New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2002-019-600, Claim No. 86979, Motion No. M-65261


Synopsis


State's motion relative to seeking permission to file an amended answer is denied; State's motion seeking partial summary judgment dismissing the eighth cause of action which alleges violations of the Equal Protection clause of the New York State Constitution is denied both on collateral estoppel and on the merits; State's motion to decertify the class is denied; and State's motion seeking permission to seal the New York State Police Investigation Report is granted.

Case Information

UID:
2002-019-600
Claimant(s):
RICKY BROWN, JAMEL CHAMPEN, SHERYL CHAMPEN, HOPETON GORDON, JEAN CANTAVE and RAISHAWN MORRIS, on behalf of themselves and all other persons similarly situated
Claimant short name:
BROWN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
86979
Motion number(s):
M-65261
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
WHITEMAN, OSTERMAN & HANNA, LLP
BY: Scott N. Fein, Esq. & Joseph D. Stinson, Esq.,of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Belinda A. Wagner & Michael C. Rizzo,Assistant Attorneys General, of counsel
Third-party defendant's attorney:

Signature date:
January 9, 2003
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The State of New York (hereinafter "State") moves for an order seeking the following relief: (1) granting the State permission to serve and file an amended answer; (2) granting partial summary judgment dismissing the eighth cause of action which alleges violations of the Equal Protection clause of the New York State Constitution; (3) decertifying the class; and (4) sealing the New York State Police Investigation Report, the State's memorandum of law, and any other motion documents to the extent the names of persons are identified therein. Claimants oppose the motion. This Court heard oral argument of counsel on November 18, 2002.[1]


The Court has considered the following papers in connection with this motion:
  1. Claim, filed March 16, 1993.
  2. Notice of Motion No. M-65261, dated May 22, 2002, and filed May 24, 2002.
  3. Affirmation of Michael C. Rizzo, AAG, in support of motion, dated May 22, 2002, with attached exhibits.
  4. Proposed Amended Answer, dated May 22, 2002.
  5. Affidavit of George Clum, in support of motion, sworn to May 14, 2002.
  6. Memorandum of Law, in support of motion, dated May 22, 2002.
  7. Affidavit of Joseph D. Stinson, Esq., in opposition to motion, sworn to September 4, 2002, and filed September 4, 2002, with attached exhibits.
  8. Memorandum of Law, in opposition to motion, undated.
  9. Reply Memorandum of Law, in support of motion, dated October 1, 2002.
I. Background

This motion arises from an incident previously described by the Third Department as follows:
[i]n September 1992, a 77-year-old woman was reportedly attacked at knifepoint at a home just outside the City of Oneonta, Otsego County. The victim described her assailant as an African American male and the police determined that the assailant may have cut his hand or forearm during the incident. On the basis of the information supplied by the victim regarding her assailant's skin color, the police began their investigation by obtaining the names of all the male African American students enrolled at the State University of New York, College at Oneonta. The State Police, local police and campus police proceeded to locate, stop, interrogate and inspect the hands and forearms of each individual on the list. After the search was unsuccessful, the police ultimately conducted a sweep of the City and surrounding area, continuing to stop all African American men for investigative purposes....

(Brown v State of New York, 250 AD2d 314, 316-317).



Brief synopses of certain prior proceedings and decisions which form the focus of this motion are warranted, namely a 1996 Court of Appeals decision and 1998 Third Department decision from the state action and the parties' 1998 Stipulation and the Second Circuit's Amended Opinion of August 8, 2000 from the related federal action.


In 1993 the State moved to dismiss this Claim for lack of subject matter jurisdiction and failure to state a cause of action which was granted by the Court of Claims (Brown v State of New York, Ct Cl, March 30, 1994, Hanifin, J., Claim No. 86979, Motion No. M-48150) and affirmed by the Third Department (Brown v State of New York, 221 AD2d 681). On November 19, 1996, the Court of Appeals modified the Third Department's decision by finding that the Court of Claims had subject matter jurisdiction over constitutional torts and that this Claim stated such a cause of action. (Brown v State of New York, 89 NY2d 172). More specifically, the Court of Appeals found that the state constitutional claims, including the alleged violations of the State Equal Protection Clause, were "[f]acially sufficient to state causes of action against defendants and should be reinstated." (Brown, 89 NY2d at 197).


Two years later, the case returned to the Third Department on appeal of Claimants' motion for class certification. (Brown, 250 AD2d 314, modfg Brown v State of New York, Ct Cl, August 21, 1997, Hanifin, J., Claim No. 86979, Motion No. M-55344). The Third Department addressed a variety of issues, but for purposes of this motion the crucial discussion was the following statement by the Court regarding the proper burden of proof for trial:
[h]ere, the State has admitted that each person stopped was stopped on the basis of race alone; thus, discriminatory enforcement is established as a matter of law
[citation omitted]. In our view, claimants, in proving their cause of action, should not be held to the "formidable task", as the Court of Claims described it, of demonstrating that they were treated differently than a similarly situated nonminority group. The proper standard for the Court of Claims to apply in this case is the strict scrutiny test, which places the burden on the State to prove that the means used in the investigation were necessary to promote a compelling State interest [citation omitted].

(Brown, 250 AD2d at 321; emphasis added).



With respect to the related federal action, although the federal plaintiffs had originally pled supplemental state law claims, in March 1998 the parties entered into a Stipulation dismissing the state law claims (hereinafter "Stipulation"). The Stipulation reads, in pertinent part, as follows:
[t]he parties request that the Court dismiss, pursuant to 28 U.S.C. §1367, the remaining supplemental state law claims, which are the Eighteenth, Nineteenth and Twentieth causes of action [in] the Second Amended Complaint, without prejudice; and

Plaintiffs agree that they will not seek to reinstate in this Court the supplemental state law claims voluntarily dismissed herein...

***

Except as specifically stated herein, this Stipulation and Order is otherwise without prejudice to the parties' appellate and other rights.

(Claimants' Exhibit H;[2] emphasis added).



The Federal action continued based upon allegations relating solely to violations of the Federal Constitution. The District Court dismissed Claimants' Second Amended Complaint upon the defendants' 12 (b) (6) motion, as it had the original Complaint, due to insufficient pleadings relative to the equal protection claim. (Brown v City of Oneonta, et al., 858 F Supp 340 [dismissal of original Complaint]; Brown v City of Oneonta, et al., 911 F Supp 580 [dismissal of Second Amended Complaint]). Claimants appealed the dismissal of the Second Amended Complaint to the Second Circuit which ultimately affirmed that dismissal in an Amended Opinion dated August 8, 2000. (Brown v City of Oneonta, et al., 221 F3d 329).


In said Amended Opinion, the Second Circuit outlined three ways to allege a race-based claim under the Federal Equal Protection Clause. The three methods were identified as follows: (1) a law or policy that expressly classifies persons on the basis of race, [a.k.a. express racial classification]; (2) a facially neutral law or policy that has been applied in an intentionally discriminatory manner; or (3) a facially neutral statute or policy that has an adverse effect and that was motivated by discriminatory animus. The Second Circuit identified the first method as the theory relied upon by the federal plaintiffs in attempting to articulate a federal equal protection claim in the Second Amended Complaint.[3] The Second Circuit further found that the first method, express racial classification, generally was subject to a strict scrutiny analysis and not the similarly situated standard set forth by the District Court. Yet the Second Circuit found that plaintiffs had failed to identify any law or policy containing an express racial classification justifying a strict scrutiny analysis in that case. More specifically, the Second Circuit stated as follows:
[p]laintiffs' factual premise is not supported by the pleadings: they were not questioned solely on the basis of their race. They were questioned on the altogether legitimate basis of a physical description given by the victim of a crime. Defendants' policy was race-neutral on its face; their policy was to investigate crimes by interviewing the victim, getting a description of the assailant, and seeking out persons who matched that description....In acting on the description provided by the victim of the assault--a description that included race as one of several elements--defendants did not engage in a suspect racial classification that would draw strict scrutiny. The description, which originated not with the state but with the victim, was a legitimate classification within which potential suspects might be found.

***

As the police therefore are not alleged to have investigated "based solely upon ... race, without more,"...plaintiffs have failed to state an actionable claim under the Equal Protection Clause.

***

To the extent that this opinion clarifies equal protection law, the district court is free on remand to entertain a motion to replead
. We express no opinion on the merits of any such motion.

(Brown, 221 F3d at 337-338, 339 n 9, respectively; emphases added).



Plaintiffs' petition for a rehearing en banc was denied. (Brown v City of Oneonta, et al., 235 F3d 769). Plaintiffs then filed a motion for permission to file a Third Amended Complaint in District Court to conform their pleadings to the theories outlined in the Second Circuit's Amended Opinion. A decision on that motion was stayed upon request of the parties pending certiorari to the Supreme Court. The United States Supreme Court denied certiorari. (Brown v City of Oneonta, et al., __ US __, 122 S Ct 44). Thereafter, the District Court granted said motion with respect to the City of Oneonta but not with respect to the State defendants.[4](State's Exhibit 7, pp 68-69). (State's Exhibit 7).


It is within the context of this history, both in state court and federal court, that the State now seeks the various forms of relief outlined at the outset.


II. State's Motion to File an Amended Answer

The State's request for permission to file an amended answer has two components, namely: (1) the attempt to clarify the State's denials contained in its Verified Answer dated January 31, 1997, and (2) to add a collateral estoppel/res judicata defense thereto. Generally, it is well-settled that leave to amend pleadings should be "freely given" in accordance with the liberal standard of CPLR 3025 (b). However, it is equally true that motions to amend pleadings upon leave are directed to the sound discretion of the Court. (Murray v City of New York, 43 NY2d 400, 404-405; Uniform Rules for the Court of Claims [22 NYCRR] 206.7 [b]).


A. Clarification of State's Denials

The impetus behind this portion of the State's motion is the previously quoted statement in the Third Department's decision by Justice Spain that: "[h]ere, the State has admitted that each person stopped was stopped on the basis of race alone; thus, discriminatory enforcement is established as a matter of law [citation omitted]." (Brown, 250 AD2d at 321; emphasis added). The State represents that it never made such an admission and is at a loss to explain how the Third Department could have reached this conclusion. To the extent, however, that the State believes that its Verified Answer may have contributed to what it describes as the Third Department's mistake, the State seeks to amend its Verified Answer by adding a paragraph by paragraph denial of each allegation contained in this Claim. Claimants adamantly oppose the State's request. The Court agrees that the State's request must be denied for the following reasons.


First and foremost, the Third Department itself previously rejected the State's Motion for Reargument on this very issue.[5] (Brown v State of New York, Case # 82532 [3d Dept, February 25, 1999] attached as Claimants' Exhibit G). In fact, a review of the State's appellate brief to the Third Department on said reargument motion reveals the State presented the following arguments:
!
The State seeks reargument because the Court misapprehended the facts of this case when it deemed claimants' allegations as having been factually admitted or established....

!
[b]ased at least in part upon the erroneous recitation of fact that the "State has admitted that each person stopped was stopped on the basis of race alone"....

***

!
This Court...incorrectly recites the facts alleged in the verified claim for damages as if they had been factually established or admitted....

!
Upon the State's application for clarification, the [Federal] Court amended its decision to insert immediately prior [to] its recitation of the facts the following sentence: "For purposes of deciding this appeal, we assume the truth of the factual allegations asserted by claimants."...

!
The State has not admitted that each person was stopped on the basis of race alone....

(Claimants' Exhibit F, pp 1, 2, 3, 4, 4-5, respectively; [emphasis in original]).



Quite simply, these quoted portions from the State's appellate brief are, for all practical purposes, identical to the arguments the State is now presenting to this Court. The Third Department did not entertain or accept the State's motion and neither will this Court. In fact, the State has offered absolutely no sound legal basis for seeking identical relief here in this forum, more than three years later or, for that matter, from what authority this Court could derive the jurisdiction to review the question in the first instance. In this Court's view, the State's request is nothing more than an attempt to circumvent the Third Department's denial of its reargument motion. The State has submitted no legal or factual argument or authority from which this Court could conclude that the Third Department's decision does not contain the law of this case. (Ramsay v Mary Imogene Bassett Hosp., 158 AD2d 754, lv denied 76 NY2d 702; Matter of Chavys v Henderson, 102 AD2d 924). Stated another way, it is simply not the function of this Court to review decisions of the Third Department or any appellate court for that matter. (CCA 9). In sum, this Court agrees with Claimants that the Court of Claims does not have jurisdiction to hear the State's continuing objections to the Third Department's decision on this issue. Consequently, the State's motion to file an amended answer in order to clarify the denials contained in its Verified Answer is denied.


B. Collateral Estoppel/Res Judicata defense

The State also seeks to amend its Verified Answer to include the affirmative defense of collateral estoppel/res judicata based upon the Second Circuit's Amended Opinion dated August 8, 2000. (Brown v City of Oneonta, et al., 221 F3d 329). Initially, the Court notes that the State could not have raised this affirmative defense in its Verified Answer in the first instance given the respective timelines of these actions. The State filed its Verified Answer on February 4, 1997. Although the State was aware of the related pending case in federal court at that time, the Second Circuit's Decision on which it now relies was not issued until August 8, 2000. Thus, it was an impossibility for the State to assert the affirmative defense of collateral estoppel/res judicata in its Verified Answer based upon a decision not yet in existence. (Neulist v County of Nassau, 108 Misc 2d 160, 163, affd 88 AD2d 587, lv denied 57 NY2d 606). As such, the timing of the request is not in and of itself a basis for denial. Consequently, the Court will turn to the merits of the State's arguments relative to this issue.


III. State's Motion for Partial Summary Judgment dismissing the equal protection cause of action The State sets forth two grounds for dismissal, arguing: (1) the application of the doctrine of collateral estoppel based upon the Second Circuit's dismissal of the federal equal protection claim or, in the alternative; (2) that the state equal protection claim should be denied on the merits.


A. Equal Protection - Collateral Estoppel

The State's primary argument is that the Second Circuit's decision dismissing the federal equal protection claim is entitled to collateral estoppel effect with respect to the state equal protection claim.[6] More specifically, the State alleges as follows:
[a]pproximately 33 of the 67 class members have for years litigated their Fourteenth Amendment equal protection argument in federal court. Finally, with the United States Supreme Court's denial of their certiorari petition, this argument has been rejected. Since New York's equal protection guarantee is the same as that provided in the Fourteenth Amendment, these class members should be collaterally estopped from pursuing the same claim in this Court.

(State's Memorandum of Law, p 22). The State argues that the Second Circuit's dismissal of the federal equal protection claim is identical to the issue presented here because the state's equal protection clause has been construed to be as broad as its federal counterpart. Claimants disagree, asserting that the issue decided by the Second Circuit was not identical in that it addressed only the Federal Constitution Equal Protection Clause, pointing to the parties' 1998 Stipulation dismissing the supplemental state law claims. Further, Claimants argue that there is authority for the State Constitution being construed broader than the Federal Constitution. Additionally, Claimants assert the following: (1) that the Federal and State decisions did not address identical issues and if any decision is "prior" it would be the 1996 Court of Appeals decision; (2) collateral estoppel applies to factual issues only, not purely legal issues such as contained in the Second Circuit's decision; and (3) preclusive effect, if any, should be by way of the application of the doctrine of res judicata to the 1996 Court of Appeals finding that the allegations of State constitutional violations were "facially sufficient". (Brown, 89 NY2d at 197). While Claimants conceded at oral argument that these federal and state decisions were issued in different procedural contexts,[7] Claimants argue that the holdings contained in the 1996 Court of Appeals and 1998 Third Department decisions are the law of the case for purposes of this motion.


Generally, the party seeking the benefit of the doctrine of collateral estoppel must prove that "the identical issue was necessarily decided in the prior action and is decisive in the present action [citation omitted]"; whereas the party attempting to defeat its application has the burden of establishing "[t]he absence of a full and fair opportunity to litigate [citation omitted]." (D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664). Moreover, the issue must have been "actually determined in the prior proceeding." (Matter of Halyalkar v Board of Regents of State of N. Y., 72 NY2d 261, 268).


In this Court's view, in order to find the doctrine of collateral estoppel applicable to the Second Circuit's decision, this Court would have to ignore the 1996 Court of Appeals and 1998 Third Department decisions in this case. In other words, to give collateral estoppel effect to the Second Circuit's determination that the Second Amended Complaint "failed to state an actionable claim under the [federal] Equal Protection Clause" (Brown, 221 F3d at 338), would require this Court to ignore the Court of Appeals pronouncement that the allegations of the instant Claim "[i]nsofar as they allege claims based upon violations of article I, §§ 11 and 12 of the New York State Constitution...are facially sufficient to state causes of action against defendants and should be reinstated." (Brown, 89 NY2d at 197). To give collateral estoppel effect to the Second Circuit's statement that "plaintiffs' factual premise is not supported by the pleadings: they were not questioned solely on the basis of their race" (Brown, 221 F3d at 337), would require this Court to ignore the Third Department's conclusion that "[h]ere, the State has admitted that each person stopped was stopped on the basis of race alone; thus, discriminatory enforcement is established as a mater of law" (Brown, 250 AD2d at 321). To give collateral estoppel effect to the Second Circuit's determination that the allegations of the Second Amended Complaint did not warrant application of strict scrutiny, would require this Court to ignore the Third Department's statement that "[t]he proper standard for the Court of Claims to apply in this case is the strict scrutiny test, which places the burden on the State to prove that the means used in the investigation were necessary to promote a compelling State interest [citation omitted]." (Id.). To find that the Second Circuit addressed the merits of the allegations of violations of the State Equal Protection Clause, would be to ignore the parties Stipulation that dismissed all supplemental state law claims from the federal proceeding without prejudice. To find that the federal litigants were forever foreclosed from pursing their federal equal protection claim, would be to ignore the Second Circuit's decision that the dismissal was without prejudice and with leave to replead.


In view of the foregoing, the State's motion for partial summary judgment based upon the doctrine of collateral estoppel is denied.


B. Equal Protection - On the merits

In the alternative, the State argues that dismissal of Claimants' cause of action alleging violation of the State's Equal Protection Clause is warranted on the merits even if the doctrine of collateral estoppel is found inapplicable. The State argues that the principle of stare decisis mandates dismissal because "no court in the country" has ever found that an equal protection violation occurred on the basis of police acting on a victim's description involving both race and gender as it urges is the case here. (State's Reply Memorandum of Law, pp 5-6). In opposition, Claimants argue that discovery is not complete; that the Third Department has already found "discriminatory enforcement as a matter of law"; and that the New York State Police Investigative Report File (hereinafter "Investigative Report") contains sufficient evidence of discriminatory enforcement or, at the least, raises questions of fact relating thereto warranting denial of the State's motion for partial summary judgment on the merits. (Claimants' Memorandum of Law, pp 29-38).


On a motion for summary judgment, the moving party must present evidentiary facts that establish the party's right to judgment as a matter of law, while the opposing party must present evidentiary proof in admissible form that demonstrates the existence of a factual issue. (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068). Moreover, the proponent's "[f]ailure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers [citations omitted]." (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853). The Court must accept the nonmoving party's evidence as true and grant them every favorable inference. (Hartford Ins. Co. v General Acc. Group Ins. Co., 177 AD2d 1046, 1047).


Both parties primarily rely upon the Investigative Report to support their respective positions relative to the presence or absence of triable issues of fact. (State's Exhibit 1). Claimants' argument starts with the victim's purported three-part description of her assailant, namely race, age and gender. Claimants contend that the State took this description and ignored the age and gender characteristics and emphasized the race element. Claimants further allege that this racial policy is demonstrated by certain statements, omissions, and inconsistencies contained in the Investigative Report. The State attempts to discredit these alleged inconsistencies.


For instance, with respect to gender, Claimants assert that the State ignored the gender portion of the victim's description as evidenced by police stopping up to ninety black females in the following locations as recorded in the Investigative Report: Job Corps Center dining hall (State's Exhibit 1, pp 76-79); departing passengers at the Job Corps' bus depot including named Claimant Sheryl Champen (State's Exhibit 1, pp 76-83); the Rite Aid Apartments (State's Exhibit 1, p 89); and unsuccessful attempt to locate and interview two black female residents on Chestnut Street, Oneonta (State's Exhibit 1, p 104).


Claimants also argue that the State's emphasis on the racial component of the victim's description is evidenced by the following entries in the Investigative Report: police failure to attempt to identify any other hair after investigation failed to identify any Negroid hair at the crime scene (State's Exhibit 1, pp 198-199); attempting "to identify any black male subjects doing contracting work at the Oneonta Job Corp facility" (State's Exhibit 1, p 10); attempting to identify all black males living in the City of Oneonta (State's Exhibit 1, p 10); checking local high school sport teams for identity of any black male athletes (State's Exhibit 1, pp 133-135); checking a local taxi company for identity of black passengers on night of attack (State's Exhibit 1, p136); use of SUCO public safety list (State's Exhibit 1, p 11); State police investigator H. Karl Chandler's statement to the press that police have "[t]ried to examine hands of all the black people in the community" (Claimants' Exhibit C); and Investigator Chandler's statement that police were sent to the Job Corp Center because "[t]here is a large proportion of blacks there." (Claimants' Exhibit B, p 113).


Claimants also point to additional facts and/or alleged inconsistencies in the Investigative Report as follows: victim's statement does not actually contain an age description (State's Exhibit 1, pp 67-70); inconsistency between statement of dog handler saying scent traced south (State's Exhibit 1, p 75), compared to Investigative Report entry that dog traced scent toward SUCO campus (State's Exhibit 1, p 7); and blood evidence from crime scene containing two types destroyed by State (State's Exhibit 1, pp 20 & 199).


In reply, the State attempts to explain or discredit some of these assertions. For example, the State argues that the destruction of the blood evidence was in keeping with the custom and practice of destroying forensic evidence upon the expiration of the applicable criminal statute of limitations. Further, the State argues that the alleged inconsistencies in the Investigative Report relative to the age description and track of the scent dog are irrelevant. Regarding the allegations the State ignored the gender portion of the description, the State says that the allegations of the federal Third Amended Complaint are unsworn, but in any event points out that the Second Circuit found stopping one female was potentially significant, but ultimately insufficient to support a federal equal protection claim. (Brown, 221 F3d at 339). Finally, Claimants rely upon the Third Department's statement that discriminatory enforcement was established as a matter of law. (Brown, 250 AD2d at 321).


In sum, this Court is presented with the parties' sharply divergent views on the actions of the State as recorded in the Investigative Report and whether they are evidence of discriminatory enforcement. At this procedural stage, the Court is prohibited from resolving the questions of fact raised by the parties and must instead acknowledge that such questions exist for determination at trial. Consequently, in this Court's view, Claimants have come forward in response to the State's motion with sufficient evidentiary proof by way of the Investigative Report raising questions of fact relating to discriminatory enforcement warranting denial of the State's motion for partial summary judgment on the merits. Additionally, this Court is also mindful of the Third Department's prior determination that "[d]iscriminatory enforcement is established as a matter of law [citation omitted]". (Brown, 250 AD2d at 321).


In view of the foregoing, the State's motion to dismiss the eighth cause of action which alleges violations of the State's Equal Protection Clause is denied. As such, the Court finds that the State's motion to decertify the class must also be denied inasmuch as no later events exist justifying a modification of that determination. (CPLR 901; Friar v Vanguard Holding Corp., 78 AD2d 83, 100).


IV. State's motion to seal the New York State Police Investigation Report

The State also seeks an order sealing the Investigation Report which is comprised of various sub-parts including, but not limited to, a narrative; a lead log; list of names; and lead sheets. (State's Exhibit 1). The Investigation Report spans from the date of the incident through February 1998 when the case was closed as unsolved.


The State represents that this Investigation Report was released pursuant to the New York Freedom of Information Law in redacted form in order to protect the privacy of the victim and the individuals who were contacted as part of the investigation. (Affirmation of Michael Rizzo, AAG, ¶ 4). Apparently this same Investigation Report has been disclosed in the companion federal action, subject to a confidentiality order.[8] The State seeks an order directing "[t]he sealing of the report and the memoranda of law and other documents to the extent the names of persons are identified." (Affirmation of Michael Rizzo, AAG, ¶ 5; emphasis added). Claimants do not respond directly to the State's request, but rather recites the difficulties encountered in getting the Investigation Report disclosed. At oral argument Claimants indicated they had no objection to the entry of a confidentiality order in this matter similar in substance to the order in the federal action. As such, the parties agreed and are hereby directed to consult and draft a proposed confidentiality order and to submit it to this Court for review and approval.


The parties' remaining arguments have been considered and determined to be without merit.


Accordingly, it is ORDERED that the State's motion, No. M-65261, is DENIED IN PART and GRANTED IN PART in accordance with the foregoing.


January 9, 2003
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]This Claim was transferred to Judge Lebous by an Order filed with the Clerk of the Court on October 4, 2000.

[2]The Eighteenth cause of action articulated a claim based upon a violation of the Search and Seizure clause of the State Constitution; the Nineteenth cause of action alleged a violation of the Equal Protection clause of the State Constitution; while the Twentieth cause of action alleged negligent training and supervision.
[3]With respect to the second and third options, the Second Circuit found that although a disparate impact on a minority group clearly occurred, plaintiffs did not sufficiently allege that such action was taken with discriminatory intent or animus. (Brown, 221 F3d at 338). The Second Circuit found that the allegation that one woman was stopped was "[s]ignificant because it may indicate that defendants considered race more strongly than other parts of the victim's description. However, this single incident, to the extent that it related to the investigation, is not sufficient in our view to support an equal protection claim under the circumstances of this case." (Brown, 221 F3d at 339).

[4]In granting plaintiffs' motion to file a Third Amended Complaint, the Hon. David R. Homer found:

[w]ith respect to that I believe it's 1981 and 1983 claims for violation of equal protection based on the State Constitution and law. It appears to me that the Second Circuit's 2000 opinion does not address that and does not invite amendment as to that. Both claims and the scope of those claims are defined by the Second Circuit's interpretation of the Federal Constitution and laws but by interpretation of the State Constitution and laws which were not included in the Second Circuit's opinion. Therefore, the causes of action asserted for violation of equal protection under State law also are barred in my judgment in this instance.


[5]Note that the panel rejecting the reargument motion included Justice Spain.

[6]The Fourteenth Amendment to the US Constitution provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws" (US Const Fourteenth Amend § 1), while the New York Constitution states that "no person shall be denied the equal protection of the laws of this state or any subdivision thereof." (NY Const, art 1, § 11).

[7]Claimants conceded that the Second Circuit's Amended Opinion was upon defendants' Rule 12 (b) (6) motion which equates to a factual determination on the merits; whereas the 1996 Court of Appeals decision, while recognizing that constitutional torts were cognizable causes of action in the first instance, did not specifically address the allegations of this Claim on the merits.
[8]The confidentiality order from the federal action was not submitted as part of this record.