Powell v State of New York

[*1] Powell v State of New York 2018 NY Slip Op 51104(U) Decided on July 17, 2018 Court Of Claims Soto, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 17, 2018
Court of Claims

Stephauan Powell, Claimant,

against

The State of New York, Defendant.

[FN1]

XXXXX



For Claimant:

PetersonDelleCave LLP

By: Malcolm Anderson, Esq.

For Defendant:

Honorable Barbara D. Underwood, Acting Attorney General of the State of New York

By: Giyang An, AAG
Faviola A. Soto, J.

Movant seeks permission to file a late claim pursuant to the Court of Claims Act (CCA) §10(6). The proposed claim alleging personal injuries arises out of an incident that occurred on October 5, 2017 when movant was detained and allegedly assaulted by New York State Court [*2]Officers. The State opposes the motion.

The following papers were read and considered by the court in deciding this motion:

1. Movant's notice of motion and affirmation [FN2] in support with exhibits;

2. Defendant's affirmation in opposition;

3. Movant's affirmation in reply with exhibits; and

4. Defendant's sur reply [FN3] .

FACTS

Movant alleges that he sustained personal injuries on October 5, 2017 when he was an innocent bystander in Bronx Family-Criminal Court located at 215 East 161st Street in Bronx County. He avers that court officers got into a physical altercation with a nonparty who was standing nearby. Movant was holding his phone during the altercation. After the altercation, a court officer approached movant and told him to hand over his phone. Movant refused the officer's command and, instead, protested that he did not photograph or take a video of the altercation. Movant alleges that the officer grabbed his wrists and tried to take his phone away. Then, according to movant, two additional officers arrived, tackled him to the ground, put their knee on his back, took him to a room, and handcuffed him to a chair. He alleges that the cuffs were placed very tightly causing him pain, but the officers refused to loosen the cuffs when he asked them to do so. He was detained for several hours and threatened with criminal charges until he permitted the officers to look at the pictures and videos in his phone. The officers released movant after viewing the contents of his phone.

Movant alleges that he had pain in his back, neck, and wrists and was treated at Montefiore Hospital once he was released. Movant attached photos depicting his injuries from the incident to his motion. He also alleges that he sustained psychological injuries.

Movant states that he was charged with disorderly conduct, but those charges were dismissed without a court appearance.

ANALYSIS

Since movant's incident occurred on October 5, 2017, he had until January 3, 2018 to either serve a Notice of Intention to File a Claim or serve and file a claim pursuant to CCA § 10(3). Instead, on January 17, 2018, a little more than 100 days after his incident, movant filed this motion seeking permission to file a late claim pursuant to the CCA §10(6). CCA §10(6) [*3]allows for a motion to file a late claim "at any time 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 procedure law and rules." Movant alleges both intentional torts and negligence claims in his proposed claim. Both types of claims are timely under their respective statutes of limitations. See CPLR 215[3] (one year statue of limitations for intentional torts) and CPLR 214 (three year statue of limitations on negligence actions).

In deciding a motion seeking permission to file a late claim, the court must consider the following six enumerated factors listed in the CCA §10(6): (1) whether the delay in filing was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the failure to serve or file a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; (5) whether the movant has another available remedy; and (6) whether the claim appears meritorious. The court in the exercise of its discretion balances these factors, and, as a general rule, the presence or absence of any one factor is not dispositive. See Bay Terrace Coop. Section IV v New York State Employee's Retirement System Policeman's and Fireman's Retirement System, 55 NY2d 979 [1982].

A. Movant's Delay is Not Excused

Movant's counsel states that he did not timely serve a Notice of Intention to File a Claim [FN4] within the ninety-day deadline under CCA § 10(3) because of a snowstorm that hit the city on January 3, 2018. Movant's excuse is not credible because, according to his own attorney's affirmation, movant's counsel knew about his client's intention to file a claim as of December 7, 2017. See Movant's Aff. in Supp., para. 13. Thus, movant had plenty of time to comply with CCA § 10(3) ninety-day deadline, but simply failed to do so. Thus, movant's failure to file a timely claim is not excused.

B. Defendant Had Notice, A Fair Opportunity to Investigate, and is Not Substantially Prejudiced

The factors of notice, opportunity to investigate, and whether the State is prejudiced are closely related and may be considered together. See Brewer vState of New York, 176 Misc 2d 337 [Ct Cl 1998]. Since defendant did not dispute whether movant satisfied these factors, they weigh in movant's favor. See Berkeley v State of New York, UID No. 2015-049-030 [Ct Cl, Weinstein, J., May 20, 2015].

Nevertheless, movant has satisfactorily shown that defendant had timely notice of the essential facts constituting the claim and, therefore, had ample opportunity to investigate a potential claim because its own employees were involved in the incident and had immediate knowledge of the events giving rise to the dispute. The court officers' knowledge of the incident is imputed to their employer, the State defendant. See Ansong v City of New York, 308 AD2d 333 [1st Dept 2003] (Police officers who allegedly assaulted petitioner as respondent's employees had immediate knowledge of the events giving rise to this dispute and, therefore, had actual knowledge of the underlying facts constituting his claim.). Additionally, movant's counsel served a Freedom of Information Law request dated December 20, 2017 on the State Office of Court Administration demanding that they preserve surveillance video footage involving this incident. See Ex. E of Movant's Aff. in Supp. The letter indicated the date and location of the incident. Id. [*4]Thus, the letter provided additional notice to defendant of a potential claim within CCA § 10(3)'s ninety-day deadline.

Additionally, as a matter of equity, movant's delay in filing the instant motion was not significant in that he missed the ninety-day deadline by only a few days. Thus, even if defendant is prejudiced by a late claim, the prejudice is minor.

C. Claimant has Alternative Remedies

It appears that movant has an alternative remedy by bringing suit against the individual defendants in Supreme Court or federal court. Therefore, his contention that bringing an action in the Court of Claims would be his sole remedy is meritless.

D. Movant's Proposed Claim Appears Partially Meritorious

Whether movant's claim appears meritorious is the most important factor because it is futile to let a baseless claim proceed. See Savino v State of New York, 199 AD2d 254 [2d Dept 1993]. It is movant's burden to show that his proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid cause of action exists. See Santana v New York State Thruway Authority, 92 Misc 2d 1 [Ct Cl 1977]. Movant only needs to establish the appearance of merit; he need not prove a prima facie case at this stage of the proceedings. See Page v The State of New York, UID No. 2017-040-057 [Ct Cl, McCarthy, J. May 23, 2017].

Here, movant's proposed claim alleges several causes of action: (1) false imprisonment; (2) excessive force used in detaining him (i.e., assault and battery); (3) negligent infliction of emotional distress; (4) intentional infliction of emotional distress; and (5) punitive damages. Movant also alleges that his New York State and federal constitutional rights were violated as a result of the incident. In reply to defendant's opposition, movant withdrew his causes of action for intentional infliction of emotional distress, violations of federal constitutional rights, and punitive damages. Defendant contends that all of movant's remaining causes of action are baseless.

Movant's proposed false imprisonment cause of action appears meritorious. Although he admits to refusing a direct order to hand over his cell phone to court officers and it appears that the use of force and detainment resulted from his failure to comply, this admission alone does not show that his claim is patently meritless. Under New York law, a law enforcement officer must possess a certain level of suspicion to justify interference with an individual's right to privacy. See People v De Bour, 40 NY2d 210, 223 [1976]. To determine whether a search or seizure is reasonable, the Court "must consider first whether or not the police action was justified in its inception and secondly whether or not that action was reasonably related in scope to the circumstances which rendered its initiation permissible." See People v Cantor, 36 NY2d 106, 111 [1975]. Crucially, defendant failed to support its opposition with an affidavit of a person with knowledge indicating their justification for stopping and seeking to search movant's cell phone.[FN5] Defendant's attorney affirmation alone is insufficient. See Powell v State, 187 AD2d 848 [*5][3rd Dept 1992].

Movant's proposed assault and battery cause of action also appears meritorious. Movant's description of the court officers' use of force along with photos showing his bruises [FN6] indicates that there is no doubt force was used in detaining movant. A review of the reasonableness of the use of force is not ripe for review at this juncture no matter how minor the alleged injuries. As such, the Court finds that movant's cause of action for assault and battery has at least the appearance of merit.

Movant's proposed claim for negligent infliction of emotional distress does not appear meritorious. Under the Court of Appeals holding in Lauer, a claim for negligent infliction of emotional distress generally may not be maintained against the State, except in very limited circumstances and this case does not appear to fit those circumstance. See Lauer v City of New York, 95 NY2d 95 [2000].

Movant's proposed claim alleging violations of the State constitution also do not appear meritorious. Unlike alleged violations of federal constitutional rights, actions against the State based on violations of the State constitution are within the jurisdiction of the Court of Claims. See Brown v State of New York, 89 NY2d 172, 185 [1996]. However, the "narrow remedy" established in Brown is limited to circumstances where no other "avenue of redress" is available to the claimant. See Martinez v City of Schenectady, 97 NY2d 78 [2001]. Since the proposed claim alleges State common law tort causes of action, there clearly are alternative means of redress that do not require alleging constitutional claims. Therefore, movant's proposed State constitutional causes of action may not proceed.

CONCLUSION

A balancing of the six factors indicates that even though movant does not have a reasonable excuse for his failure to file a timely clam and he may have an alternative remedy, the defendant will not be significantly prejudiced by a late claim since the proposed claim appears (for the most part) meritorious and the instant motion was made shortly after the ninety-day deadline expired.

Consistent with the foregoing, it is ORDERED that motion (M-91676) is granted in part and denied in part as follows:

(1) 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 a claim against the State of New York for false imprisonment and excessive force (i.e., assault and battery) only.

(2) Movant shall serve a copy of the 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 CCA, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.

New York, NY

May 17, 2018

FAVIOLA A. SOTO

Judge of the Court of Claims Footnotes

Footnote 1:Individuals cannot be sued in the Court of Claims, even if they are employees of the State of New York. See Court of Claims Act § 9; Smith v State of New York, 72 AD2d 937 [4th Dept 1979]. Accordingly, the caption has been amended sua sponte to reflect the State of New York as the only proper defendant.

Footnote 2:Even though the affirmation in support is labeled as "affidavit in support," it was submitted by movant's counsel and, therefore, the affidavit is considered an attorney's affirmation.

Footnote 3:The Court granted defendant's application to submit a sur reply to movant's reply affirmation to ensure that defendant would not be prejudiced in opposing movant's motion when movant's counsel failed to attach movant's affidavit and a proposed claim that was verified by movant to movant's affirmation in support. Instead, the verified proposed claim and movant's affidavit was submitted for the first time as exhibits to movant's reply affirmation. Defendant correctly pointed out that a late claim notion that is not supported with a sworn statement by someone with personal knowledge of the underlying facts is of no value in determining whether the claim appears meritorious. See Janik v State of New York, UID No. 2001-005-500 [Ct Cl, Corbett, Jr., J., Jan. 3, 2001].

Footnote 4:He also did not serve or file a claim.

Footnote 5:Presumably the court officer was trying to enforce a court rule forbidding taking photos or videos in a courthouse. See Administrative Rules of the Unified Court System & Uniform Rules of the Trial Courts, 22 NYCRR 29.1 ("Taking photographs . . . in a courthouse including any courtroom, officer or hallway thereof, at any time or on any occasion, whether or not the court is in session . . . is forbidden."). Nevertheless, the Court declines to draw this inference without a supporting affidavit.

Footnote 6:The Court declines to determine whether the force used was de minimus and, therefore, objectively reasonable based solely on movant's affidavit, photos, and uncertified medical records. See Graham v Connor, 490 US 386, 396—97 [1989].