New York State Court of Claims

New York State Court of Claims

PARISI v. THE STATE OF NEW YORK, #2005-015-021, Claim No. 108864, Motion No. M-69970


Court found it has jurisdiction over claim seeking money damages for alleged illegal confiscation of currency from passenger and vehicle during routine traffic stop where marijuana was found in vehicle and on the driver's person.

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:
The Proskin Law Firm, P.C.By: Marc D. Greenwald, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael W. Friedman, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 20, 2005
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The claim alleges that on January 27, 2004 claimant was a passenger in a vehicle traveling in the northbound lanes of I-87 when the vehicle was stopped by officers of the New York State Police. The Troopers approached the vehicle and informed the operator that his inspection sticker had expired. A small amount of marijuana and related paraphernalia was thereafter found in the possession of the driver and a subsequent search of the vehicle disclosed $32,000 in U.S. Currency. An additional $2,200 was found in claimant's pocket. Claimant and the vehicle operator were both charged with unlawful possession of marijuana pursuant to Penal Law § 221.05. Upon claimant's release from custody on the marijuana charge he was provided a New York State Police receipt for $29,890. The claim alleges that the actual amount of currency seized was $34,200 and contends in paragraph 16 that "[a]s a result of this incident, Claimant Anthony S. Parisi sustained a monetary loss of $34,200.00 as a result of the unauthorized and illegal seizure of his property". It appears from a Schroon Town Court Criminal Part Certificate of Disposition dated July 26, 2004 that as part of a plea agreement claimant was given a conditional discharge and was directed to pay a Court surcharge of $100.00 (see defendant's Exhibit C).

Defendant's motion is supported by an affirmation of defense counsel, the pleadings, certificates of disposition dated July 26, 2004 and signed by the Honorable J. R. Strothenke, Memorandum, Notices and Plea Offer form for both claimant and the vehicle operator from the Essex County District Attorney's Office, a Declaration by Lawrence D'Orazio, Acting Forfeiture Counsel for the United States Drug Enforcement Agency (DEA) and covering memorandum both dated August 23, 2004 and a Notice of Seizure dated March 30, 2004.

On this motion the defendant argues that the Court lacks jurisdiction to order the return of the monies seized as the proper vehicle for securing such relief is an article 78 proceeding in Supreme Court. Defendant further argues that the Court lacks jurisdiction to order the return of monies seized by DEA pursuant to the Notice of Seizure (Defendant's Exhibit F).

Claimant opposed the motion by affirmation of counsel which asserts, variously, the following:
4. As stated in Claimant's Claim, attached as Exhibit B in Defendant's Motion, Claimant's action in this Court is an illegal search question (paragraph 12 and 17 of Claimant's Claim), not a request to return personal property seized by the State of New York in connection with a criminal proceeding.

8. Further, we are not 'seeking monetary compensation arising out of the seizure' (paragraph 7 of Defendant's Motion), but property that was improperly seized as the result of a wrongful search and seizure.

11. The relief requested in Claimant's claim is for the return of illegally seized property caused by the State's illegal search and seizure.

To the extent the claim seeks the return of property seized by the New York State Police the defendant has accurately stated that such relief is unavailable in this Court. Rather, the appropriate vehicle to secure the return of the property, in this case United States currency, is through an article 78 proceeding (Matter of Montecalvo v Columbia County, 274 AD2d 868; Matter of Lipscomb v Property Clerk of City of Newburgh Police Dept., 188 AD2d 993; see also Boyle v Kelley, 42 NY2d 88). Alternatively, if the property has been adopted by the Federal Drug Enforcement Administration as it appears from the Declaration of Lawrence D'Orazio (defendant's Exhibit E) is the case here "constructive custody of the property is vested in a designated 'custodian', here the DEA 'Special Agent-In-Charge' (21 CFR 1316.71 [b][e], 1316.73), subject only to the orders and decrees of the court or official having jurisdiction thereof (21 USC § 881[c])." (Matter of Bruno v County of Monroe, 167 AD2d 872, 872-873). In fact, although not addressed in the affirmation of claimant's counsel, according to the declaration of Mr. D'Orazio the claimant filed a claim contesting the forfeiture with the DEA on April 15, 2004. It appears that the Federal forfeiture proceeding is currently pending in the United States District Court for the Northern District of New York.

Should, however, the Court determine that despite the protestations of claimant's counsel to the contrary the claim actually seeks monetary compensation for the loss occasioned by an allegedly illegal search and seizure such a claim is, in fact, cognizable in this Court (Brown v State of New York, 89 NY2d 172; Lyles v State of New York, 3 NY3d 396; Matter of Matysiak, 17 NY2d 692; Della Pietra v State of New York, 125 AD2d 936, affd 71 NY2d 792; Williamsburg Candy & Tobacco v State of New York, 106 Misc 2d 728; Berk v State of New York, 82 Misc 2d 902). The critical nature of the actual relief sought in cases such as this was discussed by the Appellate Division, Third Department which noted in Matter of Parkinson v Leahy, 277 AD2d 810, at page 811:
. . . a CPLR article 78 proceeding is a proper vehicle to seek an order compelling the return of items of personal property under the circumstances presented herein (see, Boyle v Kelley, 42 NY2d 88). However, any claim seeking monetary compensation arising out of the seizure of such items of personal property is within the jurisdiction of the Court of Claims only (see, e.g., Matter of Harrison v Carpenter, 201 AD2d 848, 849).

The Court is not restricted to the characterization of claimant's counsel regarding the nature of the relief sought in the claim. Upon its own review of the actual language of the claim the Court finds that it in fact seeks monetary compensation for the monies seized by the State Police, a claim over which the Court of Claims has jurisdiction. Paragraph 16 of the claim asserts that the claimant "sustained a monetary loss of $34,200.00 as a result of the unauthorized and illegal seizure of his property". In paragraph 18 it is alleged that "[b]y reason of the foregoing, the Claimant, Anthony Parisi, sustained losses and damages in the sum of Thirty Four Thousand Two Hundred and 00/100 Dollars ($34,200.00)". Finally, the actual prayer for relief contained in the "Wherefore" clause "demands Judgment against the Defendant in the total amount of Thirty Four Thousand Two Hundred and 00/100 Dollars ($34,200.00)".

In the Court's view a fair reading of the claim leads to the conclusion that the claim asserts a cause of action for money damages and not the return of the specific monies actually seized by the State Police.

Accordingly, the Court finds that it has jurisdiction of the claim and the defendant's motion is, therefore, denied.

June 20, 2005
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated March 30, 2005;
  2. Affirmation of Michael W. Friedman dated March 30, 2005 with exhibits;
  3. Affirmation of Marc D. Greenwald (undated) filed April 14, 2005;
  4. Reply affirmation of Michael W. Friedman dated April 15, 2005 with exhibit.