Opinion
# 2020-058-026 Claim No. 124204 Motion No. M-95154 Motion No. M-95266 Cross-Motion No. CM-95279
03-06-2020
RICHARD A. COOK, JR. v. STATE OF NEW YORK
Richard A. Cook, Pro Se Hon. Letitia James, Attorney General By: Ray A. Kyles, Esq., Assistant Attorney General
Synopsis
Claimant's motion for leave to renew his prior motion to strike Defendant's answer is granted and, upon renewal, the Court adhered to its prior determination denying the motion; Defendant's motion for summary judgment dismissing negligent supervision claim for failure to state a cause of action granted; Claimant's cross motion to compel denied as moot.
Case information
| UID: | 2020-058-026 |
| Claimant(s): | RICHARD A. COOK, JR. |
| Claimant short name: | COOK |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124204 |
| Motion number(s): | M-95154, M-95266 |
| Cross-motion number(s): | CM-95279 |
| Judge: | CATHERINE E. LEAHY-SCOTT |
| Claimant's attorney: | Richard A. Cook, Pro Se |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Ray A. Kyles, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 6, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves pursuant to CPLR 3212 for summary judgment dismissing the Claim for failure to state a cause of action upon which relief can be granted (M-95154). Claimant moves for leave to renew his prior cross motion to strike Defendant's answer and "to penalize Defendant" (M-95266). Claimant separately cross-moves "to compel release of unredacted federal court documents" in litigation commenced by New York State Trooper Timothy Betlewicz (Trooper Betlewicz) against the Division of New York State Police (CM-95279).
Pro se Claimant Richard A. Cook, Jr. filed this Claim on April 11, 2014 seeking damages stemming from his arrest for allegedly driving while intoxicated and other Vehicle and Traffic Law violations which occurred on May 31, 2008. The Claim, which originally named as Defendants the State of New York, the Superintendent of the New York State Police, and Trooper Betlewicz, alleged causes of action for false arrest, malicious prosecution, and negligent supervision.
In May 2014, Defendant moved to dismiss the Claim pursuant to CPLR 3211 (M-85147). As to Claimant's cause of action for negligent supervision, Defendant generally argued that such claim was untimely. By Decision and Order dated September 15, 2016 and entered October 19, 2016, this Court (Midey, Jr., J. [Ret.]), as relevant here, (1) granted Defendant's motion in part and dismissed the causes of action alleging false arrest and malicious prosecution and those causes of action asserted against the Superintendent of the New York State Police, and Trooper Betlewicz individually and (2) denied the motion with respect to Claimant's cause of action for negligent supervision (see Cook v State of New York, Claim No. 124204, Motion Nos. M-85147, M-87338, CM-85503 [Ct Cl, Midey, Jr., J. (Ret.), Sept. 15, 2016]). As relevant here, the Court concluded that Claimant's cause of action for negligent supervision was timely brought within the two-year statute of limitations (see id. at 6-7; see also Court of Claims Act § 10 [3]).
By Notice of Motion dated September 30, 2019, Defendant moved pursuant to CPLR 3211 (a) (2), (a) (7), and (a) (8) to dismiss the negligent supervision cause of action--the only cause of action to survive Defendant's prior motion to dismiss (M-94693). Specifically, Defendant argued that the Claim failed to state a cause of action for negligent supervision because Claimant did not allege that Trooper Betlewicz was acting outside the scope of his authority (seeAffirmation of Ray A. Kyles, Esq., Assistant Attorney General, in Support of the Motion to Dismiss, dated September 30, 2019, ¶ 7 [M-94693]). Alternatively, Defendant contended that Claimant's cause of action for negligent supervision was untimely because neither a Claim nor a Notice of Intention to File a Claim was timely served within 90 days of accrual (see id. ¶ 10). Claimant opposed Defendant's motion and cross-moved for an order striking the answer for Defendant's failure to answer certain interrogatories (CM-94847).
By Decision and Order dated December 9, 2019 and entered December 18, 2019, this Court (1) denied Defendant's successive motion to dismiss, (2) denied Claimant's motion to strike Defendant's answer, and (3) scheduled a status conference for January 15, 2020 to resolve the parties' outstanding discovery issues (see Cook v State of New York, UID No. 2019-058-037 [Ct Cl, Leahy-Scott, J., Dec. 9, 2019]). The Court held that although it was previously determined that Claimant's negligent supervision claim was timely brought, "Defendant's prior motion [to dismiss] did not raise, and the Court's prior decision did not address, whether the Claim stated a cause of action for negligent supervision" (id. at 4). Thus, the Court concluded that "[a]lthough Defendant did not waive the defense of failure to state a cause of action by failing to plead it in its prior motion to dismiss, it is improper to raise such defense in a successive motion to dismiss pursuant to CPLR 3211" (id.).
Defendant now moves for summary judgment to dismiss the Claim for failure to state a cause of action (M-95154). Claimant opposes Defendant's motion and moves for leave to renew his prior cross motion to strike Defendant's answer and "to penalize Defendant" (M-95266). Additionally, Claimant separately cross-moves "to compel release of unredacted federal court documents" in litigation commenced by Trooper Betlewicz against the Division of New York State Police (CM-95279). Because Claimant's motion for leave to renew could affect Defendant's motion for summary judgment, the Court will address it first (see Almonte v Pichardo, 105 AD3d 687, 688-689 [2d Dept 2013]).
An application for leave to renew should be based upon additional material facts which existed at the time the prior motion was made but which were not then known to the party seeking leave to renew, and which, therefore, were not made known to the Court (see CPLR 2221 [e]; Matter of Beiny v Wynyard, 132 AD2d 190, 209-210 [1st Dept 1987], appeal dismissed 71 NY2d 994 [1988]). Nevertheless, courts have held that "it is within the court's discretion to grant renewal even upon facts that were known to the movant at the time of the original motion" (Toussaint v Noels Mkt., 280 AD2d 665, 665 [2d Dept 2001]; see Lupoli v Venus Labs., 264 AD2d 820, 822 [2d Dept 1999]).
Here, Claimant has presented new facts not offered in his prior cross motion to strike Defendant's answer and provided a reasonable justification for the failure to present such facts on the prior motion (see CPLR 2221 [e]; Notice of Motion for Leave to Renew, dated February 8, 2020, ¶¶ 8-21). Consequently, the Court grants Claimant's motion for renewal. However, the new facts asserted by Claimant do not change the Court's prior determination denying his motion to impose the drastic remedy of striking Defendant's answer (see Thompson v Dallas BBQ, 84 AD3d 1221, 1221 [2d Dept 2011]). The Court notes that prior to the January 15, 2020 status conference set by the Court's December 9, 2019 Decision and Order, Defendant served responses to the interrogatories that formed the basis of Claimant's motion to strike (see Affirmation of Ray A. Kyles, Esq., Assistant Attorney General, in Opposition to Claimant's Cross Motion to Compel, Ex B [Defendant's Response to Claimant's First Set of Interrogatories, dated January 10, 2020; Defendant's Response to Claimant's Second Set of Interrogatories, dated January 10, 2020]). Given that Defendant has now responded to the interrogatories, albeit late, it cannot be said that the failure to comply with Claimant's discovery requests were willful and contumacious to warrant the striking of its answer (see Paz v City of New York, 38 AD3d 269, 270 [1st Dept 2007]; Limones v City of New York, 256 AD2d 54, 54 [1st Dept 1998]). Consequently, the motion to renew is granted and, upon renewal, the Court adheres to his prior determination denying Claimant's motion to strike Defendant's answer. Moreover, to the extent this motion seeks to restore, as a matter of equity, causes of action asserted in this Claim that were dismissed by the Court's September 15, 2016 order and causes of action asserted in a related claim, Claim No. 126427, that were dismissed by a separate Decision and Order dated September 15, 2016 and entered October 27, 2016 (see Cook v State of New York, Claim No. 126427, Motion No. M-87244 [Ct Cl, Midey, Jr., J. (Ret.), Sept. 15, 2016]), the motion must be denied as this Court "has no jurisdiction to grant strictly equitable relief" (Madura v State of New York, 12 AD3d 759, 760 [3d Dept 2004], lv denied4 NY3d 704 [2005]). Accordingly, Claimant's Motion No. M-95266 is otherwise denied.
Turning to Defendant's motion for summary judgment, it is well settled that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the proponent of a motion for summary judgment has established its prima facie entitlement to judgment as a matter of law, "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (id.; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In determining a motion for summary judgment, the Court must examine the proof in the light most favorable to the party opposing the motion, here, Claimant (see Robinson v Strong Mem. Hosp., 98 AD2d 976, 976 [4th Dept 1983]).
Although Defendant fails to attach a copy of the answer to its motion papers, it provides a copy of the answer in response to Claimant's cross motion to compel (see Affirmation of Ray A. Kyles, Esq., Assistant Attorney General, in Opposition to Motion to Compel, Ex B). Consequently, the Court concludes that the record is "sufficiently complete" to render a determination on the merits of Defendant's motion for summary judgment (Washington Realty Owners, LLC v 260 Wash. St., LLC, 105 AD3d 675, 675 [1st Dept 2013] ["(t)he record is sufficiently complete when, although the movant has not attached all of the pleadings to the motion, a complete set of the papers is available from the materials submitted"]; see e.g. Pandian v New York Health & Hosps. Corp., 54 AD3d 590, 591 [1st Dept 2008] [record is sufficiently complete where answer is attached to reply papers]; McRae v State of New York, UID No. 2016-044-511 [Ct Cl, Schaewe, J., Feb. 29, 2016] [record is sufficiently complete to decide summary judgment motion where "copies of the pleadings are on file with the Clerk of the Court and have been reviewed by the Court on th(e) motion"]; see also Cintron v State of New York , 2019-038-518 [Ct Cl, DeBow, J., April 5, 2019] [record is sufficiently complete where omission on initial motion cured by submission on cross motion]).
Defendant moves for summary judgment dismissing Claimant's cause of action for negligent supervision, the only cause of action that remains pending. It is well settled that "where an employee is acting within the scope of his or her employment, the employer is liable for the employee's negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training" (Talavera v Arbit, 18 AD3d 738, 738 [2d Dept 2005]; see Passucci v Home Depot, Inc., 67 AD3d 1470, 1472 [4th Dept 2009] [granting summary judgment dismissing negligent supervision claim against the employer premised upon alleged negligence of employees who were acting within the scope of their employment], lv denied72 AD3d 1658 [4th Dept 2010]).
Here, there is no allegation in the Claim that Trooper Betlewicz was acting outside the scope of his employment. To the contrary, the Claim alleges that Defendant was negligent in supervising Trooper Betlewicz in "exercising his police power" (Affirmation of Ray A. Kyles, Esq., Assistant Attorney General, in Support of Motion for Summary Judgment, Ex A [Claim] ¶ 72). Further, where, as here, the alleged negligent hiring, training or supervision is based upon the activities of the arrest and detention, Claimant must rely on the traditional remedies of false arrest and false imprisonment rather than the broader principles of negligence (see Ray v County of Nassau, 100 AD3d 854, 854 [2d Dept 2012]; Stalteri v County of Monroe, 107 AD2d 1071, 1071 [4th Dept 1985]; Sanchez v State of New York, UID No. 2019-053-522 [Ct Cl, Sampson, J., June 28, 2019]). The Court notes that Claimant's cause of action for false arrest was dismissed as untimely by a prior order of this Court (see Cook v State of New York, Claim No. 124204, Motion Nos. M-85147, M-87338, CM-85503 [Ct Cl, Midey, Jr., J. (Ret.), Sept. 15, 2016]; see also Stalteri, 107 AD2d at 1071 [dismissing claim for negligence premised on the plaintiff's arrest for failure to state a cause of action and dismissing related claim for false arrest as untimely]). Consequently, the Court concludes that there is no issues of material fact and Defendant is entitled to judgment as a matter of law dismissing Claimant's remaining cause of action for negligent supervision for failure to state a cause of action.
Although Claimant seeks to withdraw his cross motion to compel (CM-95279) by reply affidavit, he need not do so as the motion is rendered moot by the foregoing determination (see Clark C.B. v Fuller, 59 AD3d 1030, 1031 [4th Dept 2009]; see also Elmy v State of New York, UID No. 2013-038-554 [Ct Cl, DeBow, J., Sept. 10, 2013]).
Accordingly, it is hereby:
ORDERED that Claimant's Motion No. M-95266 is granted insofar as it seeks renewal of Claimant's prior cross motion (CM-94847) to strike Defendant's answer and, upon renewal, the Court adheres to its prior determination denying Claimant's cross motion to strike Defendant's answer; and it is further
ORDERED that Claimant's Motion No. M-95266 is otherwise denied; and it is further
ORDERED that Defendant's Motion No. M-95154 is granted and Claim No. 124204 is dismissed in its entirety; and it is further
ORDERED that Claimant's Cross Motion CM-95279 is denied as moot; and it is further
ORDERED that all other requests for relief not specifically addressed herein are denied.
March 6, 2020
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims The Court has considered the following in deciding this motion: (1) Notice of Motion for Summary Judgment, dated January 13, 2020. (2) Affirmation of Ray A. Kyles, Esq., Assistant Attorney General, in Support of Motion for Summary Judgment, dated January 13, 2020, with exhibit. (3) Notice of Motion for Leave to Renew together with Notice of Motion to Penalize Defendant, dated February 8, 2020. (4) Claimant's Affidavit in Support of the Motion for Leave to Renew together with Motion to Penalize Defendant, sworn to February 5, 2020, with exhibits. (5) Notice of Cross Motion to Compel Release of Unredacted Federal Court Documents, dated February 18, 2020. (6) Claimant's Affidavit in Opposition to Defendant's Motion for Summary Judgment and in Support of Claimant's Cross Motion to Compel Release of Unredacted Federal Court Documents, sworn to on February 18, 2020. (7) Affirmation of Ray A. Kyles, Esq., Assistant Attorney General, in Opposition to Claimant's Cross Motion to Compel, dated February 24, 2020, with exhibits. (8) Affirmation of Ray A. Kyles, Esq., Assistant Attorney General, in Opposition to Claimant's Motion for Reargument [sic], dated February 25, 2020. (9) Claimant's Reply Affidavit to Motion M-95266, dated March 2, 2020. (10) Claimant's Reply Affidavit to Motion CM-95279, dated March 2, 2020.