Abbey v. Nyantakyi

Abbey v Nyantakyi

2025 NY Slip Op 33501(U)

September 25, 2025

Supreme Court, Broome County

Docket Number: Index No. EFCA2024001358

Judge: Eugene D. Faughnan

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.

At a Motion Term of the Supreme Court of

the State of New York held in and for the

Sixth Judicial-District at the Broome County

Courthouse, Binghamton, New York, on the

9th day of May 2025.

PRESENT: HON. EUGENE D. FAUGHNAN

Justice Presiding

STATE OF NEW YORK

SUPREME COURT: COUNTY OF BROOME

JAYE. ABBEY,

Plaintiff, DECISION AND ORDER

vs.

Index No. EFCA2024001358

MIKE S. NYANTAKYI,

Defendant.

EUGENE D. FAUGHNAN, J.S.C.

This matter is before the Court to consider three separate motions in this case: a motion

for default judgment filed by Plaintiff, Jay E. Abbey; a cross-motion by Defendant Mike S.

Nyantakyi to dismiss the Complaint under CPLR 321 l(a)(2) [lack of subject matter jurisdiction]

and CPLR 3211(a)(8) [lack of personal jurisdiction] due to the failure to effect proper service;

and Plaintiff's cross-motion to extend the time to serve the Defendant. In support of his motion

for a default judgment, Plaintiff submitted the Affirmation of his attorney, Jeffrey A. Jaketic,

Esq., setting forth the procedural facts to justify the default finding. Defendant submitted the

affirmation of Janel Kaufman, Assistant Attorney General in the Office of the Attorney General

for the State of New York, the Affidavit of Aaron Nyantakyi, Defendant's brother, and the

Affidavit of Defendant. Plaintiff replied with the Affirmation of his attorney Albert J. Milius, Jr.,

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Esq. and the Affidavit of Plaintiff. 1 Oral argument was held on May 9, 2025 at which time both

parties were present. After due deliberation, this Decision and Order constitutes the

determination of this Court.

BACKGROUND FACTS

Plaintiff's Complaint alleges causes of action for malicious prosecution and false arrest

arising out of an interaction between Plaintiff and Defendant, a New York State Trooper. The

eight-page Complaint contains several pages describing the relationship between Plaintiff and his

neighbors, the Matthews family. Plaintiff and the Matthews have a long history of disagreement

over an easement and right of way running over the Matthews' property to benefit the Plaintiff.

Part of their disagreement concerns a gate the Matthews erected over the easement and right of

way. Plaintiff alleges the gate fell down, but the Matthews reported to the New York State Police

that Plaintiff destroyed the gate. Defendant Nyantakyi was assigned to investigate the report.

Plaintiff's allegations against Defendant's behavior are contained in two paragraphs of

the Complaint:

- Defendant Mike S. Nyantakyi was apparently assigned to investigate defendant James

Matthews' spurious Complaint. Eventually, on June 1, 2023, defendant Nyantakyi

arrested plaintiff, who suffered the indignity of being handcuffed and escorted to the New

York State Police barracks, where he was handcuffed to a bench, photographed, and

fingerprinted.

- When plaintiff asked why he had been arrested, defendant Nyantakyi advised that he

had reviewed the videos of the alleged incident and had concluded that it provided

sufficient evidence for the charge.

1

The Court has considered all the papers filed in support and opposition to the motion, as well as all the other

documents contained in the electronic case file.

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The remainder of the Complaint described efforts by Plaintiff to view the video, asserts

that the accusatory instrument against him was not filed, and that the criminal matter was

eventually dismissed. Plaintiff alleges that Defendant's actions described in the Complaint were

reckless and that Defendant's statement that the charge against Plaintiff was justified by the

video was false. He further alleges that Defendant's failure to timely file the accusatory

instrument reflects a lack of basis for the charge. 2

Plaintiff previously filed an action for malicious prosecution and false arrest naming both

and Matthews as Defendants (EFCA2024000091 ). However, Plaintiff was unable to serve

Nyantakyi in that matter within the 120 days required by CPLR §306-b, and opted to ask the

Court to dismiss the case against Nyantakyi leaving just Matthews as Defendant in

EFCA202400009 l, while Plaintiff would commence the current action against Nyantakyi and

attempt service. The Court dismissed the Complaint against Nyantakyi in EFCA2024000091 by

an Order dated May 17, 2024. Plaintiff then filed the Summons and Complaint in this case

(EFCA2024001358) on May 21, 2024 naming only Nyantakyi as a Defendant. Plaintiff's stated

plan was to consolidate the two matters after successfully serving Nyantakyi.

LEGAL DISCUSSION AND ANALYSIS

CPLR 3211 sets forth the bases and procedure for a motion to dismiss. "On a motion to

dismiss made pursuant to CPLR 3211, a court should construe the pleadings liberally, accept the

allegations as true and afford the party opposing the motion the benefit of every possible

inference to determine whether the facts alleged fit within a cognizable legal theory." T. Lemme

Mech., Inc. v. Schalmont Cent. School Dist., 52 AD3d 1006, 1008 (3 rd Dept. 2008) (citations

2

The Court notes that it appears Nyantakyi did prepare an Information on June 9, 2023 but it was stamped as

received in the Town of Chenango Justice Court on September 12, 2023. This Court has no knowledge about why

the Information was filed three months after it was prepared or whose responsibility it was to file it.

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omitted); see, EBC I, Inc. v. Goldman Sachs & Co., 5 NY3d 11, 19 (2005); Leon v. Martinez, 84

NY2d 83, 87 (1994); Kreamer v. Town of Oxford, 91 AD3d 1157 (3 rd Dept. 2012); Stainless

Broad Co. v. Clear Channel Broad Licenses, L.P., 58 AD3d 1010 (3 rd Dept. 2009). "[T]he

ultimate criterion is whether the proponent of the pleading has a cause of action, not whether he

or she has stated one." Schmidt & Schmidt, Inc. v. Town of Charlton, 68 AD3d 1314, 1315 (3 rd

Dept. 2009), quoting Leon v. Martinez, 84 NY2d at 88. The court should not make factual

·determinations on a motion to dismiss. See, Niagara Mohawk Power Corp. v. State, 300 AD2d

949 (3 rd Dept. 2002). Whether the complaint will withstand a later motion for summary

judgment, or whether Plaintiff will ultimately be able to prove the claims at trial, does not play

any part in the determination. See, EBC I, Inc. v. Goldman Sachs & Co., 5 NY3d 11; Brown v.

University ofRochester, 224 AD3d 1180 (3 rd Dept. 2024). "Notwithstanding the broad pleading

standard, bare legal conclusions with no factual specificity do not suffice to withstand a motion

to dismiss ... [and] '[d]ismissal ... is warranted if the [pleading] fails to assert facts in support of

an element of the claim, or if the factual allegations and inferences to be drawn from them do not

allow for an enforceable right of recovery."' Mid-Hudson Val. Fed Credit Union v. Quartararo

& Lois, PLLC, 155 AD3d 1218, 1219 (3 rd Dept. 2017) [internal citations omitted] quoting

Connaughton v. Chipotle Mexican Grill, Inc., 29 NY3d 13 7, 142 (201 7). On this motion,

Defendant has moved for dismissal under CPLR 3211 (a)(2) and CPLR 3211 (a)(8).

The Court will begin with Defendant's motion and the issue of jurisdiction because that

motion has the potential to be dispositive. If the Court lacks jurisdiction, then it cannot address

Plaintiff's motion for default judgment.

With respect to subject matter jurisdiction, Defendant argues this Court lacks subject

matter jurisdiction because all of the alleged acts of Defendant were performed within the scope

of his employment with the New York State Police Department. Therefore, this is actually an

action against a state actor and only the Court of Claims has jurisdiction to consider such a claim.

Plaintiff's attorney asserts he made a conscious decision to assert his claims against Defendant

individually and purposely sought no remedy against the State in order that this Court would

have subject matter jurisdiction over the matter. While that may be Plaintiff's intent, the question

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of subject matter jurisdiction is not determined by a Plaintiff's preference, but is based on

constitutional and statutory authority. A court may not waive subject matter jurisdiction, and a

defect in subject matter jurisdiction may be raised at any time by the parties or by the court

Caffrey v. North Arrow Abstract & Settlement Servs., Inc., 160 AD3d 121 (2 nd Dept. 2018). The

Court must conduct its own analysis concerning the cause of action being asserted and whether it

is a claim against a state actor or a person acting in their individual, private citizen capacity.

In analyzing subject matter jurisdiction in that context, the Court of Appeals has

explained that:

The Court of Claims has limited jurisdiction to hear actions against the State itself, or

actions naming State agencies or officials as defendants, where the action is, in reality,

one against the State -- i.e., where the State is the real party in interest. Generally, actions

against State officers acting in their official capacity in the exercise of governmental ·

functions are deemed to be, in essence, claims against the State and, therefore, suable

only in the Court of Claims ... Not every suit against an officer of the State, however, is a

suit against the State ....

A suit against a State officer will be held to be one which is really asserted against the

State when it arises from actions or determinations of the officer made in his or her

official role and involves rights asserted, not against the officer individually, but solely

against the State.

Morell v. Balasubramanian, 70 NY2d 297, 300-301 (1987) (internal citations omitted).

In Morrell the Court of Appeals distinguished acts based on official duties from

independent duties owed directly to an injured party. It found that a medical malpractice action

against State physician employees was not one against "State officers or representatives of the

State in their official capacity which had to be brought in the Court of Claims" because the duty

of care was owed directly by a doctor to a patient. Id. at 302. Further, the fact that "plaintiff

could have chosen to proceed in the Court of Claims directly against the State based on its

vicarious liability for defendants' actions does not make the State the real party in interest in the

suit against defendants in Supreme Court." Id.

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The Court highlighted other instances where the ~tate was not the real p~y in interest-

an action against a hospital that operated a State ambulance service, and an action for property

damage caused by employees of the State making street excavations; and where the State was the

real party in interest- an action by a claimant whose license agreement was not renewed by the

State Lottery Division and a claim against the Commissioner of Agriculture and Markets to

recover a license fee after the license was denied. Id. at 301,302. In the former category, there

was an independent duty owed by the actor regardless of whether they were performing services

for the State~ In the latter, the only interaction or duty involved was related to the action being

taken as a State employee.

In applying the holding of Morrell, the Fourth Department has held that when an

employee of the Department of Corrections and Community Supervision (DOCCS) was sued for

operating a vehicle in a negligent manner resulting in injury to the Plaintiff, a driver owed a duty

to other drivers regardless of one's employment status~ Therefore, the action could be brought in

Supreme Court even if the State could be liable secondarily under respondeat superior.

Maiorana v. Green, 236AD3d 1396 (4th Dept 2025). The type of activity giving rise to the claim

is a relevant consideration. The DOCCS employee in Maiorana was driving as part of her job,

and the court found she owed a duty to fellow drivers to not drive negligently. She did not owe

that duty because she was an employee·ofthe State.

Conversely, when employees of a State hospital were alleged to have tortiously interfered

with Plaintiff's employment, the Fourth Department found that the Defendants' allegedly

improper actions were all done while they were investigating Plaintiff's Complaint and therefore

directly connected to their official duties. Jmpellizzeri v. Campagni, 218 AD3d 1210 (4th Dept.

2023). They did not owe plaintiff a duty apart from their interaction with plaintiff in the course

of their job duties. Therefore, the suit should have been brought in the Court of Claims, and

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Supreme Court did not have jurisdiction. The current case is similar in that the Defendant's

interactions with Plaintiff were due to ~e fact he was an employee of the State Police and were

connected with the services he was asked to perform in that capacity by the State (and also by

Matthews who made the complaint regarding the gate and easement).

Plaintiff argues Defendant is conflating individual liability and respondeat superior with

scope of employment in the context of whether the State is the real party in interest. He refers to

an example of a physician and a physician's employer both being liable for a medical

malpractice action. The physician owes a duty to his or her patient independent of the

employment, but the employer can still be held liable under respondeat superior. Plaintiff argues

in this matter, like the physician example, the Defendant, as a New York State Trooper, owed a

duty to Plaintiff independent of his employment with the State. Plaintiff does not identify that

duty-other than to refer to a citizen's constitutional rights. Under that argument, everyone would

owe a duty to any other person not to violate their constitutional rights. Duty needs to be more

specific and direct. Certainly, a State Trooper is not free to violate the constitutional rights of an

individual, but that does not mean any time a constitutional violation is alleged that the Supreme

Court has jurisdiction over the case. The real question is whether Defendant's actions as

described in the Complaint were actions done by the State (through Defendant) or by this

individual alone, independent of his employment with the State.

In Martin v. Lanigan, 150 AD2d 899 (3d Dept 1989) the Third Department_ also analyzed

the question of the capacity in which the defendants were alleged to have acted. Id. at 901. The

court observed that Morell ·'made clear that when defendants have acted in their individual

capacities~ as distinguished from their official capacities, they are the real parties in interest and

an action that so alleges is properly brought in Supreme Court." The court held that because

plaintiffs Complaint failed to allege that the defendants acted in their individual capacities, and

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not in their official roles. and the Complaint did not seek damages arising from the breach of a

duty owed individually by the defendants to plaintiff. plaintiff failed to establish that the

individual defendants were the real parties in interest."' Id.

In Martin v. Baughman, 205 AD2d 966 (3d Dept 1994) the court found that a supervisor

in charge of a Department of Transportation crew could be sued in Supreme Court in his

individual capacity because he owed a duty of care directly to the plaintiff, a motorist injured

using the highway due to an alleged negligent parking of a truck. The court found "no merit in

defendant's contention that as the supervisor of a State work crew he cannot be held to answer

individually to plaintiffs in Supreme Court for any acts taken during the course of his

employment. We fail to see how defendant's decision to park the truck constitutes the exercise of

an "official'" government function, i.e., one implicating the power of the State, such that it can be

deemed to be the real party in interest." Id.

Here, Plaintiff's allegations are concentrated only on acts Defendant performed in

connection with his job as a State Trooper. The only allegations in the Complaint relate to his

job as an employee of the State. He was "assigned to investigate defendant James Matthews'

spurious Complaint" and he "arrested plaintiff." Defendant did not perform any action except in

furtherance of perf9rming his job duties. There is no allegation that Defendant acted

independently in investigating the incident that led to Plaintiff's arrest. Matthews is the one who

initiated the involvement of the State Police, not the Defendant. After Matthews made the report,

Defendant was assigned to respond to the matter- he did not volunteer, offer, or manipulate his

involvement. He was assigned and responded to a call. He then reviewed the evidence and

made decisions based thereupon. All his actions related to the performance of his job duties as a

New York State Trooper. There are no allegations that he had any prior interactions with either

party, or that he had any prejudice, favoritism, or any ill will toward Plaintiff.

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Although Plaintiff's attorney argues he made a conscious decision to bring the action

against Defendant individually, that decision does not control. Regardless of how Plaintiff

attempted to characteri ze this matter in hi s pleadings. the causes of action against Defendant are

nothing more than claims against the State of New York for money damages. Put another way, it

is only because Defendant is a State Trooper that this action against him was brought.

As a result, this action is properly brought in the Court of Claims and not in Supreme

Court. Because this Court lacks subject matter jurisdiction, the Plaintiff's motions are moot.

Without jurisdiction, the Court cannot render a default determination, and there would be no

point in considering the question of personal jurisdiction, or whether Plaintiff should be afforded

an opportunity to re-serve the Defendant. If there is no subject matter jurisdiction, the Court is

without authority to consider the matter further or make 8:IlY directions or orders.

CONCLUSION

Based on all the foregoing, the Court concludes that Defendant's cross-motion to dismiss

is granted and Plaintiff's motion for a default judgment and cross-motion to extend his time to

serve are denied.

Accordingly, it is hereby

ORDERED, that Defendant's motion to dismiss is GRANTED; and it is further

ORDERED, that Plaintiff's motion for a default judgment and cross-motion to extend his time to

serve are DENIED.

THIS CONSTITUTES THE DECISION AND ORDER OF THIS COURT.

Dated: September :,)S ,

2025

Binghamton, New York

H~ AN

Supreme Court Justice

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