Motion by pro se Movant to serve and file a late Claim pursuant to CCA § 10(6) denied.
|Claimant short name:||MONTES|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Germaine Montes, Pro Se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Paul F. Cagino, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||February 8, 2018|
|See also (multicaptioned case)|
For the reasons set forth below, the application of pro se Movant, Germaine Montes, to serve and file a late Claim pursuant to Court of Claims Act § 10(6) is denied.
The proposed Claim attached to the Motion papers filed with the office of the Clerk of the Court on November 27, 2017, alleges that Movant was falsely arrested on March 22, 2016, and imprisoned for three days until March 25, 2016 by the New York State Police.(1) Movant asserts that he did not commit the crimes with which he was charged, that false statements were written against him, evidence was falsified, and he was incorrectly charged with the crimes. Movant asserts that the charges against him were dismissed and all papers and records relating to Movant's arrest and prosecution were ordered sealed. He alleges that he now suffers the consequences of the intentional infliction of emotional distress (Proposed Claim, unnumbered ¶¶ 4-8, and Ex. E attached thereto).
Pursuant to Court of Claims Act § 10(6), it is within the Court's discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. The proposed Claim asserts causes of action for false arrest and imprisonment and intentional infliction of emotional distress. These are intentional tort causes of action (CPLR § 215, a one-year Statue of Limitations). The Court notes that claims of intentional infliction of emotional distress against governmental bodies are barred as a matter of public policy (Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 ; Brown v State of New York, 125 AD2d 750, 752 [3d Dept 1986], lv dismissed 70 NY2d 747 ). Thus, the Motion to file and serve a late Claim regarding the intentional infliction of emotional distress cause of action is denied.
It is well established that a claim for false arrest/false imprisonment accrues upon release from confinement (Matter of Kairis v State of New York, 113 AD3d 942 [3d Dept 2014]; Davis v State of New York, 89 AD3d 1287 [3d Dept 2011]). Here, Movant alleges, in the proposed Claim that was filed with the office of the Clerk of the Court, that he was released from custody on March 25, 2016 (Proposed Claim, unnumbered ¶ 3) and, thus, this is the date the cause(s) of action accrued. Therefore, the statute of limitations expired by the time Movant served and filed this Motion. As a movant is permitted to file a late claim only if the underlying cause of action is not time barred (Arbor Hill Partners v New York State Commr. of Hous. & Community Renewal, 267 AD2d 675 [3d Dept 1999]; Marine Midland Bank v State of New York, 195 AD2d 871[3d Dept 1993], lv denied 82 NY2d 661 ), Movant's Motion for permission to file a late claim regarding his false arrest/false imprisonment is denied.
As noted in Footnote 1 above, the proposed Claim served upon the Attorney General on November 30, 2017 asserts that Movant was released from custody on December 17, 2017. It also states that he was arrested on January 19, 2017. Assuming, arguendo, those dates are correct, the proposed Claim suffers from other defects. It would mean that the proposed Claim was served upon the Attorney General before Movant was arrested and released. Further, the dates asserted would have Movant imprisoned and released before he was arrested, which would not appear to make much sense. Thus, the proposed Claim additionally must be denied because Movant failed to serve a copy of the same proposed Claim that he filed with the Office of the Clerk of the Court, and material and truly substantive discrepancies exist between the two proposed Claims as to when Movant was arrested and released from custody (see Van Buskirk v State of New York, 22 Misc 3d 953 [Ct Cl 2008]; Berent v State of New York, UID No. 2010-040-070 [Ct Cl, McCarthy, J., Dec. 13, 2010]).
To the extent that the proposed Claim may be asserting a cause of action for malicious prosecution, Movant has failed to establish that the cause of action has the appearance of merit.
In determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Claimant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 ). However, the burden rests with Claimant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
Perhaps the most important factor to be considered is whether the proposed Claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], lv granted 16 NY3d 703 , affd sub nom. Donald v State of New York, 17 NY3d 389 , quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]). It is Movant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).
"The law … places a heavy burden on malicious prosecution [claimants], requiring that they establish four elements: '(1) the commencement or continuation of a criminal 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 criminal proceeding and (4) actual malice' " (Smith-Hunter v Harvey, 95 NY2d 191, 195 , quoting Broughton v State of New York, 37 NY2d 451, supra at 457). "Actual malice is generally shown by establishing that the criminal proceeding was commenced for an improper motive (see Boose v City of Rochester, 71 AD2d 59 [, 69 (4th Dept 1979)]; Blanchfield v State of New York, 104 Misc 2d 21 [, 28 (Ct Cl 1980)] and in this regard is somewhat intertwined with the question of probable cause, because an absence of probable cause to initiate the prosecution can infer that it was, therefore, commenced for an improper reason (see Martin v City of Albany, 42 NY2d 13, 17-18 ; Restatement [Second] of Torts § 669)" (Ferran v State of New York, UID No. 2008-032-113 [Ct Cl, Hard J., Sep. 4, 2008]).
Here, Movant established that, by Order of Albany County Court Judge Peter A. Lynch, the charges pending against him were dismissed with prejudice because of the failure to provide him with a speedy trial (Criminal Procedure Law §§ 30.30 and 170.30 [Ex. E, p.1 attached to Movant's Motion papers]), which establishes that the proceeding was terminated in his favor (see Smith-Hunter v Harvey, supra at 195-196). However, Movant has failed to assert, or come forward with evidence to establish, that there was no probable cause for the criminal proceeding, or that there was actual malice involved. Rather, Movant offers only his own conclusory statements. Thus, the Court finds that the proposed cause of action lacks the appearance of merit and that portion of the Motion is denied.
Therefore, in accordance with the foregoing, the Motion seeking permission to serve and file a Claim late pursuant to Court of Claims Act § 10(6) is denied.
February 8, 2018
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered on Movant's application for permission to file a late claim:
Notice of Motion, proposed Claim,
& Exhibits Attached 1
Affirmation in Opposition
& Exhibits Attached 2
1. The Court notes that the proposed Claim served upon the Attorney General contains different dates. That document asserts that Movant was falsely arrested on January 19, 2017, and imprisoned for five days until December 17, 2017 (Affirmation of Paul F. Cagino, Esq., Assistant Attorney General [hereinafter, "Cagino Affirmation"] and Ex. A attached thereto).