUCHANAN, ROBERT DEPAOLO, DANIEL W. TAGGART, and JASON A. HOFMANN |
| Claimant short name: | Buchanan, etal |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 133070, 133072, 133073, 133074 |
| Motion number(s): | M-94147, M-94146, M-94145, M-94148 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Douglas Walter Drazen, Esq. |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: James E. Shoemaker, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 1, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimants, four Correction Officers employed by the Department of Corrections and Community Supervision (DOCCS), seek damages for emotional trauma stemming from certain disciplinary charges brought against them. The claims were previously dismissed for failing to state a cause of action and defendant now moves to dismiss each of the newly filed claims pursuant to CPLR 3211 (a) (2), (5) and (7) on the grounds they are barred under the doctrines of res judicata or collateral estoppel and, in any event, fail to state a cause of action for all of the reasons previously asserted by the defendant as a basis for its prior dismissal motions.
Unless otherwise indicated, "claimants" refers to the claimants in claim numbers 133070 (David M. Buchanan), 133072 (Daniel W. Taggart), 133073 (Robert DePaolo), 133074 (Jason A. Hofmann).
In separate but nearly identical claims, each of the claimants allege that on November 6, 2015, while on duty as a Correction Officer in the Correction Alternative Rehabilitation (CAR) unit at Sullivan Correctional Facility, an incident broke out between two inmates, Burrell and Mantock, near the sally port entrance. In responding to the incident the use of force was allegedly required. Claimant David Buchanan alleges that "[i]n the process of that intervention, claimant moved inmate Mantock toward a facility wall, and felt threatened by the inmate's actions, so he took the inmate to the floor, with the inmate sustaining no meaningful injury" (motion No. M-94147, defendant's Exhibit A, ¶ 6). Claimant Daniel W. Taggart alleges that he was on duty as a supervisor of the CAR unit and "[f]our Correction Officers had[] intervened to separate the inmates, and per facility policy, were waiting to be directed by claimant" (motion No. M-94146, defendant's Exhibit A, ¶ 5). Claimant Robert DePaolo alleges that he, "along with three other officers, intervened to separate the inmates, acting as directed by a superior" (motion No. M-94145, defendant's Exhibit A, ¶ 5) and that "[i]n the process of that intervention, and while assisting two other officers while inmate Burrell was struggling with them, claimant allegedly delivered three blows with his knee to the inmate's leg. The inmate sustained no meaningful injury" (id. at ¶ 6). Claimant Jason A. Hofmann alleges that he, along with three other officers, intervened to separate the inmates, as directed by a superior, and "[i]n the process of that intervention, claimant restrained inmate Burrell, who was struggling with and resistant to claimant and another officer. The inmate sustained no meaningful injury" (motion No. M-94148, defendant's Exhibit A, ¶ 6). All of the claimants allege they were placed on administrative leave with pay on November 6, 2015, and were suspended without pay on January 5, 2016. On January 8, 2016 a notice of discipline was allegedly issued to all of the claimants.
Buchanan alleges he was charged with the use of excessive force, failing to properly secure an inmate, and giving false and misleading information. A penalty of dismissal with loss of annual leave accruals was proposed. Buchanan denied the charges and the matter was heard by an arbitrator who issued a decision on June 20, 2016 exonerating him of all charges, "finding there was no probable cause for disciplinary action against claimant" (motion No. M-94147, defendant's Exhibit A, ¶ 9).
Taggart alleges he was charged with failing to report the use of force, and giving false and misleading information regarding the incident. A penalty of dismissal with loss of annual leave accruals, pension and other benefits was proposed. Taggart denied the charges and the matter was heard by an arbitrator who issued a decision on April 11, 2016 exonerating him of all charges, "finding there was no probable cause for disciplinary action against claimant" (motion No. M-94146, defendant's Exhibit A, ¶ 9).
DePaolo alleges he was charged with the use of excessive force, failing to properly secure an inmate, and giving false and misleading information regarding the incident. A penalty of dismissal with loss of annual leave accruals was proposed. DePaolo denied the charges and the matter was heard by an arbitrator who issued a decision on June 16, 2016 exonerating him of all charges, "finding there was no probable cause for disciplinary action against claimant" (motion No. M-94145, defendant's Exhibit A, ¶ 9).
Hofmann alleges he was charged with the use of excessive force, failing to properly secure an inmate, and giving false and misleading information regarding the incident. A penalty of dismissal with loss of annual leave accruals was proposed. Hofmann denied the charges and the matter was heard by an arbitrator who issued a decision on May 17, 2016 exonerating him of all charges, "finding there was no probable cause for disciplinary action against claimant" (motion No. M-94148, defendant's Exhibit A, ¶ 9).
By Decision and Order dated November 1, 2018 (filed December 11, 2018), claimants' prior claims arising from the same incident were dismissed for failure to state a cause of action. The court concluded that claimants lacked standing to pursue a claim for breach of contract directly against their employer; claimants' causes of action for intentional infliction of emotional distress were precluded on public policy grounds; the circumstances did not give rise to a claim for negligent infliction of emotional distress; the cause of action based upon an alleged violation of the due process clause of the NYS Constitution was not viable due to the existence of alternative remedies; the State was not amenable to suit for a violation of the Federal Constitution; the circumstances alleged did not give rise to a cause of action for malicious prosecution; and there is no cognizable cause of action for negligent investigation.
Claimants filed new claims arising from the same incident on May 13, 2019. While the facts alleged are substantially similar, the number of causes of action alleged was reduced from ten to four. The newly filed claims at issue allege the following: (1) that defendant's conduct was intentionally undertaken to cause harm without regard to the truth which was readily discernable from the outset of the matter (first cause of action); (2) in pursuing the disciplinary charges against claimants, defendant deprived claimants of due process under the NY Constitution (second cause of action); (3) in ignoring the proof showing claimants had not acted improperly, defendant breached its duty to enforce DOCCS' Employee Manual (third cause of action); (4) in pursuing the disciplinary charges against the claimants, defendant acted in complete disregard of the consequences to the claimants and with extreme indifference to claimants' rights and safety thereby constituting gross negligence (fourth cause of action).
"Under res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action" (Parker v Blauvelt Volunteer Fire Co., Inc., 95 NY2d 343, 347 [1999], quoting Matter of Reilly v Reid, 45 NY2d 24, 27 [1978]). However, a dismissal on a CPLR 3211 (a) (7) motion for failure to state a cause of action is not generally considered a final and conclusive determination "on the merits," and will not be given res judicata effect (Matter of Averbach v Board of Assessors of Town of Delhi, 176 AD2d 1151, 1152 [3d Dept 1991]). While this is especially so where a claim is dismissed upon a pleading error or omission, the general rule more broadly holds that a prior CPLR 3211 (a) (7) dismissal will not be given preclusive effect "where the dismissal does not appear to be the results of a merits determination" (Plattsburgh Quarries v Palcon Indus., 129 AD2d 844, 845-846 [3rd Dept 1987]). A prior dismissal on the basis of pleading errors or omissions will be given preclusive effect in the event of "a new complaint for the same cause of action which fails to correct the defect or supply the omission determined to exist in the earlier complaint" (175 E. 74th Corp. v Hartford Acc. & Indem. Co., 51 NY2d 585, 590 n 1 [1980]; Blake v City of New York, 144 AD3d 1071 [2d Dept 2016]).
In the instant matter the Court will adhere to the traditional rule, finding that the prior dismissal for failure to state a cause of action pursuant to CPLR 3211 (a) (7) was not a final, conclusive determination on the merits. The question next becomes whether claimants have cured the pleading deficiencies which led to the dismissal of their prior claims. The Court finds that they have not.
While claimants reduced their causes of action from ten to four, they remain subject to dismissal for the very same reasons set forth by this court in it's Decision and Order granting defendant's dismissal motion. The first cause of action in each claim alleges the defendant acted intentionally, without justification, and with a wanton disregard for the truth. The causes of action for intentional infliction of emotional distress (previously denominated as claimants' first through third causes of action) were previously dismissed on the ground that actions against the State for intentional infliction of emotional distress are barred on public policy grounds (Sawitsky v State of New York, 146 AD3d 914 [2d Dept 2017], lv denied 29 NY3d 908 [2017]; Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 [1998]). Claimants' re-assertion of the same cause of action, albeit in a different form, is subject to dismissal for the same reason.
Claimants' allege as their second cause of action a violation of the due process clause of the NYS Constitution. This cause of action was previously alleged as claimants' fifth cause of action and was dismissed on the ground an alternative remedy was available to vindicate claimants' constitutional rights (Martinez v City of Schenectady, 97 NY2d 78, 83 [2001]). While claimants add the allegation in their newly filed claims that no alternative remedy exists, they each allege that they availed themselves of the disciplinary arbitration process and prevailed. Had they not prevailed or had DOCCS refused to comply with the arbitrator's determinations, claimants could have sought vacatur of the decisions (in the event they lost) or confirmation of the decisions (in the event of DOCCS' noncompliance), in a proceeding commenced pursuant to CPLR article 75 (see e.g. Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85 [2010]; Matter of Bukowski [State of N.Y. Dept. of Corr. & Community Supervision], 148 AD3d 1386 [3d Dept 2017]; Matter of Kubiak v Derenda, 150 AD3d 1631 [4th Dept 2017]). Such an alternative remedy forecloses a constitutional tort cause of action such as that asserted here (Carver v State of New York, 79 AD3d 1393, 1394-1395 [3d Dept 2010], lv denied 17 NY3d 707 [2011]). Claimants' re-assertion of the same constitutional tort cause of action is, once again, subject to dismissal for this reason.
Claimants' third cause of action alleges DOCCS breached its duty to enforce the Employee Manual fairly. Claimants previously alleged breach of contract as their ninth cause of action, and their present third cause of action deletes the breach of contract allegations and adds allegations relating to breach of the Employment Manual. Whatever the nomenclature, however, the cause of action remains one for breach of contract (see generally Weiner v McGraw-Hill, Inc., 57 NY2d 458 [1982]). The existence of a grievance procedure established pursuant to a collective bargaining agreement forecloses direct action by an employee against an employer absent an allegation that the union breached its duty of fair representation (Matter of Board of Educ., Commack Union Free School Dist. v Ambach, 70 NY2d 501 [1987], cert denied sub nom. 485 US 1034 [1988]). No such allegations appear here and this cause of action must therefore be dismissed.
Claimants' fourth cause of action alleges the defendant's course of conduct in this matter was undertaken in complete disregard of the consequences to the claimants and with extreme indifference to claimants' rights and safety thereby constituting gross negligence. Similar allegations were previously asserted as claimants' tenth cause of action and were dismissed on the ground "there is no claim in New York for negligent . . . investigation" (Peterec v State of New York, 124 AD3d 858, 859 [2d Dept 2015]; Ellsworth v City of Gloversville, 269 AD2d 654, 656-657 [3d Dept 2000]). Nor do the facts alleged give rise to a cause of action for negligent infliction of emotional distress for the reasons stated previously (see Ornstein v New York City Health & Hosps. Corp., 10 NY3d 1 [2008]; Johnson v State of New York, 37 NY2d 378, 381 [1975]; Justice v State of New York, 66 AD3d 1182 [3d Dept 2009]). Nothing alleged in the subject claim changes this determination.
Lastly, while claimants have not expressly re-asserted a cause of action for malicious prosecution, they continue to allege a lack of probable cause for the disciplinary proceedings, that defendant acted "without excuse or justification in that it ignored proof of [claimants'] innocence" (motion No. M-94145, defendant's Exhibit A, ¶ 13; motion No. M-94146, defendant's Exhibit A, ¶ 14; motion No. M-94147, defendant's Exhibit A, ¶ 13; motion No. M-94148, defendant's Exhibit A, ¶ 14), and that "[d]efendant knew or should have known its disciplinary action against claimant[s] was not a search for truth, but was taken with wanton disregard for the truth . . . but defendants' [sic] unnecessary zeal and eagerness to punish the claimant, who they knew did no wrong, were overriding considerations" (motion No. M-94145, defendant's Exhibit A, ¶ 14; motion No. M-94146, defendant's Exhibit A, ¶ 15; motion No. M-94147, defendant's Exhibit A, ¶ 14; motion No. M-94148, defendant's Exhibit A, ¶ 15 ). Had these same allegations been made following the favorable termination of a criminal proceeding, a cause of action for malicious prosecution would be stated. Here, however, claimants allege a favorable termination of disciplinary proceedings following arbitration.
The elements of the tort of malicious prosecution are: (1) the commencement or
continuation of a criminal or civil proceeding by the defendant against the claimant, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the proceeding and (4) actual malice (Broughton v State of New York, 37 NY2d 451, 457 [1975], cert. denied sub nom., Schanbarger v Kellogg, 423 US 929 [1975]; see also Martinez v City of Schenectady, 97 NY2d 78, 84 [2001]; Smith-Hunter v Harvey, 95 NY2d 191, 195 [2000]). "[W]hen the underlying action is civil in nature the want of probable cause must be patent" because less is required to justify a reasonable person in bringing a civil suit rather than a criminal prosecution (Butler v Ratner, 210 AD2d 691, 693 [3d Dept 1994], lv dismissed 85 NY2d 924 [1995]). In addition, a "special injury" must be alleged which is "considerably more cumbersome than the physical, psychological or financial demands of defending a lawsuit" (Engel v CBS, Inc., 93 NY2d 195 [1999]; Teller v Galak, 162 AD3d 959 [2d Dept 2018])
While the initiation of a judicial proceeding is the sine qua non of a cause of action for malicious prosecution (Broughton, 37 NY2d at 451), it has been held that the initiation of "administrative proceedings which require a hearing and trial of the issues on evidence and testimony under oath, with the right of cross-examination, have sufficient attributes of judicial proceedings to be considered judicial proceedings for the purposes of a cause of action for malicious prosecution" (Groat v Town Bd. of Town of Glenville, 73 AD2d 426, 429 [3d Dept 1980], appeal dismissed 50 NY2d 928 [1980]); see also Perryman v Village of Saranac Lake, 41 AD3d 1080 [3d Dept 2007]; Green v State of New York, 39 Misc 3d 1239 [A] [Ct Cl 2013]; cf. Capoccia v Couch, 134 AD2d 806, 807 [3d Dept 1987], appeal dismissed 71 NY2d 1022 [1988]["attorney disciplinary proceedings are distinguishable, if for no other reason, because of the important policy underlying the absolute privilege accorded disciplinary proceeding complainants"]; Treacy v State of New York, 131 Misc 2d 849 [Ct Cl, 1986] [prison disciplinary hearing was not the type of proceeding on which a malicious prosecution claim may be based]; Gittens v State of New York, 132 Misc 2d 399 [Ct Cl 1986] [prison disciplinary proceeding was not the type of criminal proceeding on which a malicious prosecution claim maybe based]). Unlike the administrative hearing in Groat, however, which was conducted pursuant to Civil Service Law § 75 and was subject to judicial review under the standards set forth in CPLR article 78 (Civil Service Law § 76 [1]), the arbitration proceeding here at issue was conducted pursuant to a collective bargaining agreement and subject to the more stringent review standard set forth in CPLR 7511 (see e.g. Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321 [1999]; Matter of De Guzman v State of N.Y. Civ. Serv. Commn., 129 AD3d 1189 [3d Dept 2015], lv denied 26 NY3d 913 [2015]; Matter of Dickinson [State of New York], 188 AD2d 919 [3d Dept 1992], lv denied 81 NY2d 708 [1993]). "It is well settled that a contract provision in a collective bargaining agreement may modify, supplement, or replace the more traditional forms of protection afforded public employees, for example, those in sections 75 and 76 of the Civil Service Law which delineate procedures and remedies available to employees to challenge disciplinary action taken or proposed to be taken against them by their employers" (Dye v New York City Tr. Auth., 88 AD2d 899, 899 [2d Dept 1982], affd57 NY2d 917 [1982]; see also Matter of Auburn Police Local 195, Council 82, Am. Fedn. of State, County & Mun. Empls., AFL-CIO v Helsby, 62 AD2d 12 [3d Dept 1978], affd 46 NY2d 1034 [1979]; Antinore v State of New York, 49 AD2d 6 [4th Dept 1975], affd 40 NY2d 921 [1976]; Matter of Hall v Town of Henderson, 17 AD3d 981 [4th Dept 2005], rearg denied 20 AD3d 947 [2005], lv denied 5 NY3d 714 [2005]; Matter of Dickinson [State of New York], 188 AD2d 919, lv denied 81 NY2d 708 [1993]). Indeed, Civil Service Law § 75 (2) specifically states that "this subdivision shall not modify or replace any written collective agreement between a public employer and employee organization negotiated pursuant to article fourteen of this chapter." Thus, the disciplinary process and attendant procedural safeguards contained in Civil Service Law § 75 and § 76, including the right to counsel and the right to summon witnesses, may be waived through the collective bargaining of a union. Similarly, the procedural safeguards for conducting an arbitration hearing set forth in CPLR 7506 may be waived (CPLR 7506 [f]). Here, claimants have failed to allege or otherwise demonstrate that the procedure for disciplinary arbitration set forth in the collective bargaining agreement contained sufficient attributes of a judicial proceeding to state a cause of action for malicious prosecution.
Nor do claimants allege a special injury (Engel, 93 NY2d 195; Teller v Galak, 162 AD3d 959 [2d Dept 2018]). Instead, they allege nothing more than the physical, psychological and financial demands of defending an administrative proceeding, factors which were held insufficient to sustain a malicious prosecution claim by the Court of Appeals in Engel.
Accepting the facts as alleged in the claims as true, according claimants the benefit of every possible favorable inference, the facts as alleged fail to state a cognizable legal theory upon which recovery may be based (Leon v Martinez, 84 NY2d 83 [1994]).
Accordingly, defendant's motions are granted and the claims are dismissed.
October 1, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered: Claim No. 133070, M-94147
1. Notice of motion dated June 18, 2019;Claim No. 133072, M-94146
2. Affirmation of James E. Shoemaker, A.A.G. dated June 18, 2019, with Exhibits A-D;
3. Affirmation of Douglas Walter Drazen, Esq. dated August 28, 2019, with attachments.
1. Notice of motion dated June 18, 2019;Claim No. 133073, M-94145
2. Affirmation of James E. Shoemaker, A.A.G. dated June 18, 2019, with Exhibits A-D;
3. Affirmation of Douglas Walter Drazen, Esq. dated August 28, 2019, with attachments.
1. Notice of motion dated June 18, 2019;Claim No. 133074, M-94148
2. Affirmation of James E. Shoemaker, A.A.G. dated June 18, 2019, with Exhibits A-D;
3. Affirmation of Douglas Walter Drazen, Esq. dated August 28, 2019, with attachments.
1. Notice of motion dated June 18, 2019;
2. Affirmation of James E. Shoemaker, A.A.G. dated June 18, 2019, with Exhibits A-D;
3. Affirmation of Douglas Walter Drazen, Esq. dated August 28, 2019, with attachments.