New York State Court of Claims

New York State Court of Claims

FOX v. THE STATE OF NEW YORK and THE NEW YORK STATE LIQUOR AUTHORITY, # 2018-045-014, Claim No. 128469, Motion No. M-89288, Cross-Motion No. CM-91004

Synopsis

Defendants' dismiss the claim for failure to state a cause of action. Claimant's cross-motion to file a late notice of intention.

Case information

UID: 2018-045-014
Claimant(s): FREDERICK G. FOX and FOXIES ON THE BEACH
Claimant short name: FOX
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK and THE NEW YORK STATE LIQUOR AUTHORITY
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 128469
Motion number(s): M-89288
Cross-motion number(s): CM-91004
Judge: GINA M. LOPEZ-SUMMA
Claimant's attorney: Law Offices of Frank S. Scagluso
By: Frank S. Scagluso, Esq.
Defendant's attorney: Hon. Eric T. Schneiderman, Attorney General
By: Robert E. Morelli, Assistant Attorney General
Third-party defendant's attorney:
Signature date: April 6, 2018
City: Hauppauge
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The following papers were read and considered by the Court on these motions: Defendants' Notice of Motion; Defendants' Affirmation in Support with annexed Exhibits A-E; Claimants' Notice of Cross-Motion; Claimants' Affirmation with annexed Exhibits A-C; Defendants' Affirmation in Further Support and in Opposition to Cross-Motion with annexed Exhibit A and Claimants' Reply Affirmation in Further Support of Cross-Motion.

Defendants, the State of New York and the New York State Liquor Authority, have brought this motion seeking an order pursuant to CPLR 3211 (a) (1), (2), (5) and (7) as well as Court of Claims Act 10 and 11 dismissing the claim. In response claimants, Frederick G. Fox and Foxies on the Beach, have brought a cross motion seeking permission to file a late notice of intention to file a claim and to amend claimants' verified claim "to cure any deficiency or omissions."

In response to defendants' motion to dismiss, claimants stated that they are withdrawing and discontinuing the following causes of action contained in their claim: the third (abuse of process), fifth (false arrest and imprisonment), sixth (violation of civil rights), ninth (libel and defamation), and eleventh (intentional infliction of emotional distress) causes of action as well as the claims for punitive and treble damages. Therefore, those aforementioned causes of action are hereby dismissed from the case.

Claimants clarify that they are only pursuing the first (making false and fraudulent statements), second (intentional tort), fourth (malicious prosecution), seventh (negligence), eighth(1) (slander) and tenth (tortious interference with a contract) causes of action.

On December 2, 2015 a notice of intention to file a claim was personally served on the New York State Office of the Attorney General and only listed Frederick G. Fox as the claimant in this matter.

In the notice of intention Mr. Fox alleges on September 4, 2015 at approximately 7:41 p.m. he was lawfully operating a concession franchise at Long Beach Town Park pursuant to a valid seasonal permit issued by the Town of Smithtown. Claimant continues that he was lawfully selling beer, wine and cider, as well as other food items, and providing live entertainment when his business was raided by law enforcement officers of the Town of Smithtown, Village of Nissequogue, Village of Head of the Harbor and the County of Suffolk who were acting upon information provided to them by defendants. Defendants allegedly misinformed the authorities that the temporary beer, wine and cider permits issued by the New York State Liquor Authority earlier on September 4, 2015 for the dates September 4, 2015 through September 7, 2015 was invalid. As a result, Mr. Fox's business was wrongfully interrupted and he was falsely arrested and imprisoned from September 4, 2015 to September 16, 2015. Mr. Fox asserts that he was subsequently wrongfully and maliciously prosecuted by the Town of Smithtown, Village of Nissequogue, Village of Head of the Harbor and the County of Suffolk for a violations of the New York State Alcohol & Beverage Container Law.

Mr. Fox further contends in the notice of intention that defendants falsely, intentionally, recklessly, negligently, wantonly and maliciously disseminated false and incorrect information to

the Town of Smithtown, Village of Nissequogue, Village of Head of the Harbor and the County of Suffolk regarding the status of the permits issued to him. Mr. Fox alleges that defendants failed to conduct a reasonable investigation of the facts prior to disseminating wrongful information to the Town of Smithtown, Village of Nissequogue, Village of Head of the Harbor and the County of Suffolk. Mr. Fox also alleges that his civil rights were violated by defendants' actions.

There is no mention of Foxies On the Beach, Inc., a separate entity, in the notice of intention to file a claim.

The District Court misdemeanor information complaint was attached to the notice of intention. The complainant on the complaint is listed as Town of Smithtown Officer Thomas Lohmann. The defendant in the complaint is Frederick G. Fox and he was charged with selling an alcoholic beverage without obtaining the appropriate license required by law. The complaint states that Mr. Fox sold beer and wine at the concession stand while knowing that his privilege to sell alcohol in the State of New York had been revoked by the New York State Liquor Authority. The revocation was confirmed by the New York State Liquor Authority.

The verified claim in this matter was personally served on the Office of the New York State Attorney General on September 6, 2016. The verified claim lists Foxies on the Beach, Inc., as a claimant in this case. Defendants argue that the failure to include any allegations concerning Foxies on the Beach, Inc., in the notice of intention requires a dismissal of Foxies on the Beach, Inc., from the claim.

Court of Claims Act 10 (3) requires in relevant part that a claim must be filed and served upon the Office of the Attorney General within ninety days after the accrual of such claim unless the claimant shall within such time serve a notice of intention to file a claim upon the Office of the Attorney General.

Court of Claims Act 11 (b) requires in pertinent part that the notice of intention shall set forth the time when and place where the claim arose as well as the nature of the claim. It is well settled that the requirements of Court of Claims Act 10 and 11 (b) must be strictly construed and a failure to comply with them is a jurisdictional defect compelling dismissal of the claim (Hargrove v State of New York, 138 AD3d 777 [2d Dept 2016]; see Finnerty v New York State Thruway Authority, 75 NY2d 721 [1989]). The notice of intention specifically states that Frederick G. Fox intends to file a claim against defendants in this matter and is verified by Mr. Fox in his individual capacity. Claimants' failure to include Foxies On the Beach, Inc., a separate entity, in the notice of intention deprives this Court of jurisdiction over Foxies On the Beach, Inc. in this matter. Accordingly, the Court dismisses Foxies On the Beach, Inc. from the claim.

In the verified claim it is alleged that Mr. Fox is the president and sole shareholder of Foxies on the Beach, Inc., and that the State Liquor Authority is a division of the State of New York. Claimant(2) alleges that Foxies on the Beach, Inc. was authorized and licensed to operate and manage the food concession pavilion located at Long Beach for the term May 15, 2015 through October 15, 2015 pursuant to an agreement between Foxies on the Beach, Inc. and the Town of Smithtown. On June 24, 2015, claimant submitted an application to the State Liquor Authority for a liquor license for Long Beach. Pending the approval for the liquor license application, the State Liquor Authority issued a temporary liquor license to Foxies on the Beach, Inc. for the Long Beach concession stand facility. On August 20, 2015 the State Liquor Authority disapproved Foxies on the Beach, Inc.'s application for a permanent liquor license. Based upon this disapproval the State Liquor Authority terminated the temporary liquor license issued to Foxies on the Beach, Inc. for the Long Beach facility. On August 21, 2015 at 2:00 p.m. the State Liquor Authority, through its senior investigator, Stephen Nemeth, notified the Village of Nissequogue Police Department that the temporary liquor license was cancelled.

Thereafter, Foxies on the Beach, Inc. submitted an application to the State Liquor Authority for temporary beer, wine and cider permits for the Long Beach facility for September 4 through September 7, 2015. On September 4, 2015 the State Liquor Authority issued temporary beer, wine, and cider permits to Foxies on the Beach, Inc. for September 4, 2015 between 3:00 p.m. and 11:30 p.m.; September 5, 2015 between 12:00 p.m. and 11:30 p.m.; September 6, 2015 between 12:00 p.m. and 11:30 p.m.; and September 7, 2015 between 12:00 p.m. and 11:00 p.m.

Claimant alleges, inter alia, in the verified claim that defendants, through their agents, wrongfully notified the Town of Smithtown, Village of Nissequogue, Village of Head of the Harbor and the County of Suffolk that Foxies on the Beach, Inc. and Mr. Fox were not authorized to sell alcoholic beverages at Long Beach and were not in possession of a valid liquor license or permit. As a result, on September 4, 2015, at 7:41 p.m. claimant's concession stand was raided by law enforcement agents of the Town of Smithtown, Village of Nissequogue, and Village of Head of the Harbor. Claimant was arrested and removed from the concession stand at Long Beach in front of patrons. His business was interrupted from September 4, 2015 to September 7, 2015. Claimant was incarcerated by the County of Suffolk and placed in the Suffolk County jail facility from September 4, 2015 through September 16, 2015.

As a result, claimant states that defendants wrongfully interfered with his contract with the Town of Smithtown to operate the concession stands.

Claimant alleges that images of his arrest were taken and published on the internet by the general public, together with accounts of the incident. Claimant also contends that images of his arrest were taken and published in newspapers, together with accounts of the incident.

Claimant's first cause of action is entitled, "Making False and Fraudulent Statements." Claimant continues that the false statements led to his false arrest, incarceration and deprivation of his liberty. Claimant contends that the false statements led to his inability to operate his business from September 4, 2015 to September 7, 2015. Claimant states that the false statements led to him being defamed, being exposed to criminal prosecution, being arrested by the Suffolk County Police Department, being confined to prison, being deprived of his freedom, suffering further emotional damages, and being prevented from attending to his usual business. The false statements have damaged claimant's good name, reputation, character and income. Claimant states that the false statements were the proximate cause of his arrest, his incarceration, the disruption and interference with his business, the defamation and humiliation experienced by claimant and all of the damages and loss sustained by claimant.

Claimant's second cause of action entitled, "Intentional Tort" reiterates the previous allegations but adds "that the false, wrongful and fraudulent statements made by the [d]efendants ... were intentional."

Claimant's fourth cause of action is for malicious prosecution. Claimant contends that the false statements were intended to shut down claimant's business. Claimant alleges that without the false statements there would not have been probable cause for his arrest. Claimant states that the charges resulting in his arrest were ultimately dismissed in favor of claimant.

Claimant's seventh cause of action entitled, "Negligence" reiterates the previous allegations and states that defendants acted negligently in the performance of their professional duties when they reported to Smithtown, Nissequogue, Head of the Harbor and Suffolk County false, inaccurate and fraudulent information regarding claimant's legal right to sell beer, wine and cider on September 4, 2015.

Claimant's eighth cause of action, entitled, "Slander" reiterates the previous allegations and states "that defendants made false, fraudulent and inaccurate statements to Smithtown, Nissequogue, Head of the Harbor and Suffolk County by stating in sum and substance that claimant's 'liquor license and Temporary Permit to sell beer, wine and cider was revoked or invalid.'" Claimant alleges that defendants made false, fraudulent and inaccurate statements to law enforcement agents of Smithtown, Nissequogue, Head of the Harbor and Suffolk County by "stating/or confirming" to said law enforcement agents that Mr. Fox "was selling beer and wine knowing or having reason to know that his privilege to sell alcohol in the state of New York had been revoked by the New York State Liquor Authority." The words were allegedly spoken in a manner intended for dissemination and defendants allegedly knew the remarks would be widely circulated and intended to defame claimant and destroy his reputation. The words were allegedly published by defendants with "malice and determination to injure [c]laimants."

Claimant's tenth cause of action entitled, "Tortious Interference with a Contract" reiterates the previous allegations and states that defendants had knowledge of the existence of the contract between claimant and Smithtown authorizing claimant to operate the concession business at Long Beach. Claimant alleges that defendants, by their actions interfered with claimant's ability to perform his obligations under the concession agreement with Smithtown.

Defendants argue that the notice of intention does not comply with the requirements of Court of Claims Act 11 (b). As a result, defendants aver that the verified claim is untimely under Court of Claims Act 10. Defendants also argue that the verified claim does not comply with Court of Claims Act 11 (b). Additionally, defendants contend that the verified claim fails to state a cause of action pursuant to CPLR 3211 (a) (1), (2), (5) and (7).

On a motion to dismiss pursuant to CPLR 3211, 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]). The review entails "whether the proponent of the pleading has a cause of action, not whether he has stated one" (id. at 88).

In regard to defendants' Court of Claims Act 11 (b) arguments, the Court finds that the notice of intention is sufficient to put the State on notice of the nature of claimant's allegations and to investigate accordingly. Additionally, the Court finds that the verified claim sufficiently sets forth causes of action for claims alleging defamation by slander, negligence, malicious prosecution, and tortious interference with a contract. Claimant has failed to set forth any further causes of action from the remaining broad allegations raised in the verified claim.

Claimant's cross motion must be denied since the Court of Claims Act does not authorize the filing of a late notice of intention to file a claim. Additionally, claimant's cross motion to amend the verified claim "to cure any deficiency or omissions" must also be denied since a jurisdictional defect cannot be cured by amendment (Nasir v State of New York, 41 AD3d 677 [2d Dept 2007]).

To the extent claimant is attempting to bring a motion to file a late claim(3) it was not considered by the Court as it was improperly raised for the first time in his reply affirmation in further support of his cross motion (Smith v County of Suffolk, 61 AD3d 743 [2d Dept 2009]; Adler v City of New York, 52 AD3d 549 [2d Dept 2008]).

Therefore, for the foregoing reasons, defendants' motion to dismiss is granted in part to the extent stated herein. Claimant's cross motion is denied in its entirety.

April 6, 2018

Hauppauge, New York

GINA M. LOPEZ-SUMMA

Judge of the Court of Claims


1. Although claimants include the eighth cause of action in both the paragraph where they are withdrawing claims as well as the paragraph listing the claims they are pursuing it is clear from the remainder of claimants' papers that they intend to pursue the claim of slander.

2. All further references to claimant refer to the claim of Frederick G. Fox as the claim of Foxies on the Beach, Inc. has been dismissed from this action.

3. Although claimant cites to Court of Claims Act 10 (6), it is unclear whether claimant is seeking late claim relief. Claimant states that he is seeking leave to file and serve the notice as a "late notice." Again, such relief is not authorized by the Court of Claims Act.