This is a timely filed claim based on alleged injuries suffered by Sidney
Lynn (hereinafter "claimant"), due to the intentional torts of defendant. On
March 4, 2004, a bifurcated trial was held to determine liability.
initial facts of this case are not, for the most part, in question. Claimant
and defendant’s employee, Department of Environmental Conservation Officer
John Fitzpatrick (hereinafter “Fitzpatrick”), were each driving a
vehicle northbound on Nicolls Road in the Town of Brookhaven. Fitzpatrick was
following a fellow DEC officer to the Region 1 office in Stony Brook. The two
became separated and Fitzpatrick did not know his way. At the intersection of
Nicolls Road and the entrance to The Suffolk County Community College, a light
controlling the intersection was red. Claimant was stopped at the light when
Fitzpatrick pulled up alongside him. Nicolls Road is a north/south road with
two lanes in each direction. Fitzpatrick pulled up to the red light in the left
hand turn lane, momentarily stopped, activated front and rear police lights and
then went through the light.
Thereafter, the details of what happened
differ. The next intersection was Coleman Road, which also had a red light and,
according to Fitzpatrick, was much busier. Fitzpatrick stopped his vehicle at
this intersection. Claimant pulled up alongside Fitzpatrick and motioned for
Fitzpatrick to roll down his window. According to claimant, he then asked,
“[a]re you someone special that you can go through a red light?”
(Tr. 14). Fitzpatrick, who was driving an unmarked police vehicle, responded
that he was a police officer. Claimant answered that he, too, was a police
officer and then testified that Fitzpatrick directed him to pull over or he
would be arrested for criminal impersonation (Tr. 15).
claimant, he pulled over onto the grassy shoulder and Fitzpatrick pulled his car
in behind claimant’s vehicle. Each of the drivers exited his vehicles and
Fitzpatrick asked claimant for his police ID. Initially, claimant says that he
refused to show his police ID, but then complied. When he asked to see
Fitzpatrick’s ID, claimant says Fitzpatrick took it out and flashed it
quickly. According to claimant, he returned to his vehicle, got a pencil and
paper and asked to see Fitzpatrick’s ID again, but was refused. Claimant
then wrote down the license plate number of Fitzpatrick’s car and began to
walk to his car to leave. Claimant testified that before he got into his car,
Fitzpatrick told him not to get into the vehicle, but claimant did anyway. Upon
Fitzpatrick ordering him a second time not to get in the vehicle, claimant
responded “F you” (Tr. 16). At this point, Fitzpatrick approached
claimant’s vehicle, reached in and removed claimant’s hand from the
keys on the ignition and told claimant he was under arrest.
Fitzpatrick’s testimony is a variant of claimant’s . He
testified that claimant was not initially compliant in the directive to pull
over. The witness stated he had ordered the claimant to pull over because he
was not driving a police vehicle (marked or unmarked) and was not in uniform.
He stated claimant was directed two or three times to pull over before
complying. After pulling over, Fitzpatrick pulled behind claimant’s
vehicle, but before he was able to exit his vehicle or radio for back-up,
claimant “stormed” towards his car (Tr. 63). Fitzpatrick described
claimant as “angry” and “irate” (Tr. 63 - 64).
According to the witness, claimant demanded to see his identification and
Fitzpatrick produced his police ID and badge. At this point, the witness asked
to see claimant’s police identification. Claimant then refused, on
several occasions, to produce his identification (Tr. 64). When told that he
would be arrested for impersonating a police officer, claimant finally produced
his police identification - - a photo ID from the Village of Ashroken Police
Department. Fitzpatrick testified claimant, after showing his identification,
became extremely angry. He demanded that Fitzpatrick arrest him and claimant
came into physical contact with him as he was yelling to be arrested. Claimant
next went to the rear door of Fitzpatrick’s car and waited to be arrested.
Fitzpatrick stated that he approached claimant and said that he was not planning
on arresting him.
Claimant then began to walk toward his vehicle demanding
to see Fitzpatrick’s credentials again. Fitzpatrick stated that he had
already shown his identification. Claimant now began to leave, but Fitzpatrick
testified that he ordered claimant not to leave. When claimant refused and got
into his vehicle, Fitzpatrick arrested the claimant. Fitzpatrick testified that
the only identification claimant showed him was a photo ID with no badge, which
seemed strange to him.
The witness also stated that he was not familiar with the department listed on
the photo ID (Tr. 84). In addition, claimant was not acting like a police
officer. Fitzpatrick stated he felt the need to see claimant’s
driver’s license to further prove his identity.
At this point,
claimant got out of his vehicle, was frisked, handcuffed and placed in the rear
of Fitzpatrick’s vehicle. Fitzpatrick then notified his supervisor, Lt.
Matera, who came to the scene. After making arrangements with the Suffolk
County Police Department, claimant was transported to the Sixth Precinct for
processing. Claimant was charged with Failure to Comply with a Lawful Order in
violation of Vehicle and Traffic Law §1102 and Harassment Second Degree in
violation of Penal Law §240.26(1). Ultimately, claimant received an
Adjournment in Contemplation of Dismissal (Criminal Procedure Law §170.55),
and the matter was dismissed.
Claimant seeks recovery for false arrest,
wrongful detention, unlawful imprisonment, deprivation of civil rights,
intentional infliction of emotional distress, and assault and battery. As for
claimant’s causes of action for false arrest, wrongful detention,
unlawful imprisonment, and deprivation of civil rights, he must prove four
elements: “(1) the defendant intended to confine him, (2) the plaintiff
was conscious of the confinement, (3) the plaintiff did not consent to the
confinement, and (4) the confinement was not otherwise privileged”
(Broughton v State of New York
, 37 NY2d 451,456;
Houghtaling v State of New York
, 11 Misc 2d 1049).
There is no
question that the first three elements have been met. Claimant’s case
rests on whether or not the confinement was privileged. If it can be shown that
there was probable cause for the arrest, at the time of the arrest, then
defendant will be relieved of liability (Broughton
at 458). Likewise, if
claimant’s arrest was unlawful, defendant will be liable for assault and
battery for the force used to arrest him (Budgar v State of New York
Misc 2d 588).
Vehicle and Traffic Law §1102 states:
To justify a charge pursuant to this statute, it must
be shown that the officer was regulating traffic at the time a person refuse to
comply with the lawful order (People v Bohn, 91 Misc 2d 132; People v
DeCerbo, 4 Misc 3d 23).
In Budgar v State of New York,
supra, claimant had been charged with Disorderly Conduct (Penal Law
§240.20) and Failure to Comply (Vehicle and Traffic Law §1102).
Claimant was approaching a toll booth when a trooper’s vehicle made a
U-turn, without warning, in front of claimant’s car. Claimant blew his
horn and shook his fist at the trooper. The trooper stopped claimant’s
vehicle to ask why he blew his horn. Claimant became irate and yelled at the
trooper for his U-turn. The trooper demanded claimant’s license and
registration. Claimant refused to provide the documents several times, but
eventually relented. At various points, claimant threw his insurance card out
of his window and got out of his car to engage in a heated verbal exchange with
the trooper. The criminal charges were dismissed for failure to prosecute in a
timely manner. The Court of Claims found that the claimant’s behavior did
not justify an arrest for either Disorderly Conduct (Penal Law §240.20) and
Failure to Comply (Vehicle and Traffic Law §1102).
As to the
violation of Failure to Comply (Vehicle and Traffic Law §1102), in this
matter, Budgar is on point. Fitzpatrick was not engaged in the
regulation of traffic during the encounter with claimant. There was no
testimony relative to traffic interference or that ordering claimant not to
leave would in any way aid in the regulation of traffic.
second charge against claimant is for Harassment Second Degree (Penal Law
§240.26(1)) which states:
During the course of claimant’s ranting and raving on the side of
the road, he made physical contact with Fitzpatrick. According to
claimant’s direct testimony and his cross-examination, he positively knew
early in their encounter that Fitzpatrick was a police officer. Rather than
calm himself and adopt a professional demeanor to discuss Fitzpatrick’s
traffic infraction, claimant became more irate as time went by. He continued
the yelling and cursing he had begun while still in his vehicle at the red
Based upon claimant’s behavior, the Court finds that
Fitzpatrick had probable cause to arrest claimant for Harassment Second Degree
(Penal Law §240.26(1)). Accordingly, the Court finds no merit to
claimant’s cause of action for intentional infliction of emotional
distress (Van Buskirk v Bleiler, 46 AD2d 707).
Wherefore, the Court
finds for defendant and dismisses the claim. The Clerk of the Court is directed
to close the file. All motions not specifically ruled on are denied.
judgment be entered accordingly.