Bernstein v State of New York

[*1] Bernstein v State of New York 2008 NY Slip Op 52637(U) [22 Misc 3d 1115(A)] Decided on December 23, 2008 Ct Cl Hard, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 23, 2008
Ct Cl

Scott Bernstein, Claimant(s)

against

State of New York, DEPARTMENT OF STATE, DIVISION OF LICENSING SERVICES Defendant(s).



113693



Claimant's attorney: Barry D. Haberman, Esq.

Defendant's attorney: Hon. Andrew M. Cuomo, NYS Attorney General

By: Michael C. Rizzo, Assistant Attorney General, Of Counsel

Judith A. Hard, J.

Claimant, a private investigator filed the instant action alleging that defendant State of New York caused him pecuniary harm by failing to reissue his required private investigator's pocket card, which is "evidence of due authorization" to conduct the business of private investigator (General Business Law § 80) and also failed to include his name on the list of licensed private investigators on the Department of State's website.[FN1] As background, claimant's private investigator's license was set to expire and be renewed on April 7, 2006. Claimant had made a timely application for renewal of his license prior to the expiration of such license and pursuant to application of Section 401 (2) of the State Administrative Procedure Act, his license [*2]remained in effect pending final determination of his application for renewal.[FN2]

Complicating claimant's application for renewal was a disciplinary proceeding that was concurrently pending against claimant by the Department of State based on prior conduct of claimant such as impersonating a police officer in California, activating his lights as if in an official capacity in this State and an improper billing matter pertaining to one of his clients. The initial administrative hearing in this manner, decided on August 15, 2006, resulted in a fine of $5000.00 ($1000 per offense) as opposed to the revocation of claimant's license as had been urged by the Department of State. The Department of State's administrative appeal seeking to vacate the initial imposition of fines and, instead, revoke claimant's license was denied and the initial administrative determination affirmed in January 2007.[FN3]

Defendant State of New York filed the instant motion to dismiss the claim pursuant to CPLR 3211 (a) (7) and claimant thereafter filed a cross-motion seeking permission to file an amended claim and/or file a late claim as well as opposing defendant's motion to dismiss. The Court shall first address the State's motion to dismiss.

Defendant argues that since claimant is essentially "seeking money damages for the alleged improper revocation and/or denial of the claimant's private investigator's license" (Affidavit in Support of Michael C. Rizzo, Esq., AAG, dated July 6, 2007, ¶ 2) and because any quasi-judicial act of the Department of State are cloaked with immunity (id., at ¶ 8), the claim fails to state a cause of action. Additionally, the State argues that because claimant has yet to receive a final determination of his application for renewal, there is no justiciable controversy; and, finally, to the extent that the claim challenges the administrative actions of the Department of State, this Court lacks subject matter jurisdiction.

When entertaining a pre-answer motion to dismiss pursuant to CPLR 3211 a court must take the allegations as stated in the claim as true and resolve all inferences which can reasonably flow therefrom in favor of the pleader (see Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]; Ferran v Belawa, 241 AD2d 841 [3d Dept 1997]). Additionally, unless the Court exercises its prerogative under CPLR 3211 (c) and converts the motion to one for summary judgment after giving adequate notice of such to the parties, affidavits of the moving party "are not to be examined for the purpose of determining whether there is evidentiary support for the pleadings" (Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]). Only on the rare occasion where a defendant's affidavit can be said to conclusively establish that the resisting party has no cause of action may such serve as a basis for granting a CPLR 3211 (a) (7) motion to dismiss for failure to state a cause of action (see Rovello v Orofino Realty Co., supra, at 636; Beltrone v General Schuyler & Co., 223 AD2d 938 [3d Dept 1996]; Marraccini v Bertelsmann Music Group, 221 [*3]AD2d 95 [3d Dept 1996], lv denied 89 NY2d 809).

With these precepts in mind, the Court analyzes the viability of the instant claim. Initially, the Court notes that it does not read the claim as challenging any agency determination of the Department of State or any quasi-judicial function. This Court's jurisdiction would be limited to awarding damages for the alleged tort and would not allow review of any discretionary determination of the Department of State regarding licensure issues (see Bertoldi v State of New York, 164 Misc 2d 581, 587; General Business Law § 69-u [proscribing CPLR Article 78 review process of judicial review of license issues for Department of State]). Relatedly, since the Court reads this claim as alleging that defendant's failure to provide an updated pocket identification card to claimant, and defendant's failure to post his name on the Department of State's website as a licensed private investigator, has caused him to lose income as oppose to challenging his license renewal, it is unclear on this CPLR 3211 motion if a justiciable controversy exists.

It is undisputed that claimant's application for renewal was timely submitted and that by operation of the State Administrative Procedure Act, claimant remained licensed as a private investigator until such time as his renewal application was determined (see fn 2, supra). Despite this fact, claimant has not been listed on the agency's website as a licensed investigator and allegedly has not had a pocket card reflecting that he is still licensed. Additionally, claimant alleges in his affidavit that he has direct knowledge that individuals who have contacted the Department of State inquiring as to claimant's license status have been given information indicating that his license is not in effect (Affidavit of Scott Bernstein, sworn to April 4, 2008, ¶ 23).

It is probable that the list of licensed investigators posted on the agency's website is posted to protect the public or that the public would utilize such list before engaging the services of a private investigator. It is conceivable that failing to find claimant's name on this list could affect whether a particular potential client would engage his services. Moreover, it is not hard to imagine that possessing an expired pocket identification card would also detract from claimant's ability to act as a private investigator.

While the Court is mindful of the penalties claimant has sustained for his prior transgressions and that the ultimate decision of whether he should be granted his renewal is beyond this Court's province to review, in this Court's view claimant has stated a potential cause of action. The State admits that by operation of the State Administrative Procedure Act, claimant is still a licensed private investigator. However, by all public appearances the acts of the State in not listing him as licensed investigator or providing him with a valid pocket identification card, leaves claimant with no indicia that he is actually so licensed. Resolving the inferences which can reasonably flow therefrom in favor of the pleader (see Cron v Hargro Fabrics, 91 NY2d 362, supra), it is not improbable that these actions could cause claimant harm in terms of gaining employment. Consequently, the Court denies defendant's motion to dismiss the claim pursuant to CPLR 3211 (a) (7).

The Court now turns to claimant's cross motion to amend his claim and/or for permission to file a late claim. Leave to amend is to be "freely given" upon such terms as may be just (CPLR 3025[b]). Factors to be considered in determining whether to allow amendment of a pleading are whether there would be any prejudice to the opposing party; the effect, if any, that amendment would have on the orderly prosecution of the action; whether the moving party unduly delayed in [*4]seeking to add the new allegations; and whether the proposed amendment is palpably improper or insufficient as a matter of law (Excelsior Ins. Co. v Antretter Contr. Corp., 262 AD2d 124 [1st Dept 1999]; White v State of New York, 161 Misc 2d 938). While a court has broad discretion in deciding whether leave to amend should be granted, it is considered an improvident exercise of discretion to deny leave to amend in the absence of an inordinate delay and a showing of prejudice to the defendant (see Edenwald Contracting Co., Inc. v City of New York, 60 NY2d 957, 959 [1983]; Scarangello v State of New York, 111 AD2d 798 [2d Dept 1985]).

In the instant case, a comparison of the original claim and the proposed amended claim reveals that the only major difference is that claimant is adding essentially the same causes of action based on the same conduct of the State from April 8, 2006 as opposed to the original date of March 14, 2007. April 8, 2006 is the day after claimant's license expired. Since this precise allegation is already pleaded in the original claim (Claim 113693, filed May 11, 2007, ¶ 8), it cannot be said that the original claim did not give notice of the transactions or occurrences, to be proved pursuant to the amended pleading (CPLR 203 [f]; see Mastandrea v State of New York, 57 AD2d 679 [3d Dept 1977]; Rodriguez v State of New York, UID # 2007-015-203, Collins, J.).[FN4] Accordingly, claimant's cross motion to amend his claim is granted and he is directed to file and serve the amended pleading within 30 days of the filing date of this decision and order. In light of the foregoing, claimant's alternative request for permission to file a late claim is denied as moot and unnecessary. Footnotes

Footnote 1: The Department of State is required to publish, at least annually, a list of names and addresses of all persons or firms licensed under the provisions of Article 7 of the General Business Law to engage in the profession of private investigation (see General Business Law § 88).

Footnote 2: This section, as relevant here, provides that "[w]hen a licensee has made timely and sufficient application for the renewal of a license or a new license with reference to any activity of a continuing nature, the existing license does not expire until the application has been finally determined by the agency" (State Administrative Procedure Act § 401 [2]).

Footnote 3: The affirming decision is undated but the accompanying cover letter is dated January 12, 2007 and it is marked received on January 15, 2007.

Footnote 4:Available on the Court's website at: http://nyscourtofclaims.courts.state.ny.us/