Remley v. State
| Decision Date | 30 July 1997 |
| Docket Number | No. M-55475,M-55475 |
| Citation | 174 Misc.2d 523,665 N.Y.S.2d 1005 |
| Parties | , 1997 N.Y. Slip Op. 97,589 Joseph REMLEY, Claimant, v. STATE of New York, Defendant. Motion |
| Court | New York Court of Claims |
Motion by Claimant for permission to late file a claim is granted in part and denied in part.
The proposed claim alleges causes of action for libel, slander, assault, battery, false arrest, negligent hiring, supervision, training and retention, abuse of process, negligence, outrageous conduct and violation of Claimant's rights under New York State Constitution Article 1, §§ 6, 11 & 12.
When considering a motion for permission to late file a claim, the court is required to address six factors enumerated in Court of Claims Act § 10(6). The first of those factors is whether there is a reasonable excuse for the delay in filing. According to Claimant, the delay resulted from the fact that the criminal prosecution did not conclude until four months after his arrest on April 28, 1996. Though the continuation of the criminal action delayed accrual of any possible claim for malicious prosecution, though none is pleaded here, it did not delay accrual of the other proposed causes of action. More importantly, because all of the causes of action alleged are related to the arrest of Claimant, resolution of the criminal action did not affect the factual basis for the proposed causes of action. Claimant, therefore, could have, and should have, served either a notice of intention or a claim prior to the expiration of the filing period.
Other factors to be considered are whether Defendant had notice of the essential facts of the claim and an opportunity to investigate. Defendant had notice of the essential facts of the claim by reason of its participation in drawing the criminal complaint and making the arrest. However, as Defendant was unaware of the allegations of wrongdoing, there was no opportunity to investigate. Nonetheless, because much of what occurred is memorialized in documents and because more than the passage of time is needed to establish that the delay in filing has caused substantial prejudice to Defendant, the State has not been substantially prejudiced in its ability to defend against the claim.
Also to be considered is whether the proposed claim has an appearance of merit. A claim is said to have merit when it is not patently groundless, frivolous or legally defective and there is reason to believe that a valid cause of action exists (Matter of Santana v. New York State Thruway Auth., 92 Misc.2d 1, 399 N.Y.S.2d 395).
The first proposed cause of action is premised exclusively on the statement in the criminal complaint charging Claimant with second degree burglary, a felony. However, individuals participating in a public function such as judicial proceedings are afforded protection from liability for defamation by an absolute immunity (Toker v. Pollak, 44 N.Y.2d 211, 219, 405 N.Y.S.2d 1, 376 N.E.2d 163). Protected participants include the judge, attorneys, the parties, witnesses and jurors (Park Knoll Assoc. v. Schmidt, 59 N.Y.2d 205, 209, 464 N.Y.S.2d 424, 451 N.E.2d 182). The privilege is designed to ensure that the individuals' personal interests, especially fear of a civil action, do not interfere in the discharge of their public function (Toker v. Pollak, supra, at 219, 405 N.Y.S.2d 1, 376 N.E.2d 163). A criminal prosecution is a judicial proceeding (see, Levy v. State of New York, 58 N.Y.2d 733, 459 N.Y.S.2d 27, 445 N.E.2d 203) and the complaint is the instrument which commences the action (CPL § 1.20). A person filing a formal complaint charging another with a crime is, therefore, entitled to absolute immunity from a civil suit for defamation (see, Hastings v. Lusk, 22 Wend. 410, 417; Restatement, Second, Torts § 587, Comment b; cf. Toker v. Pollak, 44 N.Y.2d 211, 405 N.Y.S.2d 1, 376 N.E.2d 163; Pecue v. West, 233 N.Y. 316, 135 N.E. 515, person giving information to a District Attorney concerning the alleged commission of a crime afforded a qualified privilege because the communication does not institute a judicial proceeding). Accordingly, the claim for libel does not have an appearance of merit.
Claimant also alleges causes of action for assault and battery. The acts involved in effecting an unlawful arrest may satisfy the elements of a claim for assault and battery (2 N.Y. PJI2d 581). Claimant has asserted that he was arrested without a warrant and because an arrest made without a warrant is presumptively unlawful (Broughton v. State of New York, 37 N.Y.2d 451, 373 N.Y.S.2d 87, 335 N.E.2d 310), and the elements of both causes of action are sufficiently alleged, the claims based upon assault and battery have an appearance of merit. In addition, based upon the allegation that the arrest was made without probable cause, the cause of action for false arrest also has an appearance of merit (see, Broughton v. State of New York, supra) as does the claim for negligent supervision and hiring (Brown v. State of New York, 89 N.Y.2d 172, 197, 652 N.Y.S.2d 223, 674 N.E.2d 1129).
The fifth proposed cause of action is for abuse of process. The gist of an action for abuse of process lies in the improper use of process after it is issued and process is a direction or demand that the person to whom it is directed shall perform or refrain from doing some prescribed act (Williams v. Williams, 23 N.Y.2d 592, 298 N.Y.S.2d 473, 246 N.E.2d 333). Claimant has failed to allege in the proposed claim the issuance of any process or an improper use of process. The proposed cause of action for abuse of process is without merit.
The sixth proposed cause of action is based upon allegations of negligence and gross negligence. Where, as here, the cause of action for negligence is based upon an arrest, Claimant must proceed by way of the traditional remedy of false imprisonment and cannot recover under broad principles of negligence (Shea v. County of Erie, 202 A.D.2d 1028, 609 N.Y.S.2d 473).
The seventh proposed cause of action is for outrageous conduct. Public policy prohibits the maintenance of a suit against the State for intentional infliction of emotional distress (Brown v. State of New York, 125 A.D.2d 750, 752, 509 N.Y.S.2d 169). The cause of action is, accordingly, without merit.
The eighth, ninth and tenth causes of action are based upon...
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