New York State Court of Claims

New York State Court of Claims

PALAZZO v. THE STATE OF NEW YORK, #2004-033-534, Claim No. 100280


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:
Leslie Tenzer, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: John M. Shields, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 23, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

This is a timely filed claim by Joseph Palazzo, Jr. (hereinafter "claimant") for false imprisonment based upon his incarceration from February 10, 1999 until April 1, 1999.[1]
On September 1, 2004, a plenary trial was held on a stipulated set of facts pursuant to the Uniform Rules for the Court of Claims §206.24.
The facts of the case are simple and not in dispute. Claimant was convicted of a felony in Arizona and was paroled on September 28, 1998. Claimant's parole was transferred to New York and he was told to follow the conditions of parole from Arizona which he signed on July 28, 1998. On October 7, 1998, claimant acknowledged and signed special conditions which prohibited him from frequenting certain locations (claimant's Exhibits 3 and 4). On January 25, 1999, claimant was observed operating a motor vehicle and found to be in possession of a valid NYS driver's license. Prior to this occasion, claimant was orally instructed not to obtain a driver's license or automobile and not to operate an automobile without the prior approval of his parole officer. These conditions were never given to claimant in writing until April 7, 1999. Claimant was arrested on February 10, 1999, for violating his parole, in that he had been seen on January 25, 1999 operating a motor vehicle and found to be in possession of a valid NYS driver's license. On February 10, 1999, claimant signed two documents. The first document is a "Notice of Violation" in which claimant acknowledged he was entitled to a preliminary hearing to determine if probable cause existed for the charges. Claimant waived the preliminary hearing (claimant's Exhibit 7). The other document is an admission by claimant that he violated his conditions of probation but the line indicating which conditions he violated is blank (claimant's Exhibit 11). This document states that the conditions violated are "as charged in the attached violation of Parole Report". The Court notes that no report is attached to claimant's Exhibit 11. However, there are in evidence documents which are called "Violation of Release Report" (claimant's Exhibits 7 and 8).

Defendant argues that claimant's conditions of parole from Arizona (claimant's Exhibit 1) and those in New York set forth that claimant will comply with any instructions from his parole officer. Further, defendant argues that 9 NYCRR 8003.1 states that a releasee shall comply with instructions of his parole officer whether oral or in writing. Since claimant was aware of his parole officer's conditions about driving and obtaining a driver's license, defendant's position is that claimant violated his parole conditions.

However, 9 NYCRR 8003.3 relates specifically to special conditions imposed on a releasee. The statute states:
A special condition may be imposed upon a releasee either prior or subsequent to release. The releasee shall be provided with a written copy of each special condition imposed. Each special condition may be imposed by a member or members of the Board of Parole, an authorized representative of the Division of Parole, or a parole officer.
The conditions imposed upon claimant forbidding him from driving or obtaining a driver's license without his parole officer's permission are special conditions.[2] Thus, it was incumbent upon defendant's employees to provide claimant with the special conditions in writing.
As for claimant's causes of action for false imprisonment claimant 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; see also Houghtaling v State of New York, 11 Misc 2d 1049). On the exhibits submitted by claimant (Exhibits 7 and 8) is an indication that claimant was arrested pursuant to an arrest warrant. Where an arrest warrant has been issued the arrest and confinement are privileged.
The distinction between false imprisonment and malicious prosecution in the area of arrest depends on whether or not the arrest was made pursuant to a warrant. As noted in the Restatement, 2d, an unlawful detention gives rise to a cause of action for false imprisonment "except where the confinement was by arrest under a valid process issued by a court having jurisdiction" (Restatement, 2d, Torts, § 35, comment a; Prosser, Torts [4th ed], § 11). When an unlawful arrest has been effected by a warrant an appropriate form of action is malicious prosecution. This distinction is critical not only because it affects the allegations and proof but also because it brings the prima facie rule into operation.

Essentially this rule recognizes the prima facie validity of actions where there has been a judicial evaluation. Accordingly, the Magistrate's consideration of the arrest warrant application will generate a presumption that the arrest was issued on probable cause.

Broughton at 457 - 458. Probable cause is a factor which is relevant to both false imprisonment and malicious prosecution (Martinez v City of Schenectady, 276 AD2d 993).
In the matter before the Court, not only was an arrest warrant issued, but claimant waived his right to a preliminary hearing to establish probable cause (Executive Law 259-i). Claimant's Exhibit 7 clearly explains the purpose of the preliminary hearing and the proof that must be presented to establish probable cause. Claimant waived the hearing and instead chose a path which would have him extradited to Arizona for a final hearing (claimant's Exhibit 9). Pursuant to 9 NYCRR 8005.17, the final hearing shall be held within 90 days of the waiver of the preliminary hearing. A determination was made by Arizona not to pursue the violation and claimant was released within the 90 day period.

Based upon the foregoing, the Court finds in favor of defendant and the claim is dismissed. All motions not specifically ruled upon are denied. The Clerk of the Court is directed to close the file.

December 23, 2004
Hauppauge, New York

Judge of the Court of Claims

[1]The claim had also included a cause of action based on 42 USC 1983, but this portion of the claim was withdrawn at the time of trial.
[2]Claimant was provided with written instructions concerning these special conditions subsequent to his release from the Suffolk County Correctional Facility (claimant's Exhibit 5).