TILLMAN v. STATE (2024)

Order of the Court of Claims of the State of New York (Linda K. Mejias–Glover, J.), entered February 8, 2023, which denied claimant's motion for summary judgment and granted defendant's motion for summary judgment dismissing the claim, unanimously affirmed, without costs.

Claimant was erroneously listed on New York's public sex offender registry website after his cousin assumed his name and birth date when registering as a sex offender.  The error was subsequently corrected, but claimant's name continues to be listed as an alias of his cousin.

Claimant's defamation claim was properly dismissed as barred by governmental function immunity (see generally McLean v. City of NY, 12 N.Y.3d 194, 199, 878 N.Y.S.2d 238, 905 N.E.2d 1167 [2009]).  Even if the alleged misconduct was ministerial and not discretionary in nature, claimant has failed to show a special duty (see id. at 199, 202–203, 878 N.Y.S.2d 238, 905 N.E.2d 1167;  Hephzibah v. City of New York, 124 A.D.3d 442, 443, 997 N.Y.S.2d 900 [1st Dept. 2015], lv denied 26 N.Y.3d 903, 2015 WL 5150288 [2015]).  Correction Law § 168–r(1) does not create a private right of action on behalf of claimant because he is not within the class of persons it is intended to protect.  Indeed, claimant admits that the misconduct at issue did not reflect any discretionary decision-making, which is the subject of the immunity waiver at Correction Law § 168–r(1).