Cappelli v. County of Tioga
| Decision Date | 29 June 2021 |
| Docket Number | Index 2020-00061186 |
| Citation | 2021 NY Slip Op 31956 (U) |
| Parties | MICHAEL CAPPELLI, Plaintiff, v. COUNTY OF TIOGA, Defendant. |
| Court | New York Supreme Court |
Unpublished Opinion
Counsel for Plaintiff: Robert C. Kilmer, Esq.
Counsel for Defendant: THE LAW FIRM OF FRANK W. MILLER, PLLC By: Charles C. Spagnoli, Esq.
PRESENT: HON. EUGENE D. FAUGHNAN Justice Presiding
DECISION AND ORDER
This matter is before the Court to address the motion of Defendant, County of Tioga, filed on December 3, 2020 seeking to dismiss the Complaint of Plaintiff, Michael Cappelli, due to Plaintiffs failure to properly file a Notice of Claim, and also on the ground of failure to state a claim. Plaintiff filed an affirmation in opposition, and then Defendant filed a reply affidavit. The motion was made returnable for April 30, 2021, on submission.[1] After due deliberation and for the reasons set forth below, the Defendant's motion for summary judgment is granted.
Plaintiff filed a Summons with Notice on July 7, 2020, and his subsequently filed Complaint asserts causes of action for negligence, fraud, slander and slander per se, relating to a report from the Tioga County Department of Social Services ("DSS"), that indicated maltreatment and/or abuse by Plaintiff for an incident alleged to have occurred on May 16, 2018. The DSS report was allegedly made in or around August 3, 2018. Plaintiff contends that, in reality, there had been no report or complaint made to the Statewide Central Register of child abuse and maltreatment regarding Plaintiff, and there was no investigation actually conducted by DSS. Pursuant to Social Services Law § 424(6) and (7), when a report is received, DSS shall investigate and determine if the report is "indicated" or unfounded. Plaintiff believes DSS did not have any report of maltreatment or abuse, conducted no investigation, yet made its own determination that maltreatment and/or abuse was "indicated", which was then considered by the Broome County Family Court in denying Plaintiffs petition to modify custody of his children. The Broome County Family Court Decision and Order denying the Petition to modify custody was issued on March 7, 2019. The "indicated" report was allegedly subsequently expunged and sealed. Plaintiff claims that he did not learn of the facts until the County turned over Investigation Progress Notes on April 12, 2019.
Defendant submitted an affidavit from Diane Stephens, a legal secretary in the County Attorney's Office, who is responsible for maintaining records of Notices of Claim filed against the County. Per her affidavit, Plaintiffs Notice of Claim was served on the County on July 11, 2019. Defendant also submitted an attorney' s affirmation- and attached exhibits pertaining to the scheduling of the General Municipal Law § 50-h examination of the Plaintiff, and excerpts from the transcript of that testimony.
Defendant raises several arguments on this motion for summary judgment. First, Defendant claims that Plaintiff failed to serve timely Notice of Claim, and that Plaintiff has not made a motion to permit the late filing of a Notice of Claim, which would not be permissible at this time since the statute of limitations has run on the underlying claims. Second, Defendant claims that Plaintiffs conduct at the 50-h examination amounted to a refusal to comply and justifies dismissal of the claims. Third, Defendant argues that it has statutory immunity stemming from the preparation and making of its report, and that in any event, Defendant acted in good faith in its investigation and preparation of its report. Fourth, Defendant claims that it is protected by common-law governmental immunity. Lastly, Defendant argues that each of Plaintiffs claims are deficient and subject to dismissal for failure to state a cause of action.
When seeking summary judgment, "the movant must establish its prima facie entitlement to judgment as a matter of law by presenting competent evidence that demonstrates the absence of any material issue of fact." Lacasse v Sorbello, 121 A.D.3d 1241, 1241 (3rd Dept 2014) citing Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986) and Winegradv. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985) (other citation omitted); see Amedure v. Standard Furniture Co., 125 A.D.2d 170 (3rd Dept. 1987); Bulger v. Tri-Town Agency Inc., 148 A.D.2d 44 (3rd Dept. 1989), app dismissed 75 N.Y.2d 808 (1990). Such evidence must be tendered in admissible form. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980); Friends of Animals, Inc. v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067-1068 (1979). Once this obligation is met, the burden shifts to the opposing party to establish that a material issue of fact exists. Dugan v. Sprung, 280 A.D.2d 736 (3rd Dept. 2001); Sheppard-Mobley v. King, 10 A.D.3d 70, 74 (2nd Dept. 2004) affdas mod. 4 N.Y.3d 627 (2005); Alvarez v. Prospect Hosp, 68 N.Y.2d 320, 324; Winegrad v. N.Y.Univ. Med. Ctr., 64 N.Y.2d 851, 853. "When faced with a motion for summary judgment, a court's task is issue finding rather than issue determination ... and it must view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference and ascertaining whether there exists any triable issue of fact." Boston v. Dunham, 21A A.D.2d 708, 709 (3rd Dept. 2000) (internal citation omitted); see, Boyce v. Vazquez, 249 A.D.2d 724, 726 (3rd Dept. 1998). The motion "should be denied if any significant doubt exists as to whether a material factual issue is present or even if it is arguable that such an issue exists." Haner v. De Vito, 152 A.D.2d 896, 896 (3rd Dept. 1989) (citation omitted); Lacasse v. Sorbello, 121 A.D.3d 1241; Asabor v. Archdiocese of NY., 102 A.D.3d 524 (1st Dept. 2013). "It is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact." Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 505 (2012) (citation omitted).
1. Notice of Claim
Most actions against a municipality require that notice be given to the municipality within a certain timeframe, or that an order be obtained permitting the late filing of such notice. The notice requirement Mills v. County of Monroe, 59 N.Y.2d 307, 310-311 (1983), quoting Sandak v. Tuxedo Union School Dist. No. 3, 308 NY 226, 232 (1954).
Notice of Claim requirements are found in General Municipal Law § 50 and County Law § 52. "General Municipal Law § 50-i (1) precludes commencement of an action against a city 4for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city,' unless a notice of claim has been served in compliance with section 50-e." Margerum v. City of Buffalo, 24 N.Y.3d 721, 730 (2015). GML § 50-e establishes a "protocol for serving a notice of claim as a condition precedent to a suit against a public corporation." Williams v. Nassau County Med. Ctr., 6 N.Y.3d 532, 535 (2006). Pursuant to GML § 50-e (1), notice of claim in a tort action must be provided to a public corporation within ninety days after the claim arises. Wally G. v. New York City Health & Hosps. Corp. (Metro. Hosp.), 27 N.Y.3d 672 (2016); see, Margerum v. City of Buffalo, 24 N.Y.3d 721. GML § 50-e (5) permits a court, in its discretion, to extend the time to serve a notice of claim, or deem a late notice of claim timely served, nunc pro tunc. Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 460 (2016); Matter of Holbrooke. Village of Hoosick Falls, 168 A.D.3d 1263, 1263 (3rd Dept. 2019); Matter of Kranickv. Niskayuna Cent. Sch. Dist, 151 A.D.3d 1262, 1262 (3rd Dept. 2017); see, Matter of Reddick v. New York City Hous. Auth., 188 A.D.3d 890 (2nd Dept. 2020). The application must also be filed within the Statute of Limitations period of one year and 90 days. See, Mindy O. v. Binghamton City School Dist., 83 A.D.3d 1335, 1336 (3rd Dept. 2011); GML § 50-e (5), GML § 50-i. In this case, Plaintiff has not sought leave to file a late Notice of Claim, contending that he filed a timely Notice of Claim on July 11, 2019.
Plaintiff takes the position that a Notice of Claim was not required, and relies upon County Law § 52(1), which provides that:
Any claim or notice of claim against a county for damage, injury or death, or for invasion of personal or property rights, of every name and nature [...] alleged to have been caused or sustained in whole or in part by or because of any misfeasance, omission of duty, negligence or wrongful act on the part of the county, its officers, agents, servants or employees, must be made and served in compliance with section fifty-e of the general municipal law.
Plaintiff argues that his causes of action do not assert claims for damage, injury or death, or for invasion of personal or property rights. Therefore, Plaintiff has taken the position that Notice of Claim is not even required.
The plain language of County Law § 52 shows that it incorporates the notice of claim requirements of the General Municipal Law § 50-e. See, Russell v. Westchester Cmty. Coll., 2017 U.S. Dist LEXIS 159540 (SDNY 2017). However, County Law § 52 is even broader than General Municipal Law in the scope of matters it covers. Sager v County of Sullivan, 145 A.D.3d 1175 (3rd Dept. 2016); Rose v. New York City Health & Hosps. Corp., 122 A.D.3d 76 (1st Dept. 2014). ...
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