New York State Court of Claims

New York State Court of Claims

SOMMERS v. THE STATE OF NEW YORK, #2002-030-542, Claim No. 104727, Motion No. M-65756


Defendant's Motion for Summary Judgment granted. No constitutional tort, false arrest, abuse of process, malicious prosecution or intentional infliction of emotional distress

Case Information

JEFFREY SOMMERS Caption amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Caption amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
October 4, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 7 were read on Defendant's motion to dismiss and for summary judgment, brought pursuant to §§3211(a)(7) and 3212 Civil Practice Law and Rules:
1,2,3 Notice of Motion, Affirmation in Support by Elyse J. Angelico, Assistant Attorney General, Memorandum of Law, and accompanying exhibits.
4 Claimant's Response to Motion.
5,6,7 Filed Papers: Claim, Amended Claim, Answer.

After carefully considering the papers submitted and the applicable law the motion is

disposed of as follows:
The legally significant - and essentially undisputed - facts are these: Claimant was driving in excess of the speed limit on the northbound side of Route 684 on Sunday, August 5, 2001 sometime after 3:30 p.m. His wife, whom he describes as a Chinese American, was seated in the passenger seat. A marked, New York State Police car approached Claimant from behind. Claimant moved from the left lane to the center lane, and was passed by the State Trooper. Claimant moved back into the passing lane. [See, ¶ 2 Amended Claim; Page 1, Claimant's Response to Motion to Dismiss]. The State Trooper stopped Claimant at some point thereafter, and did not respond to questions concerning why Claimant was being stopped, but inquired generally as to Claimant's activities that afternoon and then made similar inquiries of his wife when Claimant did not answer. [Ibid]. Claimant indicates in his amended claim that he "...demanded the trooper give...[him] a ticket or ‘get lost'." It took between 45 minutes to one hour and 20 minutes from the time the trooper stopped Claimant's vehicle until Claimant was sent on his way with a speeding ticket. The trooper did not have a ticket book with him, and had to wait for another trooper he had summoned over the police radio to arrive with a ticket book. Claimant asserts he had been traveling at the speed of other cars on the road, and the only reason his car was singled out was that his passenger was Chinese American.

After a bench trial in the Justice Court of the Town of North Castle, Claimant was found guilty of speeding as charged beyond a reasonable doubt. [Defendant's Exhibits "D" and "G"]. The state trooper who had stopped Claimant, Trooper Coley, the state trooper who was radioed to bring the ticket book, Trooper Myles, the Claimant, and the Claimant's wife all testified at the trial. The Court indicated its verdict was based upon the "credible evidence." [Ibid, Page 5, ¶ 11]. There is no indication that the Claimant's present allegations that his car was stopped only because his passenger was Chinese American was raised before the trial court. Claimant filed a Notice of Appeal to the Appellate Term. [Defendant's Exhibit "F"]. The appeal has not been decided. [See, Page 2, Claimant's Response to Motion to Dismiss].

In the Amended Claim, apparently amended as of right pursuant to §3025(a) Civil Practice Law and Rules, Claimant has asserted eight (8) causes of action. He has entitled them (1) false arrest, (2) abuse of process, (3) malicious prosecution, (4)intentional infliction of emotional distress and oppression, (5) denial of right against self incrimination, (6) denial of right to equal protection, (7) denial of freedom of speech, and (8) denial of right to be informed of the reason for the arrest. The fifth, seventh and eighth causes of action allege violations of the Fifth amendment, First amendment and Sixth amendment to the United States Constitution. The Verified Answer is responsive to both the Claim and the Amended Claim.
The pertinent provisions of §3211(a)(7) Civil Practice Law and Rules provide that a " may move for judgment dismissing one or more causes of action asserted against him on the ground that...the pleading fails to state a cause of action...." In a motion to dismiss a claim for failure to state a cause of action the movant is held to have conceded the truth of every fact alleged by the Claimant for purposes of the motion. Determination of the motion, generally, does not rest upon resolution of the ultimate facts, but rather on whether those facts asserted make out a claim. See, Stukuls v State of New York, 42 NY2d 272, 275 (1977); c.f.: Rovello v Orofino Realty Co., Inc., 40 NY2d 633 (1976).

§3212(b) Civil Practice Law and Rules provides in pertinent part:
....A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion 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....the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.

Assuming a movant has made a prima facie showing of entitlement to judgment as a matter of law by proffering sufficient evidence to eliminate any genuine, material, issues of fact, the party in opposition to the motion for summary judgment must tender evidentiary proof in admissible form to establish the existence of material issues which require a trial. Winegrad v New York University Medical Center, 64 NY2d 851 (1985); Zuckerman v City of New York, 49 NY2d 557 (1980). While it is not the best practice, the use of an attorney's affirmation appending pertinent deposition testimony, documentary evidence, and a verified pleading reciting material facts, is not a fatal procedural flaw in a movant's presentation. Alvarez v Prospect Hospital, 68 NY2d 320, 325 (1986).[1]

Additionally, §105(u) Civil Practice Law and Rules indicates that "...[a] ‘verified pleading' may be utilized as an affidavit whenever the latter is required." The use of the attorney's affirmation, the Claimant's own sworn statements contained in a detailed verified pleading - to wit: the Amended Claim - will suffice here, accompanied as they are by the necessary documentary evidence including court records. Alvarez v Prospect Hospital, supra. Accordingly, the Court is satisfied that the Defendant's motion is adequately supported as an initial matter.

In opposition, Claimant has essentially reaffirmed the sworn statements contained in his Claim and Amended Claim.
Federal Constitutional Claims
It is axiomatic that the Court of Claims is a court of limited jurisdiction. See, §9 Court of Claims Act. The Court of Claims does not have jurisdiction over federal constitutional tort claims. See, Zulu v State of New York, 2001 WL 880833 (Ct Cl 2001); Campolito v State of New York, Claim No. 94670, Collins, J., April 27, 2000; 42 USC § 1983. The Defendant asserts the defense of a lack of subject matter jurisdiction in its Fifth affirmative defense. Thus, the Claimant's fifth, seventh and eighth causes of action, entitled, respectively, "denial of right against self-incrimination, denial of freedom of speech, and denial of right to be informed of the reason for arrest", and described by Claimant as emanating from violations of the United States Constitution, are dismissed as beyond this court's subject matter jurisdiction.
Constitutional Tort
To the extent that alleged acts violate the New York State Constitution, the analysis set forth in Brown v State of New York, 89 NY2d 172 (1996)[2], may apply. The factors the Court must consider to determine if a cause of action for a constitutional tort is properly brought in the Court of Claims are whether: (1) the applicable constitutional provision is self-executing; (2) monetary damage remedies further the purpose of the underlying constitutional provisions and necessarily assure its effectiveness; (3) the provisions are such that they impose a clearly defined duty on the State officers and/or employees; (4) declaratory and injunctive relief is inadequate; and (5) money damages necessarily deter governmental conduct and make the claimant whole.

For a provision to be "self-executing", it must "...take effect immediately, without the necessity for supplementary or enabling legislation...(citations omitted). In New York, constitutional provisions are presumptively self-executing....(citation omitted). Manifestly, article I, §12 [3] of the State Constitution and that part of section 11[4] relating to equal protection are self-executing. They define judicially enforceable rights and provide citizens with a basis for judicial relief against the State if those rights are violated. Actions of State or local officials which violate these constitutional guarantees are void (citations omitted). The violation of a self-executing provision in the Constitution will not always support a claim for damages, however....(citations omitted)." Brown v State of New York, supra, at 186.

Further clarifying what it meant in Brown, supra, the Court of Appeals more recently called it a "...'narrow remedy'....[addressing] two interests: the private interest that citizens harmed by constitutional violations have an avenue of redress, and the public interest that future violations be deterred. In Brown itself, neither declaratory nor injunctive relief was available to the plaintiffs, nor – without a prosecution – could there be suppression of illegally obtained evidence. For those plaintiffs it was damages or nothing. We made clear, however, that the tort remedy is not boundless. Claimants must establish grounds that entitle them to a damages remedy, in addition to proving that their constitutional rights have been violated." Martinez v City of Schenectady, 97 NY2d 78, 83 (2001). The Martinez Court then concluded that

"...[r]ecognition of a constitutional tort claim...[would be] neither
necessary to effectuate the purposes of the State constitutional protections plaintiff invokes, nor appropriate to ensure full realization of..[plaintiff's] rights....Unlike in Brown, the deterrence objective can be satisfied here by exclusion of the constitutionally challenged evidence.

Moreover, plaintiff fails to demonstrate how money damages are appropriate to ensure full realization of her asserted constitutional rights....plaintiff has not distinguished her case from that of any criminal defendant who has been granted suppression, or reversal of a conviction, based on technical error at the trial level. Plaintiff has shown no grounds that would entitle her to a damage remedy in addition to the substantial benefit she already has received from dismissal of the indictment and release from incarceration." Martinez v State of New York, supra, at 83-84.

In this case, Claimant has not completed the appeal process. Accordingly, the Justice Court's determination that there was probable cause to stop the Claimant's vehicle is the law of the case. Indeed, from a review of the Justice Court's decision, it does not appear Claimant even raised the question of whether the stop was based only upon some subjective discriminatory motivation[5] on the state trooper's part, as opposed to an objective assessment that probable cause existed. This raises res judicata concerns as well, because the matter may have been litigated, and was not. Claimant should be precluded from raising constitutional claims now. See, e.g., Wahba v State of New York, (Ct Cl), Read, P.J., August 3, 2001, UID #2001-001-044 (

As noted by Defendant, the United States Supreme Court has held that there is no constitutional violation when the decision to stop a vehicle is based upon probable cause, whatever the "...actual motivations of the individual officers involved." Whren v United States, 517 US 806, 813 (1996). The New York Court of Appeals has "...adopted Whren v United States, [supra], a matter of state law." People v Robinson, 97 NY2d 341,346 (2001).

It is up to an appellate court to determine whether the Justice Court's verdict was not supported. Unlike the plaintiffs in Brown v State of New York, supra, this Claimant had the opportunity to avail himself of the judicial process, was found guilty, and has begun the appeal process to review that determination. Even assuming the Claim brought here is justiciable at this point given that the appeal is not concluded, this Court finds the monetary award Claimant seeks would not further the purpose of the constitutional provisions allegedly violated, nor make the Claimant whole, thus the Court has no basis to recognize in this case the sixth cause of action - asserting a denial of the right to equal protection of the laws - a cause of action for which a constitutional tort remedy can be appropriately awarded. Claimant's sixth cause of action is, therefore, dismissed.
False Arrest
To establish a cause of action for false arrest - described as essentially the same tort as false imprisonment[6] - the Claimant "...must show (1) the defendant intended to confine him, (2) the claimant was conscious of the confinement, (3) the claimant did not consent to his confinement and (4) the confinement was not otherwise privileged....(citation omitted)." Blanchfield v State of New York, 104 Misc 2d 21, 24 (Ct Cl 1980). While Claimant has shown prima facie the first three elements, the arrest was clearly privileged if based upon probable cause. "The existence of probable cause serves as a legal justification for the arrest and an affirmative defense to the claim...(citation omitted)." Martinez v City of Schenectady, supra, at 85. The Justice Court here determined the stop was based upon probable cause, and convicted Claimant.[7] That verdict has not been overturned. Accordingly, Claimant has not shown that there exist any material, triable issues of fact with respect to this cause of action either and, therefore, it is dismissed.

Abuse of Process
A claim for abuse of process requires a showing that a defendant improperly used the process - process directing another person to act or refrain from acting in some way - after it was issued, for some collateral purpose with an intent to do harm. See, e.g., Butler v Ratner, 210 AD2d 691, 693 (3d Dept 1994). "Actual or special damages must be alleged and proven....(citation omitted)." Donatello v State of New York, (Ct Cl), Fitzpatrick, September 5, 2000, UID No. 2000-018-037 ( Because the process - here the speeding ticket - was both issued and used for its intended purpose, and no special damages have been pleaded, this cause of action is also dismissed.
Malicious Prosecution
Establishing the tort of malicious prosecution "...places a heavy burden on..." a Claimant. Smith-Hunter v Harvey, 95 NY2d 191, 195 (2000). They 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, cert denied sub nom. Schanbarger v Kellogg, 423 US 929)." [Id]. See, also, Octave v State of New York, (Ct Cl) Read, P.J., March 30, 2001, UID No. 2001-001-019 Since there has been no termination of the proceeding in favor of the accused in this case, such a cause of action cannot lie. Martinez v City of Schenectady, supra. Claimant's third cause of action is, therefore, dismissed as well.
Intentional Infliction of Emotional Distress
Finally, Claimant alleges a cause of action for intentional infliction of emotional distress and "oppression." It is, however, "well-settled...[that] where the act complained of constituted official conduct, public policy prohibits the maintenance of a suit against the State for intentional infliction of emotional distress....(citations omitted)." Brown v State of New York, 125 AD2d 750, 752 (3d Dept 1986).

For all of the foregoing reasons Defendant's motion for summary judgment and for dismissal of the within claim is granted, and Claim Number 104727 is dismissed in its entirety.

Let Judgment be entered accordingly


October 4, 2002
White Plains, New York

Judge of the Court of Claims

[1]"A fair reading of the attorney's affirmation, the hospital records and the defendant's deposition testimony compel the conclusion that no material triable issues of fact exist as to the claims of malpractice asserted against the defendant in the amended complaint as amplified by the bill of particulars. The fact that defendant's supporting proof was placed before the court by way of an attorney's affirmation annexing deposition testimony and other proof, rather than affidavits of fact on personal knowledge, is not fatal to the motion...(citations omitted)."
[2] After a knife point attack on an elderly woman, who described her assailant as a black male, State and local law enforcement officials began an investigation and secured a list of the names and addresses of all African American males attending the University located near where the attack occurred. All the students on the list were interrogated in a systematic fashion but no suspects were found. Thereafter, law enforcement officials stopped and spoke to "every nonwhite male found in and around the City of Oneonta." Brown v State of New York, supra, at 176-177. No one was ever arrested for the crime. It was the second class of citizens certified in the class action suit - those who were "stopped, questioned and the absence of any articulable suspicion..." on the street - around whom the decision evolved.
[3] "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized...." Art. 1, §12, ¶ 1 New York State Constitution.
[4] "No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his civil rights by any other person or by any form, corporation, or institution, or by the state or any agency or subdivision of the state. " Art. 1, §11 New York State Constitution.
[5] Although the Court has some concern that Claimant even has standing to bring a claim alleging discriminatory conduct toward his wife[ See, e.g. Weinstein v Hospital for Joint Diseases & Medical Center, 53 AD2d 627 (2d Dept 1976)], under the more liberal "injury-in-fact" notions of standing Claimant would be "aggrieved". See, generally, New York State Law Enforcement Officers, District Council 82 v New York State Office of Mental Health, 175 Misc 2d 663, 665-666 (Albany Co Sup Ct 1998).
[6] "Every false arrest is itself a false imprisonment, with the imprisonment commencing at the time of the arrest....(citations omitted)" Blanchfield v State of New York, 104 Misc 2d 21, 24 (Ct Cl 1980).
[7] The court is not unmindful of language in Remley v State of New York, 174 Misc 2d 523, 524 (Ct Cl 1997) wherein the Court determined, in a motion for permission to file a late claim, that the claimant there had shown the appearance of merit for late claim purposes when he asserted a cause of action for false arrest based upon the allegation that the arrest was made without probable cause. From the facts recited there, however, it is not clear whether there had been appeals from claimant's conviction, although the court does indicate that the delay in filing had been occasioned because the criminal prosecution had not concluded. The court then says, "...because all the causes of action alleged are related to the arrest of Claimant, resolution of the criminal action did not affect the factual basis for the proposed causes of action. Claimant, therefore, could have, and should have, served either a notice of intention or a claim prior to the expiration of the filing period." In this court's view, where the trial level determination of the criminal charge necessitates a finding that there was probable cause for an arrest, however, this Court would be acting in excess of its jurisdiction to, effectively, act as an appellate court, before the matter had been subject to appropriate judicial review.