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
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 ), 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
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.
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
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).
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
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.
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
, 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
, 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