Claimant's motion for permission to file a late claim is denied. Claimant failed to establish that any of the factors set forth in Court of Claims Act Section 10 (6) weigh in favor of late claim relief.
|Claimant(s):||JAMES PAUL ARLOTTA|
|Claimant short name:||ARLOTTA|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||JAMES PAUL ARLOTTA, Pro Se|
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
New York State Attorney General
BY: Wendy E. Morcio, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 13, 2018|
|See also (multicaptioned case)|
Pro se movant James Paul Arlotta moves the Court for permission to late file a claim.
Court of Claims Act §10 (6) provides the procedure for seeking leave to file and serve a late claim. Defendant opposes the motion on the grounds that the motion is untimely, the claim has no merit, there is no reasonable excuse for the delay in filing, defendant had no knowledge of the essential facts, substantial prejudice and the availability of other remedies.
A motion for permission to file and serve a late claim must be brought "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules" (Court of Claims Act § 10 ). A negligence action against a private citizen would have to be commenced within three years of accrual of the claim (CPLR 214), while an action based on an intentional tort must be brought within one year of accrual (CPLR 215). Accordingly, a motion for permission to late file a negligence claim must be brought within three years of accrual of the negligence and a motion to late file a claim based on an intentional tort must be brought within one year of accrual of the intentional tort. Movant filed his motion to late file a claim on December 18, 2017. In the proposed claim attached to his motion, movant alleges that his claim accrued on March 24, 2017. If this statement were correct, then this motion would be timely whether based on negligence or on an intentional tort.
Movant, however, fails to allege any cause of action or even any facts which occurred on March 24, 2017 on which to base a claim. One of the first causes of action asserted in the proposed claim is for false arrest which allegedly occurred on December 7, 2004. The applicable statute of limitations for a claim based on false arrest is one year (CPLR 215 ). It accrues when the party is released from custody (Salman v Econo Lodge, 303 AD2d 923 [4th Dept 2003]). While movant fails to indicate in his proposed claim when he was released from custody, he states in paragraph 29 of the complaint he filed in the United States District Court for the Western District of New York (copy attached to his motion papers) that he was held for one week. Movant did not file his motion for late claim relief until December 2017, approximately thirteen years (13) years after his alleged false arrest and release. A motion for permission to late file a claim based on this arrest would, therefore, be untimely. While it cannot be determined from the proposed claim, the remaining causes of action may also be time-barred.
In his reply affidavit, movant attempts to get around the statute of limitations issue. In the first paragraph of his reply affidavit, movant alleges that he was a student at Erie Community College and at State University of New York at Buffalo (SUNY) from September 1995 to December 2014. Assuming movant was attempting to allege a negligence cause of action against SUNY, movant's motion for late claim relief had to have been brought within three years of the alleged negligence. Movant's motion was filed on December 18, 2017. Thus, only allegations of negligence which accrued between December 18, 2017 and the end of December 2017 would not be time barred. The proposed claim does not allege any factual basis for a cause of action which accrued in late December 2014. It thus appears that movant's motion for late claim relief is untimely with respect to most, if not all, of the allegations asserted in the proposed claim.
Section 10 (6) of the Court of Claims Act requires that the claim proposed to be filed contain all of the information set forth in section eleven of this act. Pursuant to Court of Claims Act §11 (b), "[t]he claim shall state the time when and place where such claim arose [and] the nature of same . . . " In the proposed claim, movant generally alleges multiple causes of action involving numerous defendants. Other than the allegation of false arrest which allegedly occurred in 2004, there is no date given in the proposed claim for any other cause of action and no indication where each proposed cause of action occurred or any factual allegations to show how the State of New York was involved. Defendant argues that the proposed claim does not meet the pleading requirements of Court of Claims Act § 11 (b).
In determining whether to grant permission to late file a claim, the Court must consider, among other factors, "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the [movant] has any other available remedy" (Court of Claims Act § 10 ). Defendant argues that none of the statutory factors weigh in favor of granting movant late claim relief.
The first factor to be considered by the Court is whether the delay in filing the claim was excusable. In an unsigned "Addendum to NOTICE OF MOTION," movant asserts that the delay in filing was excusable due to his voluntary mental health treatments, the influence of anti-psychotic pharmaceuticals and his public defender's fraudulent concealment of his civil rights. In certain situations, a movant under a legal disability may file a claim within two years after such disability has been removed (Court of Claims Act § 10 ). Movant fails to provide any particulars as to his voluntary health treatments and fails to allege an accrual date for any proposed cause of action. It is impossible to determine from the limited information provided whether any disability kept movant from filing a claim for activities which, as best this Court can determine, occurred many years ago. Moreover, lack of knowledge regarding one's rights or the legal requirements of a potential claim are not acceptable excuses for failing to file a timely claim (Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv denied 99 NY2d 589 ).
The next three factors of notice, opportunity to investigate and prejudice are intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337 [Ct Cl, 1998]). In paragraphs 3 and 8 of his unsworn addendum, movant argues that his complaints to the U. S. Department of Education for Civil Rights and to various federal and state agencies should have given the State the opportunity to investigate his claims. Knowledge imparted to a federal agency does not equate to knowledge by the State. In addition, there is no information given as to which state agency acquired knowledge, what knowledge the State received, or when such knowledge was acquired. There is also nothing in the record to suggest that defendant had knowledge of the essential facts of any potential cause of action in order to put it on notice that movant would allege that its negligence or intentional acts somehow caused or contributed to any cause of action (De Jesus v County of Albany, 267 AD2d 649 [3d Dept 1999]). Moreover, defendant would undoubtedly be prejudiced if forced to defend claims that occurred approximately 13 to 15 years ago and of which it had no notice or opportunity to investigate.
The most important factor to consider is merit as it would be futile to permit a claim to be filed which was subject to dismissal (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]. It is Movant's burden to show that the proposed claim is not patently groundless, frivolous or legally defective and that there is a reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). This standard does not require movant to establish the merit of his claim or to overcome all legal objections before the Court will permit the filing of a late claim (Id. at 11-12.).
Defendant argues that the proposed claim is not meritorious as it contains only conclusory allegations without any supportive basis and fails to comply with Court of Claims Act § 11 (b). The first sentence in movant's proposed claim states "[f]alsification of Workers' Compensation record . . . as per letter sent to Chairman of the Board." There is no date given as to any alleged falsification, no date given as to any letter and no connection asserted as between the global accrual date of March 24, 2017 asserted in the proposed claim and any Workers' Compensation claim. This conclusory allegation is asserted without any factual basis. Without a date of accrual or any factual particulars, this allegation fails to comply with the pleading requirements of Court of Claims Act § 11 (b) and fails to allege a viable cause of action.
The second sentence in the proposed claim states "[f]alse arrest by Buffalo Police Department on 12/7/04 . . . ." As noted before, any such cause of action would be time barred. Moreover, the Court of Claims is a court of limited jurisdiction with the power to hear claims against the State of New York for the torts of its officers and employees (NY Const Art IV; Court of Claims Act § 9). The Court of Claims has no jurisdiction over the actions of Buffalo Police Officers as they are not state officers for whose conduct the State of New York is liable (Whitmore v State of New York, 55 AD2d 745 [3d Dept 1976]). Thus, even if timely brought, this sentence fails to state a viable cause of action as this Court has no jurisdiction over the actions of the Buffalo Police Department.
The third sentence in the proposed claim states"[i]llegal actions of Buffalo City Court Judges Debra Givens and Robert Russell." Once again, movant fails to allege any date or any particulars regarding any action taken by either Judge. Moreover, the doctrine of judicial immunity bars any action against the State for the judicial acts of Judges unless such acts were performed in the "clear absence of all jurisdiction over the subject matter" (Sassower v Finnerty, 96 AD2d 585, 586 [2d Dept 1983], app dismissed 61 NY2d 756 ). Nothing in the proposed claim indicates or even alleges that any action by either Judge was performed without any jurisdiction over the subject matter. Thus, any proposed cause of action against either Judge fails to comply with the pleading requirements of Court of Claims Act § 11 (b) and fails to state a viable cause of action.
The next two sentences in the proposed claim refer to the activities of Access -VR Counselor Ida Goeckland. The fourth sentence states "[i]llegal actions of ACCESS-VR Counselor Ida Goeckland her inability to report employment discrimination's by Buffalo Oxygen Services hirring [sic] and then immediately firing of [movant]." The fifth sentence states "Ida's determination of [movant's] 'guilt' before a trial determining so." Insofar as these sentences are attempting to allege a cause of action against Ida Goeckland individually they must fail. Individuals, even if employees of the State of New York, cannot be sued in their individual capacity in the Court of Claims (Smith v State of New York, 72 AD2d 937 [4th Dept 1979]). In addition, there is no date given as to any alleged activity by this counselor and no connection asserted as between the global accrual date of March 24, 2017 and any claim involving this counselor. Insofar as these sentences attempt to allege a cause of action against Buffalo Oxygen Services, it too must fail. The Court of Claims hears claims against the State. It has no jurisdiction over private corporations. Without a date or any factual particulars, the fourth and fifth sentences of the proposed claim fail to comply with the pleading requirements of Court of Claims Act § 11 (b) and fail to allege a viable cause of action.
The sixth sentence in the proposed claim states "Previous complaint of Dr. Hak Ko's medical malpractice." Once again, an individual, such as Dr. Ko, may not be sued individually in the Court of Claims. In addition, there is no date of any alleged malpractice, no relationship given between any act of Dr. Ko and the global accrual date of March 24, 2017, no factual basis given for a malpractice claim, and no connection alleged between the activities of Dr. Ko and the State of New York. The sixth sentence of the proposed claim fails to comply with the pleading requirements of Court of Claims Act § 11 (b) and fails to allege a viable cause of action.
The next several sentences read as follows: "The State University of New York's malfeacence evidenceded [sic] by inaction of Erie Community College South Campuses, . . . PROLONGING of GRADUATION By BUFFALO STATE COLLEGE DUE TO DISCRIMINATIONS BY VARIOUS PROFESSORS AS EXPLAINED IN COMPLAINT SENT TO office of Civil rights for the U.S. Dept of Education . . . . Dr. Lori Till's UNFUFILLED [sic] 'PROMISE' of . . . 'YOU'LL GET A JOB RIGHT AFTER YOU GRADUATE.'" In what appears to be a continuation of an attempt to allege a cause of action against SUNY, the last few sentences read: "the stigmitizing [sic] actions of Dr. Dori Marshall and the University @ Buffalo. NUMEROUS COMPLAINTS TO THE N.Y. STATE INSPECTOR GENERALS' OFFICES. Condensending [sic] and HARASSING EMAIL BY Dr. Charles Kenyon."
As noted before, the Court of Claims is a court of limited jurisdiction. Community colleges, such as Erie County Community College, are organized under the Education Law. They are not a part of the State University of New York Corporation (Planck v SUNY Bd. of Trustees, 18 AD3d 988 [3d Dept 2005]), and are governed by their own Board of Trustees (Kuznetz v County of Nassau, 229 AD2d 476 [2d Dept 1996]). The real party in interest for the activities of Erie Community College is Erie County and not the State of New York (Patriss v State University of New York, UID No. 2012-039-287 [Ct Cl, Ferreira, J., Feb. 23, 2012]). Accordingly, the Court of Claims lacks jurisdiction over any potential claim against Erie Community College. Similarily, this Court lacks jurisdiction against Dr. Lori Till, Dr. Marshall or Dr. Kenyon individually as the Court lacks jurisdiction over individuals, even if they are employees of the State.
Movant also fails to state a date upon which any activity of SUNY occurred and fails to show any connection between any activity of SUNY and the global accrual date of March 24, 2017 alleged in the proposed claim. In fact at paragraph 6 of movant's "Addendum to NOTICE OF MOTION," movant states "THE LOSS OF 15 YEARS OF POTENTIAL EARNINGS', BENEFITS', AND VACATION TIME DUE TO THE S.U.N.Y.'S INACTIO [SIC] TO ASIST [SIC] THIS COMPLAINTANT BECAUSE HE IS A WHITE MALE. VIA REVERSE DISCRIMINATION(S)'." This allegation seems to imply that movant is trying to complain about actions taken by SUNY which occurred approximately 15 years ago. In this event, the attempted cause of action against SUNY would be time barred. In addition, insofar as this allegation implies a violation of rights under the Constitution of the United States, it must fail. The Court of Claims does not have jurisdiction over federal constitutional claims (Shelton v New York State Liq. Auth., 61 AD3d 1145 [3d Dept 2003]). Further, a cause of action challenging an academic decision of a university or college should be brought in a special proceeding in State Supreme Court (not in the Court of Claims) pursuant to Article 78 of the CPLR (Sarwar v. New York Coll. of Osteopathic Medicine of N.Y. Inst. of Tech., 150 AD3d 913 [2d Dept 2017]; Keles v Hultin, 144 AD3d 987 [2d Dept 2016]). Thus, any proposed claim against SUNY fails to comply with the pleading requirements of Court of Claims Act § 11 (b) and fails to state a viable cause of action.
Movant also generally alleges in his proposed claim that the acts complained of occurred, inter alia, at Cook Moving Systems, Inc. and at the Father Baker Manor. There is no date alleged as to any act which occurred at either location, no factual basis for any claim against either and no connection asserted as between either entity and the State of New York.
Finally, in his reply affidavit, movant attempts to add new causes of action not contained in the proposed claim against the Diocese of Buffalo, a Catholic priest, a Catholic College (Hilbert College), the parishioners of St. Bernadettes and against the Police Departments of Orchard Park and Hamburg, among others. The Court of Claims does not have jurisdiction over the Diocese of Buffalo, a Catholic College, priests, individual parishioners or the Police Departments of Orchard Park or Hamburg. Perhaps movant has a cause of action against these entities and individuals in State Supreme Court, but he does not have a viable cause of action against them in the Court of Claims, even if timely brought. Based on a careful review of the proposed claim, the Court concludes that movant has failed to allege any viable cause of action in the Court of Claims.The allegations in the proposed claim are too general, conclusory and totally unsupported by any factual basis to establish a meritorious claim (Sandlin v State of New York, supra at 725).
The final factor to consider is whether Movant has another remedy available. At some point movant may have had a remedy in federal court under 42 U.S.C. § 1983. However, as noted by Judge Geraci in his September 18, 2017 Decision and Order (copy attached to movant's motion), the statute of limitations for such a claim has long expired. Movant may, however, have a claim in State Supreme Court against the Buffalo, Hamburg, and Orchard Park Police Departments or against SUNY under Article 78 of the CPLR, if these potential claims are not time barred, but not in this Court.
Upon consideration of the factors set forth in Court of Claims Act § 10 (6), none of the factors to be considered weigh in favor of late claim relief. Accordingly, movant's motion no. M-91553 for permission to late file a claim is denied.
June 13, 2018
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Notice of motion filed December 18, 2017 and an undated, unsigned and unsworn to addendum, with annexed Exhibits;
2. Opposing affidavit of Assistant Attorney General Wendy E. Morcio sworn to December 29, 2017;
3. Reply affidavit of James Paul Arlotta dated to January 8, 2018; and
4. Supplemental Opposing affidavit of Assistant Attorney General Wendy E. Morcio sworn to March 26, 2018.(1)
1. The supplement affidavit of Assistant Attorney General Morcio was filed and served with the permission of the Court.