New York State Court of Claims

New York State Court of Claims
MATTER v. THE STATE OF NEW YORK, # 2020-053-011, Claim No. 129115

Synopsis

In a trial on the issue of liability only, the State's motion to dismiss the amended claim at the conclusion of claimant's proof was granted. The Court ruled that the State is not liable for the discretionary acts of its governmental officials.

Case information

UID: 2020-053-011
Claimant(s): MICHAEL MATTER
Claimant short name: MATTER
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 129115
Motion number(s):
Cross-motion number(s):
Judge: J. DAVID SAMPSON
Claimant's attorney: LAW OFFICE OF LOUIS ROSADO
BY: Louis Rosado, Esq.
LAW OFFICE OF KEVIN GAUGHAN
BY: Kevin Gaughan, Esq,
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
BY: Darren Longo, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 3, 2020
City: Buffalo
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant Michael Matter generally alleges in amended claim no. 129115, filed January 25, 2019, that officers, agents, contractors or employees of the State of New York falsely testified and misrepresented in reports that the claimant had violated the terms of his parole release and SIST order(1) and that, accordingly, he was wrongfully confined to a secure treatment center as a dangerous sex offender requiring confinement. The trial on the issue of liability took place on February 24, 2020(2) . The only witness to testify was the claimant, Michael Matter. Following the claimant's testimony, the claimant rested. Defendant then made an oral motion to dismiss the claim. Claimant submitted a trial reply and memo of law in opposition to defendant's motion to dismiss. Defendant was granted a brief adjournment to reply to claimant's memo of law. Further proceedings were delayed due to the court shutdown as a result of the COVID-19 pandemic, which resulted in the delay of this motion and trial decision.

PROCEDURAL HISTORY

In 1997, Claimant Michael Matter "pleaded guilty to sex offenses including sexual abuse in the first degree" (see Matter of State of New York v Michael M., 24 NY3d 649, 652 [2014]; Trial Exhibit 1). Claimant was convicted of "sexual abuse in the first degree and attempted sexual abuse in the first degree and was sentenced to consecutive sentences of two and one-third to seven years and one and one-third to four years imprisonment" (Amended Claim, Trial Exhibit 6, 4). According to an earlier decision of Justice Richard C. Kloch, Sr. Acting Supreme Court Justice for Niagara County (Justice Kloch), Mr. Matter's conviction arose from "a long-term series of sexual acts that began when the first victim was five years old and continued until she was approximately twelve years old, whereupon the [claimant] began to sexually abuse her younger sister" (In the Matter of the State of New York v Michael Matter, Index no. MH7317, filed April 4, 2012, Trial Exhibit 3).

In 2008, claimant reached the expiration date of his incarceration. On June 2, 2008, the State filed a petition seeking an Order authorizing civil management of the claimant pursuant to Article 10 of the Mental Hygiene Law, and seeking a determination that claimant was a sex offender in need of civil commitment. Claimant was transferred to the custody of the Office of Mental Hygiene (OMH) upon his release from the Department of Corrections and Community Supervision (DOCCS). Claimant then moved to dismiss the petition and sought a writ of habeas corpus directing his release from the custody of OMH. On March 30, 2010, Justice Kloch, entered an order and judgment dismissing the State's petition, granted the habeas corpus petition and released claimant from the custody of OMH. On appeal, the Appellate Division, Fourth Judicial Department, reversed Justice Kloch's order and judgment holding that Supreme Court erred in dismissing the State's petition and erred in granting claimant's habeas corpus petition (see Matter of State of New York v Matter, 78 AD3d 1694 [4th Dept 2010]). The claimant apparently remained in the community pending completion of his Article 10 trial.

In September 2011, Justice Kloch held a bench trial on the State's earlier Article 10 petition. On November 15, 2011, Justice Kloch imposed 82 SIST conditions, rather than confinement, placing claimant under the control of DOCCS and assigned parole officer, Amy Cummiskey to supervise. In December 2011, the Attorney General's Office petitioned for an order pursuant to Mental Hygiene Law 10.11 (d) to revoke claimant's release to SIST and to confine him to a treatment facility (Trial Exhibit B). It was alleged in the State's petition that claimant violated 4 of the SIST conditions placed on him by Justice Kloch. The petition also included a copy of Justice Kloch's Civil Management Order, a list of the SIST conditions placed on claimant, an Affidavit of Parole Officer Amy Cummiskey, a report from Mr. Kenneth Duszynski, a Forensic Program Director for Mid-Erie Counseling and Treatment Services, and a report by Dr. Paul Etu, a licensed psychologist (Trial Exhibit B). It was the filing of this petition that led to the confinement of claimant in a treatment facility and which ultimately led to the filing of claimant's amended claim.

On April 19, 2012, after a hearing conducted on the Attorney General's petition, Justice Kloch determined that the State had proven by clear and convincing evidence that claimant was a dangerous sex offender requiring confinement pursuant to Mental Hygiene Law 10.11 (d) (4) and 10.07 (f) (Trial Exhibit 4). As a result, Justice Kloch issued an Order revoking claimant's release on SIST and committing him to a secure treatment facility (Trial Exhibit 4). On appeal, the Fourth Department affirmed on the merits concluding that the State had established by clear and convincing evidence at the hearing conducted by Justice Kloch that claimant was a dangerous sex offender requiring confinement (see Matter of State of New York v Matter, 109 AD3d 1181 [4th Dept 2013]; Trial Exhibit 2). With one Judge dissenting, the Court of Appeals reversed the order of the Appellate Division by concluding that the evidence "was insufficient to support the trial court's finding that [claimant] had such an inability to control his behavior that he was likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility" (Matter of State of New York v Michael M., 24 NY3d 649,660 [2014]; Trial Exhibit 1).(3)

TESTIMONY OF CLAIMANT

Claimant Michael Matter graduated from Buffalo Alternative High School and took computer programming courses at Bryant Stratton and psychology courses from Argosy University, an on-line college. He did not earn a degree from either college. Between 1986 and 1996, claimant worked as a cab driver, a home health care nurse's aide and at Tops Market. At the time of trial, he was employed at Midstate Bakery Distributors and testified was 54 years old.(4)

Claimant testified that he was married briefly in 1982 for about one year. He stated that he has a son from this union with whom he has no contact. In 2017, Mr. Matter married Nicole Marie Matter, who was present in the courtroom.

Claimant testified that he had never received treatment for mental illness or treatment for abuse of alcohol or drugs. He was told by his mother that he first received counseling at the age of 8 or 9 for sexually assaulting his sister. He does not recall this counseling.

Claimant testified that he was first arrested toward the end of 1982 or in 1983. He was charged with sexual abuse and given five years probation. He was discharged early after serving two and a half years on probation. Claimant testified that he was arrested again in 1996 for sexual abuse and given three and two-thirds to eleven years in prison.(5) While incarcerated, claimant testified that he participated in sex offender programs. One such program lasted six months. During this program, he stated that he was taught the meaning of cycles and how his thoughts, feelings and life interacted with his crimes. Claimant further testified that he was taught a thought switching tool whereby he would snap a rubber band on his wrist as a wake up call in order to redirect his attention.

While incarcerated at Orleans Correctional Facility, claimant testified that he took aggressive replacement therapy. This program lasted about three months. While incarcerated, he testified that he never refused any treatment nor was discharged early from any program. Claimant further testified that he fully cooperated with the program providers, understood the programs and benefitted from them.

Claimant testified that he was paroled in November 2004. Since being paroled, he testified that he has attended sex offender programs. He testified that he initially attended a sex offender program in Olean, New York and later attended a Child and Family Services program in Jamestown, New York. In April 2007, claimant testified that he was relocated to Buffalo where he attended a sex offender program at Mid-Erie Counseling, which he described as more anecdotal, and taught him how to react to his thoughts and feelings about his victims. During this period of his parole release, claimant testified that no criminal charges were placed against him.

Claimant testified that his parole was revoked in March or April 2008. At that time, he stated that his parole officer was Amy Cummiskey. Beginning about September 2011, claimant testified that he spent about 21 months as a resident of the Central New York Psychiatric Center (CNY Center). At the CNY Center, he testified that he received more treatment about why he violated his victims and delved deeper into his thoughts and abusive cycle. Claimant testified that he accommodated all requests of his treatment providers.

In March 2010, claimant testified that he was released back into the community as a result of a decision issued by Justice Kloch. After being released, he stated that he attended Argosy University on-line and recommitted to his faith. Claimant testified that he found work at Buffalo Transportation and started seeing his now wife.(6)

Claimant testified that he felt that the State's petition (presumably the State's December 2011 petition) to confine him and his confinement were unfair as he had served his prison sentence, maxed out of his prison time, and was then sent to the CNY Center for several months under Article 10. According to claimant, he understood that the Courts eventually agreed that he did not need to be at the CNY Center and could live on his own and could deal with his issues on his own. Claimant testified that the CNY Center was very stressful for his mother, his girlfriend and himself.

In November 2011, claimant was placed back on strict and intensive supervision and treatment (SIST), a more intensive parole regimen (see Mental Hygiene Law 10.01 et seq). Claimant testified that he was given about 101 stipulations for his SIST release.(7) He testified that he did not oppose any of the SIST conditions. During this period, claimant testified that he was out in the community, was not being supervised and did not commit any crimes. Matter testified that he was aware of his abnormalities while released in 2010 and 2011 and was able to control his urges and not hurt anyone. He testified that he has learned to switch his thoughts away from a young child who does not deserve to be hurt physically, sexually, emotionally or psychologically.

Claimant testified that he felt it was not fair for the State to issue a petition for confinement because he was late for a required meeting. He testified that Ms. Curtis, a therapist with Mid-Erie Counseling and Treatment, was being unreasonable. claimant testified that he felt that he was being sent back to confinement because he missed an appointment and because the therapist felt that he had not learned enough about his sexual abuse cycle.

In December 2011, the Attorney General's Office issued the petition for confinement which led to claimant's confinement in the CNY Center per an order of Justice Kloch (see Trial Exhibit 3). At that time, Ms. Cummiskey was his parole officer and Ms. Julie Curtis was his therapist at Mid-Erie. Claimant testified that he felt that he had a good working relationship with Ms. Cummiskey. He described Ms. Cumminskey as being normally fair. Claimant further testified that he knew that Mr. Duszynski ran the program at Mid-Erie and was present at his disclosure and appeared again in Court when he had his SIST revoked. He testified that he believed that Ms. Curtis and Mr. Duszynski were singling him out and making an example of him. With respect to Ms. Cummiskey, claimant testified that he felt that she was just falling in line.

According to claimant, he testified that he felt that it was not fair that he was given two appointments for the same day at different locations: one at 12:30 p.m and the other at 2:00 p.m. when he had no car and had to rely on public transportation to get from one appointment to the next. Claimant testified that he tried to explain to his parole officer why he was late for the second appointment, he testified that the parole officer stated he was blaming parole and was not taking responsibility for his own actions.

Claimant testified that he was having a financial hardship in the period before SIST was revoked. He testified that he was fired from his job as a taxi driver because of the Court's decision to send him back to the CNY Center as a sex offender was made public.(8) Claimant testified, however, that he had told his employer's brother when he was hired that he was a sex offender. Claimant testified that he had no other source of income. At the time of his parole revocation, claimant stated he was a resident of Grace House. He testified that he was evicted because he was dropped from the employment program on what he stated was a technicality. After Grace House, claimant stated that he lived at the Buffalo City Mission.

At some point, claimant testified that Mr. Duszynski, the program director of Mid-Erie, was present at his sexual history disclosure. Claimant testified that he did not recall being angry, defensive or sarcastic at this meeting.

In December 2011 while at the Erie County Holding Center, claimant testified that he was interviewed by Dr. Paul Etu. Claimant testified that he told Dr. Etu the circumstances of his parole revocation as he understood them and that he was learning to control his urges. He further testified that he believed he told Dr. Etu that he had served his time for the crimes he had admitted to committing and was now being treated unfairly.

Claimant was released from confinement at the CNY Center on January 5, 2015 as a result of an order of the Court of Appeals (Matter of State of New York v Michael M., 24 NY3d 649 [2014]; Trial Exhibit 1) . From the day of his release until the date of his trial testimony, claimant testified that he has not been charged with a crime, misdemeanor or felony, that he has complied with all of his SIST requirements and is employed full-time.

On cross-examination, claimant identified Exhibit A as the SIST Order which was signed by Justice Kloch, in November 2011. He further identified Exhibit B as the December 2011 Petition for Confinement issued by the Attorney General's Office seeking to take claimant off SIST and have him confined.

Claimant further testified on cross-examination that at some time after the SIST Order was issued, he met with a parole officer and with a counselor regarding his sexual history. He stated that shortly after being placed on SIST, a parole officer issued a violation detainer of SIST and claimant was taken into custody and transported to the Erie County Holding Center where he met with Dr. Etu for a psychological evaluation. Thereafter, the Attorney General's Office filed the Petition for Confinement and a hearing was held pursuant to the petition to determine if claimant was a dangerous sex offender requiring confinement. According to claimant, this hearing was held before Justice Kloch. Mr. Matter testified that witnesses testified at the hearing and the Attorney General's Office presented and examined witnesses at the hearing. Claimant admitted that he was then represented by Mental Hygiene Legal Services. At the close of the hearing, claimant testified that Justice Kloch determined that he was a dangerous sex offender who required confinement.

Claimant then identified Exhibit 3 as Justice Kloch's decision in which he found that claimant was a dangerous sex offender requiring confinement. He then identified Exhibit 4 as the Order signed by Justice Kloch confining him as a dangerous sex offender.

Claimant testified that he was not accused of opportunistic behavior but was accused of grooming behavior. He admitted that he had been accused of abusing children under 13 who were the children of his friends and of being sexually attracted to the children who attended his church.

On redirect examination, claimant's attorney referred him to Justice Kloch's decision marked as Exhibit 3. Claimant read the decision and testified that Justice Kloch referred to the actions of the State as callous. He further testified that he felt that Justice Kloch criticized the work of the parole officers in his decision. According to claimant, Justice Kloch referred in his decision to the animus toward claimant that was pooling on the courtroom floor. Claimant testified that Justice Kloch implicated parole for not wanting to do their job correctly. He finally testified that Justice Kloch indicated in his decision that claimant needed supervision, monitoring and treatment to control his urges which the Court believed parole and Mid-Erie would never allow to happen.

In addition to the pleadings, the April 4, 2012 decision of Justice Kloch was marked as Exhibit 3(9) , the decision of the Fourth Department was marked as Exhibit 2 and the decision of the Court of Appeals was marked as Exhibit 1. An affidavit from Amy Cummiskey was marked as Exhibit 7 and a letter from Mr. Duszynski was marked as Exhibit 8. Transcripts from hearing testimony before Justice Kloch of Mr. Duszynski, Ms. Cummiskey and of claimant were marked as Exhibits 9, 10, and 11 respectively.(10) Finally, as identified by claimant during his trial testimony, the Conditions of SIST and the Petition for Confinement were marked as Exhibits A and B respectively.

Defendant's Motion to Dismiss

At the conclusion of claimant's testimony, the claimant rested. Defendant then made an oral motion to dismiss the claim, arguing that the State of New York was entitled to absolute immunity as when "a facially valid order issued by a court with proper jurisdiction directs confinement, that confinement is privileged and everyone connected with the matter is protected from liability for false imprisonment" (Holmberg v County of Albany, 291 AD2d 610, 612 [3d Dept 2002], lv denied 98 NY2d 604 [2002]; Ferrucci v State of New York, 42 AD2d 359 [3d Dept 1973]; Leach v The State of New York, UID No. 2014-028-500 [Ct Cl, Sise, APJ, Jan. 8, 2014). Here, there was no allegation in the amended claim that Justice Kloch's April 19, 2012 Order directing confinement (Trial Exhibit 4) was invalid on its face or that Justice Kloch lacked jurisdiction to order confinement. There is simply "no remedy against the State for an illegal confinement if it is made pursuant to an order valid on its face when issued" (Jones v State of New York, 31 AD2d 992, 993 [3d Dept 1969]. This is true even if the confinement is ultimately reversed as it was here by the Court of Appeals (see Semkus v State of New York, 272 AD2d 74 [1st Dept 2000], lv denied 95 NY2d 761 [2000]).

More specifically, all of the participants in the hearing conducted by Justice Kloch which led to claimant's confinement under the Mental Hygiene Law were entitled to immunity. Actions taken by a State-employed Judge are cloaked with absolute judicial immunity unless the challenged conduct was taken outside of the Judge's official capacity or in the clear absence of jurisdiction (Stega v New York Downtown Hosp., 31 NY3d 661 [2018]). As previously stated, there were no allegations in the amended claim and no proof was offered at trial to show that the hearing conducted by Justice Kloch pursuant to the Mental Hygiene Law was conducted outside of his official capacity or that Justice Kloch was acting in the clear absence of jurisdiction. The State cannot be held liable for the actions of Justice Kloch or of the Judges of the Appellate Division who affirmed Justice Kloch's decision as their actions are entitled to absolute judicial immunity.

In addition, the actions of the Attorney General's Office in filing the Petition for Confinement (Trial Exhibit B) are entitled to prosecutorial immunity (Gala v County of Livingston, 174 AD2d 1048 [4th Dept 1991] [County is immune from liability for the actions of the County Assistant District Attorney who has acted solely in a quasi-judicial capacity]).

Similarly, "[s]tatements made by parties, attorneys and witnesses in the course of judicial or quasi-judicial proceedings are absolutely privileged, notwithstanding the motive with which they are made, so long as they are material and pertinent to the issue to be resolved in the proceeding" (Sinrod v Stone, 20 AD3d 560, 561 [2d Dept 2005]; Cattani v Marfuggi, 26 Misc 3d 1053 [NY County 2009], affd 74 AD3d 553 [1st Dept 2010], lv dismissed 15 NY3d 900 [2010]). "Absolute immunity is. . . necessary to assure that judges, [prosecutors], advocates, and witnesses can perform their respective functions without harassment or intimidation" (Lombardoni v Boccaccio, 121 AD2d 828, 829 [3d Dept 1986], citing Butz v Economou, 438 US 478, 512 [1978]; Wiener v Weintraub, 22 NY2d 330 [1968]; Dann v Auburn Police Dept., 138 AD3d 1468 [4th Dept 2016]).

In claimant's trial reply and memo of law in opposition to defendant's claim of immunity, he implies that his claim is not against Judge Kloch or against the Attorney General's Office, presumably because they are entitled to judicial and prosecutorial immunity respectively. Further, it is stated in claimant's trial reply and memo of law that "[w]itness immunity is not an issue here" (see 28 of claimant's trial reply & memo of law in opposition to defendant's claim of immunity). Rather, claimant appears to be limiting his claim to the actions of Parole Officer Cummiskey, Dr. Etu, and to the actions of Mr. Duszynski and Ms. Curtis of Mid-Erie Counseling and Treatment Center for the performances of their statutory functions performed pursuant to the Mental Hygiene Law .(11)

Under the Mental Hygiene Law, if a parole officer has reasonable cause to believe that a person has violated a condition of his SIST regimen, the parole officer may take the person into custody and transport him for lodging in a secure treatment center or a correctional facility for an evaluation by a psychiatric examiner (Mental Hygiene Law 10.11 [d][1]). Here, claimant was taken into custody pursuant to this section of the Mental Hygiene Law.

After a person is taken into custody pursuant to the Mental Hygiene Law, the attorney general may file a petition for confinement or to modify the SIST regimen (Mental Hygiene Law 10.11 [d] [2]). Here, the Attorney General's Office filed a petition for confinement pursuant to this section of the Mental Hygiene Law (Exhibit B). Attached to this Petition was an evaluation by Mr. Duszynski (Exhibit 8), an affidavit by Ms. Cummiskey (Exhibit 7) and a psychiatric evaluation by Dr. Etu (see Exhibit E to the Petition for Confinement marked at trial as Exhibit B).

After a hearing was conducted pursuant to Mental Hygiene Law 10.11 [d] [4], Justice Kloch found by clear and convincing evidence that claimant was a dangerous sex offender requiring confinement (see Justice Kloch's order dated April 19, 2012, Exhibit 4).

"[I]t is well settled that government officials are absolutely immune for discretionary acts carried out in the course of official duties and that immunity attaches 'however erroneous or wrong [such conduct] may be, or however malicious even the motive which produced it' " (Crvelin v Board of Educ. of City Sch. Dist. of City of Niagara Falls, 144 AD3d 1649, 1650 citing East Riv. Gas-Light Co. v Donnelly, 93 NY 557, 559 [1883]). Thus, the State is immune from liability for the acts of governmental officials performing their discretionary functions pursuant to the Mental Hygiene Law.

From the claimant's trial testimony and from the exhibits entered into evidence, it has been established that Ms. Cummiskey is a parole officer. As such, she is entitled to absolute immunity for her discretionary decisions (see Mertens v State of New York, 73 AD3d 1376 [3d Dept 2010], lv denied 15 NY3d 706 [2010]). According to the Certificate of Report attached to the Petition for Confinement (Exhibit B), Dr. Paul Etu is a licensed psychologist for the New York State Office of Mental Health. As such, no liability may be imposed on the defendant for the discretionary actions of Ms. Cummiskey or Dr. Etu carried out in the course of their official duties.

Mr. Duszynski and Ms. Curtis, however, are employees of Mid-Erie Counseling and Treatment Services. They are not employees of the State of New York. Under the doctrine of respondeat superior, an employer may only be held vicariously liable for the tortious acts of its employees and only if those acts were committed in furtherance of the employer's business (N.X. v Cabrini Med. Ctr., 97 NY2d 247 [2002]). No testimony was given or evidence presented to establish any relationship between Mr. Duszynski and Ms. Curtis and the State of New York by which the defendant could be held liable for their activities. In addition, the names Burgoyne, Fishman and Freeman were mentioned in claimant's trial reply and memo of law and the name Dr. Stuart Kirschner was mentioned in the amended claim. Claimant failed to name and identify any of these persons in his trial testimony and no proof was offered to establish their relationship with the claimant or to the State of New York, if any, or to show how the defendant could be liable for some unknown activity conducted by some unidentified person. The defendant is simply not liable for the discretionary acts of its governmental officials and is not responsible for the activities of persons who have not been shown to be in a relationship with the defendant by which the defendant could be held liable for their activities. Accordingly, the defendant's motion to dismiss the amended claim made at the conclusion of trial is granted. To avoid an argument by claimant that the issue of immunity did not cover all of the causes of action in the amended claim, however, the Court will discuss the remaining causes of action.

Deprivation of Claimant's Due Process Rights

Claims based on alleged violations of rights guaranteed by the United States Constitution are governed by 42 USC 1983. The Court of Claims lacks jurisdiction to hear such civil actions as the State of New York is not a person amenable to suit under the statute (Brown v State of New York, 89 NY2d 172 [1996]). To the extent the amended claim may be attempting to raise a State Constitutional tort, it too must be dismissed. A State constitutional tort is a very narrow remedy which is not available when there is another remedy available to enforce the constitutional right (Martinez v City of Schenectady, 97 NY2d 78 [2001]). Here, the recognition of a State Constitutional claim is neither necessary nor appropriate to ensure claimant's rights as claimant's alleged wrongs could have been addressed in a Federal Civil Rights claim and were sufficiently addressed in the common-law tort claims alleged in the amended claim. Thus, insofar as the first cause of action in the amended claim alleges a constitutional tort, it must be dismissed.

Wrongful Confinement

By his third cause of action in the amended claim (Trial Exhibit 6), claimant alleges that he

was wrongfully confined, presumably by Justice Kloch's April 19, 2012 order finding him to be a dangerous sex offender in need of secure confinement (Trial Exhibit 4).(12) In order to establish a claim for wrongful confinement , claimant must show that (1) the defendant intended to confine him, (2) that he was conscious of the confinement, (3) that he did not consent to the confinement and (4) that the confinement was not privileged (Broughton v State of New York, 37 NY2d 451 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]). As the first three elements of this cause of action are not disputed, defendant's liability turns on whether or not claimant's confinement was privileged. As more fully set forth with respect to defendant's motion to dismiss, where a facially valid order issued by a court with jurisdiction orders confinement, that confinement is privileged and everyone connected with the confinement is protected from liability for wrongful confinement (Holmberg v County of Albany, 291 AD2d supra at 612. Moreover, claimant's confinement was privileged as the confinement was imposed pursuant to the civil judicial proceedings commenced in Niagara County Supreme Court pursuant to the Mental Hygiene Law Article 10 (Kotler v State of New York, UID No. 2014-041-031 Ct Cl, Milano, J., May 7, 2014). Accordingly, claimant's third cause of action as alleged in his amended claim for false imprisonment must be dismissed.

Intentional Infliction of Emotional Distress

Public policy bars claims for intentional infliction of emotional distress against a governmental entity as claimant is apparently attempting to allege in the fourth cause of action in the amended claim (Crvelin v Board of Educ. of City Sch. Dist. of City of Niagara Falls, 144 AD3d 1649 at 1650; Ellison v City of New Rochelle, 62 AD3d 830 [2d Dept 2009]). Thus, this cause of action must be dismissed.

Negligence and Negligent Hiring, Retention and Training

In order to prevail on a claim of negligent hiring, supervision training and/or retention, the claimant must show that an employee had a propensity for the type of conduct complained of and that the employee acted outside the scope of his or her employment (Passucci v Home Depot, Inc., 67 AD3d 1470 [4th Dept 2009], lv denied 72 AD3d 1658 [2010]). A cause of action for negligent hiring or supervision cannot lie where the employee is acting within the scope of his or her employment, because then the employer would be liable under the alternative theory of respondeat superior (Id at 1472). Here, claimant alleges in the amended claim that the defendant is liable for the actions of its employees, agents or contractors under the theory of respondeat superior or "under the common law principal of qui facit per alium facit per se" (He who acts through another does the act himself) (see 25 of the amended claim; Exhibit 6). Claimant offered no trial testimony to establish that any named individual, with the possible exception of Parole Officer Cummiskey or Dr. Etu, was even an employee of the State, or to show how Parole Officer Cummiskey or Dr. Etu was acting outside the scope of their employment, or to show how the defendant could be liable for the activities of non-employees. Moreover, there was no testimony to show any person's propensity for any specific conduct. Finally, where as here, the alleged negligence or negligent hiring, training or supervision is based upon the activities of claimant's detention and confinement, claimant must rely on the traditional remedy of false imprisonment rather than the broader principles of negligence (Ray v County of Nassau, 100 AD3d 854 [2d Dept 2012]; Stalteri v County of Monroe, 107 AD2d 1071 [4th Dept 1985]), and the negligence causes of action should be dismissed as a negligence claim may not supplant traditional tort remedies (Simon v State of New York, 12 AD3d 171 [1st Dept 2004]).

Libel and Slander

In his second, fourth, fifth, sixth and ninth causes of action, claimant is generally attempting to assert causes of action for libel and slander based on various written reports and testimony ostensibly given during the March of 2012 hearing conducted by Justice Kloch. Pursuant to CPLR 3016 (a), the particular words complained of shall be set forth in the amended claim in an action for libel or slander. Claimant failed to allege in the amended claim the exact words complained of, or to give the date upon which any particular words were published, or to allege the person or persons to whom the alleged defamatory statements were made. The elements of either a libel (written statement) or slander (oral statement) cause of action include: (1) a false statement; (2) the publication of the statement without privilege; (3) at least negligent fault on the part of the publisher; and (4) the statement causes special harm (Dillon v City of New York, 261 AD2d 34 [1st Dept 1999]).

During his trial testimony, claimant testified that he was fired from his job as a taxi driver because of the Court's decision to send him back to the CNY Center as a sex offender was made public. Assuming that a written or oral statement to this effect was somehow published, it would not constitute libel or slander. Falsity is a necessary element of a cause of action based on libel or slander (Davis v Boeheim, 24 NY3d 262, 268 [2014]). Here, claimant is a sex offender. But even if the statement were false, it would be privileged if uttered by Justice Kloch or by any of the witnesses, or contained in any of the reports submitted with respect to any of the judicial hearings conducted pursuant to the Mental Health Law as statements made in the course of judicial proceedings are protected by absolute privilege (see Reszka v Collins. 136 AD3d 1299 [4th Dept 2016]). Finally, any statement to the effect that claimant was being sent back to the CNY Center could not be the basis of a libel or slander cause of action as it too was true (see Justice Kloch's April 19, 2012 Order; Exhibit 4). Accordingly, claimant has failed to sufficiently allege or prove a cause of action based on either libel or slander.

Conspiracy

In his sixth cause of action, claimant generally alleges that Dr. Stuart Kirschner, Dr. Paul Etu, Amy Cummiskey, Julie Curtis and Ken Duszynski conspired to falsely represent in reports and testimony that claimant had willfully violated his parole release and conditions of SIST in furtherance of a plan to remove claimant from society and place him in secure confinement. As noted before, there was no testimony identifying or even mentioning Dr. Kirschner and his name does not appear in any exhibit marked during trial. Nor was there any testimony regarding the existence of a conspiracy. More importantly, "New York does not recognize civil conspiracy as an independent tort" (Rivera v Greenberg, 243 AD2d 697, 698 [2d Dept 1997]). Accordingly, claimant's sixth cause of action must be dismissed.

In sum, the State of New York has established through its motion to dismiss brought after the claimant rested, that the State cannot be held liable for the activities of its employees, Dr. Etu and Parole Officer Cummiskey as they are entitled to absolute immunity. During trial, claimant failed to offer any testimony or evidence to establish how the State could possibly be responsible for the activities of Julie Curtis or Ken Duszynski, employees of Mid-Erie Counseling and Treatment Services, whose reports and testimony were also privileged. Defendant's motion to dismiss is granted. Finally, with respect to any remaining cause of action alleged in the amended claim, I find that claimant failed to establish by a preponderance of the evidence any of the causes of action alleged in the amended claim.

Accordingly, the amended claim no. 129115 is dismissed. Any and all other rulings or motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.

Let judgment be entered accordingly.

September 3, 2020

Buffalo, New York

J. DAVID SAMPSON

Judge of the Court of Claims


1. A "SIST order" refers to a regimen of Strict and Intensive Supervision and Treatment."

2. At the commencement of the trial, claimant's counsel Louis Rosado requested that the Court grant Kevin Gaughan, Esq., permission to assist him as co-trial counsel. While Mr. Gaughan had not filed a notice of appearance, he was granted permission to assist counsel of record. By Daily Report dated February 24, 2020, the Court directed the Chief Clerk to add Kevin Gaughan Esq., of the Law Firm of Kevin Gaughan as an additional Attorney of Record for the claimant, Michael Matter.

3. The information contained in the procedural history section of this decision was gleaned from the trial exhibits and from the appellate decisions of the Fourth Department and of the Court of Appeals decisions cited above.

4. The Court's trial testimony summary is based on the Court's recollections and listening to the audiotape recording of the trial as a trial transcript was not provided to the Court.

5. According to the Amended Claim, Matter was convicted in 1997 of the crimes of sexual abuse in the first degree and attempted sexual abuse in the first degree and was sentenced to consecutive sentences of two and one-third to seven years and one and one-third to four years imprisonment.

6. Claimant's testimony was very confusing and difficult to follow as there was no chronology to his testimony. Upon information and belief, this paragraph refers to an earlier detainment unrelated to the several months claimant resided at the CNY Center which is the subject of this claim (see the second paragraph under the Procedural History portion of this decision).

7. According to Justice Kloch's November 2011 Conditions of Strict And Intensive Supervision And Treatment (Exhibit A), Mr. Matter was given 82 SIST conditions.

8. According to paragraph 13 of the amended claim (Trial Exhibit 6), claimant lost his job due to the notoriety of the Article 10 trial. The Article 10 trial referred to in the amended claim was the trial which culminated in the November 15, 2011 decision of Justice Kloch which subjected claimant to SIST restrictions, rather than confinement. Justice Kloch's decision subjecting claimant to confinement as a dangerous sex offender requiring confinement was not filed until April 19, 2012, several months later (see Exhibit 4).

9. The last page of Justice Kloch's April 4, 2012 decision as marked as Exhibit 3 actually belongs to a different decision. With the permission of the parties, the Court has included with Exhibit 3, a copy of the correct final page of Justice's Kloch's decision.

10. Claimant's Exhibits 9 and 10 are transcripts from the hearing testimony of Mr. Kenneth Duszynski of Mid-Erie Counseling and Treatment and of Parole Officer Amy Cummiskey taken on March 29, 2012 at the hearing conducted by Justice Kloch. Claimant declined to testify at the March 29, 2012 hearing. The transcript of claimant's testimony (Exhibit 11) is from an earlier hearing conducted by Justice Kloch on September 30, 2011 as a result of which Justice Kloch imposed on claimant a regimen of Strict and Intensive Supervision and Treatment (SIST).

11. At paragraph 4 of claimant's trial reply and memo of law in opposition to defendant's claim of immunity, claimant generally refers to "Defendant (agents/employees-Etu, Burgoyne, Fishman and Freeman)." While Dr. Etu was mentioned by the claimant in his trial testimony and a report from Dr. Etu was included with the State's petition for confinement (Defendant's Exhibit B), claimant failed to even mention the names Burgoyne, Fishman or Freeman in his trial testimony and there are no reports authored by or hearing testimony from Burgoyne, Fishman, or Freeman offered by claimant. Moreover, no evidence was offered to establish that Burgoyne, Fishman or Freeman were even employees and/or agents of the State. Accordingly, no liability may be imposed on the State for some unknown activity of Burgoyne, Fishman or Freeman.

12. A wrongful confinement claim accrues on the date on which the confinement terminates (Santiago v City of Rochester, 19 AD3d 1061 [4th Dept 2005], lv denied 5 NY3d 710 [2005]. At paragraph 23 of the amended claim (Trial Exhibit 6), claimant alleges that his claim accrued on January 6, 2015, the day after he was released from secure confinement as a result of the Court of Appeals decision in Matter of State of New York v Michael M., 24 NY3d 649 [2014] (Trial Exhibit 1). This is the confinement that was ordered by Justice Kloch's April 19, 2012 order (Trial Exhibit 4). As a claim for wrongful confinement is subject to a one year statute of limitations) CPLR 215[3]), this is the only confinement mentioned by claimant in his trial testimony that could be a timely subject of his amended claim