New York State Court of Claims

New York State Court of Claims

KRIETSCH v. THE STATE OF NEW YORK, #2004-019-528, Claim No. 105865, Motion No. M-67803


Synopsis


Case Information

UID:
2004-019-528
Claimant(s):
GEOFFREY M. KRIETSCH
Claimant short name:
KRIETSCH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105865
Motion number(s):
M-67803
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
FRIEDMAN, HARFENIST, LANGER & KRAUTBY: Neil Torczyner, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 16, 2004
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant State of New York (hereinafter "State") moves for leave to serve an amended answer to add an affirmative defense based upon collateral estoppel and summary judgment dismissing the claim. (CPLR 3025 and 3212). Claimant opposes the motion.
BACKGROUND
On April 9, 2001, claimant was operating a 1975 Dodge van on Route 17 westbound through Sullivan County accompanied by his fiancee Christine Fedder in the front passenger seat.[1] At approximately 3:20 p.m., claimant noticed a State troop vehicle on the median as he was traveling in the left passing lane. Minutes later, two State Troopers, David A. Rivera and Elizabeth M. Apmann, using lights and sirens directed claimant to pull his vehicle over to the side of the highway.

The following factual scenario is taken from claimant's deposition testimony. Trooper Rivera approached the driver side window while Trooper Apmann approached the passenger side window. Trooper Rivera explained that he had pulled claimant over due to a potential seat belt violation. Claimant concedes that he was not using his lap belt, because he had used the lap belt to secure his driver's seat that had broken while en route. Claimant was asked to get out of the vehicle to produce his license and registration and to move to the back of the van, leaving the driver's door open. Trooper Rivera looked inside the open door and then asked claimant whether there "[w]as anymore [sic] drugs in the vehicle other than the roach that he observed on the floor...." (State's Ex. E, p 61). Claimant initially responded in the negative, but Trooper Rivera asked a second time whether additional drugs were in the vehicle. Although claimant never saw the roach on the floor, he nevertheless admitted to Trooper Rivera that he had a joint in a carry-on pouch next to his seat. (State's Ex. E, pp 33, 43-45, 62). Trooper Rivera then performed a basic pat-down of claimant, asked claimant to remove his boots, and empty his pockets. The troopers then advised claimant that they were going to search his van. At some point during the search of the van, claimant's fiancee approached the troopers to ask how much longer they were going to take and began to get upset since she was expected at Sullivan County Hospital by a certain time. Thereafter a verbal argument of sorts took place between Ms. Fedder and the troopers, although claimant was not directly involved other than trying to calm down his fiancee. Trooper Apmann led Ms. Fedder to the front of the van, while Trooper Rivera directed claimant to the passenger side of the vehicle and advised him he was going to perform a strip search. Trooper Rivera directed claimant to sit on the van's step, lower his pants and underwear, and lift his testicles. No additional drugs or contraband were discovered on claimant's person. Claimant indicates that at no time during this search did Trooper Rivera ever touch him nor was the search witnessed by Trooper Apmann, his fiancee, or any third person. Both claimant and Ms. Fedder were issued citations for possession of marijuana and seat belt violations (Vehicle & Traffic Law § 1229-c [3]), and were allowed to leave the scene. Ultimately, claimant pled guilty to the seat belt violation and paid a fine, while receiving an Adjournment in Contemplation of Dismissal on the marijuana charge.


Court of Claims action
Claimant served a notice of intention on July 3, 2001. This claim was filed with the Clerk of the Court on April 8, 2002 and personally served on the Office of the Attorney General on April 9, 2002. This claim contains six causes of action numbered as follows: (1) false arrest; (2) illegal search [vehicle]; (3) assault; (4) illegal search [strip search]; (5) failure to supervise; and (6) failure to train. The State filed a Verified Answer on May 13, 2002 containing four affirmative defenses.
Federal Claim
Claimant also filed a related federal action on April 8, 2002 and amended July 30, 2002, against Troopers Rivera and Apmann containing eight causes of action. The federal court ultimately granted the defendants' motion for summary judgment and dismissed the complaint in its entirety in a decision dated October 21, 2003 (hereinafter "Federal Decision"). (State's Exhibit B). A summary of the federal causes of action pled and the disposition of each in the Federal Decision is as follows: (1) first cause of action based upon illegal seizure (traffic stop) in violation of Fourth and Fourteenth Amendments to U.S. Constitution was dismissed because troopers had probable cause to stop the vehicle based on seat belt violation; (2) second cause of action based upon illegal seizure (traffic stop) in violation of § 11 of the New York State Constitution was dismissed because troopers had probable cause to stop the vehicle based on seat belt violation; (3) third cause of action based upon false arrest was dismissed because troopers had probable cause to stop the vehicle based on seat belt violation; (4) fourth cause of action alleging illegal search (of van) in violation of Fourth and Fourteenth Amendments to U.S. Constitution was dismissed because probable cause to believe van contained drugs based upon claimant's admission of possession of a marijuana joint during the stop; (5) fifth cause of action based upon illegal search (of van) in violation of § 11 of New York State Constitution was dismissed because a vehicle may be searched without a warrant in connection with a traffic stop when there is probable cause to believe the vehicle contains drugs and probable cause present based on claimant's admission of possession of marijuana; (6) sixth cause of action based upon assault was dismissed because "[n]o assault or touching, and no assault lies based merely on apprehension" (State's Ex. B, p 5); (7) seventh cause of action alleging illegal search (strip search) in violation of Fourth and Fourteenth Amendments to U.S. Constitution was dismissed based on a totality of circumstances analysis because troopers had reasonable cause to believe claimant might be carrying contraband or a dangerous weapon on his person or, in the alternative, based on defense of doctrine of qualified immunity; and (8) eighth cause of action based on illegal search (strip search) in violation of § 11 of New York State Constitution was dismissed based on totality of circumstances analysis because troopers had reasonable cause to believe claimant might be carrying contraband or a dangerous weapon on his person or, in the alternative, based on defense of doctrine of qualified immunity.


By way of this motion, the State seeks summary judgment on the first four causes of action asserted in this claim which it asserts are identical to those contained in the federal action, as well as summary judgment on the two negligent supervision causes of action unique to this claim.

DISCUSSION
  1. State's Motion to Amend Answer
The State seeks to amend its Verified Answer to include the affirmative defense of collateral estoppel based upon the Federal Decision. The State could not have raised this affirmative defense in its original Verified Answer since the Federal Decision was not issued until October 21, 2003, well after the State filed its Verified Answer on May 13, 2002. Thus, it was an impossibility for the State to assert the affirmative defense of collateral estoppel 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). Moreover, claimant has failed to articulate any prejudice that would result from permitting the State to amend its Verified Answer. As such, the court will deem the State's Verified Answer as amended so as to include the affirmative defense of collateral estoppel.


Next, the parties disagree on the applicability of the doctrine of collateral estoppel. The State contends the doctrine of collateral estoppel is proper in light of claimant's failure to formally discontinue the state constitutional claims in the federal action and the identical standards between the federal and state issues. Claimant argues that the doctrine of collateral estoppel is inapplicable because the Federal Decision expressly reserved claimant's right to pursue the state causes of action in the Court of Claims and New York possesses a more stringent standard relative to the actions of police than applied by the federal court.


Generally, the party seeking the benefit of the doctrine of collateral estoppel must prove that "[t]he 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). Here, Judge Brieant dismissed the federal claims upon the express proviso that the dismissal was "[w]ithout prejudice to any claims which Plaintiff may have against the State of New York in the pending Court of Claims case", thereby declining to issue a substantive decision regarding any state law claim. (State's Exhibit B, p 5). In view of the foregoing, this court finds the doctrine of collateral estoppel inapplicable on these facts. That having been said, however, the court will consider the State's alternative argument that in any event summary judgment is warranted because "the alleged actions of the troopers would have been reasonable even according to claimant's version of the facts." (Affirmation in Reply of Joseph F. Romani, AAG, ¶ 6).

  1. State's Motion for Summary Judgment
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). For the purposes of a summary judgment motion, the factual allegations of the opposing party must be deemed true and granted every favorable inference. (Barber v Merchant, 180 AD2d 984, 986). The State concedes this principle and actually urges this court, as it did in the federal action, to accept as true even the most egregious of claimant's allegations. (Affirmation of Joseph F. Romani, AAG, ¶ 3). The court will address the parties' arguments in relation to each cause of action asserted in this claim.


First cause of action: False Arrest

The State contends that claimant's concession in federal court that there was probable cause to stop claimant's vehicle for a seat belt violation also serves as a basis for dismissal of the false arrest cause of action here. (State's Memorandum of Law, p 11). Claimant does not oppose this portion of the State's motion admitting that since he "[c]onceded the arrest as lawful...in the Federal Action, the [claimant] cannot at this point challenge the arrest in the instant Court of Claim[s] proceeding." (Claimant's Memorandum of Law, n 8). As such, claimant's first cause of action for false arrest is dismissed.


Second cause of action: Illegal search of vehicle

The State argues that this cause of action should be dismissed because the troopers had probable cause to search the vehicle based upon claimant's admission that there was marijuana inside the vehicle. In opposition, claimant argues there are questions of fact as to whether the troopers had probable cause to search the vehicle. More specifically, claimant argues that although an officer may order occupants of a vehicle to exit, "[t]he officer may not then prevaricate and fabricate evidence to obtain a confession allowing an officer to search the vehicle." (Claimant's Memorandum of Law, p 8). Claimant is referring to Trooper Rivera's alleged comment to claimant that he observed a marijuana cigarette on the vehicle's floor, a statement that claimant argues was fabricated in order to coax claimant into a confession. Claimant asserts that there are questions of fact as to whether a marijuana cigarette was actually present on the vehicle's floor thereby warranting denial of summary judgment. The court disagrees.


The State recognizes that it must accept claimant's version of events as true for purposes of this motion despite the differing versions of events described in the parties' depositions. As such, the court accepts as true claimant's allegation that Trooper Rivera lied about seeing a marijuana cigarette on the floor of the vehicle in order to trick claimant into admitting to the presence of drugs in the vehicle. Nevertheless, even assuming this to be true, as the State argued in federal court, police deception only invalidates a search when the use of police deception is "[s]o fundamentally unfair as to deny due process [citations omitted]". (People v Tarsia, 50 NY2d 1, 11; People v Tankleff, 84 NY2d 992; State's Exhibit C, p 5). Here, on the accepted facts, Trooper Rivera lied to claimant about seeing a marijuana cigarette in the vehicle and twice asked claimant whether there were other drugs in the vehicle. The fact that claimant admitted that there was a marijuana cigarette in the vehicle after being asked a second time does not elevate Trooper Rivera's actions to the level of fundamental unfairness. (People v Sobchik, 228 AD2d 800; People v Abrams, 95 AD2d 155). This conclusion is also proper from a stare decisis point of view in light of Judge Brieant's conclusion on these same facts. Consequently, the court finds that Trooper Rivera had probable cause to believe the vehicle contained additional drugs based upon claimant's admission and, as such, the search of the vehicle was lawful and the second cause of action should be dismissed.


Third cause of action: Assault

The State argues that claimant is unable to establish a prima facie case of assault as there is no proof of any intent by the troopers to cause a harmful or offensive contact nor is there any proof of any immediate apprehension of touching by claimant. (State's Memorandum of Law, pp 15-16). Claimant concedes that dismissal of the assault cause of action is proper for the reasons articulated in the Federal Decision. (Claimant's Memorandum of Law, p 8). As such, claimant's third cause of action for assault is dismissed.


Fourth cause of action: Illegal strip search

The parties make similar arguments here as asserted with respect to the second cause of action. Once again, claimant argues there are questions of fact warranting denial of summary judgment regarding whether or not a strip search actually took place in light of the denial by Trooper Rivera and Trooper Apmann during their depositions that they conducted a strip search. (State's Ex. F, pp 58-60, & Ex. G, pp 31-32). Again, the State recognizes that it must accept claimant's allegations as true for purposes of this motion. Accordingly, the court will accept claimant's allegations as true thereby finding for purposes of this motion that the strip search as described by claimant in his deposition actually took place. Thus, the legal question presented is whether the strip search was lawful under the circumstances.


The State argues that a strip search is lawful so long as the officer has "[a] reasonable suspicion that the arrestee is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest." (Weber v Dell, 804 F2d 796, 802, cert. denied, 483 US 1020; People v Jennings, 297 AD2d 644). The State argues that claimant's own admission that he was in possession of contraband, i.e., marijuana, provided the troopers with reasonable suspicion to believe that claimant might be carrying additional marijuana on his person, thereby justifying the subsequent strip search. (State's Memorandum of Law, p 14). Finally, the State argues that the manner of the alleged strip search was not unnecessarily intrusive since there are no allegations of touching or that the search was witnessed by any third person.


Claimant argues that the State must offer more than claimant's own admission of possession of contraband in order to justify reasonable suspicion that a person is concealing a weapon or contraband. (Claimant's Memorandum of Law, pp 12-13). Claimant's attempt to distinguish People v Jennings, 297 AD2d 644, are unavailing. As noted by the State, in Jennings there was not a clear link between the drugs and the person searched due to the presence of two other passengers. Here, claimant admitted that there was marijuana in his pouch located next to his seat. Stated another way, there was reasonable suspicion to believe claimant was concealing contraband on his person in view of the "clear link between claimant himself and the marijuana" in the vehicle. (State's Memorandum of Law, n 1). Moreover, as with the search of the van, the reasonableness of the strip search from a stare decisis point of view based upon Judge Brieant's findings is also proper. (State's Reply Memorandum of Law, p 9). In view of the totality of the circumstances, the court finds that the alleged strip search was lawful since the troopers had reasonable suspicion to believe that claimant possessed contraband on his person and, as such, the fourth cause of action should be dismissed.


Fifth & Sixth causes of action: Negligent supervision and negligent training

The State asserts that claimant's causes of action for negligent supervision and training should be dismissed because there is no actionable underlying tort nor any proof of the State's prior notice of either Trooper's propensity to violate an individual's constitutional rights. (State's Memorandum of Law, pp 17-20). Claimant objects to dismissal of these causes of action based upon the State's refusal to engage in discovery on these issues to date. (Claimant's Memorandum of Law, pp 20-21).


It is well settled that where an employee is adjudicated to have committed no actionable wrong the State may not be held liable under a theory of respondeat superior. (Bronxville Palmer v State of New York, 18 NY2d 560, 563). In view of the foregoing dismissals of the underlying causes of action, the court finds that in the absence of any underlying cognizable tort claim that the fifth and sixth causes of action for negligent supervision and negligent training should be dismissed as well.


In addition to the dismissal of the first four causes of action hereinabove, this court also finds no basis for a cognizable constitutional tort cause of action. First, the finding of probable cause in relation to both the search of the vehicle and the strip search vitiates the remedy of constitutional tort. (Octave v State of New York, Ct Cl, March 30, 2001, Read, P.J., Claim No. 97393, Motion No. M-62801, p 6 [UID No. 2001-001-019]).[2] Second, claimant had available remedies including a § 1983 action in federal court and, most importantly, the right to challenge these searches in criminal court. (Remley v State of New York, 174 Misc 2d 523; Augat v State of New York, 244 AD2d 835, 837, lv denied 91 NY2d 814). However, rather than challenge the validity of these searches in connection with the criminal charge against him, claimant chose to accept an Adjournment in Contemplation of Dismissal on the possession of marijuana charge. (Knight v State of New York, Ct Cl, December 19, 2002, Collins, J., Claim No. 104458, Motion No. M-65115 [UID No. 2002-015-308]). As such, there is no need to create a constitutional tort remedy here. (Brown v State of New York, 89 NY2d 172; Martinez v City of Schenectady, 97 NY2d 78).


Accordingly, in light of the foregoing, it is ORDERED that the State's motion for summary judgment, Motion No. M-67803, is GRANTED and Claim No. 105865 is DISMISSED.


March 16, 2004
Binghamton, New York

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



The Court has considered the following papers in connection with this motion:
  1. Verified Claim, filed April 8, 2002.
  2. Verified Answer, filed May 13, 2002.
  3. Notice of Motion No. M-67803, dated December 19, 2003, and filed December 22, 2003.
  4. Affirmation of Joseph F. Romani, AAG, in support of motion, dated December 19, 2003, with attached exhibits.
  5. Memorandum of Law, in support of the motion, dated December 19, 2003.
  6. Affirmation of Neil Torczyner, Esq., in opposition to motion, dated February 5, 2004, and filed February 11, 2004, with attached exhibit.
  7. Memorandum of Law, in opposition to motion, dated February 5, 2004.
  8. Reply Affirmation of Joseph F. Romani, AAG, in support of motion, dated February 27, 2004, and filed March 1, 2004, with attached exhibit.
  9. Reply Memorandum of Law, in support of motion, dated February 27, 2004.

[1]Ms. Fedder passed away after this incident due to an unrelated illness. (State's Ex. E, p 8).

[2]Unreported decisions from the Court of Claims are available via the Internet at