New York State Court of Claims

New York State Court of Claims

PITTS v. THE STATE OF NEW YORK, #2000-004-519, Claim No. 100687, Motion No. M-61344


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
EARL D. BUTLER, P.C.BY: David E. Butler, Esq., of counsel
Defendant's attorney:
BY: Earl F. Gialanella, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
June 30, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The State moves to dismiss the Claim pursuant to CPLR §§ 3211 and 3212.

Papers considered by the Court:

Claim filed July 9, 1999 1

Verified Answer, filed August 3, 1999 2

Notice of Motion, filed March 15, 2000 3

Affirmation of Earl F. Gialanella, AAG, in support of motion,
dated March 13, 2000, with attached exhibits 4

Affidavit of Brenda Pitts, in opposition to motion,
sworn to March 22, 2000, filed March 24, 2000 5

Affidavit of David E. Butler, Esq., in opposition to motion,
sworn to March 22, 2000 6

The Claim recites in pertinent part:

2. That this claim is made pursuant to Section 8 of the Court of Claims Act [sic] to recover for damages sustained by the claimant as a result of being falsely arrested, maliciously prosecuted and falsely imprisoned by the State of New York, its officers, agents and employees.

3. That all times herein mentioned, one Alvin W. Epstein was and still is a New York State Parole Officer and as such was and still is an employee of the State of New York.

4. That heretofore and prior to March 8, 1999, Claimant's son, Raymond Jefferies [sic] was on parole and was to report to the Division of Parole on a scheduled basis.

5. That on March 8, 1999, Ramond [sic] Jefferies [sic] had set up an appointment to speak to his then Parole Officer, John Lattimer.

6. That at approximately 2:30 p.m. on March 8, 1999, while attending his appointment with Parole Officer Lattimer, Raymond Jeffries [sic] parole was violated based upon allegations that he harassed one Kim Gassner, and he was forthwith transported to the Broome County Jail.

7. That when the Claimant did not hear from Raymond Jefferies [sic], she became concerned and left work and proceeded to the Parole Division.

8. Upon her arrival, Claimant was met by Parole Officer John Lattimer, who invited Claimant inside to discuss her son's case.

9. While inside, Claimant was advised by Parole Officer Lattimer that her son, Raymond Jefferies [sic], had been violated and was en route to the Broome County Jail.

10. Upon hearing this information, Claimant began to cry, and further inquired as to the reasons for his violation.


11. At that point, Claimant was abruptly approached by Senior Parole Officer Alvin Epstein, who became verbally abusive to Claimant.

12. When Claimant asked Parole Officer Epstein who he was, the verbal abuse escalated to physical abuse as Epstein grabbed Claimant by the arm and shoved her back out to the waiting area, while all of the time Claimant was requesting that someone help and/or call a police officer.

13. Claimant was then shoved through the waiting room area and out into the hall where Epstein shoved her against a wall.

14. By this time, Parole Officers Lattimer, Jones and Jackson were admonishing Epstein to stop what he was doing.

15. Parole Officer Jones then escorted Claimant to the elevator. Before Claimant could get onto the elevator, Parole Officer Epstein ran towards Claimant, advising her that she was being arrested. At that time he grabbed her arms and twirled them behind her back and placed Claimant in handcuffs.

16. On March 8, 1999, Senior Parole Officer Alvin Epstein, disregarding the admonitions given him, intentionally and without any warrant or authority of law, wrongfully, unlawfully, against the Claimant's wish and consent, without probable cause, and on the charges that Claimant had committed the misdemeanors of Obstruction of Governmental Administration 2nd in violation of Penal Law § 195.05, and Criminal Trespass 3rd, in violation of Penal Law §140.10 (1), arrested, imprisoned and confined the Claimant.

17. Parole Officer Epstein, while escorted by Parole Officer Lattimer, then dragged Claimant from the State Office Building, through the parking lot and into the Binghamton Police Department, all the while verbally abusing the claimant.

18. Claimant was then advised that she was being charged with the misdemeanors of Obstruction of Governmental Administration 2
, in violation of Penal Law § 195.05 and Criminal Trespass 3
, in violation of Penal Law § 140.10 (1).

19. Thereafter, Claimant was fingerprinted and photographed and arraigned on charges of Obstruction of Governmental Administration 2
and Criminal Trespass 3
, and was forced to stand charges.

20. By reason of the foregoing improper and unlawful conduct, Claimant has suffered mental and emotional anguish, public degradation and has sought medical treatment therefor.


21. Claimant Repeats and realleges each allegation contained in paragraphs 1 through 19 of the claim herein as if totally set forth at length herein.

22. On March 8, 1999, Parole Officer Epstein intentionally, wrongfully, willfully and maliciously [sic] and without right or a warrant, falsely imprisoned and confined the Claimant herein who was at all times conscious, and unlawfully detained her and deprived her of her liberty while she was photographed and fingerprinted.

23. Such false imprisonment and unlawful detention was done with intent to injure the Claimant who was then and there detained, restrained of her liberty and against her will, and subjected to humiliation and ridicule and prevented from attending to her necessary affairs during such period.


24. Claimant Repeats and realleges paragraphs 1 through 18 of the claim herein as if fully set forth at length herein.

25. On or about the 8th day of March, 1999, Parole Officer Epstein maliciously and without reasonable or probable cause and in violation of law, arrested the Claimant on the criminal charge of Obstruction of Governmental Administration 2
and Criminal Trespass 3
Misdemeanors, which charges were false and known to Parole Officer Epstein to be false, such charges and such arrest having been made without cause.

26. Thereafter, on the 13th day of May, 1999, a Jury Trial on the criminal charges of Obstruction of Governmental Administration 2
and Criminal Trespass 3
was held wherein Defendant was found not guilty on both charges.

27. By reason of the aforesaid false arrest, unlawful detention and malicious prosecution of the Claimant as hereinabove alleged, Claimant was subjected to humiliation and indignities and was prevented from attending to her usual business.


29. That this claim is filed within ninety (90) days of its accrual as required by law.

(Paper No. 1)

State's counsel affirms in pertinent part:

2. This affirmation is in support of a motion to dismiss one cause of action in the claim for jurisdictional reasons, and the entire claim pursuant to CPLR § 3212 as there are no material issues of fact requiring a trial on the claim. The claim was served on the Office of the Attorney General on July 1, 1999. A copy of the claim is attached as Exhibit A. The claim alleges causes of action for false arrest and imprisonment, and malicious prosecution as a result of the claimant being arrested by New York State Division of Parole officers for Obstructing Governmental Administration in the Second Degree and Criminal Trespass in the Second Degree on March 8, 1999.

3. The defendant filed and served a verified answer to the claim on July 30, 1999. A copy of the verified answer is attached as Exhibit B.

4. The claim's first and second causes of action for false arrest and imprisonment must be dismissed because they were untimely served on the Office of the Attorney General...

5. The cause of action for false arrest/imprisonment accrued on March 8, 1999....Later that day she was released, and given an appearance ticket to appear in Binghamton City Court on March 10, 1999 for arraignment....The claimant does not allege she was confined for any period of time after March 8, 1999.

6. Unlike a claim for malicious prosecution which accrues when the criminal proceeding is terminated in favor of the accused, a cause of action for false arrest commences when the confinement terminates. Collins v. McMillan, 102 AD2d 860; Boose v. City of Rochester, 71 AD2d 59, 65. To be timely, the claim for malicious prosecution [sic] had to have been served within 90 days from the day her confinement ended or March 8, 1999. The claim was served on the Office of the Attorney General on July 1, 1999, which is well in excess of 90 days following accrual. No notice of intention to file a claim was served on the Office of the Attorney General.

7. The untimely service of any claim for false arrest was raised with particularity in the sixth affirmative defense in the defendant's verified answer (Exhibit B). The filing and service requirements of the Court of Claims Act are jurisdictional in nature, non-waivable, and must be strictly construed. Greenspan Bros. v. State of New York, 122 AD2d 249; Byrne v. State of New York, 104 AD2d 782, lv. denied 64 NY2d 607. The cause of action for false arrest/imprisonment must be denied.

8. In addition to the above jurisdictional defect with respect to the cause of action for false arrest/imprisonment, the entire claim or both causes of action for false arrest and malicious prosecution must be dismissed pursuant to CPLR § 3212. There are no material issues of fact requiring a trial on the claim, and the defendant is entitled to summary judgment or dismissal as a matter of law.

(Paper No. 4)

At the outset, it is clear that the first and second causes of action, whether read as causes of action for false imprisonment or assault, must be dismissed as untimely. Those causes of action accrued on March 8, 1999, when Claimant was allegedly manhandled and when she was released from custody (Palmer v City of New York, 226 AD2d 149) and thus were untimely served on July 1, 1999. The filing and service requirements of the Court of Claims Act are jurisdictional in nature and, therefore, must be strictly construed (see Greenspan Bros. v State of New York, 122 AD2d 249; Byrne v State of New York, 104 AD2d 782 lv denied 64 NY2d 607). Defendant raised the untimely service defense with particularity in its Verified Answer as required (Paper No. 2) (see, Court of Claims Act § 11 [c]; Uniform Rules for the Court of Claims, 22 NYCRR § 206.7 [a]). As the Court will dismiss those causes of action as untimely, it need not reach the issue of summary judgment with respect to false arrest and assault.

A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" (CPLR 3212 [b]). CPLR 3212 goes on to provide that a motion for summary judgment shall be denied "if any party shall show facts sufficient to require a trial of any issue of fact (CPLR 3212 [b] [underscoring added]). With regard to this provision, the Court of Appeals has held:
[B]ecause "summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue" (Moskowitz v Garlock, 23 AD2d 943, 944), we have scrutinized the affidavits carefully, in the light most favorable to [the non-moving party]. But only the existence of a bona fide issue raised by evidentiary facts and not one based on conclusory or irrelevant allegations will suffice to defeat summary judgment.

(Rotuba Extruders v Ceppos, 46 NY2d 223, 231; see also, Nidds v Procidano, 95 AD2d 912).

In support of a cause of action for malicious prosecution, a Claimant must show "(1) The initiation of a proceeding, (2) its termination favorably to [Claimant], (3) lack of probable cause, and (4) malice." (Colon v City of New York, 60 NY2d 78, 82).

The Claim for malicious prosecution was timely served and filed.

There is no real dispute that a criminal proceeding was initiated by a State employee, which ultimately terminated in favor of the Claimant. So, in order for the Court to grant summary judgment to the State, it must find that as, a matter of law, there was probable cause to arrest the Claimant and the absence of malice.

State's counsel affirms in pertinent part:
10. To establish a cause of action for either false arrest or malicious prosecution the claimant must show that Senior Parole Officer Epstein did not have probable cause to arrest her for either Criminal Trespass in the Third Degree or Obstructing Governmental Administration in the Second Degree, the two crimes she was charged with. Probable cause is defined as such facts and circumstances which would lead a reasonably prudent person to believe the claimant is guilty. Id., at 78. An individual is guilty of Criminal Trespass in the Third Degree when "he knowingly enters or remains unlawfully in a building or upon real property which is fenced or otherwise enclosed in a manner designed to exclude intruders;". Penal Law § 140.10(a). "A person "enters or remains unlawfully" in or upon premises when he is not licensed or privileged to do so.". Penal Law § 140.00(5). Additionally, a person who enters or remains in premises open to the public does so with license and privilege unless they defy a lawful order not to enter or remain personally communicated to them by an authorized person. Penal Law § 140.00(5). A person is guilty of Obstructing Governmental Administration in the Second Degree "when he intentionally obstructs, impairs or prevents the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference,...". Penal Law § 195.05.

(Paper No. 4)

In support of the motion, Officer Alvin Epstein avers in pertinent part:

2. As a senior parole officer I am the immediate supervisor for the field parole officer, and responsible for overseeing the day-to-day operations of the office. The Division of Parole's Binghamton Officer is located on the Third Floor of the State Office Building, 44 Hawley Street, Binghamton, New York.

3. That on March 18 [sic], 1999, at approximately 3:40 p.m., parole officers from the Binghamton office arrested parolee Ramon [sic] Jeffries for a parole violation. Mr. Jeffries is serving a sentence of 8-1/3 to 25 years for a Manslaughter in the First Degree conviction in 1987 and was paroled in 1997 and assigned to the Binghamton area office for supervision.

4. At approximately 3:50 p.m., I saw a woman talking to Parole Officer John Lattimer in our office's reporting station continually asking him where her son was. She was upset and agitated.

5. The office reporting station is an enclosed room and is adjacent to the office's waiting room which is used by reporting parolees. A locked door separates the waiting room from the reporting station. Individuals in the waiting room can only gain access to the reporting station by a parole officer or employee unlocking the door from the waiting room side of the door or letting them in from the inside or reporting station side of the door. The waiting room is an enclosed room directly off the third floor public hallway in the State Office Building.

6. I went to the reporting station to see if I could be of any assistance to Officer Lattimer. Ms. Pitts turned to me and asked if I was Senior Parole Officer Epstein and I responded I was. She then yelled at me saying "I know you, you are Parole Officer Epstein, you had my son at Woodbourne and gave him a hard time, and my son did nothing wrong and should not have his parole violated". Prior to being assigned to the Binghamton area office as the senior parole officer, I was the facility parole officer II (a supervisor) at the Woodbourne Correctional Facility in Sullivan County. I was at Woodbourne at a time when Mr. Jeffries was incarcerated there and considered for parole, but I had no prior dealings with Ms. Pitts or any interest in his Parole Board appearance other than as the office supervisor.

7. I told Ms. Pitts her son was taken into custody and asked her to quite down. She was extremely agitated, and getting loud and boisterous. She refused to do so and again accused me of giving her son a hard time and wanting to know why he was violated. She also accused me of having a vendetta against her son. I told her she had to leave the office. She refused to leave. I then partially opened the door separating the waiting room from the reporting station and told her she had to leave or be arrested. She again refused. I then took hold of her arm and directed her towards the door and told her to leave. She refused and was pushing me back.

8. In the waiting room both Officer Lattimer and I attempted to get her to leave. She was told if she did not leave she would be arrested. She again pushed me and would not leave. At that point I decided to place her under arrest pursuant to the duties I have as a peace officer under the New York State Criminal Procedure Law. I did not have any handcuffs in my possession at the time so I asked Officer Lattimer for his handcuffs but he told me he did not have his because he just used them to arrest Mr. Jeffries. Parole area supervisor Simon handed me his handcuffs. I handcuffed Ms. Pitts and told her she was under arrest.

9. After her arrest Parole Officer Lattimer, Officer Jeffrey Jones, and I walked her over to the Binghamton Police Department on State Street. At the station, I signed two criminal informations charging her with Criminal Trespass in the Third Degree (Penal Law § 140.10[a]), and Obstructing Governmental Administration in the Second Degree (Penal Law § 195.05). After the informations were completed and given to her, she was given an appearance ticket by the Binghamton Police to appear in the Binghamton City Court for arraignment and she was released from custody. The appearance ticket was made returnable on March 10, 1999. She appeared in Court, pled not guilty, and was released on her own recognizance.

10. On May 13, 1999, a jury trial on the criminal charges took place in the Binghamton City Court before the Honorable John T. Hillis. Evidence was presented and the charges were submitted to the jury. Ms. Pitts was found not guilty on both charges.

11. I arrested Ms. Pitts for Criminal Trespass because she refused to leave our office after being told continuously that she had to leave. She was arrested for Obstructing Governmental Administration because her physical interference with our attempting to remove her from our office by pushing me in the reporting station and waiting room, and physically resisting her removal. Also, the commotion caused by her agitated state in the waiting room was disruptive to the orderly operation of the office. There were three parolees in the waiting room at the time, and the disturbance drew the attention of several other employees in our office.

(Paper No. 4, Ex C)

In opposition, Brenda Pitts avers in pertinent part:

1. That I am the Claimant above-named. I make this Affidavit in opposition to Defendant's Motion for Summary Judgment. I am fully familiar with all of the facts and circumstances heretofore had herein [sic]. I have reviewed the Motion papers of the Defendant, including all Affidavits and Exhibits attached thereto.

2. The present action is one for false arrest, false imprisonment and malicious prosecution.

3. By way of brief background, I have met parole Officer Lattimer numerous times and he has always attempted to work with my son, Raymond Jeffries, and myself. As a matter of fact I have been invited into the Parole Division by numerous Parole Officers in the past.

4. Additionally, my son Raymond was being harassed by his ex-wife, Kimberly Gassner, who had threatened him that she was going to have him violated by telling Parole authorities that he threatened to kill her.

5. In an effort to beat Kimberly to the punch, Raymond and I taped numerous phone conversations with Kimberly, during which she threatened to have Raymond's Parole violated.

6. Prior to the 8th day of March, 1999, Raymond and I delivered these tapes to Parole along with several letters from Kimberly Gassner and advised the Parole authorities of their contents.

7. On the 8th day of March, 1999, Raymond advised me that he had a 2:30 p.m. appointment at the Division of Parole, with his Parole Officer John Lattimer.

8. Knowing that parole had custody of the tapes and letters, I requested that Raymond contact me when he arrived at the Parole Division to let me know if everything was alright.

9. After 2:30 had come and gone, I became worried and proceeded to the Division of Parole to ascertain why Raymond had not contacted me as he always did.

10. I proceeded into the Parole Division waiting room and asked the receptionist if Raymond was still with Officer Lattimer. She contacted somebody and soon thereafter Officer Lattimer appeared, and upon recognizing me asked me to accompany him through a doorway into the offices. We had to proceed through a closed door separating the waiting area from the rest of the parole division.

11. Once inside the door, Officer Lattimer advised me that Raymond had been violated. I started to cry and inquired of him the reason for the violation, and I asked him if he had heard the tapes and read the letters.

12. Before Officer Lattimer could respond, Parole Officer Epstein, (who is very familiar with Raymond and his history), confronted me and started yelling at me. He screamed that I "better keep away from that girl Kimberly!! Don't bother her, don't call her, nothing!"

13. When I gathered my senses I asked (Epstein) his name. He responded "that you'll find out." Officer Lattimer then told me who he was. Once I heard his name I knew who he was from Raymond's past.

14. All of a sudden.[sic] Officer Epstein screamed "get out of my office", despite the fact that I was in the hallway talking to Officer Lattimer.

15. I turned to Officer Lattimer and asked him again if he could tell me where Raymond is. It was at that point that Officer Epstein grabbed me by my coat and shoved me towards the locked door, and despite my pleas, opened the door with my body and continued to pull and shove me into the waiting room. All the while I was pleading for somebody to help me and to get Officer Epstein off of me. He then shoved me against the wall in the waiting room, and injured my shoulder. At that point Officer Lattimer yelled to Officer Epstein to stop. At the same time, Parole Officer Jackson appeared and yelled "what's going on".

16. My pleas were finally answered and Officer Epstein stopped. Parole Officer Jones came running down the hall and and [sic] I asked him to please walk me to the elevator so I could get away from Officer Epstein. Parole Officer Jones complied and escorted me to the elevator.

17. While we were waiting for the elevator, I mentioned to Parole Officer Jones that Kimberly Gassner had gotten Raymond violated. I was still crying and upset.

18. All of a sudden, Officer Epstein ran up behind me and yelled "that's it, I'm arresting you." He grabbed my arms and twisted them behind my back and handcuffed me.

19. Officer Epstein then proceeded to drag me from the Parole Division into the elevator, across a large parking lot, and into the Binghamton Police Station.

20. Officer Lattimer accompanied us to the Police station and was present when Officer Epstein yelled at me that "apples never fall far from the tree, do they?"

21. I was then placed in a room at the police station with three parole officers. I was then advised by one of the parole officers that if I didn't want to be arrested I had better do what Officer Epstein wants. Still crying, I said "I thought I was arrested". At that point a police officer said "o.k. your arrested [sic]. I was then fingerprinted and photographed.

22. I was then charged by Officer Epstein with the crimes of Obstruction of Governmental Administration and Criminal Trespass.

23. I demanded a Jury Trial which took place on the 13th day of May, 1999, at the conclusion of which I was acquitted of all charges.

24. At that trial Officer Epstein testified precisely in accord with his present affidavit, and, not surprisingly, he was not believed by a single juror.

25. Officer Lattimer also testified on behalf of the People and upon cross-examination when questioned about Officer Epstein's comments about "apples not falling far from the tree", replied that he heard such statement and believed that Officer Epstein was referring to Raymond.

26. I also called James Norton as a witness. He testified that he observed Epstein manhandle me only seconds after I entered the Parole Division and that he observed him drag me out and onto the elevator. Unfortunately, Mr. Norton is not currently available to give an affidavit.

27. These certainly are sharp issues of fact as to the occurrences giving rise to my arrest, confinement and trial. In the circumstances I would ask the Court to deny the State's motion for summary judgment.

(Paper No. 5)

Probable cause is defined as "such grounds as would induce an ordinarily prudent and cautious person, under the circumstances, to believe that [Claimant] had committed the [crime]" (Stratton v City of Albany, 204 AD2d 924, 925). Malice in a malicious prosecution cause of action can be defined as the "commence[ment] [of a]...criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served (citation omitted)." (Nardelli v Stamberg, 44 NY2d 500, 503) Malice may be inferred if the defendant acted with a reckless or grossly negligent disregard of Claimant's rights. (Boose v City of Rochester, 71 AD2d 59). Here, the differing versions of the Claimant and the Officer present material issues of fact as to whether there was probable cause and malice.

In light of the foregoing, it is

ORDERED that Motion No. M-61344 is GRANTED in part and DENIED in part, in accordance with this Decision and Order.

June 30, 2000
Binghamton, New York

Judge of the Court of Claims