Opinion
# 2015-038-578 Claim No. 123337 Motion No. M-86981
11-19-2015
ANDRE W. PORTERv. STATE OF NEW YORK
ANDRE W. PORTER, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Christina Calabrese, Assistant Attorney General
Synopsis
Defendant's motion to dismiss granted in part. Causes of action sounding in negligent investigation, defamation, and false arrest or unlawful confinement are dismissed. Motion to dismiss for failure to enter default judgment within one year (CPLR 3215 [c]) denied because sufficient cause for delay was shown. Motion to dismiss on jurisdictional grounds pursuant to Court of Claims Act § 11 (b) for failure to state an accrual date denied because claim asserts two specific dates, and defendant's motion does not demonstrate that those dates were insufficient to satisfy the pleading requirements of Court of Claims Act § 11 (b).
Case information
| UID: | 2015-038-578 |
| Claimant(s): | ANDRE W. PORTER |
| Claimant short name: | PORTER |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123337 |
| Motion number(s): | M-86981 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | ANDRE W. PORTER, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Christina Calabrese, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 19, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, a pro se litigant, filed this claim on October 15, 2013, asserting that:
"This claim is for injuries and damages sustained by the claimant, Andre W. Porter, as a result of the negligence of the State of New York, its agents, servants and employees, when the New York State Police through Investigator Nicholas Georgeadis, who acted in the capacity of a State Police officer and Investigator in the State of New York, falsely and maliciously arrested the Claimant and instituted criminal proceedings against Claimant without any reasonable or probable cause"
(Claim, ¶ 2). The claim alleges that on June 30, 2010, Investigator Georgeadis arrested claimant upon a felony complaint issued that same day accusing claimant of insurance fraud in the third degree, a class D felony. It further alleges that defendant failed to properly investigate or verify information, that there was no probable cause for his arrest and incarceration, and that the criminal matter was dismissed in its entirety on October 19, 2013 for lack of probable cause (see id., ¶¶ 3-4). The claim asserts that defendant was negligent in its hiring and supervision of its investigators (see id., ¶ 6), and that the arrest caused claimant to suffer damage to his reputation, severe and extreme emotional injuries, fear of being falsely accused, and publication of lies about claimant in the newspapers (see id., at ¶ 7). Defendant makes this pre-answer motion to dismiss the claim on several grounds. Claimant opposes the motion.
Defendant first argues that the claim must be dismissed as abandoned because claimant did not move for a default judgment within one year of defendant's failure to answer the claim, citing CPLR 3215 (c). That provision states that if claimant "fails to take proceedings for the entry of judgment within one year after the default, the court . . . shall dismiss the [claim] as abandoned . . . unless sufficient cause is shown why the [claim] should not be dismissed."
On October 15, 2013, the Office of the Attorney General was served with a document entitled "Notice of Claim" (see Calabrese Affirmation, Exhibit B), which is identical to the claim that was filed with the Court. Defense counsel asserts that the Notice of Claim was presumed by defendant to be part and parcel of a motion filed by claimant that same day for permission to serve and file a late claim (see id., ¶ 4). The Court denied claimant's motion for late claim relief, noting that the claim had already been filed and was pending before the Court (see Porter v State of New York, UID No. 2013-038-576 [Ct Cl, DeBow, J., Dec. 20, 2013]). Inasmuch as defendant did not answer the Notice of Claim that had been served with the motion papers nor respond in any manner to the Court's acknowledgment that this claim was pending, an order to show cause addressed to whether the claim had been served upon the Attorney General was eventually issued. By Decision and Order filed July 1, 2015, the Court found that the claim had been served upon the Attorney General on October 15, 2013, and directed defendant to answer the claim or seek other pre-answer relief within 20 days of July 1, 2015, which prompted the instant pre-answer to dismiss (Porter v State of New York, Claim No. 123337, Motion No. M-85597, filed July 1, 2015).
Dismissal pursuant to CPLR 3215 (c) falls within the discretion of the Court if claimant offers a reasonable excuse for the delay in moving for a default judgment within one year (see Keyes v McLaughlin, 49 AD2d 974, 974 [3d Dept 1975]; cf., Cornish v State of New York, UID No. 2014-015-489 [Ct Cl, Collins, J., Apr. 22, 2014]). Here, defendant's answer to the claim was due November 25, 2013 (see 22 NYCRR § 206.7 [a]), and thus, claimant's application for a default judgment was due November 25, 2014. As indicated above, in addition to filing and serving the claim, claimant also moved for permission to serve and file a late claim, which motion was denied by a Decision and Order that was filed on January 15, 2014. The aforementioned order to show cause was filed September 3, 2014, and claimant and defendant both submitted papers on the order to show cause. The information presented in claimant's submission prompted defendant to request a sixty-day extension of the return date on the order to show cause to afford defendant the opportunity to re-investigate whether the claim had been served upon the Attorney General, and the return date was adjourned to December 17, 2014. Thus, the claim had not lain fallow for one year, rather, the viability of the claim due to the disputed issue of service was litigated by both parties during that year. It is clear that this pro se claimant did not intend to abandon the claim, and that under the circumstances presented, sufficient cause for claimant's failure to move for a default judgment on or before November 24, 2014 - prior to the return date on the order to show cause - has been shown (see e.g., Abrams v Resort Constr. Corp, 38 AD2d 735, 736 [2d Dept 1972], appeal dismissed 30 NY2d 484 [1972], 30 NY2d 674 [1972]). Accordingly, that part of defendant's motion that seeks dismissal pursuant to CPLR 3215 (c) will be denied.
Defendant summarily contends that the claim must be dismissed for failure to state a date of accrual as required by Court of Claims Act § 11 (b), which would be a fatal defect in subject matter jurisdiction requiring dismissal of the claim (see Jones v State of New York, 56 AD3d 906, 907 [3d Dept 2008]; see also Prisco v State of New York, 62 AD3d 978, 979 [2d Dept 2009], lv denied 13 NY3d 706 [2009]). However, the claim clearly states that the felony complaint was issued and claimant was arrested on June 30, 2010 (see Notice of Claim, ¶ 3) and that the criminal charges were dismissed on October 19, 2013 (id., ¶ 4). Without further particularized argument by defendant as to how these dates are insufficient to comply with Court of Claims Act § 11 (b), the claim will not be dismissed on this ground.
Defendant further requests dismissal of the claim on the grounds that it fails to state a cause of action. On such a motion:
"claimant's claim is liberally construed and all facts asserted therein, as well as its submissions in opposition to defendant's motion, are accepted as true (see CPLR 3026; 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; see also Nonnon v City of New York, 9 NY3d 825, 827 [2007]; State of New York v Shaw Contract Flooring Servs., Inc., 49 AD3d 1078, 1079 [2008]). Where, as here, the motion is premised upon claimant's failure to state a claim (see CPLR 3211[a][7] ) . . . the dispositive inquiry is whether it has a cause of action and not whether one has been stated, i.e., "whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; accord Nonnon v City of New York, 9 NY3d at 827)."
(IMS Engrs.-Architects, P.C. v State of New York, 51 AD3d 1355, 1356 [3d Dept 2008], lv denied 11 NY3d 706 [2008]). Defendant presents arguments addressed to causes of action that may sound in negligent investigation, defamation, and false arrest/wrongful confinement. Claimant responds that the claim states a cause of action for malicious prosecution, implicitly conceding that the causes of action addressed by defendant are not stated.
Turning briefly to defendant's contentions, it is "well settled that, on public policy grounds, no legally cognizable cause of action exists for negligent investigation of a crime" (Coyne v State of New York, 120 AD2d 769, 770 [3d Dept 1986]). The instant claim can be construed as asserting a cause of action for defamation, insofar as it alleges that claimant sustained injuries due to "publication of lies about Claimant in the newspapers" (Claim, ¶ 7 [d]), but such a cause of action is not stated because the pleading does not set forth the specific defamatory words allegedly spoken and thus fails to satisfy the particularized pleading requirements of CPLR 3016 (a) (see Matter of La Barbera v Town of Woodstock, 29 AD3d 1054, 1057 [3d Dept 2006]). Nor does the claim allege that any specific words were publicized by defendant, as distinguished from any non-party, and for these reasons, any cause of action sounding in defamation must be dismissed. To the extent that the claim sounds in false arrest/unlawful confinement, the claim does not state a cause of action therefor because it does not contain facts that would support the elements of those causes of action, which are "(1) an intentional confinement (2) of which plaintiff was conscious and (3) to which plaintiff did not consent, and (4) that was not otherwise privileged" (Guntlow v Barbera, 76 AD3d 760, 762 [3d Dept 2010], appeal dismissed 15 NY3d 906 [2010], citing Martinez v City of Schenectady, 97 NY2d 78, 85 [2001]; Broughton v State of New York, 37 NY2d 451, 456-457 [1975], cert denied sub nom. Schanbarger v Kellogg 423 US 929 [1975]; see also Nazario v State of New York, 75 AD3d 715, 718 [3d Dept 2010], lv denied 15 NY3d 712 [2010]).
As noted above, claimant opposes the motion on the ground that the claim states a cause of action for malicious prosecution. Notably, claimant characterized the claim as such in his motion for permission to file and serve a late claim (see Porter v State of New York, UID No. 2013-038-576). The claim alleges that an employee of defendant falsely and maliciously arrested claimant and instituted criminal proceedings against him without any reasonable or probable cause, and that the criminal matter was dismissed in its entirety on October 19, 2013 for lack of probable cause (see Claim, ¶¶ 2-4). Giving the claim the generous reading that is due on a motion to dismiss for failure to state a cause of action, and acknowledging claimant's pro se status, the Court cannot conclude that the claimant does not have a cause of action sounding in malicious prosecution (see Broughton v State of New York, 37 NY2d 451, 457 [1975], cert denied sub nom Schanbarger v Kellog, 423 US 929 [1975] [elements of malicious prosecution are "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"]), particularly in the complete absence of argument by defendant in support of dismissal of such a cause of action.
Accordingly, it is
ORDERED, that Motion Number M-86981 is GRANTED IN PART, and claim number 123337 is DISMISSED to the extent that it asserts causes of action sounding in negligent investigation, defamation, and false arrest or unlawful confinement, and it is further
ORDERED, that Motion Number M-86981 is DENIED in all other respects, and it is further
ORDERED, that defendant shall, within 20 days of the date of filing of this Decision and Order, serve and file its answer to the claim.
November 19, 2015
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim Number 123337, filed October 15, 2013; (2) Decision and Order in Porter v State of New York, Claim No. None, Motion No. M-84184, filed Jan. 15, 2014; (3) Order to Show Cause (Motion Number M-85597), dated August 25, 2014; (4) Correspondence of Jessica Hall, AAG, dated October 14, 2014; (5) Correspondence of Hon. W. Brooks DeBow, dated October 16, 2014; (6) Decision and Order in Porter v State of New York, Claim No. 123337, Motion No. M-85597, filed July 1, 2015; (7) Pre-Answer Affirmation of Christina Calabrese, AAG, in Support of Defendant's Motion to Dismiss, dated July 13, 2015, with Exhibits A-B; (8) Responding Affidavit of Claimant, sworn to August 19, 2015, with Attachments.