Iazzetta v. State

• Decision Date: 10 October 1980
• Docket Number: No. 64057,64057
• Parties: In the Matter of the Claim of Ronald IAZZETTA v. STATE of New York (Claim).
• Court: New York Court of Claims

Page 987

432 N.Y.S.2d 987

105 Misc.2d 687

In the Matter of the Claim of Ronald IAZZETTA v. STATE of New York

(Claim No. 64057).

Court of Claims of New York.

Oct. 10, 1980.

Aliazzo, Aliazzo & Aliazzo, P. C. by Vincent N. Aliazzo, David W. McCarthy, Ozone Park, for claimant.

Robert Abrams, Atty. Gen. by Diane L. Dubiac, Asst. Atty. Gen., for defendant.

OPINION

GERARD M. WEISBERG, Judge.

The questions presented by this motion are (1) whether a claim filed by permission may be amended as of right, and (2) whether a cause of action for false arrest "relates back" to a proposed claim for personal injuries for purposes of the statute of limitations.

On October 24, 1979 claimant filed a motion to permit the late filing of a claim. The facts supporting this application were that on October 26, 1978 claimant was shot in the leg by his father-in-law, Frank Cassidy, a peace officer and clerk of the Civil Court of the City of New York, Queens County. The incident occurred while claimant was removing personal property from his former residence, then occupied by his estranged wife. Personal injuries were allegedly inflicted by Cassidy while in the course of his employment as a peace officer in that Cassidy was attempting to effectuate an arrest for violation of an order of protection issued by the Family Court. Cassidy arrested and caused a complaint to be filed against claimant for violation of sections 120.05 and 205.30 of the Penal Law (assault in the second degree and resisting arrest), which charges were dismissed by the Criminal Court after a preliminary hearing and other proceedings.

In connection with the prior motion, a proposed claim was submitted which stated: "(t)he nature of the claim: Personal injuries sustained as the result of a gun shot wound suffered by claimant, when he was lawfully on the street. Said gun shot wound being inflicted on him by one Frank Cassidy, a clerk of the (sic) employed by the State of New York, in the course of his duties." While criticizing the brevity of this proposed pleading, the Court stated in its opinion, inter alia, that the supporting documents and exhibits sufficiently established reasonable cause to believe that causes of action for intentional tort and/or negligence existed. (Citing Foley v. D'Agostino, 21 A.D.2d 60, 248 N.Y.S.2d 121.) By order dated March 11, 1980, this Court granted the motion stating that "(a) claim shall be served and filed in accordance with the Court of Claims Act and the applicable Rules of this Court..." Ostensibly pursuant to this order, claimant served and filed two documents on April 15, 1980: (1) a claim verified October 10, 1979 reciting in haec verba the allegations of the proposed claim previously submitted, except that the date of the occurrence was changed to reflect the Court's findings with respect thereto, and (2) a claim verified April 11, 1980 which alleges causes of action for willful, wanton and negligent assault and battery, false imprisonment, false arrest and malicious prosecution, all arising from the same set of facts as previously pleaded and setting forth in the claim itself (as distinguished from affidavits, affirmations and exhibits), the facts underlying said causes of action.

The State has moved to dismiss both of these claims on the theory that neither is in compliance with the Court's order. Claimant argues in opposition that the document verified on April 11, 1980 is an amended claim, although not so designated, which could be filed as of right pursuant to subdivision (a) of Rule 16 of the Rules of the Court of Claims (22 N.Y.C.R.R. 1200.16, subd. (a)). Claimant cross-moves in the alternative to permit the amendment of the claim by leave of Court, or to allow its late filing. (Rules of the Court of Claims, Rule 16, subd. (b) (22 N.Y.C.R.R. 1200.16, subd. (b)); Court of Claims Act, § 10, subd. (6).) The State argues in opposition to the cross-motion that the causes of action for assault, battery, false imprisonment and false arrest are time-barred in that more than one year has elapsed since the date of the alleged occurrence and that said causes of action, as well as the one for malicious prosecution, are untimely by virtue of subdivision 3 of section 10 of the Court of Claims Act.

The threshold question is whether a claim filed by permission may be amended as of right. Subdivision (a) of Rule 16 of the Rules of the Court of Claims provides: "AMENDMENTS WITHOUT LEAVE. A party may amend his pleadings once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it." (Cf. CPLR, Rule 3025, subd. (a).) The Rule draws no distinction between claims originally filed in compliance with subdivision 3 of section 10 of the Court of Claims Act, and those which were permitted to be filed in the discretion of the Court, and a literal application of the Rule would legitimize the amendment now sought to be made. However, the manifest prejudice to the State in allowing such a procedure is that causes of action which had not undergone prior judicial scrutiny under the criteria set forth in subdivision 6 of section 10 of the Court of Claims Act might be added to the claim, thus making it possible to enlarge the State's liability. Under such an interpretation, once any cause of action had been permitted to be filed against the State, claimant could amend as of right to include other liabilities which might not have survived "late claim" treatment initially, or which may have become time barred since the filing of the original late claim motion. (See Harriss v. Tams, 258 N.Y. 229, 179 N.E. 476, to the effect that an amendment filed as of right overcomes the bar of the statute of limitations on any cause of action which has expired ad interim ; 1 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 203.33; 3 ibid, par. 3025.09.)

The Court therefore holds by necessary implication that subdivision (a) of Rule 16 of the Rules of the Court of Claims does not apply to a claim which was filed by permission. Where, pursuant to subdivision 6 of section 10 of the Court of Claims Act, the Court directs that a claim be filed, it is the proposed claim which was tendered upon the motion which must be filed in haec verba or with such alterations as the Court may have directed. ¹ Leave of Court must be obtained for any subsequent amendments.

The primary impediment to allowing the amendment is the State's objection that the causes of action asserted in the amended claim for assault, battery, false arrest and false imprisonment are time barred, since, as the Court stated in Citibank (New York State), N. A. v. Suthers, 68 A.D.2d 790 at page 795, 418 N.Y.S.2d 679 "(CPLR 3025) ... does not require courts to permit futile amendments. Thus, where it is clear from the original and amended pleadings that the Statute of Limitations has expired, leave to amend may be denied (Martens v. Mercy Hosp., 64 A.D.2d 604, 406 N.Y.S.2d 539; Lewis v. Wilson & Co., 275 App.Div. 9, 12, 87 N.Y.S.2d 372; 3 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3025.23)."

Preliminarily, the causes of action for assault, battery and negligence were explicitly dealt with upon the prior motion and were timely asserted within one year (intentional tort) and three years (negligence) from accrual, having been interposed on October 24, 1979. (CPLR 214, 215; Vastola v. Maer, 48 A.D.2d 561, 370 N.Y.S.2d 955.) The cause of action for false arrest ² accrued on October 26, 1978, the date on which claimant was arraigned and released on bail. (Schildhaus v. City of New York, 23 A.D.2d 409, 261 N.Y.S.2d 909; affd. 17 N.Y.2d 853, 271 N.Y.S.2d 286, 218 N.E.2d 325, cert. den. 385 U.S. 906, 87 S.Ct. 222, 17 L.Ed.2d 137; Molyneaux v. County of Nassau, 22 A.D.2d 954, 256 N.Y.S.2d 123, affd. 16 N.Y.2d 663, 261 N.Y.S.2d 294, 209 N.E.2d 286; Tunia v. State of New York, App.Div. (4th Dept., 1980).) The cause of action for malicious prosecution accrued when criminal proceedings were terminated in claimant's favor on September 18, 1979 (Beary v. City of Rye, 44 N.Y.2d 398, 406 N.Y.S.2d 9, 377 N.E.2d 453), and was timely interposed on April 11, 1980 for purposes of the statute of limitations, but not as to subdivision (3) of section 10 of the Court of Claims Act, which requires that a claim or notice of intention be filed within ninety days of accrual.

The amended claim was served and filed on April 15, 1980, more than one year from the accrual of the cause of action for false arrest. The question is whether by virtue of subdivision (e) of section 203 of the Civil Practice Law and Rules, this cause of action relates back to the interposition of claimant's motion to file a late claim on October 26, 1979, at which time the cause of action would have been timely. Subdivision (e) of section 203 of the Civil Practice Law and Rules provides:

"(e) Claim in amended pleading. A...