New York State Court of Claims

New York State Court of Claims

MARQUEZ and TORRENTE v. THE STATE OF NEW YORK, #2005-016-072, Claim No. 97151


98951-A, Motion No. M-70426


Synopsis



Case Information

UID:
2005-016-072
Claimant(s):
PABLO MARQUEZ and ROSALBA TORRENTE
Claimant short name:
MARQUEZ and TORRENTE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
9715198951-A
Motion number(s):
M-70426
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Parson & Wallenstein, LLPNo Appearance
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Victor J. D'Angelo, Esq., AAG
Third-party defendant's attorney:

Signature date:
November 29, 2005
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In the underlying claims, it is alleged that on April 3, 1997, officers of the New York Drug Enforcement Task Force (the "Task Force") executed a search warrant at claimant Rosalba Torrente's apartment. One of the task force members was Investigator Sean Flanders, a New York State police officer. During the search of the apartment, a white powder believed to be heroin was found, and claimants were arrested and held in jail without bail until July 15, 1997, when a lab report indicated that the powder was not in fact a controlled substance. Defendant moves to dismiss on the ground that the Task Force was under the control of the United States Drug Enforcement Administration ("DEA") and that Investigator Flanders was not acting in his capacity as a State Police Officer, but rather as a deputized federal agent under the control of the DEA. Claimants have submitted no opposition papers on this motion, and thus do not dispute defendant's assertions re the control of the Task Force and Investigator Flanders' capacity. The facts of this case thus fall within the ambit of Fairbairn v State of New York, 107 AD2d 864, 484 NYS2d 682 (3d Dept 1985), affd 66 NY2d 620, 495 NYS2d 32 (1985), in which the Third Department held that where the DEA controlled an investigation in which the State Police assisted, there could be no State liability to a claimant injured in connection with the investigation. See also Pou v U.S. Drug Enforcement Administration, 923 F Supp 573 (SDNY 1996), affd 107 F3d 3 (2d Cir 1997).

It should also be noted that in an Order dated August 4, 2005 and filed August 22, 2005, the Court ordered that if Pablo Marquez did not submit to a deposition by defendant on or before October 12, 2005, his claim would be subject to dismissal. Counsel for defendant has advised, without contradiction, that Mr. Marquez did not appear for his deposition.

For the foregoing reasons, having reviewed the submissions,[1] IT IS ORDERED that motion no. M-70426 be granted and claim nos. 97151 and 98951-A be dismissed.


November 29, 2005
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]The Court reviewed defendant's notice of motion with affirmation in support and exhibits A through K. Claimants submitted no opposition papers.