New York State Court of Claims

New York State Court of Claims

AMALFI v. THE STATE OF NEW YORK, #2001-005-517, Claim No. 91180, Motion No. M-60731


The dismissal of parallel claims by a federal magistrate and federal jury, related to the arrest and detention of Claimant, by reason of collateral estoppel and res judicata, require dismissal of those causes of action in the Court of Claims. With no underlying untoward acts by the State Trooper, negligent training and supervision may not survive. The only articulated allegations of the infliction of emotional harm are intentional acts, and that cause of action must be dismissed as against public policy.

Case Information

KEVIN AMALFI AND SUZANNA AMALFI, HUSBAND AND WIFE The caption has been amended sua sponte to reflect the only proper Defendant herein.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only proper Defendant herein.
Third-party claimant(s):

Third-party defendant(s):

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

Donald J. Corbett, Jr.
Claimant's attorney:
Brenna & BrennaBy: Robert L. Brenna, Jr., Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Thomas G. Ramsay, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 29, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 13, were read on motion by Defendant for an order dismissing the claim, or in the alternative, for leave to amend the answer:

1, 2 Notice of Motion, Affirmation and Exhibits filed November 22, 1999

3, 4 Claimants' Affirmation and Herrick transcript filed December 17, 1999
  1. Claimants' Memorandum of Law dated December 15, 1999
  2. Defendant's Reply Affirmation filed January 7, 2000
7, 8 Claimants' response to Reply Affirmation and Proposed Amended Claim Filed January 13, 2000
  1. Claimants' Memorandum of Law dated February 22, 2000
  2. Defendant's Supplemental Affirmation and Exhibit filed February 28, 2000
  3. Defendant's letter dated April 5, 2000, and attachment
12, 13 Filed papers : Claim, Answer

Upon the foregoing papers, and after hearing Thomas G. Ramsay, Esq., on behalf of the Defendant and Robert L. Brenna, Jr., Esq., on behalf of the Claimants, this motion is granted.

The Defendant seeks, inter alia, to dismiss the claim herein, filed on February 17, 1995, seeking money damages arising out of the arrest and detention of Claimant Kevin Amalfi on February 19, 1994. The claim alleges excessive use of force, false arrest, wrongful imprisonment, illegal search and seizure in violation of certain provisions of the United States Constitution. The claim also alleges assault and battery, intentional or negligent and/or grossly negligent infliction of emotional distress, and the failure to properly supervise, train and control State Trooper Scott Brotz.

A contemporaneous action was commenced in Federal District Court for the Western District of New York, alleging similarly articulated causes of action as the claim herein, arising out of the arrest of Kevin Amalfi by Trooper Brotz on February 19, 1994. After a jury trial in Federal District Court, a judgment was entered on September 20, 1999, in favor of Trooper Brotz. Defendant contends that all outstanding issues were resolved to Claimants' detriment in the federal court action and that the answer should be amended to allow an affirmative defense sounding in collateral estoppel and res judicata, leaving aside for the moment the arguments regarding the stipulation prior to trial withdrawing Claimant Suzanna Amalfi's causes of action in the federal action.

No cases in this court seem to invoke more raw emotion than those cases which concern alleged police brutality and/or the use of excessive force. Irrespective of the fault, the fragile trust between the members of the public and the police authority is shaken, to the detriment of us all. The police are charged with the duty and obligation to enforce the law, and the citizenry is obliged to obey the law. The law provides relief for members of the public whose rights are violated by members of police forces, in both federal and state courts. But the question before me in many respects is whether when that one bite at the apple, here in the federal court to Claimant Kevin Amalfi's chagrin, was sufficiently distinct from the claim at bar to allow him to proceed here. So may he, along with his wife, now come back to me, in state court, and seek relief for that which purportedly was not already litigated. Obviously, Claimants have a very high bar to clear before they can proceed any further. What is clear, and really is not in dispute, is that Claimants may not relitigate the same matters which they have already tried, and lost in the federal court. My task is to sift out that which may remain, and, if any causes of action endure after the initial screening, then to see if any survive Defendant's summary judgment arguments.

As a necessary first step, I must review the federal court action and results. Defendant asserts, without any dispute from the Claimants, that Suzanna Amalfi withdrew her causes of action in the federal action with prejudice, and that the Federal Magistrate Judge dismissed, on the law, the causes of action addressing the legality of Claimant Kevin Amalfi's arrest (Footnote 4 to Defendant's Affirmation in Support of the motion herein [Paper # 2]). The verdict sheet from the federal court action (Exhibit C) is instructive. In response to the Special Verdict Form, Question 1, "Do you find by a preponderance of the evidence that defendant Brotz used excessive force during the arrest of plaintiff Amalfi?", the jury answered "no." Again using the preponderance of evidence standard, Question 2, asking whether Brotz committed a battery on Kevin Amalfi, and Question 3, whether Brotz intentionally caused an infliction of emotional distress upon Kevin Amalfi, were both answered "no" by the jury. Thus, Defendant urges that the claim before me is barred by principles of collateral estoppel and res judicata.

The principle that when material acts or questions in issue have been judicially determined they may not be relitigated in a subsequent action has a bedrock foundation in our law (Ryan v New York Tele. Co., 62 NY2d 494, and especially see, Cardozo, J., in Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, at 306-7). While not a perfect analogy, one can reshuffle the deck and raise the same issues in a different order and with different emphases, but in the end, the cards all have the same spots and values, and one cannot redeal the cards after the hand has been played. In other words, Kevin Amalfi had certain claims heard before an impartial jury, and they declined to find in his favor, and the Defendant properly seeks the relief here.

The only causes of action not otherwise litigated to a conclusion in the federal action are those sounding in the failure to properly train or supervise Trooper Brotz, and the infliction of emotional distress. Causes of action sounding in the intentional infliction of emotional harm by the State of New York are not viable as they are against public policy (Wheeler v State of New York, 104 AD2d 496; De Lesline v State of New York, 91 AD2d 785, appeal denied, 58 NY2d 610). As to the allegations sounding in the failure to properly train or supervise Trooper Brotz, they too may not withstand scrutiny. Since all of the underlying acts, to wit, excessive force, battery, etc., were not proven in the federal court by a preponderance of the credible evidence, it appeared that there was nothing untoward, no overt acts, that Trooper Brotz did for which the Defendant here can be said to have improperly supervised or trained him. Nonetheless, at oral argument of this matter, I invited Claimants to provide case law or additional argument which might permit this cause of action to survive in the face of the federal court findings, specifically seeking law which would counter the Defendant's argument that, in the absence of any finding of untoward conduct by Brotz by the federal court, how could a cause of action sounding in improper training and supervision survive? Claimants have offered nothing to diminish the logic which supports that syllogism.

Additionally, I reject Claimants' reasoning that they should have another day in front of me because in the federal action "the Attorney General's Office successfully precluded Plaintiff from introducing evidence of other allegations of misconduct by Trooper Brotz", and that the jury "was not allowed to hear evidence about the regulations, training or Orders ... which Plaintiff submits was violated by Trooper Brotz' conduct." The Defendant here raises cogent and persuasive arguments that preclusion of such evidence at the trial should have been tested by an appeal there, rather than what is requested, my trial level (and obviously non-appellate) review of the same evidentiary questions. Again I invited Claimants to supply precedent, but nothing presented before me provides any justification to pierce the veil of another judge's trial rulings.

Claimants strive mightily by supplying selected portions of the deposition of Sergeant Steven L. Herrick, taken on July 27, 1999, addressing this issue. Supporting this argument was Claimants' reliance upon prior complaints about Trooper Brotz, more specifically two claims in this Court complaining of Trooper Brotz' conduct as a State Trooper. This argument dissolved as Lessner v State of New York, Claim No. 85574, had previously been discontinued with prejudice, and Carmel v State of New York, Claim No. 85854, alleging excessive use of force and negligence, was dismissed by Hon. Philip J. Patti (judgment entered April 3, 2000). Since there are no unresolved untoward acts by Trooper Brotz surviving from the federal action, and Claimants have not enumerated any remaining outstanding claims filed in this Court which implicate Trooper Brotz, and without any other unresolved claims of improper conduct by Trooper Brotz raised before me, a cause of action sounding in negligent training or supervision simply cannot survive. Accordingly, to the extent that such causes of action are alleged, they must be dismissed.

In response to the motion, Claimant Kevin Amalfi opposed the relief sought and alternatively, requested to replead and amend the claim. Leaving aside the failure to have sought this affirmative relief by the traditional notice of cross-motion (CPLR 2215), and noting that the initial failure to provide a proposed amended claim is not fatal particularly in the absence of alleged prejudice[1], the application to amend the claim is somewhat convoluted. Claimants' papers seem to accentuate that the findings in the federal action addressed only intentional acts by the Defendant and particularly Trooper Brotz, and that, since the federal jury could consider negligent acts as a defense to the federal court claims, that is what has potentially survived in the Court of Claims. Nonetheless, in the absence of prejudice, and for the clarity of the ruling in this proceeding, I will address the amended claim as if it had been filed.

The nature of the underlying causes of action in the amended claim, no matter how syntactically drafted, fail to convert what is overtly intentional conduct into negligence. Merely inserting the term negligence cannot eliminate the necessarily intentional aspects of an arrest or imprisonment or an assault/battery. Even the language of the amended claim alleges as an alternative the intentional actions of Trooper Brotz, which, as noted above, were all dismissed or unfounded in the federal proceeding. It would be a sham to allow the amended claim to be filed to the extent that it asserts causes of action which have been dismissed in federal court and which I will not permit to be relitigated.

Claimants have also raised claims which fall outside the previously decided causes of action. Specifically, Claimant Kevin Amalfi alleges a violation of the New York State Constitution "when he was improperly detained and injured following a traffic stop, and when, thereafter, he was harassed and his freedom of movement interfered with." However, since the causes of action addressing the arrest were dismissed on the law by the magistrate, and since the battery and excessive force claims were dismissed by the federal court jury, those issues cannot be relitigated. As to the harassment and interference of freedom of movement, while they sound suspiciously in intentional and not negligent conduct, case law suggests that no constitutional remedy exists when Claimant's "constitutional tort allegations may be analogized to an existing common-law tort[s] for which there are adequate alternative remedies" (Augat v State of New York, 244 AD2d 835, 837, lv denied 91 NY2d 814; see also, Remley v State of New York, 174 Misc 2d 523). Here the injuries alleged could be redressed by a common law cause of action (Remley, id.). Claimant Kevin Amalfi alleges no cause of action that is not otherwise cognizable under the common law, and as such no viable allegation under the State Constitution may survive (Brown v State of New York, 89 NY2d 172; Remley v State of New York, supra).

Now addressing briefly the claims of Claimant Suzanna Amalfi, I reject the Defendant's arguments that the stipulation dismissing with prejudice her claims in federal court should extend to the claim before me. The stipulation was prepared with a caption for the federal courts, and not for the Court of Claims, and there is nothing to indicate, and I choose not to infer, that it incorporates the Court of Claims action. That being said, however, does not insulate her causes of action from scrutiny. First, since all of Claimant Kevin Amalfi's claims are dismissed, no derivative cause of action on Suzanna Amalfi's behalf may survive. Second, to the extent that she asserts violations of her rights under the New York State Constitution, the same constraints that require dismissal of Kevin Amalfi's state constitutional claims apply to Suzanna Amalfi as well.

The last issue to address is the infliction of emotional distress, or extreme emotional distress. As noted above, the intentional infliction of emotional distress will not lie against the Defendant, thus I reviewed the amended claim to the extent that it articulates allegations of the negligent infliction of emotional distress. First, with respect to Kevin Amalfi, the amended claim alleges that he "suffered personal injuries through the negligence or wanton and reckless acts" of Trooper Brotz. The specific acts are enumerated in Paragraph 5: (a) the wrongful detention and injury of Kevin Amalfi; and (b) Brotz' following of Kevin Amalfi, watching him, "with the intent to instill fear and intimidate Mr. Amalfi..." (emphasis supplied). As to Paragraph 5 (a), those acts were addressed in the federal action, and in any event, one of the basic and essential elements of a cause of action for wrongful detention and deprivation of movement is the intent to confine (Broughton v State of New York, 37 NY2d 451, 456, cert denied sub nom. Schanbarger v Kellogg, 423 US 929), inherently outside the parameters of a negligent act. As to Paragraph 5 (b), the complained of act relies upon Trooper Brotz' "intent" to instill fear, obviously sounding in the intentional infliction of emotional harm, and not any negligent conduct. Accordingly, as to Claimant Kevin Amalfi, there are no allegations of the negligent infliction of emotional harm, and to the extent that the amended claim sounds in the infliction of emotional harm, either intentional or negligent, it is dismissed.

Last, with respect to Claimant Suzanna Amalfi, the amended claim alleges in Paragraph 3 (b) that she suffered extreme emotional distress resulting from the "wanton, reckless or intentional acts of Trooper Brotz" when he "spoke harshly to [her], and threatened her with arrest while she attempted to have her husband released from custody, knowing that Claimant Suzanna Amalfi was pregnant, and in a vulnerable state" (Paragraph 5 [c], emphases supplied). The language of the amended claim, drafted to overcome the obstacles of intentional versus negligent conduct, belies Claimants' arguments. The act complained of incorporates foreknowledge and intent. No cause of action sounding in negligent infliction of emotional harm is alleged, and the amended claim, as brought on behalf of Claimant Suzanna Amalfi, must also be dismissed in its entirety.

Accordingly, the Defendant's motion to amend the answer to assert the affirmative defense based upon collateral estoppel and/or res judicata is granted, and such defense having thus been asserted, the motion is granted and the claim is dismissed.

May 29, 2001
Rochester, New York

Judge of the Court of Claims

[1] Ausderau v State of New York (130 Misc 2d 848, aff'd 127 AD2d 980, appeal denied, 69 NY2d 613), relied upon a court rule no longer in effect; see, Rodriguez v State of New York (153 Misc 2d 363).