New York State Court of Claims

New York State Court of Claims

ELY v. THE STATE OF NEW YORK, #2002-001-506, Claim No. 100163


Case Information

RICHARD K. ELY The original caption also names the "Department of Environmental Conservation," which is not an entity distinct from the State of New York; therefore, the Court, sua sponte, has amended the caption to reflect the only proper defendant here, the State of New York (see, Court of Claims Act § 9).
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The original caption also names the "Department of Environmental Conservation," which is not an entity distinct from the State of New York; therefore, the Court, sua sponte, has amended the caption to reflect the only proper defendant here, the State of New York (see, Court of Claims Act § 9).
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
David K. Lieb, P.C.By: Andrea Thompson, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: John M. Shields, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
July 11, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

In April 1998, claimant Richard K. Ely ("Ely"), a self-employed arborist, operated his business, "Richard K. Ely Tree Services," from property located at 126 E. Moriches Boulevard, Eastport, New York, owned by Chester (Chet) Massey ("Massey"), with whom he had a "verbal lease agreement."[1]
Claimant operated out of a greenhouse on the Massey property, and parked trucks and stored other equipment associated with his tree service business there. He employed two part-time drivers at the time.
From his residence on adjoining property, Michael O. Flynn, Jr. ("Flynn") observed that claimant's trucks were loaded with debris such as landscape waste at dusk, but empty the following morning. He suspected that claimant was illegally dumping the debris overnight in an area near a service road of the Sunrise Highway in Eastport. In the early evening of April 14, 1998, Flynn telephoned an officer who handled the Eastport area for the New York State Department of Environmental Conservation ("DEC") to report these suspicions, and reached Environmental Conservation Officer Dallas Bengel ("Bengel") at his residence.[2]

According to Flynn's subsequent supporting deposition, Bengel "asked that we [Flynn and his wife] monitor the truck the best we could, and to phone him when the truck was leaving" (claimant's exh. 1). When asked at trial how the conversation with Bengel ended, Flynn answered that "I think that I told him that I would either watch the truck or he had either asked me to watch the truck or I had told him--I don't recall which it was--and if the truck had left that I would call his residence and let him know." When referred to his supporting deposition with its statement that he and his wife were asked to "monitor" the comings and goings of Ely's truck, Flynn testified that "I don't know if I was asked in that--in those words or not, but that was the tone of the conversation."

For his part, Bengel testified that he told Flynn that "I am not able to go out and sit on a vehicle just because I think there may be a potential violation in the future, but that if he sees the truck leave, give me a call and I'll go out and take a look." When asked if he told Flynn to "monitor or watch" Ely's truck, Bengel replied "No, basically that if you see the vehicle leave, to give me a call."

Before leaving for a fishing club meeting that evening, Flynn, an environmental contractor by profession, grabbed a bottle of non-toxic, violet tracer dye from his vehicle, walked onto the Massey property, climbed onto claimant's truck and jammed the open bottle, which was one-quarter to one-third full, amongst the debris in the truck's bed. The material or debris sticking over the top of the truck that Flynn "remember[ed] clearly was yellow poly sheeting, plastic sheeting."

When asked if he had informed anyone at DEC that he intended to place tracer dye in claimant's truck, Flynn responded "No." When asked why he had chosen to do this, Flynn answered that "[i]t was something that I had just thought of as I was walking out the door. I really couldn't tell you why. It was something that I use a lot and makes a big, big mark and if it had spilled out everything there would have been bright purple and hard to miss" and "[s]o that I could show myself that I knew where this stuff was being dumped and that if for some reason this stuff did spill out I would know the spot that he was dumping at and I would be able to--I would know where the stuff was being dumped. That's really the only reason."

Upon returning from the fishing club meeting later that evening, Flynn drove to a boundary of his property and shone his vehicle's headlights towards claimant's debris laden truck. He testified that he detected two people in the truck and that its motor was running, and so he immediately telephoned Bengel to relay this information to him.

Flynn testified that the truck soon left, with a second, smaller truck close behind. Both trucks returned about 15 to 20 minutes later, and the smaller of the two left the Massey property with two occupants. Flynn again telephoned Bengel's residence, this time leaving a message that the truck had returned.

According to Bengel, when he learned from Flynn that claimant's truck had pulled out, he drove to the service road near the Sunrise Highway in Eastport to investigate the area that he understood Flynn to have identified as a potential dumping site, but saw nothing suspicious. Upon returning to his residence, Bengel learned from his wife that Flynn had telephoned again with the news that claimant's truck had returned.

Early the next morning, Flynn traveled to the area where he surmised that claimant had been dumping debris, and found fresh tire tracks and a pile of misshapen tree parts and stumps. He spotted and retrieved his bottle of tracer dye, which had remained upright, tucked in amidst the yellow poly sheeting. The nature of the debris[3]
and the presence of the bottle of tracer dye as well as the presence on the debris of claw marks that Flynn associated with equipment used by claimant confirmed his hunch that claimant had been illegally dumping debris in this area.
Flynn next returned to his residence to telephone DEC officials to report his discovery of freshly dumped debris, but was at first unable to reach anyone. He also spoke to Massey to inform him that claimant "was illegally dumping waste that he was generating on Massey's property and that the DEC had been informed and that they were moving, going forward with an investigation or something of that nature."

When asked his "purpose" for so informing Massey, Flynn replied "I don't recall if there was any specific purpose other than explaining to him what had been done." When it was suggested that he might have been trying to encourage Massey to oust claimant from his property, Flynn replied that "I never asked, asked him to ask [claimant] to move, but now that you bring it up it seems like it was a pretty good idea."

Whatever Flynn's purpose, the immediate effect of his conversation with Massey was to tip claimant off to the allegation that he had illegally dumped debris near the service road of the Sunrise Highway in Eastport, and that DEC was investigating: Massey and his son, Paul, confronted claimant with this information soon after learning it from Flynn.

Claimant testified that when the Masseys summoned him that morning, which was "very rare," he soon sensed "some sort of implication of agitation on Paul's part." Fearing that his oral lease with Massey had been put at risk by Flynn's accusations, claimant immediately drove to the identified area to see what was there. Although he observed no debris associated with his business, claimant returned to the Massey property and loaded his "machine" (what was also referred to in the testimony as a skid steel claw loader) onto his trailer and drove his truck with the trailer in tow to the location and started to clear debris with the machine. According to claimant, he took this action "robotically" because he "felt obligated to rectify this [situation] and quiet these people down" and to "quell the dispute."

Flynn, who surprised claimant in the act of cleaning up the debris,[4]
testified that claimant volunteered that "his guys dumped it or his men dumped it that night. ‘My guys must have done it'" or words to that effect. In his supporting deposition, Flynn further stated that when he accused claimant of having, in fact, dumped the debris himself, claimant replied "I don't know what to say" (claimant's exh. 1).
Claimant testified that he was "taken aback" to see Flynn, the "facilitator" of his difficulties, at the dumping site. According to claimant, when Flynn remarked "You're in it now," he rhetorically replied "What can I say?"

Flynn eventually reached Bengel by telephone on the morning of April 15, 1998, and told him what he had discovered in his early morning foray to the service road. Flynn for the first time disclosed to Bengel that he had the previous evening placed a bottle of tracer dye in the debris in claimant's truck, which he claimed to have recovered that morning from the freshly dumped pile of debris; he also informed Bengel that claimant was at that very moment at the location cleaning up this material. Bengel advised Flynn that he was dispatching someone to investigate, and directed Environmental Conservation Officer Joseph J. Kiefer ("Kiefer") to do so.

According to Kiefer's subsequent memorandum to file (claimant's exh. 4), when he arrived at the scene he found claimant loading brush and land clearing debris into his truck. Kiefer asked claimant why he was doing this, and claimant stated "he was picking up said debris as a public service," but when Kiefer skeptically followed up by asking claimant "if he dumped the debris in question . . . [claimant] stated he didn't but his men might have" (
id.; see also, claimant's exh. 2 [deposition of Joseph J. Kiefer sworn to Nov. 29, 2000 ("Kiefer Dep.")], at p 12, lines 18-25 and p 13, lines 2-9). When claimant was unable to produce his driver's license or the requested paperwork for his truck and trailer, Kiefer told him that he would meet him around noon at his residence to straighten matters out (claimant's exh. 4, Kiefer Dep., p 14, lines 18-25, p 15, lines 2-13).
When they subsequently met at claimant's residence, Kiefer issued claimant an appearance ticket charging him with violating ECL § 71-3501 ("Putting noisome or unwholesome substances or maintaining noisome business on or near highway"). Kiefer wrote this ticket (claimant's exh. 3) because he saw claimant "with his machine putting material back on his truck, and . . . didn't believe him that he was doing it as a public service" (Kiefer Dep., p 16, lines 4-7). He also talked to Flynn, and "informed him to fill out a deposition in writing, just what he witnessed and all pertinent data," which Kiefer subsequently filed in Southampton Town Court along with the appearance ticket (
id., p 17, lines 15-19). At the court appearance on November 24, 1998, claimant's corporation was substituted for him as defendant at his request and, on behalf of the corporation, he pleaded guilty to a reduced charge of violating ECL § 27-0712 (2) ("Coverage of all vehicles, including barges transporting solid waste")[5] for a plea-bargained fine of $500 (defendant's exhs. A and B).
Claimant subsequently brought this claim to seek damages from defendant State of New York ("defendant" or "the State") on causes of action for trespass, tortious interference with contract, prima facie tort and negligence solely on account of actions undertaken by his neighbor, Flynn (claim, dated April 7 and filed April 14, 1999). At trial, the Court provisionally granted claimant's motion to amend the pleadings to conform to the proof to allege a cause of action for malicious prosecution (CPLR 3025 [c]).

I. Discussion
Claimant's beef is with Flynn, whom he portrays as an opportunist who made of DEC a cat's-paw to oust him from the Massey property because he viewed claimant's presence there as a nuisance and a drag on neighborhood property values. Specifically, claimant tries to transmute his dispute with his former neighbor into a claim against the State by theorizing that the State is vicariously liable for Flynn's complained of actions because of Bengel's purported instruction to Flynn to "monitor" his comings and goings on the night of April 14, 1998.
Whether or not he used the word "monitor," Bengel simply advised a private citizen, who had telephoned him with information about potential illegal dumping, to keep his eyes open and to call back if and when he had more concrete information, in this case, if and when he saw claimant's truck laden with waste departing from the Massey property under cover of darkness. There is no evidence to suggest that Bengel (or anyone else from DEC) ever instructed Flynn to go onto the Massey property or to place a bottle of tracer dye in claimant's truck; or, for that matter, to inform the Masseys that claimant was being investigated by DEC for illegally dumping debris. In other words, there is no factual basis for claimant's fanciful theory that Bengel somehow deputized Flynn to act on behalf of the State, and therefore that the State is vicariously liable for any trespass or tortious activities in which Flynn may have engaged. Moreover, claimant fares no better on his belatedly proffered cause of action for malicious prosecution.

In order to recover damages for malicious prosecution, claimant must establish four elements: "(1) the commencement or continuation of a criminal proceeding by the defendant against the [claimant], (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice,"
Broughton v State of New York (37 NY2d 451, 457). Here, claimant has established the commencement of a criminal proceeding, but not its favorable termination since he pleaded guilty to a reduced charge on behalf of his corporation and, indeed, at the trial of this claim admitted that he had no factual basis on which to contest the charge of an uncovered load of waste. Further, DEC certainly had probable cause: Kiefer came upon claimant when he was clearing the debris from the dumping site near the service road and claimant offered Kiefer a curious and incredible initial explanation for his actions, and then suggested that perhaps the drivers working for him had deposited the debris there. Finally, claimant has not advanced any evidence to suggest actual malice on the part of DEC.
II. Conclusion
Based on the foregoing, the Court determines that claimant has not made out a prima facie case of trespass or tortious conduct on any of the theories that he stated in this claim against the State. The Court also now denies claimant's motion to amend the claim to assert a cause of action for malicious prosecution, finding that the proof adduced at trial does not arguably support such a cause of action; and denies any other motions on which judgment was previously reserved or which were not previously decided. The Court therefore dismisses the claim and directs the Chief Clerk to enter judgment accordingly.

July 11, 2002
Albany, New York

Judge of the Court of Claims

[1]Unless otherwise indicated, quotations are from either the Court's trial notes or audiotapes of the trial on liability.
[2]Bengel had a telephone at his residence with a number listed in the telephone directory and in DEC's hunting and fishing guides as a DEC telephone number.
[3]In particular, Flynn testified that he uses approximately 30 rolls of clear and black plastic sheeting a month in his spill clean-up business, and that it's "very rare to see yellow plastic sheeting" of the kind he saw in claimant's truck on the evening of April 14, 1998 and at the dumpsite on the morning of April 15, 1998.
[4]Flynn's reason for a return trip to the area was unexplained by his testimony; however, in his supporting deposition he indicated that he was keeping an eye on claimant that morning, and so he departed for the dumping site shortly after observing claimant leave the Massey property with his truck and trailer.
[5]This provision states that "[a] municipality or any individual, firm or corporation acting on its behalf or any other individual, firm or corporation shall not cause or permit any solid waste to be transported on any vehicle, barge, ship, or scow unless the solid waste on the vehicle, barge, ship, or scow is covered."