New York State Court of Claims

New York State Court of Claims

FERNANDEZ v. THE STATE OF NEW YORK, #2002-032-502, Claim No. 100305


Synopsis


Claim for false imprisonment brought by a prison employee who was kept after work for routine questioning is dismissed. Claimant failed to prove that there was a wrongful intent to confine, that she was conscious of confinement, or that she did not consent to the confinement. Defendant proved that the confinement was justified and in accordance with the governing employment agreement

Case Information

UID:
2002-032-502
Claimant(s):
KATHRYN W. FERNANDEZ The caption has been amended sua sponte to reflect the only proper defendant.
Claimant short name:
FERNANDEZ
Footnote (claimant name) :

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

Third-party defendant(s):

Claim number(s):
100305
Motion number(s):

Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
A. Michael Gebo, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Kevan J. Acton, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
December 3, 2002
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision
This action for false imprisonment was commenced by a civilian employee of the Department of Correctional Services (DOCS) who alleges that she was wrongfully detained for questioning after her regular work hours. The Court holds that claimant has failed to establish the elements of false imprisonment by a preponderance of the credible evidence.

On February 26, 1999, claimant was employed as a teacher at the Bare Hill Correctional Facility in Malone, New York. Claimant's classroom was located in the annex at the back of the facility. Her normal work hours were from 11:00 A.M. to 7:00 P.M. but on this particular day her work hours were from 9:30 A.M. to 8:00 P.M. There was a Correction Officer located outside her classroom, sitting at an elevated desk, who could see into the classroom through a window. According to claimant, on this day a graduation ceremony was conducted for inmates who completed the Compadre Helper Program, an inmate peer counseling program conducted in Spanish. The graduation ceremony commenced between 3:30 P.M. and 4:00 P.M. in claimant's classroom and lasted for two hours. One inmate came into the classroom late for the ceremony. The Correction Officer located outside the classroom, Correction Officer Fleury, allegedly saw the inmate approach the claimant after he entered the classroom and kiss her on the right cheek. Claimant faced the window through which the Correction Officer could see into the room. Claimant maintains that the inmate did not kiss her but rather approached her desk and shook her hand.[1]

According to claimant, after the graduation ceremony concluded between 5:30 P.M. and 6:00 P.M., she left her classroom to go home. It took fifteen minutes to walk through four gates of the facility to reach the main lobby. According to Lieutenant Goff, the Assistant Watch Commander that evening, as claimant entered the lobby he told her that she was not to leave the facility until she spoke to Captain Gonyea, who was the main officer in charge of the facility that day. According to the lobby officer that evening, Sergeant Brian Johnston, claimant responded "okay" and sat down in the lobby area and read a book that she was carrying with her.

Claimant testified, however, that when she entered the lobby she attempted to leave by the front and side doors of the lobby but the doors were locked. Claimant testified throughout the course of the trial that she told the officer in the lobby and Captain Gonyea that she wanted to go home. The Court finds, however, that her testimony in this regard was vague and imprecise as to whom she spoke with in the lobby and what was said to her by the officers that evening. The Court accepts, therefore, the testimony of Sergeant Johnston that claimant sat quietly and read until she was able to speak with Captain Gonyea.

Lieutenant Goff told Captain Gonyea that claimant was in the lobby waiting to speak with him. After concluding a phone call, Captain Gonyea went into the lobby to talk with claimant. He told her that he wanted to talk to her about an incident but he thought she would be more comfortable talking to Carol Leary, the Acting Superintendent and Deputy Superintendent for Administrative Services, who had left for the day but was on her way back to the facility to talk to claimant. According to claimant, she inquired of Captain Gonyea as to why she was being detained and informed him that she wanted to go home. He told her that she had to wait for the Deputy Superintendent but did not tell her why she had to do so. She testified that she did not inquire any further and sat down.

Captain Gonyea returned to his office. Claimant used the pay phone in the main lobby. According to Sergeant Johnston, claimant checked the front door to the facility at this time and it was locked. This was the only testimony from any of the defendant's witnesses that claimant checked the doors and found them to be locked. Claimant then went into Captain Gonyea's office and informed him that she wanted to go to her car but she was locked in the facility. This was the first time that Captain Gonyea learned that the main door to the facility had been locked.

According to Captain Gonyea, at approximately 6:50 P.M. he and claimant proceeded to the lobby to allow her to go to her car to drop off her things. The Captain told the officer on duty there to open the door to the facility because claimant wanted to go to her car. Captain Gonyea testified that he would not have prevented her from driving away if she had attempted to do so. At that same time the Acting Superintendent was returning to the facility to talk to the claimant. As the Acting Superintendent walked into the lobby, she asked claimant to come to her office to talk about the incident. After briefly speaking to Captain Gonyea, Acting Superintendent Leary spoke to the claimant for ten minutes. Contrary to claimant's testimony at the trial, the Acting Superintendent testified that claimant told her that an inmate became emotional at the graduation ceremony and kissed claimant on the cheek as a thank you. Since the Acting Superintendent had heard that claimant did not respond to the kiss, she thought that the incident was not serious enough to warrant claimant staying later to do a report. When claimant was asked about her recollection of this conversation on cross-examination, she stated that she did not recall the details of what had been discussed.

Although claimant testified that she finally left the facility at 8:30 P.M., according to the testimony of the Acting Superintendent and Captain Gonyea, the time was closer to 7:15 P.M. to 7:30 P.M. Claimant recorded on her time card for that day (Exhibit A) that she worked until 8:00 P.M. Captain Gonyea testified that claimant left the facility after her meeting with the Acting Superintendent.

In order to sustain a cause of action for the tort of false imprisonment, the claimant must prove: (1) the defendant intended to confine her, (2) the claimant was conscious of the confinement, (3) the claimant did not consent to the confinement, and (4) the confinement was not otherwise privileged (
Broughton v State of New York, 37 NY2d 451, citing Restatement, 2d, Torts § 35). In the present case, claimant failed to prove any elements of this cause of action. Claimant must make a prima facie showing of confinement or the cause of action must be dismissed (Elson v Consolidated Edison Co. of N.Y., 226 AD2d 288).
As for the first element of this tort, claimant failed to show that the defendant either: (a) confined or intended to confine the claimant, or (b) affirmatively procured or instigated the claimant's arrest (
King v Crossland Sav. Bank, 111 F3d 251 [2d Cir 1997], citing Carrington v City of New York, 201 AD2d 525, 526-527, Williams v State of New York, 90 AD2d 861, 862). Summoning an employee into an interview in familiar surroundings in an employer's office does not prove an intent to confine (Lee v Bankers Trust Company, 1998 WL 107119 [SDNY 1998], citing Malanga v Sears, Roebuck & Co., 109 AD2d 1054, affd 65 NY2d 1009). In Lee (supra), an employee who was questioned for five hours by the defendant's security personnel was found not to be falsely imprisoned. In Malanga (supra), the plaintiff was a part-time employee of the defendant who was questioned during regular business hours in familiar surroundings about the loss of merchandise. The Court held that she was not falsely imprisoned.
In the case at bar, the actions of defendant's employees do not indicate an intent to confine claimant. Claimant was told that Captain Gonyea and Acting Deputy Superintendent Leary wanted to speak with her before she left for the evening. She was questioned in familiar surroundings very close in time to her regular work hours. Although it was claimant's practice to leave after her work was done for the day, her normal work hours were from 11:00 A.M. to 7:00 P.M. When the Acting Superintendent arrived, claimant was questioned for ten minutes in the Acting Superintendent's office close to the time that claimant's normal work day would end. The defendant's actions in the instant case were not nearly as severe as the actions of the employers in
Lee (supra) or Malanga (supra), which were found not to rise to the level of false imprisonment. As for the locked doors, Captain Gonyea, the main officer in charge of the facility for the day, did not know the doors to the facility were locked until claimant informed him later that evening.[2]
Counsel for claimant argued that the memorandum should be admitted as an exception to the hearsay exclusion as an admission. Counsel for the defendant argued that it was hearsay and did not meet the requirements for admission as a business record's exception to the hearsay rule. The Court finds that this document is an admission and therefore is not excluded from the record. "[t]he hearsay statement of an agent is admissible against his employer under the admissions exception to the hearsay rule only if the making of the statement is an activity within the scope of his authority" (Loschiavo v Port Auth. of N.Y. & N.J., 58 NY2d 1040).The agent must have the authority to speak on behalf of the principal (Prince, Richardson on Evidence, 11th ed., § 8-208). In Navedo v 250 Willis Ave. Supermarket (290 AD2d 246), the alleged post-accident statements of a store manager in a slip and fall action were held admissible under the principal/agent exception. In the instant case, the Court finds that the Superintendent had the authority to speak for the Bare Hill Correctional Facility and such statements were made during a labor management meeting, clearly within the scope of Mr. Lacy's duties. However, the Court also finds that the memorandum, signed by the Superintendent and the PEF President, reflected an admission that it was not the policy of the correctional facility to lock its doors. The fact that an employee may have locked the doors at some point that evening does not constitute an abandonment of the facility's policy.

As for the second element, whether claimant was conscious of the confinement, the Court believes that claimant, at some point that evening before Acting Superintendent Leary arrived, checked the doors and found them to be locked. The fact that the doors were locked does not necessarily mean that there was an intent to confine her, or for that matter, that claimant was truly confined. When she told Captain Gonyea that the doors were locked and that she wanted to go to her car, the Captain told the lobby officer to open the door to the facility and allowed her to go outside.

In
Arrington v Liz Claiborne, Inc. (260 AD2d 267), a case in which the plaintiffs were accused of falsifying their time cards and required to meet with security personnel to discuss the matter, the Court held that the first and second elements of this tort were not met just because the plaintiffs "felt" that they were not free to leave because they were told the police would be called if they did not cooperate and sign written agreements. "Plaintiffs' fears that they would be arrested or fired did not constitute detaining force necessary to establish the tort of false imprisonment" (id., citing Malanga v Sears, Roebuck & Co., 109 AD2d 1054, 1055, supra).
Similar to the plaintiffs in Arrington and Malanga, claimant may have felt that she was not free to leave even though she was not threatened, but such a feeling is not the same thing as knowing one cannot leave.
Claimant's testimony on this point was vague and inconsistent. She testified that at one point Captain Gonyea blocked the door to prevent her from leaving, but this statement was simply not credible in the light of other witnesses' testimony and her own account of events. Her time line of events was also confusing. The credible testimony suggests that at some point claimant tested the doors and found them to be locked, that she went to Captain Gonyea and asked that they be opened, and that Captain Gonyea agreed that she could go to her car. Consequently, claimant has not met the burden of proving that she was conscious of her confinement.

It has been held that the third element of this tort, that a claimant did not consent to the confinement, was not satisfied when a plaintiff voluntarily accompanied a defendant's employees to a security office to discuss the potential criminality arising from the tender of an alleged counterfeit payment for admission tickets (
Farina v Saratoga Harness Racing Assn., 20 AD2d 750). The Court finds in the present case that claimant consented to remain to speak with Acting Superintendent Leary thus failing to establish the third element of this tort. According to Sergeant Brian Johnston, the lobby officer that day, when he told claimant not to leave the facility until she spoke to Captain Gonyea, claimant responded "okay" and sat down in the lobby lounge and read a book.
Regarding the fourth element, that the confinement was not privileged, the burden of proving privilege is upon the person or entity charged with the commission of the tort (
Gonzalez v State of New York, 110 AD2d 810, citing Hollender v Trump Vil. Coop., 58 NY2d 420, 425). Privilege or justification becomes a question of fact when the defendant has met the burden of pleading and producing evidence to support this affirmative defense (see, Simmonds v Abraham & Straus Dept. Store, 118 AD2d 553; see also Parvi v City of Kingston, 41 NY2d 553, citing Broughton v State of New York, 37 NY2d 451, supra; Woodson v New York City Housing Auth., 10 NY2d 30).
In the instant case, the defendant pleaded privilege as its fifth affirmative defense
. At trial, defendant introduced as Exhibit D, the 1995-1999 Professional, Scientific and Technical Services Unit Agreement between the State of New York and PEF. Article 33 of this agreement pertains to the discipline of employees. Section 33.3 (b) of this article distinguishes the difference between the "interrogation" of an employee and the "routine questioning" of an employee:
(b) An "interrogation" shall be defined to mean the questioning of an employee who, at the time of the questioning, has been determined to be a likely subject for disciplinary action. The routine questioning of an employee by a supervisor or other representative of management to obtain factual information about an occurrence, incident or situation or the requirement that an employee submit an oral or written report describing an occurrence, incident or situation, shall not be considered an interrogation * * * .
(Emphasis added.) Defendant also produced at trial, Mr. Peter Brown, an employee of DOCS with knowledge in the area of labor relations, who testified that under this contract an employee could be asked to remain for routine questioning.
This contract language and testimony clearly implies that the employer had the right, privilege or justification, to routinely question an employee to obtain information about an occurrence, such as the incident involved in the case at bar. According to the testimony of Captain Gonyea and Acting Superintendent Leary, they had concerns about whether a relationship existed between Ms. Fernandez and the inmate who allegedly kissed her. Such concerns included whether the inmate was considered dangerous and whether claimant was fearful or traumatized by the event. The Court finds that the defendant properly pleaded this affirmative defense and proved it during the course of the trial.

Based on the foregoing, the Court finds that claimant has failed to establish, by a fair preponderance of the credible evidence, that defendant's actions constituted false imprisonment. The Chief Clerk is directed to enter judgment in favor of defendant, dismissing the claim.

Let judgment be entered accordingly.

December 3, 2002
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims




[1] Correction Officer Fleury filed an inmate misbehavior report on the inmate involved in this incident (Exhibit C).

[2] During trial the Court reserved ruling upon the admissibility of a post-incident memorandum signed by Peter J. Lacy, the then Superintendent of the Bare Hill Correctional Facility and Tim Sheehan, the then President of the Public Employees Federation, the labor union representing many DOCS employees. The fourth paragraph of this memorandum states: "Mr. Lacy said that this was an isolated incident-the Lobby Officer was told to have Mrs. Fernandez stay until the arrival of Acting Superintendent Leary, so he locked the door. This is not our policy and hopefully it would not occur again unless it was a dire emergency." The last paragraph in this memorandum contains a sentence that states: "It is not our (referring to the Administration of Bare Hill) policy to lock employees in."