New York State Court of Claims

New York State Court of Claims
CASCIARO v. STATE OF NEW YORK, # 2018-015-167, Claim No. 128813, Motion No. M-92502


Claim alleging malicious prosecution, false imprisonment, negligent investigation, and defamation failed to state a cause of action or meet the pleading requirements of Court of Claims Act 11 (b).

Case information

UID: 2018-015-167
Claimant short name: CASCIARO
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 128813
Motion number(s): M-92502
Cross-motion number(s):
Claimant's attorney: Cooper Erving & Savage, LLP
By: Paul F. Dwyer, Jr., Esq.
Defendant's attorney: Honorable Barbara D. Underwood, Attorney General
By: Christina Calabrese, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: October 3, 2018
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Defendant moves for dismissal of the claim pursuant to CPLR 3211 (a) (7) and 3212.

According to the allegations in the claim, claimant was arrested on an unspecified date and charged with various unspecified crimes that resulted in acquittal on August 19, 2016. Claimant alleges that the nature of the claim is one for "malicious prosecution, false criminal imprisonment and intentional, reckless and negligent investigation" (defendant's Exhibit A, Notice of Claim, 4). Claimant alleges further that "[a]n investigation was at all times commenced and conducted by the defendant and the New York State Justice Court [sic] against the claimant based on allegations that the claimant intentionally mistreated, abused, assaulted and injured a resident at the Sunmount Developmental Center" (id. at 5). The claim further states that the investigation that ensued led to no evidence of any wrongdoing and that "[t]hese actions and omissions by the defendant . . . was [sic] later maliciously, intentionally and recklessly communicated to television, newspaper and other media outlets, thus constituting actionable defamation of character of the claimant, and giving rise to malicious, intentional and negligent defamation cause of action, published as aforedescribed, of the character of the claimant in the community" (id. at 6). Claimant alleges further that the claim arose in New York Supreme Court "on or about the time of the acquittal" (id. at 7).

On a motion to dismiss a claim pursuant to CPLR 3211 (a) (7) 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]; see also Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). "When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). Notwithstanding the favorable treatment of such pleadings, however, "bare legal conclusions with no factual specificity do not suffice to withstand a motion to dismiss" (Mid-Hudson Val. Fed. Credit Union v Quartararo & Lois, 155 AD3d 1218 [3d Dept 2017]), affd 31 NY3d 1090 [2018]). The test to be applied is whether or not the pleading alleges facts "sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense" (CPLR 3013). Dismissal of a claim is warranted where insufficient facts are alleged to support an element of the claim (Mid-Hudson Val. Fed. Credit Union,155 AD3d at 1219). Moreover, bare legal conclusions or facts that are flatly contradicted by the documentary evidence need not be presumed true or given the benefit of every favorable inference (Wisdom v Reoco, LLC, 162 AD3d 1380, 1381 [3d Dept 2018]; Herman v Greenberg, 221 AD2d 251 [1st Dept 1995]).

Unlike an action for false arrest, which protects the personal interest of freedom from restraint of movement, "[t]he tort of malicious prosecution protects the personal interest of freedom from unjustifiable litigation" (Broughton v State of New York, 37 NY2d 451, 457 [1975], cert. denied sub nom., Schanbarger v Kellogg 423 US 929 [1975]). " 'The elements of the tort of malicious prosecution are: (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (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' " (De Lourdes Torres v Jones, 26 NY3d 742, 760 [2016]; quoting Broughton, 37 NY2d at 457; see also; see also Martinez v City of Schenectady, 97 NY2d 78, 84,[2001]; Fink v Shawangunk Conservancy, Inc., 15 AD3d 754 [2005]; Perryman v Village of Saranac Lake, 41 AD3d 1080, 1081 [2007]). While claimant sufficiently alleged the first two elements of a malicious prosecution claim, he failed to allege the absence of probable cause and malice. The claim alleges in only the most conclusory manner that "[t]his investigation led to no evidence, facts, or information whatsoever of any . . . wrongdoing" (defendant's Exhibit A, Notice of Claim, 6). Even if a lack of probable cause may be inferred from this allegation, the law is well-settled that a pretrial determination of probable cause creates a presumption of probable cause which may be overcome only upon a showing of fraud, perjury or the suppression of evidence (see Gisondi v Town of Harrison, 72 NY2d 280, [1988]; Colon v City of New York, 60 NY2d 78, 82-83 [1983], rearg denied 61 NY2d 670 [1983]; Watson v City of Jamestown, 56 AD3d 1289 [4th Dept 2008]; Diederich v Nyack Hosp., 49 AD3d 491, 493 [2d Dept 2008], lv dismissed in part and denied in part 11 NY3d 862[2008]; Ellsworth v City of Gloversville, 269 AD2d 654 [3d Dept 2000]). In support of its motion, defendant submitted documentary evidence establishing that claimant was indicted by a Grand Jury on April 8, 2008 and April 9, 2008, thereby creating a presumption of probable cause (see defendant's Exhibit E and G; Colon, 60 NY2d at 82). Nevertheless, claimant failed to allege in the claim or otherwise demonstrate in opposition to the instant motion any facts from which fraud, perjury or the suppression of evidence may be inferred. Moreover, claimant failed to allege that his prosecution was commenced or continued with malice, i.e. that the defendant "must have commenced the prior criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served" (Torres, 26 NY3d at 761, quoting Nardelli v Stamberg, 44 NY2d 500, 503 [1978]). Thus, even construing the claim liberally, and according the claimant the benefit of every favorable inference, it fails to state a cause of action for malicious prosecution.

To prevail on a cause of action for false arrest and imprisonment "the [claimant] must demonstrate that the defendant intended to confine the [claimant], that the [claimant] was conscious of the confinement, that the [claimant] did not consent to the confinement and that the confinement was not privileged" (De Lourdes, 26 NY3d at 759). Claimant's false imprisonment claim fails for the same reason his malicious prosecution claim fails, namely, that claimant's indictment by a Grand Jury created a presumption of probable cause which he failed to address in the claim or otherwise rebut in opposition to the instant motion (Gisondi, 72 NY2d at 283-284; Colon, 60 NY2d at 82).

With respect to claimant's cause of action for negligent investigation, the law is settled that a claim for negligence may not supplant the traditional tort remedies of false imprisonment and malicious prosecution (Nazario v State of New York, 75 AD3d 715 [3d Dept 2010], lv denied 15 NY3d 712 [2010]; Simon v State of New York, 12 AD3d 171, 783 [1st Dept 2004]; Russ v State Empls. Fed. Credit Union [SEFCU], 298 AD2d 791, 793 [3d Dept 2002]; Ellsworth v City of Gloversville, 269 AD2d 654, 656-657 [3d Dept 2000]). Thus, negligent investigation is not a cognizable cause of action.

To the extent the claimant seeks damages for defamation, the claim fails to set forth the particular words complained of so as to meet the specificity requirements of CPLR 3016 (a) (see Martin v Hayes, 105 AD3d 1291, 1293 [3d Dept 2013]; Pappalardo v State of New York, 109 AD2d 873, 873 [2d Dept 1985]). Nor does the claim sufficiently articulate "the time manner and persons to whom the alleged defamatory statements were made" (Dobies v Brefka, 273 AD2d 776, 777 [3d Dept 2000], lv dismissed 95 NY2d 931 [2000]; cf. Radiation Oncology Servs. of Cent. N.Y., P.C. v Our Lady of Lourdes Mem. Hosp., Inc., 148 AD3d 1418, 1419 [3d Dept 2017] [complaint set forth the particular words complained as well as the time, manner, and persons to whom the alleged defamatory statements were made]). The claim therefore fails to state a cause of action for defamation.

Lastly, Court of Claims Act 11 (b) requires that a claim 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." At the very least, the instant claim fails to state the date of accrual relative to the causes of action for negligence and defamation. While the claim does allege that claimant was acquitted of all charges on August 19, 2016, which is the date of accrual for a malicious prosecution claim (see Ciferri v State of New York, 118 AD2d 676, 677 [2d Dept 1986]), it fails to allege the date the defamatory statements were uttered or published or the date the negligent investigation occurred, or the date claimant was released from confinement (see Burks v State of New York, 119 AD3d 1302 [3d Dept 2014]; Connor v State of New York, 268 AD2d 706, 707 [3d Dept 2000]). Inasmuch as the failure to abide by the pleading requirements of Court of Claims Act 11 (b) is a jurisdictional defect (Sommer v State of New York, 131 AD3d 757 [3d Dept 2015]), the dismissal of the negligence, false imprisonment and defamation causes of action is required on this basis alone.

Based on the foregoing, defendant's motion is granted and the claim is dismissed.

October 3, 2018

Saratoga Springs, New York


Judge of the Court of Claims

Papers Considered:

  1. Notice of Motion, dated June 28, 2018;
  2. Affirmation of Christina Calabrese, Esq., dated June 28, 2018, with Exhibits A - O;
  3. Memorandum of Law by Christina Calabrese, dated June 28, 2018;
  4. Affirmation of Paul F. Dwyer, Jr., Esq., dated July 18, 2018, with Exhibits A - C;
  5. Memorandum of Law by Paul F. Dwyer, Jr., Esq., dated July 18, 2018.