Motion for Permission to serve and file a Claim late pursuant to CCA § 10(6) granted in part.
|Claimant(s):||KEITH C. PAGAN|
|Claimant short name:||PAGAN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||Caption amended to reflect the proper defendant.|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||BUKH LAW FIRM, PLLC
By: Chris C. Rogers, Esq.
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Anthony Rotondi, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||March 25, 2019|
|See also (multicaptioned case)|
For the reasons set forth below, Movant's Motion to serve and file a late claim pursuant to Court of Claims Act § 10(6) is granted in part.
Movant seeks permission to serve and file a late claim. The proposed Claim, attached to the Motion papers,(2) alleges that on or about December 27, 2017, Movant participated in a polygraph examination administered by New York State Police (hereinafter "State Police") Investigator Dina Pavloudakis "in regards to an offer of employment background investigation" with the State Police. During Mr. Pagan's interview, the answers provided to Investigator Pavloudakis regarding Mr. Pagan's February 2017 Bachelor Party were misconstrued, misunderstood, and lead to an erroneous conclusion. It is further alleged that, without a proper investigation into the incident, Investigator Pavloudakis negligently prepared and filed an inaccurate report. Investigator Pavloudakis' report falsely asserted that Movant admitted to patronizing a prostitute, which Mr. Pagan denied. Subsequently, in a letter dated February 26, 2018, Patricia Groeber sent this false accusation to Mr. Pagan's employer, the City of Kingston Police Department. State Police Lieutenant Erica Brewer also repeated this false accusation to Mr. Pagan's employer, Deputy Chief John Wallace, on March 2, 2018, and provided only vague details and information regarding the alleged incident because all parties involved failed to do their due diligence into the matter before publishing the aforementioned false and extremely damaging accusation. It is asserted that the State Police did not investigate this accusation properly. In addition, during a recent police job interview, Mr. Pagan had to disclose this false accusation to the Police Chief, Police Captain, and Detective-Sergeant of the City of Peekskill.(3) Mr. Pagan asserts that this has become an almost unbearable tarnish on his reputation.
The proposed Claim asserts causes of action for defamation and negligent investigation by the State Police.
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 a cause of action for negligence (CPLR § 214, a three-year Statute of Limitations), as well as a cause of action for defamation (libel, slander) (CPLR § 215 , a one-year Statute of Limitations). Movant asserts that the claim accrued on February 26, 2018. The Court concludes that, based upon the information provided in the proposed Claim, the statute of limitations has not yet expired for the negligence cause of action and had not yet expired regarding the defamation cause of action when the Motion was served and filed.
Next, 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]). Movant 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 Movant 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]).
The first factor to be considered is whether the delay in filing the claim was excusable. Movant asserts that he did not timely file the Claim because he did not understand the depth of damages he has and will continue to suffer as a result of the publication of defamatory statements about him. He also asserts that he did not discover the existence of the February 26, 2018 letter until sometime after it had been published, although he does not state when he did discover its existence. In addition, he asserts, he attempted, in good faith, to negotiate and settle this matter outside of court (Affidavit of Keith Pagan [hereinafter, "Pagan Affidavit"], ¶¶ 12, 13). The excuse for failing to timely file must relate to the initial 90-day period (see Bloom v State of New York, 5 AD2d 930 [3d Dept 1958]). Here, the 90-day period expired April 27, 2018. The Court finds that Movant did not offer a reasonable excuse as to why he could not serve a Notice of Intention to File a Claim or a Claim prior to expiration of the statutory period or why he did not seek legal counsel until July 2018 (Pagan Affidavit, ¶ 9). However, the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., supra at 981).
The next three factors to be addressed - whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant - are interrelated and will be considered together. Defendant does not argue lack of notice of the essential facts, lack of opportunity to investigate, or that it will be substantially prejudiced by a delay in filing a claim (see Affirmation in Opposition of Anthony Rotondi, Esq., Assistant Attorney General). Those factors, therefore, weigh in Movant's favor.
The fifth factor to be considered is whether Movant has another remedy available. It appears that Movant does have at least a possible alternate remedy against the individual employees he asserts were negligent and/or defamed him.
The sixth, final and perhaps 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 Court finds that the proposed cause of action for negligent investigation lacks the appearance of merit, as New York does not recognize such cause of action ( Hernandez v State of New York, 228 AD2d 902, 904 [3d Dept 1996]; Coyne v State of New York,120 AD2d 769, 770 [3d Dept, 1986]).
The Court now will address the proposed cause of action alleging defamation.
With respect to defamation, a claimant must allege and prove that (a) the defendant published a false statement to a third person; (b) the defendant published the statement without authorization or privilege; (c) the defendant, at a minimum, was negligent in said publication; and (d) that claimant suffered a special harm or defamation per se (Gutierrez v McGrath Mgt. Servs., Inc., 152 AD3d 498, 502 [2d Dept 2017]; Salvatore v Kumar, 45 AD3d 560, 563 [2d Dept 2007], lv denied 10 NY3d 703 ). Additionally, a claimant must set forth the particular words complained of, as well as allege the time when, the place where, and the manner in which the allegedly false statement were made (LoFaso v City of New York, 66 AD3d 425, 426 [1st Dept 2009]; Epifani v Johnson, 65 AD3d 224, 233 [2d Dept 2009]; CPLR § 3016[a]).
Here, Movant has set forth the particular words complained of, as well as the time when, the place where, and the manner in which the allegedly false statements were made. In his affidavit submitted in support of the Motion, Movant asserts that during the polygraph examination, he informed the test administrator regarding events that "transpired in August 2017 during my bachelor party in Atlantic City, NJ" (Pagan Affidavit, ¶¶ 2, 3). However, he does not elaborate regarding those events, but Movant does deny, in his Reply Affidavit, the allegations that he patronized a prostitute while employed as a police officer by the City of Kingston (Reply Affidavit of Keith Pagan, ¶ 10).
In opposition to the Motion, Defendant has submitted a partial transcript of the polygraph interview (Ex. B), as well as a DVD of the redacted video of the polygraph interview (Ex. A). It is not clear to the Court from the exhibits submitted that Movant stated that he patronized a prostitute in August 2017.
At this stage of the proceeding, it should be noted the Court generally takes as true factual allegations of Movant. Based upon the entire record, including the proposed Claim, the Court finds that the proposed cause of action for defamation set forth in the Claim has the appearance of merit. Movant need only establish the appearance of merit; he need not prove a prima facie case at this stage of the proceedings.
In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movant's favor as to the defamation cause of action only. The mix of circumstances presented by this case fall well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (L 1976, ch 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, and which indicated a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, supra at 1036). Movant has provided sufficient basis for a favorable exercise of this Court's discretion to grant him leave to file a late claim against the State as set forth above asserting a cause of action for defamation. Therefore, within forty-five (45) days of the date of filing of this Decision and Order, Movant shall file with the office of the Clerk of the Court his proposed Claim against the State of New York, asserting a cause of action for defamation, and serve a copy of the proposed Claim upon the Attorney General personally or by certified mail, return receipt requested. In serving and filing his claim, Movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a regarding the filing fee, and the Uniform Rules for the Court of Claims.
March 25, 2019
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read on Movant's application for permission to file a late claim:
Notice of Motion, Affidavit in Support
& Exhibits Attached 1
Affirmation in Opposition & Exhibits Attached 2
Reply Affidavit 3
2. Movant labels this document a "Notice of Claim." The Court notes that, in Court of Claims' practice, there are two documents, a Notice of Intention to File a Claim and a Claim. There is no "Notice of Claim." The Court considers this document to be a proposed Claim.
3. All of the allegations are contained in section 2 of the proposed Claim.