Opinion
# 2016-041-100 Claim No. 128524 Motion No. M-89324
12-20-2016
CANDY M. SHEROKA and JOSEPH SHEROKA v. THE STATE OF NEW YORK
GRASSO, RODRIGUEZ, GRASSO & BURKE, PLLC By: Christopher R. Burke, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Thomas R. Monjeau, Esq. Assistant Attorney General
Synopsis
Defendant's motion to dismiss claim based upon state agency's delay in renewing Group Family Day Care license of claimants is granted where Court lacks subject matter jurisdiction over claim which fails to adequately state nature of claim, as required by Court of Claims Act 11 (b) and which fails to state a cause of action.
Case information
| UID: | 2016-041-100 |
| Claimant(s): | CANDY M. SHEROKA and JOSEPH SHEROKA |
| Claimant short name: | SHEROKA |
| Footnote (claimant name) : | The caption is corrected to reflect spelling error in the claim. |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption is amended to state the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128524 |
| Motion number(s): | M-89324 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | GRASSO, RODRIGUEZ, GRASSO & BURKE, PLLC By: Christopher R. Burke, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Thomas R. Monjeau, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 20, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss the claim based upon a lack of subject matter jurisdiction, because the claim fails to comply with the pleading requirements of Court of Claims Act 11 (b), fails to state a cause of action and is untimely. The claimants oppose the defendant's motion.
The claim, denominated as a "verified complaint," alleges that "around July 2015" the claimants were "denied the renewal of their [day-care] license" by the defendant's Office of Children and Family Services (OCFS). The claim further alleges that the license denial in July 2015 was based upon "an investigation that occurred in 2010" and which was apparently conducted by "Child Protective services." The claim asserts that the 2010 investigation "was closed and that the plaintiffs were both cleared of any wrongdoing."
The claim states that the OCFS "knew or should have known that the investigation was closed and that plaintiffs were both cleared of any wrongdoing" but "willfully" and "recklessly" failed to make "an inquiry" that would have "put the defendant(s) on notice that [claimants] were cleared of any indications" of wrongdoing.
The claimants allege that the "acts that give rise to this claim and damages . . . continued until February 2016, when the defendants finally renewed the plaintiffs' license."
The claim alleges a "FIRST CAUSE OF ACTION ARISING IN MALICIOUS PROSECUTION" premised upon the OCFS acting "maliciously" because it "had no reasonable basis to believe that there was a active indicated report against either plaintiff" and OCFS had actual and constructive notice that "the report was closed."
Finally, the claim alleges that claimants "suffered economic damages in the amount of $70,000.00 dollars as a result of their inability to renew their license and operate the day-care facility."
Defendant argues, among other things, that the claim fails to set forth the nature of the claim as required by Court of Claims Act § 11 (b), thus depriving the Court of jurisdiction.
Court of Claims Act § 11 (b) provides that:
"The claim shall state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed."
A claim against the State is permissible only as a result of the State's waiver of sovereign immunity and the statutory requirements conditioning suit must therefore be strictly construed (Kolnacki v State of New York 8 NY3d 277, 280 [2007]). The Kolnacki court noted that the requirements of section 11 (b) are "substantive conditions upon the State's waiver of sovereign immunity" (quoting Lepkowski v State of New York, 1 NY3d 201, 207 [2003]) and that the failure to satisfy any of the conditions is a jurisdictional defect (Kolnacki, 8 NY3d at 280-281). The Kolnacki decision stresses that "nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary" (Kolnacki, 8 NY3d at 281).
The strict pleading requirements of Court of Claims Act § 11 (b) were reiterated in Rivera v State of New York (52 AD3d 1075 [3d Dept 2008]):
"Statutory conditions placed on claims against defendant must be strictly construed, mandating a dismissal for lack of jurisdiction if the claim does not meet the substantive pleading requirements found in Court of Claims Act § 11 (b)."
The Rivera court, quoting Lepkowski (1 NY3d at 208) reminded that:
"The Court of Claims Act does not require [defendant] to ferret out or assemble information that section 11 (b) obligates the claimant to allege."
The Court lacks subject matter jurisdiction because the claim fails to set forth non-conclusory factual allegations sufficient to support either a negligence or malicious prosecution cause of action. The claim alleges no actionable general or special negligence-based duty owed to claimants by defendant and alleges no facts, beyond the conclusory use of the terms "willfully" and "recklessly," which would tend to show that OCFS acted maliciously in delaying renewal of claimants' license.
First, the claim fails to comply with Court of Claims Act 11 (b) in that it fails to allege facts sufficient to state a negligence-based cause of action. In particular, the claim fails to allege facts showing that defendant owed a cognizable legal duty to claimants sufficient to support a negligence-based cause of action.
Valdez v City of New York (18 NY3d 69, 75 [2011]), explains that where a "case involves . . . a classic governmental, rather than proprietary, function . . . [it is a] fundamental obligation of a [claimant] pursuing a negligence cause of action to prove that the putative defendant owed a duty of care."
It is clear that defendant's mandate to investigate and administratively determine the day care license eligibility of applicants and licensees is a discretionary governmental function for which the state owes no actionable duty of care to any particular person or entity (McLean v The City of New York 12 NY3d 194, 242 [2009]).
In McLean, at 203, the Court of Appeals recited the law as to the limited circumstances under which the state may be held liable for the negligent performance of a governmental function:
"Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general."
Liability arising from the negligent performance of a ministerial governmental function may only attach when a claimant establishes that the State breached a special duty owing directly to the claimant (Metz v State of New York, 20 NY3d 175, 179 [2012]; Valdez v City of New York, 18 NY3d 69, 75 [2011]).
A "[special] duty is born of a special relationship between the [claimant] and the governmental entity. When such a relationship is shown--and it is [claimant's] burden to establish it--the government is under a duty to exercise reasonable care toward the [claimant]" (Pelaez v Seide, 2 NY3d 186, 198-199 [2004]). The Pelaez opinion explains that a "special relationship can be formed in three ways: (1) when the [defendant] violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the [defendant] assumes positive direction and control in the face of a known, blatant and dangerous safety violation" (Pelaez, 2 NY3d at 199-200 [2004).
Claimants are required to allege facts sufficient to show that they were owed a special duty by defendant. Claimants have not done so, and do not even suggest that the defendant owed them a special duty of care.
The claim fails to allege a cognizable legal duty of care running from defendant to claimants. The claim thus fails to state a negligence-based cause of action and fails to satisfy Court of Claims Act 11 (b) in that it fails to allege facts stating a cognizable cause of action. The Court lacks subject matter jurisdiction over the claim (see DeHart v State of New York, 92 Misc 2d 631, 634 [Ct Cl 1977]: "Although the precise wording of section 11 does not appear to require that a claim state a valid cause of action, the cases are clear that without such a statement a claim is legally deficient and subject to fatal attack, Patterson v State of New York, 54 AD2d 147; Davis v State of New York, 28 AD2d 609; Weinstein v New York State Thruway Auth., 27 Misc 2d 503")
The claim also fails to set forth factual, non-conclusory allegations sufficient to state a cause of action for malicious prosecution.
"To support a malicious prosecution cause of action based on prior civil litigation, the [claimant] must show that the defendant initiated an action or proceeding that terminated in the [claimant's] favor, there was no probable cause for the action or proceeding, the defendant acted with malice and the [claimant] suffered a special injury" (Black v Green Harbour Homeowners' Ass'n, Inc., 37 AD3d 1013, 1014 [3d Dept 2007]; see Fink v Shawangunk Conservancy, Inc., 15 AD3d 754, 754 [3d Dept 2005]; Williams v Barber, 3 AD3d 695, 696-697 [3d Dept 2004]).
The claim utterly fails to set forth factual allegations sufficient to show that OCFS acted with malice in delaying claimants' license renewal. The claim asserts that the OCFS acted "maliciously" because it "had no reasonable basis to believe that there was a active indicated report against either plaintiff" and OCFS had actual and constructive notice that "the report was closed." These allegations sound in simple negligence at most and are insufficient to satisfy either CPLR 3211 (a) (7) or Court of Claims Act 11 (b).
The claim fails to state a cause of action for abuse of process. "To establish a prima facie claim for abuse of process, [claimant] was required to demonstrate regularly issued process, either civil or criminal, an intent to do harm without excuse or justification, and use of the process in a perverted manner to obtain a collateral objective" (Plataniotis v TWE Advance/Newhouse Partnership, 270 AD2d 627, 630 (3d Dept 2000]).
W.I.L.D. W.A.T.E.R.S., Ltd. v Martinez (152 AD2d 799, 800 [3D Dept 1989]), explains that:
"Abuse of process is the misuse or perversion of regularly issued legal process for a purpose not justified by the nature of the process (see, Curiano v Suozzi, 63 NY2d 113, 116). In the instant case, Nelson alleges that plaintiff acted improperly in seeking a temporary restraining order and preliminary injunction against her which were subsequently vacated by this court (148 AD2d 847, supra). There is no allegation in Nelson's counterclaim that plaintiff sought to obtain some collateral advantage over Nelson or corresponding detriment to Nelson which was outside the legitimate end of process by the proceeding, a required prerequisite of the tort of abuse of process."
Even accepting all of claimant's allegations as true, the claim and supporting papers fail to allege facts demonstrating the OCFS's delay in renewing claimants' license constitutes "an intent to do harm without excuse or justification [and the] use of the process in a perverted manner to obtain a collateral objective" (Plataniotis, 270 AD2d at 630).
In view of the Court's lack of subject matter jurisdiction over the claim, it need not address defendant's additional bases for dismissal of the claim.
The defendant's motion to dismiss the claim is granted. The claim is dismissed.
December 20, 2016
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion, filed October 5, 2016; 2. Affirmation of Thomas R. Monjeau, dated October 5, 2016, and attached exhibits; 3. Affirmation of Christopher R. Burke, dated November 2, 2016, and attached exhibits.