Opinion
# 2020-045-035 Claim No. 128469 Motion No. M-94733
05-18-2020
FOX v. THE STATE OF NEW YORK
Folkenflik & McGerity LLP By: Max Folkenflik, Esq. Hon. Letitia James, Attorney General By: Robert E. Morelli, Assistant Attorney General
Synopsis
Defendant's' motion for summary judgment dismissing the claims of malicious prosecution and negligence.
Case information
| UID: | 2020-045-035 |
| Claimant(s): | FREDERICK G. FOX |
| Claimant short name: | FOX |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128469 |
| Motion number(s): | M-94733 |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Folkenflik & McGerity LLP By: Max Folkenflik, Esq. |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Robert E. Morelli, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 18, 2020 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on this motion: Defendant's Notice of Motion; Defendant's Affirmation in Support with annexed Exhibits A-D; Claimant's Claimant's Affidavit in Opposition; Attorney's Affirmation in Opposition with annexed Exhibits A-D; Memorandum of Law in Opposition; and Defendant's Affirmation in Further Support with annexed Exhibit A.
Defendant, the State of New York, has brought this motion seeking an order pursuant to CPLR 3212 and Court of Claims Act §§ 10 and 11 dismissing the claim. Claimant, Frederick G. Fox, has opposed the motion.
As the party seeking summary judgment, defendant must make a prima facie showing of entitlement to judgment as a matter of law, by offering sufficient evidence to eliminate any material issues of fact from the case (Cox v Kingsboro Medical Group, 88 NY2d 904 [1996]; Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). Once the proponent of a summary judgment motion establishes a prima facie showing then the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to demonstrate the existence of material issues of fact which require a trial of action (Zuckerman v City of New York, 49 NY2d 557, 562
[1980]).
Defendant initially argues that the claim for malicious prosecution is defective under Court of Claims Act § 11 (b) by failing to set forth the date in the claim when the underlying criminal charges were dismissed against claimant.
Court of Claims Act § 11 (b) requires in pertinent part that "[t]he claim shall state the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained." These requirements are jurisdictional in nature and must be strictly complied with in order to properly initiate an action against defendant (Kolnacki v State of New York, 8 NY3d 277 [2007]).
Neither the notice of intention to file a claim nor the claim stated the time when the claim arose, which is the date the criminal charges were dismissed or otherwise terminated in claimant's favor (Matter of Nunez v Village Rockville Ctr., 176 AD3d 1211 [2d Dept 2019]; Williams v CVS Pharmacy, Inc., 126 AD3d 890 [2d Dept 2015]; 347 Cent. Park Assoc., LLC. v Pine Top Assoc., LLC, 83 AD3d 689 [2d Dept 2011]). Claimant's failure to include the time when the malicious prosecution claim arose in the verified claim deprives the Court of jurisdiction over that portion of the claim (Kolnacki v State of New York, 8 NY3d 277 [2007]; Lepkowski v State of New York, 1 NY3d 201 [2003]; Matter of DeMairo v State of New York, 172 AD3d 856 [2d Dept 2019]; Veralli v State of New York, 171 AD3d 986 [2d Dept 2019]; Hargrove v State of New York, 138 AD3d 777 [2d Dept 2016]; Prisco v State of New York, 62 AD3d 978 [2d Dept 2009]; Czynski v State of New York, 53 AD3d 881 [3d Dept 2008]). "Lack of prejudice to the State is immaterial and a court is without power to dispense with applicable jurisdictional requirements of law based upon its own concepts of justice" (DeMairo v State of New York, 172 AD3d 856, 857 [2d Dept 2019]). Accordingly, the Court is constrained to dismiss the malicious process cause of action in this matter.
Defendant also seeks to dismiss the claim for malicious prosecution on the grounds that it is untimely in that neither the claim nor the notice of intention to file a claim was served within 90 days of the accrual of the claim as required by Court of Claims Act §§ 10 (3-b) and 11.
On December 2, 2015 a notice of intention to file a claim was personally served on defendant and on The verified claim in this matter was personally served on the Office of the New York State Attorney General on September 6, 2016. the New York State Office of the Attorney General
A claim for malicious prosecution accrues when the underlying criminal action is dismissed or otherwise terminated in favor of the accused (Matter of Nunez v Village Rockville Ctr., 176 AD3d 1211 [2d Dept 2019]; Williams v CVS Pharmacy, Inc., 126 AD3d 890 [2d Dept 2015]; 347 Cent. Park Assoc., LLC. v Pine Top Assoc., LLC, 83 AD3d 689 [2d Dept 2011]). Claimant has failed to allege in his claim that the underlying criminal action was either dismissed or terminated in his favor and it appears from a reading of claimant's exhibits that the underlying criminal action is still pending. As such, claimant has failed to state a cause of action for malicious prosecution.
Court of Claims Act § 10 (3) requires that a claim must be filed and served upon the Office of the Attorney General within ninety days after the accrual of such claim unless the claimant shall within such time serve a notice of intention to file a claim upon the Office of the Attorney General.
Court of Claims Act § 11 (a) provides that a "notice of intention shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for service upon the attorney general."
By a Decision and Order dated April 15, 2019, this Court dismissed claimant's remaining causes of action put forth in his claim aside from malicious prosecution and certain negligence
In response to defendants' motion to dismiss, claimants stated that they are withdrawing and discontinuing the following causes of action contained in their claim: the third (abuse of process), fifth (false arrest and imprisonment), sixth (violation of civil rights), ninth (libel and defamation), and eleventh (intentional infliction of emotional distress) causes of action as well as the claims for punitive and treble damages. Therefore, those aforementioned causes of action are hereby dismissed from the case.
Claimants clarify that they are only pursuing the first (making false and fraudulent statements), second (intentional tort), fourth (malicious prosecution), seventh (negligence), eighth (slander) and tenth (tortious interference with a contract) causes of action.
Although claimants include the eighth cause of action in both the paragraph where they are withdrawing claims as well as the paragraph listing the claims they are pursuing it is clear from the remainder of claimants' papers that they intend to pursue the claim of slander.
On December 2, 2015 a notice of intention to file a claim was personally served on the New York State Office of the Attorney General and only listed Frederick G. Fox as the claimant in this matter.
In the notice of intention Mr. Fox alleges on September 4, 2015 at approximately 7:41 p.m. he was lawfully operating a concession franchise at Long Beach Town Park pursuant to a valid seasonal permit issued by the Town of Smithtown. Claimant continues that he was lawfully selling beer, wine and cider, as well as other food items, and providing live entertainment when his business was raided by law enforcement officers of the Town of Smithtown, Village of Nissequogue, Village of Head of the Harbor and the County of Suffolk who were acting upon information provided to them by defendants. Defendants allegedly misinformed the authorities that the temporary beer, wine and cider permits issued by the New York State Liquor Authority earlier on September 4, 2015 for the dates September 4, 2015 through September 7, 2015 was invalid. As a result, Mr. Fox's business was wrongfully interrupted and he was falsely arrested and imprisoned from September 4, 2015 to September 16, 2015. Mr. Fox asserts that he was subsequently wrongfully and maliciously prosecuted by the Town of Smithtown, Village of Nissequogue, Village of Head of the Harbor and the County of Suffolk for a violations of the New York State Alcohol & Beverage Container Law.
Mr. Fox further contends in the notice of intention that defendants falsely, intentionally, recklessly, negligently, wantonly and maliciously disseminated false and incorrect information to
the Town of Smithtown, Village of Nissequogue, Village of Head of the Harbor and the County of Suffolk regarding the status of the permits issued to him. Mr. Fox alleges that defendants failed to conduct a reasonable investigation of the facts prior to disseminating wrongful information to the Town of Smithtown, Village of Nissequogue, Village of Head of the Harbor and the County of Suffolk. Mr. Fox also alleges that his civil rights were violated by defendants' actions.
There is no mention of Foxies On the Beach, Inc., a separate entity, in the notice of intention to file a claim.
The District Court misdemeanor information complaint was attached to the notice of intention. The complainant on the complaint is listed as Town of Smithtown Officer Thomas Lohmann. The defendant in the complaint is Frederick G. Fox and he was charged with selling an alcoholic beverage without obtaining the appropriate license required by law. The complaint states that Mr. Fox sold beer and wine at the concession stand while knowing that his privilege to sell alcohol in the State of New York had been revoked by the New York State Liquor Authority. The revocation was confirmed by the New York State Liquor Authority.
The verified claim in this matter was personally served on the Office of the New York State Attorney General on September 6, 2016. The verified claim lists Foxies on the Beach, Inc., as a claimant in this case. Defendants argue that the failure to include any allegations concerning Foxies on the Beach, Inc., in the notice of intention requires a dismissal of Foxies on the Beach, Inc., from the claim.
Court of Claims Act § 10 (3) requires in relevant part that a claim must be filed and served upon the Office of the Attorney General within ninety days after the accrual of such claim unless the claimant shall within such time serve a notice of intention to file a claim upon the Office of the Attorney General.
Court of Claims Act § 11 (b) requires in pertinent part that the notice of intention shall set forth the time when and place where the claim arose as well as the nature of the claim. It is well settled that the requirements of Court of Claims Act §§ 10 and 11 (b) must be strictly construed and a failure to comply with them is a jurisdictional defect compelling dismissal of the claim (Hargrove v State of New York, 138 AD3d 777 [2d Dept 2016]; see Finnerty v New York State Thruway Authority, 75 NY2d 721 [1989]). The notice of intention specifically states that Frederick G. Fox intends to file a claim against defendants in this matter and is verified by Mr. Fox in his individual capacity. Claimants' failure to include Foxies On the Beach, Inc., a separate entity, in the notice of intention deprives this Court of jurisdiction over Foxies On the Beach, Inc. in this matter. Accordingly, the Court dismisses Foxies On the Beach, Inc. from the claim.
In the verified claim it is alleged that Mr. Fox is the president and sole shareholder of Foxies on the Beach, Inc., and that the State Liquor Authority is a division of the State of New York. Claimant alleges that Foxies on the Beach, Inc. was authorized and licensed to operate and manage the food concession pavilion located at Long Beach for the term May 15, 2015 through October 15, 2015 pursuant to an agreement between Foxies on the Beach, Inc. and the Town of Smithtown. On June 24, 2015, claimant submitted an application to the State Liquor Authority for a liquor license for Long Beach. Pending the approval for the liquor license application, the State Liquor Authority issued a temporary liquor license to Foxies on the Beach, Inc. for the Long Beach concession stand facility. On August 20, 2015 the State Liquor Authority disapproved Foxies on the Beach, Inc.'s application for a permanent liquor license. Based upon this disapproval the State Liquor Authority terminated the temporary liquor license issued to Foxies on the Beach, Inc. for the Long Beach facility. On August 21, 2015 at 2:00 p.m. the State Liquor Authority, through its senior investigator, Stephen Nemeth, notified the Village of Nissequogue Police Department that the temporary liquor license was cancelled.
All further references to claimant refer to the claim of Frederick G. Fox as the claim of Foxies on the Beach, Inc. has been dismissed from this action.
Thereafter, Foxies on the Beach, Inc. submitted an application to the State Liquor Authority for temporary beer, wine and cider permits for the Long Beach facility for September 4 through September 7, 2015. On September 4, 2015 the State Liquor Authority issued temporary beer, wine, and cider permits to Foxies on the Beach, Inc. for September 4, 2015 between 3:00 p.m. and 11:30 p.m.; September 5, 2015 between 12:00 p.m. and 11:30 p.m.; September 6, 2015 between 12:00 p.m. and 11:30 p.m.; and September 7, 2015 between 12:00 p.m. and 11:00 p.m.
Claimant alleges, inter alia, in the verified claim that defendants, through their agents, wrongfully notified the Town of Smithtown, Village of Nissequogue, Village of Head of the Harbor and the County of Suffolk that Foxies on the Beach, Inc. and Mr. Fox were not authorized to sell alcoholic beverages at Long Beach and were not in possession of a valid liquor license or permit. As a result, on September 4, 2015, at 7:41 p.m. claimant's concession stand was raided by law enforcement agents of the Town of Smithtown, Village of Nissequogue, and Village of Head of the Harbor. Claimant was arrested and removed from the concession stand at Long Beach in front of patrons. His business was interrupted from September 4, 2015 to September 7, 2015. Claimant was incarcerated by the County of Suffolk and placed in the Suffolk County jail facility from September 4, 2015 through September 16, 2015.
As a result, claimant states that defendants wrongfully interfered with his contract with the Town of Smithtown to operate the concession stands.
Claimant alleges that images of his arrest were taken and published on the internet by the general public, together with accounts of the incident. Claimant also contends that images of his arrest were taken and published in newspapers, together with accounts of the incident.
Claimant's first cause of action is entitled, "Making False and Fraudulent Statements." Claimant continues that the false statements led to his false arrest, incarceration and deprivation of his liberty. Claimant contends that the false statements led to his inability to operate his business from September 4, 2015 to September 7, 2015. Claimant states that the false statements led to him being defamed, being exposed to criminal prosecution, being arrested by the Suffolk County Police Department, being confined to prison, being deprived of his freedom, suffering further emotional damages, and being prevented from attending to his usual business. The false statements have damaged claimant's good name, reputation, character and income. Claimant states that the false statements were the proximate cause of his arrest, his incarceration, the disruption and interference with his business, the defamation and humiliation experienced by claimant and all of the damages and loss sustained by claimant.
Claimant's second cause of action entitled, "Intentional Tort" reiterates the previous allegations but adds "that the false, wrongful and fraudulent statements made by the [d]efendants ... were intentional."
Claimant's fourth cause of action is for malicious prosecution. Claimant contends that the false statements were intended to shut down claimant's business. Claimant alleges that without the false statements there would not have been probable cause for his arrest. Claimant states that the charges resulting in his arrest were ultimately dismissed in favor of claimant.
Claimant's seventh cause of action entitled, "Negligence" reiterates the previous allegations and states that defendants acted negligently in the performance of their professional duties when they reported to Smithtown, Nissequogue, Head of the Harbor and Suffolk County false, inaccurate and fraudulent information regarding claimant's legal right to sell beer, wine and cider on September 4, 2015.
Claimant's eighth cause of action, entitled, "Slander" reiterates the previous allegations and states "that defendants made false, fraudulent and inaccurate statements to Smithtown, Nissequogue, Head of the Harbor and Suffolk County by stating in sum and substance that claimant's 'liquor license and Temporary Permit to sell beer, wine and cider was revoked or invalid.'" Claimant alleges that defendants made false, fraudulent and inaccurate statements to law enforcement agents of Smithtown, Nissequogue, Head of the Harbor and Suffolk County by "stating/or confirming" to said law enforcement agents that Mr. Fox "was selling beer and wine knowing or having reason to know that his privilege to sell alcohol in the state of New York had been revoked by the New York State Liquor Authority." The words were allegedly spoken in a manner intended for dissemination and defendants allegedly knew the remarks would be widely circulated and intended to defame claimant and destroy his reputation. The words were allegedly published by defendants with "malice and determination to injure [c]laimants."
Claimant's tenth cause of action entitled, "Tortious Interference with a Contract" reiterates the previous allegations and states that defendants had knowledge of the existence of the contract between claimant and Smithtown authorizing claimant to operate the concession business at Long Beach. Claimant alleges that defendants, by their actions interfered with claimant's ability to perform his obligations under the concession agreement with Smithtown.
Defendants argue that the notice of intention does not comply with the requirements of Court of Claims Act § 11 (b). As a result, defendants aver that the verified claim is untimely under Court of Claims Act § 10. Defendants also argue that the verified claim does not comply with Court of Claims Act § 11 (b). Additionally, defendants contend that the verified claim fails to state a cause of action pursuant to CPLR 3211 (a) (1), (2), (5) and (7).
On a motion to dismiss pursuant to CPLR 3211, the court is required to "accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). The review entails "whether the proponent of the pleading has a cause of action, not whether he has stated one" (id. at 88).
In regard to defendants' Court of Claims Act § 11 (b) arguments, the Court finds that the notice of intention is sufficient to put the State on notice of the nature of claimant's allegations and to investigate accordingly. Additionally, the Court finds that the verified claim sufficiently sets forth causes of action for claims alleging defamation by slander, negligence, malicious prosecution, and tortious interference with a contract. Claimant has failed to set forth any further causes of action from the remaining broad allegations raised in the verified claim.
Claimant's cross motion must be denied since the Court of Claims Act does not authorize the filing of a late notice of intention to file a claim. Additionally, claimant's cross motion to amend the verified claim "to cure any deficiency or omissions" must also be denied since a jurisdictional defect cannot be cured by amendment (Nasir v State of New York, 41 AD3d 677 [2d Dept 2007]).
To the extent claimant is attempting to bring a motion to file a late claim it was not considered by the Court as it was improperly raised for the first time in his reply affirmation in further support of his cross motion (Smith v County of Suffolk, 61 AD3d 743 [2d Dept 2009]; Adler v City of New York, 52 AD3d 549 [2d Dept 2008]).
Although claimant cites to Court of Claims Act § 10 (6), it is unclear whether claimant is seeking late claim relief. Claimant states that he is seeking leave to file and serve the notice as a "late notice." Again, such relief is not authorized by the Court of Claims Act.
Therefore, for the foregoing reasons, defendants' motion to dismiss is granted in part to the extent stated herein. Claimant's cross motion is denied in its entirety.
May 18, 2020
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims