Opinion
# 2014-049-038 Claim No. 117644 Motion No. M-82558 Cross-Motion No. CM-82910
06-30-2014
ARMAND RETAMOZZO v. THE CITY UNIVERSITY OF NEW YORK
Armand Retamozzo, Pro Se Eric T. Schneiderman, New York State Attorney General By: Janet L. Polstein, Assistant Attorney General
Synopsis
Granting defendant's motion to dismiss claim against CUNY as untimely, supported by insufficient allegations and/or improperly served.
Case information
| UID: | 2014-049-038 |
| Claimant(s): | ARMAND RETAMOZZO |
| Claimant short name: | RETAMOZZO |
| Footnote (claimant name) : | |
| Defendant(s): | THE CITY UNIVERSITY OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 117644 |
| Motion number(s): | M-82558 |
| Cross-motion number(s): | CM-82910 |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | Armand Retamozzo, Pro Se |
| Defendant's attorney: | Eric T. Schneiderman, New York State Attorney General By: Janet L. Polstein, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 30, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This action arises out of allegations by claimant pro se Armand Retamozzo that he suffered damages due to acts by various staff members of the John Jay College of Criminal Justice ("John Jay" or the "College") at the City University of New York ("CUNY"), while he was a student there.
The matter is now before me on a motion to dismiss claimant's Second Amended Verified Claim ("SAVC") by defendant CUNY. Before I can address the substance of the motion, it is necessary to recount the somewhat tortured history of this claim.
Claimant first served notice of his intention to file a claim ("NI" or "Notice") upon CUNY, the CUNY Research Foundation ("CUNY RF" or "the Foundation"), and the State of New York on May 27, 2009 (Cross Mot. Ex. 4), detailing events that Retamozzo alleges to have taken place between October 2, 2008 and May 14, 2009. In brief, the Notice states that CUNY staff members assaulted claimant; made statements about him that he considers libelous; removed him from his classes and detained him; passed on misinformation that led to the termination of his employment by the CUNY RF and caused him to be denied a scholarship; and "removed and banned" him from academic classes and from the College on December 1, 2008 (id. at 3). The NI further states that he was subject to a disciplinary hearing, after which he received a letter on March 11, 2009 stating that all the allegations against him by the College had been dismissed. The chronology set forth in the NI ends on May 14, 2009, on which day Retamozzo claims to have made the last of several unsuccessful efforts to be reinstated to his employment with CUNY RF.
The Foundation is a private not-for-profit corporation with 501(c)(3) status, whose purpose is assist CUNY in various ways, including by financing research (see Comm on Open Govt FOIL-AO-13140 [2002]).
This document is labeled "Notice of Claim."
Claimant commenced the present action by verified claim filed November 6, 2009, naming the State of New York, and not CUNY, as the defendant in the caption. The claim alleged misconduct by "agents and employees of the defendant State of New York including officers, agents and employees of the City University of New York . . . John Jay College of Criminal Justice . . . and [CUNY RF] . . . ." (Claim ¶ 2). In short, the claim appears premised on the incorrect understanding that CUNY and the State are one and the same defendant.
The filed claim was not accompanied by an affidavit of service. A copy of the pleading submitted on this motion, however, bears a stamp by the CUNY Office of General Counsel, which appears to indicate that it received the claim on November 6, 2009 (Cross Mot. Ex. 9). Claimant has also presented the Court a letter from the CUNY General Counsel to an Assistant Attorney General, asking that the AAG take "such action as [she] deem[s] appropriate" to protect CUNY's interest, in light of the claim served on November 6 via personal service, in the above-captioned matter (Aff. in Further Supp. of Cross Motion to File a Late Claim [CM-80930] Ex. 3).
The State served a verified answer in which, inter alia, it denied "any negligence or wrongdoing by the State of New York or the City University of New York" (Answer ¶ 5). Claimant then filed and served an amended claim, making wording changes from the original pleading, removing certain claims (such as nuisance and wrongful termination) and adding other causes of action (such as malicious prosecution and abuse of process). The allegations set forth in the Verified Amended Claim ("VAC") - and which are at issue in the present motion - were as follows:
The State's verified answer was filed on December 18, 2009. Claimant than served his amended claim on January 27, 2010, and filed it with this Court on January 29. It would appear from this sequence that the amended claim was not timely filed (see CPLR 3025[a] [amended pleading may be filed without leave of the Court within 20 days of the initial service of a responsive pleading). This issue has not been raise by any party, however.
As set forth below, claimant ultimately filed the SAVC, which defendant now seeks to dismiss. That amendment, however, made no changes except for replacing the State of New York with CUNY as the defendant listed in the caption, and a conforming change to the body of the claim.
"On or about January 2006," claimant entered into a "valid and implied contract" with the College, under which the College agreed it would provide claimant with instruction and (ultimately) an academic degree, if claimant complied with its terms (VAC ¶ 4). The claim does not indicate what form the contract took - it does not intimate whether it was oral or written, or who entered into it on the College's behalf, or what consideration claimant gave.
Claimant alleges that during his time as a student, he accepted employment with the Foundation, after he was told of a written policy limiting the Foundation's ability to terminate an employee except if the employee was absent for three or more days, or the employee submitted a letter of resignation (id. ¶ 5). Further, claimant completed a summer research session at the college, which was a prerequisite to receipt of a $5000 Louis Stokes Alliance for Minority Participation in Research ("LSAMP") Award (id. ¶ 6). According to the claim, Retamozzo completed the requisite research, and timely applied for the scholarship.
At that point, the pleading states, things began to go south for claimant, as various professors and other academic personnel made accusations and engaged in other misconduct against him. Thus, the amended claim alleges:
On October 2, 2008, one CUNY employee told the College that Retamozzo is a "rapist" and "pedophile," and threw a pen at him (VAC ¶ 10);
On October 30, the same individual shouted at claimant, told him to leave the classroom, cursed at claimant, and "waved her hands in front of claimant's face" (VAC ¶ 16);
Two CUNY employees asked the College, on November 6, 2008, to remove Retamozzo from the classroom and "withhold academic services" from him (VAC ¶ 19);
On November 10, 2008, yet another staffer cursed at claimant, waived his hands in Retamozzo's face,"struck Claimant with his body," and later wrote a memo accusing claimant of making various threats against him and others (VAC ¶ 24);
Because of these various (and false) accusations, on November 11, 2008, the College "withheld academic services" from claimant, "confined" him to a room to "await interrogation," "interrogated" him for 30 minutes, and took various disciplinary actions against him, including the withholding of academic services (VAC ¶ 28);
On December 27, 2008, claimant sought to register for courses, but "was unable to do so because of his expulsion status" (as of December 1, 2008) (VAC ¶ 35);
On February 9, 2009, claimant's application to receive LSAMP funding was denied due to his "expulsion status" (VAC ¶ 36);
On February 10 and March 3, 2009, claimant sat for a disciplinary hearing, which led to the dismissal of all charges against him on March 6, 2009 (VAC ¶¶ 37-40); and
Claimant was terminated from the Foundation and requests by him regarding the resumption of his employment with the Foundation on April 9 and May 13, 2009 were not granted (VAC ¶¶ 41-42). Although the VAC does not clearly state when the termination took place, claimant alleged in the NI that this took place on November 12, 2008.
The VAC says that on November 13, 2008, a CUNY employee who was "aware of the College's suspension of Claimant" told CUNY RF that Retamozzo had resigned his position as a tutor (SAVC ¶ 31).
According to claimant, his causes of action accrued on October 30, 2008 "upon the withholding by Defendant of academic services to Claimant," which withholding continued through April 7, 2009 (VAC ¶ 55).
Based on these allegations, the VAC set forth 19 causes of action for assault, battery, libel, slander, intentional and negligent injurious falsehoods, tortious interference with contract and business relations, false imprisonment, abuse of process, malicious prosecution, prima facie tort, breach of contract, failure to supervise employees and various constitutional violations.
At a preliminary conference conducted December 7, 2010, claimant moved to amend the caption to add CUNY as a defendant. That application was granted orally by Judge Schweitzer. Claimant did not seek to have it reduced to a written order, and did not file or serve an amended claim with a revised caption.
The State moved to dismiss the amended claim on various grounds pursuant to CPLR 3211 and 3212 by motion filed October 26, 2011. Claimant opposed the motion, and cross-moved to file a late claim pursuant to Court of Claims Act § 10(6) on January 19, 2012.
Among the arguments the State made in support of this motion was that it was an improper defendant, since the claim made no specific factual allegations of wrongdoing against it. The Court granted the State's motion on this basis (Retamozzo v State of New York, UID No. 2012-038-545 [Ct Cl, DeBow, J., June 29, 2012]). It further noted that in light of Judge Schweitzer's earlier order, such dismissal left "before the Court a pleading in which CUNY is named as the defendant" (id.). While the Court stated that "it appear[ed] that claimant served on CUNY the initial claim," that claim was captioned with the State as a defendant, and CUNY therefore never answered it. Therefore, the Court directed that "claimant may, within 20 (twenty) days of the filing of this Decision and Order, file and serve a second amended claim upon CUNY, limited to amendment of the caption" and a correlated change in the delineation of defendant within the body of the claim. Further, claimant was directed to serve the SAVC in "accordance with the service and filing requirements of Education Law § 6224(4) and Court of Claims § 11" (id.). In light of that order, claimant's application for late claim relief was denied "as academic" (id.).
Prior to this decision, the matter had been transferred to Judge DeBow.
Pursuant to the Court's Decision and Order, claimant filed the SAVC on August 27, 2012, naming CUNY as the sole defendant. Appended to the filed SAVC was an affidavit of personal service by April Zimmerman, which attested that in addition to serving the pleading on the Office of the Attorney General on August 15, 2012, she personally served a copy thereof on CUNY at 535 East 80th Street, New York, New York. The affidavit states that service was made on a man 50-59 years of age, with brown skin and black hair and medium build, who was sitting down. The name of that individual is listed as "withheld."
Defendant filed an answer to the SAVC, in which it asserted numerous affirmative defenses. In particular, CUNY stated the following as its eleventh affirmative defense:
"Claimant has failed to comply with page 6 of the Order of Judge DeBow, filed August 9, 2012, granting claimant leave to serve and file a Second Amended Verified Claim 'in accordance with the service and filing requirements of Education Law § 6224 (4) and Court of Claims § 11.'"
CUNY also pled as its twelfth affirmative defense the following:
"The Court lacks jurisdiction over the Second Amended Verified Claim due to claimant's failure to serve the Second Amended Verified Claim upon [CUNY], in accordance with Court of Claims Act Sections 10 and 11, and Education Law Section 6224."
The answer also set forth the following affirmative defenses: the causes of action for intentional tort were "barred by the relevant statute of limitations" (ninth), claimant had failed to serve a notice of intention within ninety days of the accrual date as required by Court of Claims Act §§ 10 and 11 (thirteenth), the causes of action were not sufficiently particularized to meet the requirements of Court of Claims Act § 11(b) (fourteenth), and the claim alleged constitutional rights not guaranteed by the State Constitution or under Brown v State of New York, (89 NY2d 172 [1996]) (sixteenth).
On November 30, 2012, defendant filed the present motion, again seeking dismissal. The motion papers asserted that the claim was jurisdictionally defective because it had not been served on CUNY in compliance with the Court of Claims Act, as the Court had directed. In addition, defendant argued, inter alia, that: (1) claimant's causes of action (with a few exceptions) are untimely; (2) the allegations in the notice of intention and SAVC are insufficiently particularized to meet the requirements of Court of Claims Act § 11(b); and (3) the Court lacks jurisdiction over claimant's constitutional claims.
Claimant cross-moved for summary judgment, or in the alternative to "renew" his motion to file a late claim, and for various other relief. He also filed a separate affidavit in opposition to defendant's motion. Claimant argues that both the notice of intention and SAVC had been properly served on CUNY via personal service in accordance with the Court of Claims Act and the Court's order; and several of CUNY's procedural defenses were inadequately pled. Further, he contests CUNY's motion on the merits. Specifically, Retamozzo contends that damages became "reasonably ascertainable" on May 18, 2009 when he was informed by CUNY that he would not receive the academic degree "contracted for" (Aff. in Supp. of Cross Motion ¶ 2[2]). The NI, served on May 29, 2009, was therefore timely.
It is claimant's contention that since the late claim motion was never addressed in the Court's prior decision, the current late claim application should be treated as a continuation of the earlier one, and its timeliness assessed from the date on which the initial motion had been filed (see Aff. in Supp. of Cross Mot. ¶¶ 4-5).
Retamozzo's motion seeks various and sundry relief, such as an order pursuant to CPLR 3106(a) granting him priority of depositions, and the consolidation of this action with Retamozzo v City Univ. of N.Y., Claim No. 120424 - a claim concerning conduct by CUNY subsequent to that addressed by this claim, and that has since been dismissed (UID No. 2013-030-526 [Ct Cl, Scuccimarra, J., Mar. 4, 2013]).
This assertion as to when the claim accrued is inconsistent with that set forth in the SAVC itself, which states that the claim "accrued on the 30th day of October 2008, upon the withholding by defendant of academic services to claimant, which withholding continued thru on or about April 7, 2009" (SAVC ¶ 55).
In response, defendant filed papers in opposition to claimant's cross motion, and in further support of the motion to dismiss. Those papers included an affidavit by Sophia Walsh-Newman, a paralegal in the Office of CUNY General Counsel. She attested that one of her responsibilities was to accept service of legal documents, and that such service was only allowed between 9:00 a.m. and 5:00 p.m. from Monday to Friday. After 5:00 p.m., the mailroom is closed, and the server is told to return the following business day (Walsh-Newman Aff. ¶ 3). Walsh-Newman also stated that she had spoken with the public safety officer on duty on August 15, 2012, and reviewed the relevant log for that date, but found no entry reflecting the delivery of any documents for the time entered (id. ¶ 5).
By letter order dated April 26, 2013, the Court per Judge DeBow noted that the filings revealed a "threshold issue" in regard to this motion: whether CUNY had been served with the SAVC. Since that issue presented a disputed question of fact, the Court ruled that the motion would be held in abeyance until a traverse hearing was conducted. Subsequent to that ruling, Judge DeBow issued an order recusing himself from this action, and the matter was transferred to the undersigned by order of the Presiding Judge. Pursuant to the Court's April 26 letter order, a traverse hearing was then conducted on October 30, 2013.
At the hearing, claimant's process server, Ms. Zimmerman, did not appear. Instead, claimant testified on his own behalf as follows: On the day in question, Retamozzo and Zimmerman drove together to the Office of the CUNY General Counsel in Manhattan. At about 5:44 p.m., Zimmerman left the automobile bearing the SAVC, and entered the office; when she returned, she no longer carried the papers. Claimant did not witness, and presented no testimony in regard to, what occurred in the office itself, or how service was actually effectuated.
Claimant testified that he could not serve the papers personally, since he had been banned from entering the office of the CUNY General Counsel for reasons that were in dispute between the parties, but not relevant to this motion. Claimant also testified regarding his service on the Office of the Attorney General, but that also is not at issue, as defendant did not challenge such service on this motion.
For its part, CUNY presented the testimony of Ms. Walsh-Newman. She described the process for acceptance of service as it is set forth in her affidavit. In particular, she indicated that CUNY does not accept service of papers 5 p.m., and in any case no employee of CUNY accepts service except on the permission of the Office of General Counsel. Further, she stated that when papers are accepted, they are time-stamped and a copy is returned to the server. According to Walsh-Newman, the absence of a time-stamped copy indicates that the papers had not been accepted for service.
Discussion
I. Service of the Second Amended Verified Claim
Two questions are presented by this motion regarding service of the SAVC: First, whether service was effectuated, and second - if it was not - what impact such failure should have on this case.
In regard to the first question, while a process server's affidavit of service gives rise to a presumption of proper service, a sworn denial by defendant will rebut such affidavit, and places the burden on claimant to establish jurisdiction at a hearing by a preponderance of the evidence (see Caci v State of New York, 107 AD3d 1121, 1123 [3d Dept 2013]). That is what occurred here: Claimant met his initial burden by submitting his affidavit of service. Defendant presented sufficient evidence, through the Walsh-Newman affidavit, to rebut his assertion.
The burden was therefore on claimant at the traverse hearing to prove that service had been effected. He did not remotely meet that burden. He presented no testimony from the individual who actually served process, Ms. Zimmerman. While his own testimony, if credited, demonstrates that he saw her enter the building, it provides no evidence as to what happened to the papers once she was there, how they were served, who received the papers from Ms. Zimmerman, and whether such recipient indicated that he had any authority to accept such service. Even without the evidence defendant presented at the hearing, such proof is insufficient to demonstrate service in compliance with the Court's order. Moreover, the testimony of Ms. Walsh-Newman further rebuts claimant's assertion of proper service. She testified credibly that no service of process is received by CUNY after 5 p.m., and that security officers are not allowed to receive service on their own. Both of these statements - which are not contradicted by anything in the record of the hearing - further undermine claimant's proof of service.
In sum, I find that claimant has failed to prove that he served the SAVC in accordance with the June 29, 2012 order.
Given this finding, I am faced with the following chronology: Claimant served the State of New York and CUNY with a claim that made allegations against CUNY, but did not name it in the caption. CUNY did not answer, although the answer filed by the State appears to assert defenses on its behalf. Claimant then moved to amend the caption to include CUNY, which motion was granted, but without direction that a new claim be served, and thus without any answer by CUNY.
The Court's order of June 29, 2012 sought to remedy this confusion by allowing claimant the opportunity to serve upon CUNY a second amended claim, specifically naming CUNY as a defendant. But, as set forth above, claimant did not comply with this directive - indeed, to date CUNY has not been served with the SAVC. Thus, the parties are left as they were beforehand, with an action against CUNY, served upon CUNY before the caption was amended to name it as a defendant.
During the traverse hearing, claimant proposed to address this situation by seeking an order deeming service of the original claim proper and sufficient, nunc pro tunc. In his papers, claimant also alleges that CUNY waived any objection to service by voluntarily participating in this litigation (Aff. in Opp. to Mot. ¶ 70).
Claimant relied on my decision in Gardner v City Univ. of N.Y., (41 Misc3d 912 [Ct Cl 2013]), for the proposition that the failure to serve should be excused. That case, however, is quite different. In Gardner, a late claim was served by the date set forth in the Court's order granting claimant's motion to file such a claim, and in accordance with section 11. The claim was also submitted for filing by the Court's deadline, but was not filed until after that deadline, since the claimant had neglected to pay the filing fee. I held that the sole defect in filing - the failure of claimant's counsel to pay the fee by the court imposed deadline - could be waived pursuant to CPLR 2001. Here, claimant has failed to serve the SAVC altogether, and thus has never complied with the Court's order.
As a general rule, when service is properly made on a defendant in the Court of Claims, the failure to name that defendant in the caption does not divest this Court of jurisdiction (see Ibekweh v State of New York, 157 Misc 2d 710 [Ct Cl 1993]; Schwartzberg v State of New York, 121 Misc 2d 1095 [Ct Cl, 1983], affd on opn below 98 AD2d 902 [3d Dept 1983]). This case presents a somewhat unique twist on such facts, however. Here, the Court - faced with an original claim that appeared to hold the State liable for CUNY's alleged torts, and which only the State and not CUNY had answered - directed claimant to formally serve CUNY with a claim naming it as defendant. Claimant did not do so, and now essentially asks the Court to ignore that failure altogether in light of his original service.
Before considering the implications of these facts, I note that CUNY seeks dismissal on numerous alternative jurisdictional grounds, including that the claim is untimely, and the NI failed to provide the specificity required by Court of Claims Act § 11(b). I will therefore address those arguments first, to determine what aspect (if any) of this claim remains before me, before addressing what consequences should attach to claimant's failure to serve the SAVC.
II. The State's Motion to Dismiss Retamozzo's Causes of Action
As noted, claimant's SAVC sets forth nineteen causes of action. Below, I address defendant's motion to dismiss as to each of these claims.
A. Constitutional Claims
Claimant's 11th (cruel and unusual punishment), 13th (violation of the equal protection clause) and 16th (violation of the due process clause) causes of action allege constitutional violations. The first and last of these specifically reference the State constitution, while the 16th does not specify whether it relies on the state or federal charter. In any case, claims regarding the latter are not actionable in this Court (see Welch v State of New York, 286 AD2d 496, 498 [2d Dept 2001], citing Cavanaugh v Doherty, 243 AD2d 92, 96 [3d Dept 1998]), and I therefore presume these causes of action are premised solely on allegations of state constitutional violations.
Such claims may only be brought if claimant has no alternative remedy (see Shelton v New York State Liq. Auth., 61 AD3d 1145, 1150 [3d Dept 2009]). Since all of Retamozzo's constitutional causes of action could have been asserted under the analogous federal constitutional provisions in a civil rights action under 42 USC § 1983 against the individuals whose conduct is at issue, claimant has no action here for state constitutional tort (see Mackey v State of New York, UID No. 2012-041-031 [Ct Cl, Milano, J., Mar. 30, 2012] [noting availability of section 1983 in dismissing state constitutional claim]). Thus these causes of action must be dismissed.
B. Untimeliness
Defendant contends that the remaining claims (except as noted below) were not served or filed within the time periods required by the Court of Claims Act. Specifically, it argues the NI was not served within 90 days of accrual in regard to his claims for intentional tort (as required under Court of Claims Act § 10[3-b]).
In its motion, defendant argues that certain of claimant's causes of action are subject to a six-month deadline for service of a notice of intention, or filing and service of a claim, under Court of Claims Act § 10(4) (see Aff. in Supp. of Mot. ¶ 10). As set forth below, I find that the 90-day deadline governing intentional torts is applicable to these claims (see infra n 13). Since it is the latter period that is pled in defendant's answer, defendant did not waive its argument by arguing the incorrect time restriction, which would in any case have been to claimant's advantage.
As an initial matter, I reject claimant's assertion that defendant failed to plead this affirmative defense with sufficient specificity. A defense of untimeliness must be raised "with particularity" in defendant's answer or in a pre-answer motion to dismiss (see Court of Claims Act § 11[c]). Here, defendant's thirteenth affirmative defense states that as to these causes of action, the NI was not timely served within ninety days of accrual - the time period governing both negligent and intentional torts (see Court of Claims Act § 10[3] & [3-b]). Defendant thereby raised this defense with sufficient particularity (see Ramirez v State of New York, 171 Misc 2d 677 [Ct Cl 1997] [finding affirmative defense stating claimant had failed to serve claim or notice of intention within 90 days of accrual to be of sufficient particularity to preserve defense]; see also Augat v State of New York, 244 AD2d 835 [3d Dept 1997] [citing Ramirez in finding timeliness defense pled with particularity]).
Claimant nonetheless argues that defendant failed to say which of his causes of action were, in fact, "intentional torts" (Aff. in Opp. to Mot. ¶ 20), failed to specify a date of accrual for each of his causes of action (id. ¶ 21) and referred to this defense as going to personal rather than subject matter jurisdiction (id. ¶ 68). I have previously rejected the argument that the requirement that certain defenses be pled with particularity creates such an obstacle course for defendants seeking to raise a meritorious timeliness defense, in which they must lay out in their answer a detailed argument as to each cause of action (see e.g. Montalvo v State of New York, UID No. 2013-049-013 [Ct Cl, Weinstein, J., Mar. 6, 2013] [timeliness properly raised notwithstanding split of authority as to appropriate time period for filing; Court of Claims Act not intended to create a "waiver trap" whenever there is dispute as to governing law]). Indeed, if claimant's position were to be accepted, defendant's answer would be transformed into a veritable treatise, stating the accrual dates for every one of claimant's nineteen causes of action. I see nothing in the caselaw that contemplates such a requirement, and no good purpose for implying one into section 11(c). I proceed, then, to the merits of defendant's argument.
Claimant asserts in the cross motion that he served the NI on May 29, 2009, and the damages he suffered as a result of defendant's alleged misconduct "became reasonably ascertainable on May 18, 2009," when CUNY informed claimant "it would not be providing Retamozzo the academic degree 'contracted for'" (Cross Motion ¶ 2[2]). He alternatively asserts that the appropriate date for accrual should be October 6, 2009 (see id. ¶ 2[5]). The latter date, which post-dates the service of Retamozzo's NI and his original claim, is nowhere mentioned in any of the various pleadings filed by Retamozzo in this case. It is referenced, however, in a claim filed in a separate action - which claimant sought to be consolidated with this case, but which has since been dismissed (see Retamozzo v City Univ. of N.Y., UID No. 2013-030-526 [Ct Cl, Scuccimarra, J., Mar. 4, 2013]). On that date, Retamozzo asserts, his final expulsion from the College took place (Cross Motion ¶ 2[4]).
The argument that October 6, 2009 should nonetheless be the date of accrual has no merit, as it would require the Court to set as the accrual date one that is not referenced in the notice of intention or pleading, and that relates to no event actually set forth in the SAVC. As to the propriety of May 18, 2009 as the appropriate accrual date, the NI also makes no mention of that date. Moreover, the appropriate accrual date varies in regard to each cause of action, and must therefore be assessed by each cause of action.
Retamozzo's first through fifth causes of action - for various forms of libel, slander and "injurious falsehood" - accrued on the date that the alleged offending statements were first made (see Nussenzweig v diCorcia, 9 NY3d 184, 188 [2007]; see also Memory's Garden v D'Amico, 84 AD2d 892 [3d Dept 1981] ["Slander causes of action accrue on the day the alleged slander is uttered"]). The last of the allegedly libelous/false statements referenced in the SAVC was uttered on November 10, 2008. Thus, with respect to these actions, no NI was served and no claim was filed within ninety days of accrual as required for intentional or negligent torts. That is so even if such statements led to Retamozzo's suspension from CUNY. The fact that claimant asserts that harms continued to result from the statements after the date they were made does not render the claim timely (see Geary v Town Sports Intl. Holding, Inc., 21 Misc 3d 512 [Sup Ct, NY County 2008] [declining to apply "continuing wrong" doctrine to subsequent repetitions of libelous statement; cause of action accrued at time of original statement]).
While defendant states in its answer that these causes of action are untimely under the 90-day period set forth in Court of Claims Act § 10(3) and 10(3-b), it states in its motion that these torts are subject to the six-month time frame set forth in Court of Claims Act § 10(4), as claims "not otherwise provided for" (Aff. in Supp. ¶ 11). It would appear, however, that such causes of action are intentional torts subject to a 90-day deadline for filing (see Trayer v State of New York, 90 AD2d 263, 268 [3d Dept 1982] [referring to libel, slander and "other intentional torts"]). As noted above, defendant correctly raised the 90-day period in its answer and, in any event, these causes of action are untimely under either period.
Claimant's fifth cause of action is for "negligent injurious falsehoods" (see Claim ¶ 67). There is no such claim under New York law. Rather, a claim for "injurious falsehoods" is premised on a showing that statements were made "maliciously and with the intent to harm . . . or recklessly and without regard to their consequences" (see Gilliam v Richard M. Greenspan, P.C., 17 AD3d 634 [2d Dept 2005]).
Retamozzo's ninth and tenth causes of action for assault and battery accrued on the date the assault or battery took place, not on the date on which he was removed from the school or denied subsequent employment (see Grullon v City of New York, 222 AD2d 257, 258 [1st Dept 1995] (assault claim "accrues on the date of the assault"] [citation omitted]; Matter of Plaza v Estate of Wisser, 211 AD2d 111, 118 [1st Dept 1995] ("plaintiff was required to commence a cause of action for battery within one year of the date of the non consensual physical contact"]). These torts allegedly took place when defendant's employees threw a pen at claimant on October 2, 2008 (VAC ¶ 10), waved their hands in front of him on October 30, 2008 and November 10, 2008 (VAC ¶¶ 16, 23); and struck him on November 10, 2008 (VAC ¶ 23). Since these are intentional torts, the notice of intention had to be served within 90 days of such accrual dates (see Court of Claims Act § 10 [3-b]). It was not, and these claims are untimely as well.
Retamozzo's twelfth cause of action for false imprisonment also constitutes an intentional tort, subject to the 90-day deadline (see Broughton v State of New York, 37 NY2d 451, 456 [1975] [to prove false imprisonment, claimant must show that defendant "intended to confine him"]; CPLR 215[3] [listing false imprisonment among claims subject to one-year limitations period for intentional torts]). This cause of action accrued on the date Retamozzo was released from confinement (Boland v State of New York, 30 NY2d 337, 341 [1972]; Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept 2011]) - on October 30, 2008 in regard to one incident (see VAC ¶ 20) and November 11, 2008 in regard to another (see VAC ¶¶ 28-29). The notice of intention was served long after the 90-day period had elapsed following such accrual, and this cause of action is therefore time-barred.
Retamozzo's seventeenth cause of action, for "intentional infliction of harm" seeks to allege the elements of prima facie tort. To state such a claim, claimant must allege "1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful," and that "malevolence is the sole motive for defendant's otherwise lawful act" (Posner v Lewis, 18 NY3d 566, 570 n1 [2012] [citations and internal quotation marks omitted]). Such a claim accrues when a party "suffers actual damage" from the defendant's acts (Village of Val. Stream v Zulli, 64 AD2d 609, 610 [2d Dept 1978]).
There is no independent tort of "intentional infliction of harm."
Retamozzo alleges in regard to this cause of action that he suffered harm when defendant's employees "told the College to remove Claimant from his academic classroom and withhold academic services from Claimant, and when Defendant did in fact remove Claimant from his academic classroom and withhold academic services from Claimant, and when it suspended and expelled Claimant from the College, and when it banned Claimant from his place of employment" (VAC ¶ 94). While the precise actions referred to by Retamozzo are not altogether clear, the SAVC alleges that his removal and suspension, and CUNY's withholding of academic services, took place on November 11 and 18 (see VAC ¶ 28), leading up to his expulsion and ban from John Jay on December 1, 2008 (VAC ¶ 33). Again, this cause of action is one for intentional tort, subject to the 90-day limitations period in Court of Claims Act § 10(3-b) (see Havell v Islam, 292 AD2d 210 [1st Dept 2002]; Schneider v State of New York, UID No. 2004-013-010 [Ct Cl, Patti, J., Feb. 5, 2004]). As a result, it is also untimely.
As noted earlier, the NOI states that he was terminated from his employment on November 12, 2008.
I note, moreover, that this cause of action is meritless for another reason. Public policy "prohibits the maintenance of a suit against the State or, by extension, an official acting in his or her official capacity for prima facie tort" (Cavanaugh v Doherty, 243 AD2d 92, 101 [3d Dept 1998], citing Van Buskirk v Bleiler, 46 AD2d 707, 707-708 [3d Dept 1974]). I see no reason why this principle should not apply to CUNY officials here (see Van Buskirk, supra [applying this principle to school board member]).
Finally, defendant seeks dismissal on timeliness grounds of claimant's tortious interference and breach of contract claims (see Aff. in Supp. of Mot. ¶ 13).
A tortious interference claim accrues when claimant first suffers injury, but this is not a continuing tort, and thus there is no toll from the continuation of the alleged misconduct thereafter (Andrew Greenberg, Inc. v Svane, Inc., 36 AD3d 1094, 1099 [3d Dept 2007]). Both tortious interference with contract and with business relations are intentional torts (see White Plains Coat & Apron Co., Inc. v Cintas Corp., 8 NY3d 422, 426 [2007] ["intentional . . . procuring of a breach" is a necessary element of tortious interference with contract cause of action]; Nahar v Gulati, 2011 WL 766369, 2011 NY Slip Op 30429[U] [Sup Ct, NY County 2011] ["New York law recognizes interference with an existing contract and interference with prospective economic advantage as valid causes of action and treats them as intentional torts"]). As a result, they are subject to the 90-day deadline for service and filing set forth in section 10(3-b).
Claimant's sixth cause of action alleges that "defendant tortiously interfered with the contractual relations between claimant and the College," by causing his removal from the classroom and removal of academic services from him (SAVC ¶ 69). I note, as an initial matter, that this is not really a tortious interference claim at all, since the party interfering with the contract ("defendant") and the contracting party ("the College") are one and the same (see Weaver v Town of Rush, 1 AD3d 920, 924 [4th Dept 2003] [tortious interference claim requires showing, inter alia, of "a valid contract between plaintiff and a third party [and] defendants' intentional procurement of the third party's breach"] [citations omitted and emphasis added]). In any case, the SAVC alleges that defendant's "false statements" led the College to "remove claimant from his academic classroom" and "withhold academic service" from him (id.). As noted in regard to claimant's cause of action for prima facie tort, however, these events are alleged to have occurred in November 2008. This cause of action is thus untimely.
Claimant's seventh causes of action alleges that CUNY interfered with his contract with the Foundation (SAVC ¶ 71). But in the NI, Retamozzo states that he was terminated from such employment on November 12, 2008 (see Cross Motion Ex. 4 at 3). He cannot extend the time for filing by asserting that he kept trying to get his job back but was rebuffed, as this reflects nothing more than the harm caused by his initial termination since that was the alleged breach (see Thomas v City of Oneonta, 90 AD3d 1135, 1136 [3d Dept 2011] [time for filing can only be extended by "continuing unlawful acts," not "the continuing effects of earlier unlawful conduct"]). This cause of action was therefore brought beyond the 90-day period set by the Court of Claims Act.
Claimant's eighth cause of action for tortious interference with prospective business relations concerns his alleged loss of the LSAMP scholarship (see SAVC ¶ 73). The SAVC states that claimant's LSAMP application was denied on February 9, 2009 (id. ¶ 36). More than 90 days elapsed between that date and service of the NI. Moreover, the NI makes no mention of the LSAMP at all, and thus would not have preserved the timeliness of his claim. By the time this matter was first raised, in Retamozzo's initial claim filed and served in November 2009, the claim was manifestly untimely.
In light of the foregoing, defendant's motion is granted regarding claimant's constitutional claims and the causes of action delineated above. I do not find claimant's breach of contract claim may be dismissed on this ground, however, as it is subject to a six-month period for service of the NI (see Court of Claims Act § 10[4]), and a number of the alleged breaches (such as claimant's expulsion) are alleged to have occurred within that time frame. Also, defendant's motion does not challenge the timeliness of claimant's causes of action for abuse of process (15th), malicious prosecution (14th), and failure to supervise (18th). Rather, CUNY seeks dismissal of these claims as inadequately pled in the notice of intention and SAVC pursuant to Court of Claims Act § 11(b). I turn, then, to that argument.
Abuse of process and malicious prosecution would also appear to be intentional torts (see Bittner v Cummings, 188 AD2d 504, 506 [2d Dept 1992]; CPLR 215[3]). Both these claims allege that the disciplinary process against Retamozzo was initiated with malice and without justification (see SAVC ¶¶ 84-88). Such claims accrued when the disciplinary process terminated in claimant's favor. According to the SAVC, that occurred on March 6, 2009 (see SAVC ¶ 40). Therefore, even if defendant's motion may be read as challenging these causes of action as untimely, it is denied in that respect.
In regard to claimant's remaining causes of action, defendant alleges that they run afoul of Court of Claims Act § 11(b), or otherwise fail to state a claim.
Defendant argues that Retamozzo has failed to "provide sufficient details" regarding his alleged contractual claims (Mot. ¶ 19), and has failed to adequately plead his other claims as well.
Defendant argues that certain claims addressed above, including claimant's tortious interference causes of action, also do not pass muster under section 11(b). Since I have found that these claims are untimely, I need not address these arguments.
Under section 11(b), claimant must set forth the "nature of [the claim]" as a jurisdictional prerequisite. For a notice of intention to be valid, it must be of "'sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances'" (Grumet v State of New York, 256 AD2d 441 [2d Dept 1998], quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]).
Here, the notice of intention contains a general reference to "breach of contract," and says academic services were "due and owing." It provides no information at all as to the nature of such a contract or how it was formed, nor does it set forth its terms except at a level of extreme generality (i.e., CUNY agreed to provide claimant with "academic services") and is silent to Retamozzo's obligations thereunder. Such allegations are wholly insufficient to meet the requirements of section 11(b) for breach of contract (see Higbie Collision v State of New York, Dept. of Transp., UID No. 2001-016-062 [Ct Cl, Marin, J., Aug. 1, 2001] [breach of contract claim does not meet section 11(b) requirements when "no information has been provided as to the terms of the Contract, or how it is that defendant allegedly breached it"]).
Even if I were to deem this sufficient for purposes of the NI, the SAVC provides no added detail, and thus fails to meet section 11(b) standards.
To sustain his "abuse of process" claim, claimant must show that there was some "regularly issued process, civil or criminal, compelling the performance or forbearance of some prescribed act," whose purpose is to do harm without economic or social excuse or justification (see Julian J. Studley, Inc. v Lefrak, 41 NY2d 881, 883-84 [1977]). Retamozzo alleges no such "process." He has pointed to no "direction or demand that [he] perform or refrain from the doing of some prescribed act" (id. [internal quotation marks omitted]), much less one "issued by or filed in a court" - as required for this tort (see Glaser v Kaplan, 5 AD2d 829, 830 [2d Dept 1958]).
As to Retamozzo's eighteenth cause of action - that CUNY negligently supervised its employees - it requires a showing of an underlying tort committed by an employee, and the employer's awareness that the employee(s) had a propensity to commit the acts that produced claimant's alleged injury (see Gui Ying Shi v MacDonald's Corp., 110 AD3d 678, 679-680 [2d Dept 2013]). Such a cause of action cannot be sustained where this element is pled on the basis of no more than "bare legal conclusions" (see Well v Yeshiva Rambam, 300 AD2d 580, 581 [2d Dept 2002][citations omitted]). Moreover, the absence of a viable tort claim against such employees bars this cause of action (see Cotter v Summit Sec. Servs., Inc., 14 AD3d 475, 476 [2d Dept 2005]).
Here, neither the NI nor the SAVC provides any facts that would support allegations that the defendant knew of the alleged propensity of its employees to commit the wrongs set forth in Retamozzo's pleading. The NI says nothing in this regard, and the SAVC alleges only that defendant knew of the torts themselves, and "knew or should have known" of the "violent propensities" of the employees who are alleged to have assaulted him (see SAVC ¶ 96). Such boilerplate does not meet the requirements of section 11(b), nor does it state a viable cause of action for negligent supervision. And since knowledge of propensity is only alleged as to the assault and battery causes of action, and those are dismissed for reasons stated above, this cause of action must be dismissed as well.
That leaves Retamozzo's fourteenth cause of action, for malicious prosecution. Defendant argues that such a claim cannot stand, since it alleges the improper initiation of administrative proceedings, rather than a criminal prosecution (Aff. in Supp. of Mot. ¶ 19). Claimant contests this assertion, and while the issue is not free from doubt, as a general rule New York law appears to side with his view that an administrative proceeding may give rise to a malicious prosecution claim (see Perryman v Village of Saranac Lake, 41 AD3d 1080, 1081 [3d Dept 2007] ["a malicious prosecution claim can be maintained based upon a prior administrative proceeding"]; Biswas v City of New York, 973 F Supp 2d 504, 528 [SD NY 2013] [wrongful prosecution claim may be stated under New York law in regard to school suspension proceeding]; see also NY PJI 3:50A ["Intentional Torts - Misuse of Legal Procedure - Malicious Civil Prosecution"]; but see Arteaga v State of New York, 72 NY2d 212, 229 [1988] ["Whether an administrative hearing is a 'judicial proceeding', and therefore will support a cause of action for malicious prosecution, appears to be an open question in this court"]). Moreover, claimant alleges that the disciplinary proceeding that gave rise to this claim was brought with malicious intent, and ended in his favor (see SAVC ¶ 84-86).
I note, however, the following in regard to claimant's malicious prosecution cause of action:
•Claimant's initial pleading - the one he would have me hold was properly served on CUNY - contains no cause of action for malicious prosecution.
•Claimant's current pleading contains none of the detail generally required to show malicious intent, beyond the bald assertion that numerous professors bore him such ill-well for unspecified reasons (see Phillips v City of Syracuse, 84 AD2d 957, 957 [4th Dept 1981], appeal dismissed in part 56 NY2d 856 [1982] [plaintiff must plead "[s]pecific facts evidencing malice" to sustain malicious prosecution claim]).
•While this cause of action is premised on claimant's allegation that the expulsion proceedings against him were terminated in his favor, he acknowledges in his motion papers that he was ultimately expelled the following fall in any event (see Aff. in Supp. of Cross Mot. ¶ 10).
With these defects in mind, I return to the question asked many pages back: notwithstanding Retamozzo's failure to comply with the Court's order that he serve the SAVC in accordance with Court of Claims Act § 11 - indeed, his failure to ever serve that amended claim - should his claim nonetheless be deemed properly filed and served on CUNY nunc pro tunc, since his original claim was so served, albeit without CUNY as a named defendant?
Even presuming that I may read such a result as consistent with the Court's earlier rulings, and thus permitted under the law of the case doctrine, I decline claimant's invitation to allow him this relief.
The Court provided claimant with an opportunity to clarify the confusion resulting from his failure to initially name CUNY as a defendant, and he failed to comply with the Court's instructions, or to provide evidence that he had done so at the traverse hearing. And the only cause of action that is ever arguably well pled and timely - his malicious prosecution claim - was not included in the claim actually served on CUNY, and is rendered meritless by Retamozzo's own admissions in his motion papers - in particular his admission that the purported termination of this proceeding in his favor was reversed the following Autumn, when he was permanently expelled from the College (see Cross Motion ¶ 2[4]).
Under these circumstances, claimant's application that his initial service be deemed valid, is hereby denied. The court ordered that he serve the SAVC on CUNY, and such orders may not be ignored "with impunity" if "the credibility of court orders and the integrity of our judicial system are to be maintained" (Kihl v Pfeffer, 94 NY2d 118, 123 [1999]). Moreover, his causes of action are either untimely or subject to dismissal on other grounds. Simply put, there is no basis to ignore claimant's failure to comply with the Court's order, and to grant him the nunc pro tunc relief he seeks.
In light of the foregoing, the SAVC is dismissed.
D. Late Claim
As many of claimant's causes of action were dismissed as untimely under the Court of Claims Act, I must address his motion pursuant to Court of Claims Act § 10(6) to file a late claim.
As a threshold matter, such an application is permissible only if made "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 practice law and rule" (Court of Claims Act § 10[6]). Claimant contends that in judging the timeliness of these actions, his late claim motion should be deemed filed on January 14, 2012, when he first sought late claim relief in his response to defendant's initial motion to dismiss. According to Retamozzo, that motion was never really decided, since the Court found its merits to be "academic" in light of the Court's decision that he could continue his action against CUNY.
Assuming without deciding the validity of claimant's argument, I nonetheless deny his motion.
As of January 14, 2012, when his late claim motion was first filed, all of Retamozzo's intentional tort claims were, on their face, time-barred, since they are subject to a one-year statute of limitations (see CPLR 215[3]). Moreover, his constitutional claims are not actionable, and his cause of action for "negligent injurious falsehoods" does not exist under New York law (see supra n 14).
Even if I were to find these claims timely, I would deny the motion on the ground that he has not established the appearance of merit. Nothing in Retamozzo's extensive filings, which consist largely of vague allegations of malice, gives "reasonable cause to believe that a valid cause of action exists" (Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]).
Retamozzo's sole remaining cause of action is his breach of contract claim, as his late claim motion was brought within its six-year limitations period (see CPLR 213). His motion as to that cause of action is assessed under the six factors set forth in section 10(6) (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]. Those factors are: whether the delay in filing the claim was excusable; whether defendant had notice of the essential facts constituting the claim; whether defendant had an opportunity to investigate; whether defendant was substantially prejudiced; whether the claim appears to be meritorious; and whether the claimant has any other available remedy.
It appears that the tortious interference with contract causes of action are subject to a three-year limitations period (see Andrew Greenberg, Inc., 36 AD3d at 1099). Even under this time frame - and even if timeliness were judged from the filing of claimant's January 2012 late claim application - this motion would only be timely in regard to the eighth cause of action, concerning the LSAMP application. I would deny that motion in any event, since the claimant's submission is wholly devoid of any evidence showing any improper conduct led to his failure to get this scholarship, and thus demonstrating any appearance of merit.
Where, however, a claim is legally deficient, such relief may be denied on that basis alone, since it would be "futile" to allow a facially insufficient claim to proceed (see Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]). For reasons set forth above, claimant's breach of contract cause of action does not pass muster under section 11(b), as claimant has failed to provide any explanation as to the basis for the contract. I further find that his characterization of his contracts with CUNY RF (that he could be dismissed on no grounds - presumably including the commission of a felony or comparable misconduct - save three absences), and with John Jay (that the College would provide academic services to him, apparently unconditioned on his own conduct at the school) to be implausible on their face and unsupported by the documents he provides.
I further find that claimant has failed to show a valid excuse for failing to file these claims within the permitted time period.
As a result, I find that the balance of the factors tip against his application, and I deny him leave to file a late claims (see Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002] [upholding denial of application to file late claim "when the excuse offered for the delay is inadequate and the proposed claim is of questionable merit"]).
Accordingly, it is hereby
ORDERED that defendant's motion no. M-82558 to dismiss this claim no. 117644 is granted, and it is further
ORDERED that claimant's cross motion no. CM-82910 for late claim relief under Court of Claims Act § 10(6) is denied, and the remainder of claimant's cross motion is denied as moot.
June 30, 2014
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion, Affirmation in Support and annexed exhibits.
2. Claimant's Affidavit in Opposition to defendant's Motion, and annexed exhibits.
3. Claimant's Affidavit in Further Opposition to defendant's Motion, and annexed exhibits.
4. Claimant's Notice of Cross Motion, Affidavit in Support and annexed exhibits.
5. Defendant's Affirmation in Opposition to Claimant's Cross Motions and in Further Support of Defendant's Motion to Dismiss, and annexed exhibits.