New York State Court of Claims

New York State Court of Claims

NOSAL v. THE STATE OF NEW YORK, #2004-015-384, Claim No. 105588, Motion No. M-67811


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
Higgins & Moran, PLLCBy: Dean J. Higgins, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 19, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion for summary judgment seeking an order determining the defendant's liability as a matter of law on causes of action for false arrest and malicious prosecution is denied. The instant claim seeks to recover $500,000.00 on each of four separately stated causes of action. The first is based upon false arrest and unlawful imprisonment. The second cause of action asserts alleged violations of claimant's rights to due process, equal protection, freedom from excessive force and unreasonable search and seizure as guaranteed by the New York State Constitution. The third cause of action sounds in malicious prosecution and the fourth in abuse of process. The latter two causes of action arise from the issuance of two uniform traffic tickets on February 23, 2001 for alleged violations of the Vehicle and Traffic Law which occurred on January 27, 2001. Claimant's motion for summary judgment, however, relates solely to the causes of action for false arrest and malicious prosecution.

On January 27, 2001 claimant was operating a motor vehicle at a speed in excess of the posted speed limit on Route 9P in the Town of Saratoga when he was observed by Trooper Philip Poitier, pulled over and issued a uniform traffic ticket for excessive speed in violation of Vehicle & Traffic Law (V & T) § 1180 (d).

Claimant thereafter pled not guilty to the speeding ticket and requested a supporting deposition from the trooper. Trooper Poitier prepared the deposition on February 9, 2001 and allegedly attempted without success to hand deliver it on several occasions to claimant at his parents' home and business address at Saratoga Lake. Trooper Poitier testified at his examination before trial (claimant's Exhibit F) that on the morning of February 23, 2001 he was at work in the New York State Police satellite office in Schuylerville when he was visited by Saratoga Town Justice James S. Priest. Upon seeing the supporting deposition for Leo Nosal, Jr. on Trooper Poitier's desk Justice Priest allegedly advised the trooper that he had just signed a bench warrant for Leo Nosal Jr.'s arrest. Due to a prior engagement Justice Priest did not produce the warrant but advised Trooper Poitier that he would return to the courthouse "sometime in the morning, 9:00 to 10:00 he would be back in his office, just bring him there and he will see the warrant when he gets there."

Trooper Poitier's deposition testimony concerning his discussion with Justice Priest on the morning of February 23, 2001 is substantially identical to the version of events related in a statement signed by Justice Priest and sworn before a notary public on May 13, 2002 (defendant's Exhibit A). However, Justice Priest testified at his examination before trial (claimant's Exhibit G) that he informed Trooper Poitier that a bench warrant was or would be issued for Michael Nosal.

Trooper Poitier went to claimant's home and advised claimant that he was under arrest based upon the bench warrant. Claimant closed the front door on the trooper who thereafter entered the premises, handcuffed the claimant and transported him to the state police substation in Schuylerville. There he was restrained until Trooper Poitier obtained the warrant from Justice Priest and discovered that the warrant was issued to secure the arrest of Michael Nosal and not Leo Nosal, Jr. The warrant charged that Michael Nosal failed to pay a fine relative to charges of imprudent speed and leaving the scene of a property damage accident (see, claimant's Exhibit L).

Prior to releasing claimant from custody Trooper Poitier presented him with two newly issued traffic tickets alleging violations of V & T § § 375 (2) (a) (1) and 1229-c (3) (see, claimant's Exhibit K) for failing to use headlights when needed and failure to wear a seatbelt. Approximately one hour after having been taken into custody claimant was released. The trooper stated in his deposition testimony that these tickets were issued for violations occurring at the time Leo Nosal, Jr. was originally stopped and ticketed on January 27, 2001. The officer testified that he intended to issue all three tickets on that date but had only one ticket available and therefore ticketed the claimant for excessive speed and informed him that tickets on the other two violations would be completed and served upon him at a later date. Claimant has denied that such a conversation took place and contends instead that he was informed by Trooper Poitier that additional tickets would be issued if the claimant contested the speeding ticket.

Pursuant to a plea bargain memorialized in a memorandum dated May 1, 2001 (claimant's Exhibit J) claimant pled guilty to a violation of V & T § 1201 (a) (stopping, standing or parking on a highway). The affidavit of the claimant and affirmation of claimant's counsel state simply that the seat belt and headlight charges were "dismissed." Although the plea memorandum references these latter two charges the handwritten notation relating their actual disposition is indecipherable.

Claimant served a notice of intention to file a claim in May, 2001 and filed the instant claim on February 11, 2002. He now moves for summary judgment on the causes of action sounding in false arrest/false imprisonment and malicious prosecution stemming from his warrantless arrest and the issuance of the two traffic tickets on February 23, 2001. The defendant opposed the motion but did not cross-move for summary judgment. This decision is addressed to the false arrest/false imprisonment and malicious prosecution causes of action only.

The rules applicable to the determination of a motion for summary judgment were clearly stated by the Court of Appeals in Alvarez v Prospect Hosp., 68 NY2d 320, 324:
As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra, at p 853). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, supra, at p 562).
The proponent of a summary judgment motion may only meet its initial burden through the submission of evidentiary proof in admissible form (Rifenburgh v Wilczek, 294 AD2d 653). The evidence presented on a motion for summary judgment must be viewed in the light most favorable to the non-moving party who is also afforded the benefit of all favorable inferences flowing therefrom (Greco v Boyce, 262 AD2d 734). Credibility issues arising from conflicting testimony may not be resolved on a summary judgment motion (Boyce v Vazquez, 249 AD2d 724).

The essential elements of a cause of action for malicious prosecution are (1) commencement of a criminal proceeding against a claimant, (2) termination of the proceeding in favor of the accused, (3) absence of probable cause for the 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). While the claimant has demonstrated on the motion that on February 23, 2001 Trooper Poitier issued two tickets alleging that claimant violated Vehicle and Traffic Law § § 375 (2) (a) (1) and 1229-c (3) the record is devoid of proof that the subsequent proceeding stemming from the issuance of those tickets was terminated in favor of the claimant (see, MacFawn v Kresler, 88 NY2d 859, 860). As previously noted, the only proof offered on the favorable termination issue were the statements by the claimant and his counsel indicating only that the charges were dismissed and the indecipherable (as it pertains to these charges) memorandum of plea bargain. It is claimant's burden to establish that the proceeding giving rise to his malicious prosecution cause of action was "terminated in favor of the accused" (Martinez v City of Schenectady, 97 NY2d 78, 84) and the record reflects the existence of questions of fact in this regard. The Court notes that it has long been held that a prosecution which ends as a result of settlement or compromise with the accused is not favorably terminated for purposes of a malicious prosecution action (Cantalino v Danner, 96 NY2d 391; Smith-Hunter v Harvey, 95 NY2d 191).

Nor has the instant claimant demonstrated on the motion that Trooper Poitier lacked probable cause to issue the February 23, 2001 traffic tickets or that in doing so he acted with actual malice. The testimony regarding issuance of the tickets is in direct conflict. Claimant alleges the tickets were issued because the claimant contested the speeding ticket issued on January 27, 2001 while the Trooper testified that he had only one ticket in his possession on that date and, therefore, the additional tickets necessarily had to be issued and served at a later date. The conflicting testimony presents both factual issues as well as issues of credibility which may only be resolved at trial.

Since claimant failed to demonstrate a prima facie entitlement to summary judgment claimant's motion seeking a determination of the defendant's liability on the malicious prosecution cause of action is denied.

The Courts of this State have used the term false arrest and false imprisonment interchangeably. Technically, false imprisonment is "an unlawful detention contrary to the will of the person detained, accomplished with or without process of law" while false arrest is such a detention "accomplished by means of an unlawful arrest, and is a trespass against the person arrested" (Christon v State of New York, Ct Cl [Claim No. 103707] UID # 2003-032-514[1], June 25, 2003, Hard, J., unreported, citing 59 NY Jur 2d, False Imprisonment § 1). It is generally agreed, however, that the essential elements of a cause of action for false arrest/false imprisonment are as follows: (1) the defendant's intentional confinement of the claimant, (2) claimant's conscious awareness of the confinement, (3) claimant's lack of consent to the confinement and (4) the confinement was not otherwise privileged (see, Broughton v State of New York, supra). Legal justification for an arrest is an affirmative defense to be alleged and proved by the defendant (see, Gebbie v Gertz Div. of Allied Stores of N.Y., 94 AD2d 165).

On this motion claimant has made a prima facie showing on the first three elements of the cause of action. The parties, however, differ on whether Trooper Poitier's action in arresting claimant was privileged, i.e., whether probable cause for the claimant's arrest existed. Probable cause has been defined as such facts and circumstances as would lead a reasonably prudent person to believe claimant is guilty given the facts known or reasonably known to be true to the defendant (Colon v City of New York, 60 NY2d 78, 82). It has been said that only where the facts leading up to an arrest and the reasonable inferences to be drawn therefrom are not in dispute may the presence or absence of probable cause be decided as a matter of law (Redwood v State of New York, Ct Cl [Claim No. 97098] UID #2002-028-506, September 20, 2002, Sise, J., unreported). "Where there is 'conflicting evidence, from which reasonable persons might draw different inferences * * * the question [is] for the jury' (Veras v Truth Verification Corp., 87 AD2d 381, 384, affirmed 57 NY2d 947" (Parkin v Cornell Univ., 78 NY2d 523, 529).

It has long been held that "[a] party may act with probable cause even though mistaken, for a mistake of fact as to the identity of a criminal may be consistent with probable cause if the party acted reasonably under the circumstances in good faith (Burt v Smith, 181 NY 1; Vennard v Sunnyside Sav. & Loan Assn., 44 AD2d 727)" (Colon v City of New York, 60 NY2d 78, 82). In People v Lee, 126 AD2d 568 the Appellate Division, Second Department at p. 569 found that "[t]he arrest of a person who is mistakenly thought to be someone else is valid if the arresting officer (a) has probable cause to arrest the person sought and (b) reasonably believed the person arrested was the person sought (see, Hill v California, 401 US 797, 802; United States v Glover, 725 F2d 120, 122)".

In making an arrest a police officer may rely upon information communicated to him by another police officer that an individual is the subject named in a warrant and should be taken into custody (see, Whiteley v Warden, 401 US 560; People v Jennings, 54 NY2d 518). In the instant matter Trooper Poitier's testimony and the sworn statement of Justice Priest relate that the trooper was informed by the town justice issuing the warrant that Leo Nosal, Jr., the claimant herein, was the subject of a bench warrant. The Court finds that the reasonableness of Trooper Poitier's actions in effecting this warrantless arrest cannot be determined on the motion as a matter of law and claimant's motion as addressed to the false arrest/false imprisonment cause of action must likewise be denied.

This case shall proceed to trial on February 24, 2004 as scheduled.

February 19, 2004
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated December 23, 2003;
  2. Affidavit of Dean J. Higgins sworn to December 24, 2003 with exhibits;
  3. Amended notice of motion dated December 29, 2003;
  4. Defendant's memorandum of law dated January 9, 2004 with exhibits;
  5. Affirmation of Dean J. Higgins dated January 15, 2004

[1]Unreported decisions from the Court of Claims are available via the internet at