State's Motion to Dismiss on the basis the Court lacks subject matter jurisdiction and for lack of particularity pursuant to Court of Claims Act § 11(b) denied.
|Claimant short name:||HAYES|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||Caption amended to reflect the proper defendant.|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||STENGER, ROBERTS, DAVIS & DIAMOND, LLP
By: Jessica Z. Segal, Esq.
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Elizabeth A. Gavin, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||February 6, 2018|
|See also (multicaptioned case)|
For the reasons set forth below, Defendant's Pre-Answer Motion to dismiss the Claim on the basis that the Court lacks subject matter jurisdiction pursuant to CPLR 3211 (a) (2) and that the Claim fails to meet the specificity requirements of Court of Claims Act § 11(b) is denied.
The Claim, which was filed with the Clerk of the Court on July 26, 2017, alleges that, on August 25, 2016, criminal charges pending in the Town of Beekman Court were terminated in favor of Claimant pursuant to Criminal Procedure Law (hereinafter, "CPL") § 170.55 (Adjournment in Contemplation of Dismissal). Having never been restored to the calendar by the People or the Town of Beekman Court, the Accusatory Instrument(s) was/were deemed dismissed in furtherance of justice pursuant to CPL § 215.40 on February 25, 2017. It is further alleged that, pursuant to CPL § 160.50(1), it was incumbent upon the Town of Beekman Court to seal the record and "immediately notify" the Commissioner of the Division of Criminal Justice Services (hereinafter, "DCJS") that the record was to be sealed. Additionally, the Town of Beekman Court was to notify all appropriate police departments or other law enforcement agencies that the action was terminated in favor of the accused and the record of the action or proceeding shall be sealed. Claimant also alleges, upon information and belief, that the Town of Beekman Court Clerk notified DCJS that the action terminated in favor of Ms. Hayes and that DCJS was to seal the record and destroy or return all photographs, palm prints and fingerprints. She also alleges, upon information and belief, DCJS failed to seal the records (Claim, ¶ 4).
It is further asserted that, on May 23, 2017, when a potential employer ran a background check through the National Instant Criminal Background Check System, the criminal charges were still showing as pending. Ms. Hayes was put on notice of this by the potential employer on May 24, 2017. As of the date the Claim was filed, Claimant had not been assigned work from this potential employer (Claim, ¶ 4). Claimant asserts that the State's negligence consisted of, among other things, failing to timely and properly perform a mandatory government function and breaching a special duty of care owed to a person of a protected class (id., ¶ 6).
Pursuant to the Court of Claims Act provisions applicable to personal injury actions, Claimant was required to file and serve her Claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim (Court of Claims Act § 10). In either case, Claimant was required to initiate action within 90 days of the Claim's accrual. Here, Claimant asserts her cause of action accrued on May 23, 2017. The Claim was filed and served within 90 days of that date.
Court of Claims Act § 11(b) requires 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 and … the total sum claimed" (see Demonstoy v State of New York, 130 AD3d 1337 [3d Dept 2015]).
Defendant asserts that the Claim fails to indicate several key facts which are necessary for it to investigate the matter. Defendant asserts that the Claim fails to set forth the indictment or case number of the criminal action that DCJS allegedly failed to seal. Further, the Claim does not set forth the specific charges or the date of arrest of Claimant. Rather the Claim simply sets forth the date on which the criminal charges were terminated and that these charges were brought in Beekman Town Court. It is Defendant's contention that this recitation of facts is not sufficient to identify the criminal matter which is the subject of this Claim (Affirmation of Elizabeth A. Gavin, Esq., Assistant Attorney General [hereinafter, "Gavin Affirmation"], ¶ 4).
Defense counsel further states that the Claim states that, "upon information and belief," the Town of Beekman notified DCJS (Claim, ¶ 4). Counsel asserts that the Claim does not set forth the source of that information or belief, nor does it indicate how, when, or to whom this notification occurred. Defendant asserts that this description fails to put it on notice of where to look for evidence of such a notification (Gavin Affirmation, ¶ 5).
Counsel continues that the Claim states that "a potential employer" notified Claimant that "the criminal charges" were still showing as pending, and that "[t]o date, [C]laimant has not been assigned work from this potential employer" (Claim, ¶4). Defendant asserts that the Claim does not specify who the employer is, what the position applied for was, what the salary of that position was, or whether or not Claimant was hired. The Claim does not even indicate that the "potential employer" would have hired or "assigned work" to Claimant but for this pending criminal charge. Thus, Defendant argues that there is nothing in the Claim indicating that the negligence of any state agency was the proximate cause of any actual injuries suffered by Claimant. Defendant concludes that Claimant's allegations related to an unspecified position, with an unspecified employer, at an unspecified rate of pay, fail to put Defendant on notice of its potential liability related to the alleged failure to seal Claimant's criminal record (Gavin Affirmation, ¶ 6).
It is well established that the failure to satisfy the substantive pleading requirements of Court of Claims Act § 11(b) is a jurisdictional defect that requires dismissal of the Claim (Kolnacki v State of New York, 8 NY3d 277, 280-281 ; Lepkowski v State of New York, 1 NY3d 201, 206-207 ; Czynski v State of New York, 53 AD3d 881, 882-882 [3d Dept 2008], lv denied 11 NY3d 715 ). As stated by the Appellate Division, Third Department, in Morra v State of New York (107 AD3d 1115, 1115-1116 [3d Dept 2013]):
Although "absolute exactness" is not required (Heisler v State of New York, 78 AD2d 767, 767 [4th Dept] ), the claim must " 'provide a sufficiently detailed description of the particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and extent of its liability' " (Robin BB. v State of New York, 56 AD3d 932, 932-933 [3d Dept] , quoting Sinski v State of New York, 265 AD2d 319, 319, [2d Dept] ). However, defendant is not required "to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York [supra, at 208]). Failure to abide by these pleading requirements constitutes a jurisdictional defect mandating dismissal of the claim, even though this may be a harsh result (see Kolnacki v State of New York, [supra] at 281; Dinerman v NYS Lottery, 69 AD3d 1145, 1146 [3d Dept] , lv dismissed 15 NY3d 911 ).
While Defendant contends that the Claim lacks particularity, the Court notes that Defendant has submitted only the affirmation of counsel, and the affirmation does not assert that Defendant has attempted to conduct an investigation into Claimant's allegations and has been unable to. Rather, it only asserts that the information provided is insufficient and lacks particularity. The "guiding principle" and "purpose" of Court of Claims Act § 11(b) is to permit Defendant to investigate the claim and gauge the State's potential liability (see Davilla v State of New York, 140 AD3d 1415, 1416 [3d Dept 2016]). The description must be particular enough " 'so as not to mislead, deceive, or prejudice the rights of [defendant]' " (Demonstoy v State of New York, supra at 1337, quoting Rodriguez v State of New York, 8 AD3d 647, 647 [2d Dept 2004]). The Court finds that the Claim provides a sufficiently detailed description of the particulars of the Claim to enable Defendant to investigate and promptly ascertain the existence and extent of its liability (Morra v State of New York, supra; Robin BB. v State of New York, supra; Sinski v State of New York, supra).
Based upon the foregoing, the Court finds and concludes that the Claim meets the particularity requirements of Court of Claims Act § 11(b) and the State's Motion to dismiss for failure to comply with that statute is denied.
February 6, 2018
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Defendant's Motion to dismiss the Claim:
Notice of Motion, Affirmation in Support
& Exhibits Attached 1
Affirmation in Opposition 2
Filed Papers: Claim