New York State Court of Claims

New York State Court of Claims

FERRAN v. THE STATE OF NEW YORK, #2008-032-113, Claim No. 103026, Motion Nos. M-75092, CM-75222


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:
Mark Ferran and Nadia Ferran, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Paul F. Cagino, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
September 4, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants Mark and Nadia Ferran filed the instant claim in September 2000 alleging causes of action for false arrest, false imprisonment, malicious prosecution, trespass to land, trespass to chattels, negligence and tortious deprivation of equal protection of the laws. The allegations arise out of the alleged unlawful arrest of claimant Mark Ferran (hereafter claimant) on June 4, 2000 by New York State Troopers following an incident that occurred on property owned by claimant’s mother, claimant Nadia Ferran. The actual events leading to claimant’s arrest occurred on a portion of a former public roadway, Old Siek Road, which had been ceded to the Ferrans after a civil action involving the Town of Grafton.

The undisputed facts surrounding claimant’s arrest are as follows.[1] On June 4, 2000, claimant was working in the vicinity of the roadway located on his mother’s property when two individuals riding three-wheel all terrain vehicles (ATVs) came into his view driving upon former Old Siek Road. Claimant, in possession of a shotgun, entered the roadway and attempted to stop the ATV riders and to inform them that they were trespassing. At some point during this exchange claimant fired his shotgun, striking and destroying the front tire of the lead ATV with a 12-gauge slug. The driver of the lead ATV (still on his vehicle) was struck, without injury, by the expended shell as it was ejected by the shotgun. Both ATV riders drove around claimant after this had happened and left the location. After seeing claimant drive by in his vehicle a short time later, the lead ATV rider pursued him in his pickup truck to attempt to get claimant’s license plate number. Claimant stopped in front of a private residence and the ATV driver caught up to claimant confronting him. At this point the State Police were called and responded to the scene.

A short time after the arrival of the State Trooper, claimant and the two ATV riders were taken to the State Police barracks in Brunswick and each gave statements regarding what had happened during the altercation. The ATV riders essentially described driving down Old Siek Road and encountering claimant who was walking toward them with shotgun pointed in their direction. He was screaming words that the ATV riders could not make out as he approached them. When he was between eight to 10 feet away he lowered the shotgun pointing it at the lead ATV rider. Claimant thereafter fired one round from his shotgun into the front tire of the lead ATV’s tire. The ATV riders then drove around him and left the premises. Both stated that they were not aware that they had crossed over into a privately owned section of Old Siek Road. A subsequent visual investigation by the State Police revealed that there were no obvious signs that the section of road at issue was private land. Both ATV riders were ticketed for operating their ATVs on a public roadway.

Claimant’s version did not differ significantly on the objective facts of what had happened ( i.e., ATVs trespassed on his land and he fired his 12-gauge shotgun into the front tire of the first one). He did state that the lead ATV rider, after stopping before claimant, kept rolling or rocking the ATV toward the north part of his property in claimant’s direction and that after the State Police arrived, he tried to explain the law of justification to the responding Trooper. He also contends that the portion of roadway at issue was posted in a readily discernable manner.

Based on the aforementioned information, the State Police arrested claimant for reckless endangerment in the first degree, menacing in the second degree and criminal mischief in the fourth degree on June 4, 2008. On June 8th the Rensselaer County Grand Jury declined to indict claimant on the felony charge of reckless endangerment. The District Attorney did not pursue the remaining misdemeanor charges.

Defendant now moves for summary judgment and claimants cross-move to strike defendant’s affirmation in support of its motion.

Initially, the Court denies the cross motion of claimants to strike defendant’s affirmation in support of its motion on such grounds as that it is “slanderous” or on any of the other bases listed. While claimant may not agree with defendant’s view of the facts or arguments made based thereon, there is no valid basis set forth in claimants' cross motion which would warrant the Court taking such action.
A cause of action for false arrest or false imprisonment requires a claimant to establish that he was intentionally confined; that he was aware of such confinement; that he did not consent to the confinement and that the confinement was not otherwise privileged (Broughton v State of New York, 37 NY2d 451, 456, cert denied sub nom. Schanbarger v Kellogg, 423 US 929). Because a warrantless arrest, as occurred here, is presumptively unlawful (and, as such, not privileged), a defendant has the burden of demonstrating that the arrest was supported by probable cause and was, therefore, legally justified (id. at 458; Martinez v City of Schenectady, 97 NY2d 78, 85).

A claimant prosecuting a cause of action for malicious prosecution likewise has the converse burden of proving the absence of probable cause as well as establishing that defendant commenced a criminal proceeding against him; that the proceeding terminated in his favor and that the prosecution was initiated with actual malice (Smith-Hunter v Harvey, 95 NY2d 191, 195; Broughton v State of New York, supra, at 457). Actual malice is generally shown by establishing that the criminal proceeding was commenced for an improper motive (see Boose v City of Rochester, 71 AD2d 59; Blanchfield v State of New York, 104 Misc 2d 21) and in this regard is somewhat intertwined with the question of probable cause because an absence of probable cause to initiate the prosecution can infer that it was, therefore, commenced for an improper reason (see Martin v City of Albany, 42 NY2d 13, 17-18; Restatement [Second] of Torts § 669). Consequently, the viability of these causes of action in the present claim hinges upon whether the State Police had probable cause to arrest claimant, or not.

Probable cause exists where the facts and circumstances are such that a reasonably prudent person in like circumstances would believe that claimant had committed a crime (Colon v City of New York, 60 NY2d 78; Smith v County of Nassau, 34 NY2d 18, 25). It does not require “an awareness of a particular crime, but only that some crime may have been committed” (Wallace v City of Albany, 283 AD2d 872, 873). Moreover, the arrest does not need to be "supported by information and knowledge which at the time, excludes all possibility of innocence and points to [claimant’s] guilt beyond a reasonable doubt, in short, probable cause depends upon probabilities, not certainty" (People v Stupp, 15 Misc 3d 1108 (A); 2007 WL 852552, *** 3). The relevant inquiry must be based upon the facts known to the arresting Trooper at the time of arrest “not on whether sufficient evidence was presented to a grand jury to sustain an indictment” (Wyllie v State of New York, 10 Misc 3d 1064 (A); 2007 WL 3527651, *** 6).

Here, it appears to be claimant’s primary position that because he believes he fit within the parameters of the justification defense set forth in Penal Law § 35.30, his arrest was not privileged or supported by probable cause. Penal Law § 35.00 states that “[i]n any prosecution for an offense, justification, as defined in sections 35.05 through 35.30, is a defense.” While claimant could rely upon such defense in a prosecution, provided he could establish a prima facie case by producing evidence from which a reasonable juror could find that he has met each element of the defense (People v Vecchio, 240 AD2d 854, 855; People v Newman, 3 Misc 3d 361), in this Court’s view, a potential legal defense to a crime cannot affect a determination of whether a law enforcement official had the requisite probable cause at the time of the arrest. To entertain such would impair law enforcement’s ability to carry out its mission without the fear of civil liability every time a suspect claimed that he or she was only defending themselves and was, therefore, justified and not culpable.

This situation has been recognized by other courts which have reasoned that:

“the existence of competing accounts cannot of itself render the issue of probable cause a jury question. In these cases, the question is not whether a given account contains the necessary quantum of evidence to support an arrest, but which account is to be believed. If the mere existence of a ‘swearing contest’ permitted a jury to reexamine an officer’s decision, law enforcement officials would be discouraged from taking any action at all.” (Collom v Village of Freeport, 691 F Supp 637, 640 [ED NY]).

Consequently, even when precise facts underlying an incident are hotly disputed, the relevant inquiry is what information was available to the officer at the time of arrest (see Pawlicki v City of Ithaca, 993 F Supp 140 [ND NY] [also acknowledging that officer is entitled to believe one side or the other]).

Similarly, our State courts have clarified that the dispositive issue in deciding the existence or absence of probable cause as a matter of law, or whether it is a factual issue requiring a trial (see Parkin v Cornell Univ., 78 NY2d 523, 529), does not hinge upon whether the facts surrounding the underlying incident were disputed between the complainant and the person arrested. It is only the facts as known to the officer leading up to the claimant’s arrest that are relevant to the existence of probable cause (see Coleman v City of New York, 182 AD2d 200, 204).

Here, the arresting Trooper knew that claimant, armed with a shotgun, had confronted two ATV riders claiming that they were trespassing on his land and had fired a 12-gauge slug into the lead rider’s front tire at close range while the rider was still sitting on the ATV. This much was not disputed by any of the parties involved. In this Court’s view, this action standing alone provided the Trooper with probable cause to arrest claimant for reckless endangerment in the first degree.[2] This is especially so given the fact that an arresting officer's decision to credit one witness's version of the event or to ignore an accused’s exculpatory statements will not vitiate the existence of probable cause (see Drayton v City of New York, 292 AD2d 182, lv denied 98 NY2d 604; Orminski v Village of Lake Placid, 268 AD2d 780; Stratton v City of Albany, 204 AD2d 924; Coleman v City of New York, 182 AD2d 200, supra).

There can be no serious question that the act of firing a shotgun and striking the ATV while close enough so that the spent shell hits the person sitting on the ATV, created a grave risk of death even if he was never actually hit with the projectile or such was never intended (see e.g. People v Graham, 14 AD3d 887, 889, lv denied 4 NY3d 853 [firing weapon in room occupied with other people notwithstanding fact that defendant did not aim weapon at others created sufficient risk of ricochet or risk of person suddenly moving into line of fire to support conviction]; People v Teets, 293 AD2d 766, 767, lv denied 100 NY2d 543 [aiming loaded shotgun at complainant and firing it in close proximity created sufficiently grave risk to support reckless endangerment conviction]; People v Jones, 269 AD2d 799, lv denied 95 NY2d 854 [legally sufficient evidence for conviction when bullet struck car one foot away from individual]; People v Jerome, 138 AD2d 871, 872 [crime of reckless endangerment is non-intent offense, fact that defendant pointed at ground and that ricochet was unintended did not negate sufficiency of evidence for conviction]).

If such similar activity as cataloged by the above cited cases is legally sufficient to support an actual conviction for reckless endangerment in the first degree, it was certainly sufficient to support a finding that the State Police had probable cause to make the arrest for reckless endangerment in this instance as a matter of law. Given the above reasoning and non-disputed facts, such conduct also supports a finding that the State Police had also probable cause for the arrest and charge of menacing in the second degree (see People v Teets, supra; People v La Motte, 285 AD2d 814; Quigley v City of Auburn, 267 AD2d 978) and criminal mischief in the fourth degree.[3] Consequently, the causes of action for false arrest, false imprisonment and malicious prosecution as set forth in the claim are dismissed.
A claimant prosecuting a cause of action for abuse of process must establish three essential elements: "(1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective" (Curiano v Suozzi, 63 NY2d 113, 116; see Board of Educ. of Farmingdale Union Free School Dist. v Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 NY2d 397, 400, 403). “The gravamen of the misconduct for which the liability stated [for this cause of action] is imposed is not the wrongful procurement of legal process or the wrongful initiation of criminal or civil proceedings; it is the misuse of process, no matter how properly obtained, for any purpose other than that which it was designed to accomplish” (Restatement [Second] of Torts § 682, Comment a). Given the undisputed facts in this claim, the Court cannot find that claimant has stated a viable cause of action for abuse of process as the legal proceedings against claimant came to a halt after the grand jury declined to indict him and there has been no showing of any malignant purpose on the part of defendant.

The trespass causes of action similarly cannot stand on the facts of this claim. The State Troopers who entered upon claimants’ land to investigate the altercation between claimant and the ATV riders appear to have had the consent of the landowner, claimant Nadia Ferran, during the investigation as well as the legal right to do so in performance of their duties (see Mubarez v State of New York, 115 Misc 2d 57; Kreindler, New York Law of Torts, §§ 2:2, 2:5, 2:9, 2:10 [14 West’s NY Prac Series 2008]).
Claimant’s constitutional tort causes of actions premised after Brown v State of New York (89 NY2d 172, supra) must also be dismissed. The Court of Appeals, relying in part on the reasoning of section 874 A of the Restatement (Second) of Torts, determined in Brown that a constitutional tort remedy is not always available for an alleged violation of the State Constitution. Rather, it is appropriate to imply such a “narrow remedy” ( 192) if it is needed to assure the constitutional provision’s effectiveness and further its purpose (id,at 187).

When the alleged constitutional tort, here denial of equal protection, may be analogized into existing common-law torts for which there are adequate alternative remedies (Augat v State of New York, 244 AD2d 835, 837, lv denied 91 NY2d 814), resort to a constitutional cause of action is “neither necessary nor appropriate” (Lyles v State of New York, 2 AD3d 694, 695, affd 3 NY3d 396; see Remley v State of New York, 174 Misc 2d 523). If proven, claimants’ stated common law remedies would have adequately protected the interests at stake, leaving it unnecessary to imply a separate constitutional tort based actions here (see Remley v State of New York, supra; see also Martinez v City of Schenectady, 276 AD2d 993, affd 97 NY2d 78, supra). Consequently, defendant’s motion to dismiss this portion of the claim, is also granted.

Lastly, where a negligence action is premised upon an arrest, as is the case here, a claimant must resort to the traditional remedies of false arrest/imprisonment and malicious prosecution and cannot rely upon an action grounded in negligence (see Ellsworth v City of Gloversville, 269 AD2d 654, 657; Heath v State of New York, 229 AD2d 912; Boose v City of Rochester, 71 AD2d 59, supra).

Based on the foregoing, the Court grants the State's motion for summary judgment and dismisses Claim No. 103026 in its entirety.

September 4, 2008
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion for Summary Judgment filed June 11, 2008;

2. Affirmation in Support of Paul F. Cagino, Esq., AAG with annexed Exhibits A-D;

3. Affidavit in Opposition of Mark Ferran sworn to July 2, 2008;

4. Notice of Cross-Motion to Strike Affirmation of Mark and Nadia Ferran dated July 2, 2008;

5. Claim filed September 1, 2000;

6. Verified Answer filed September 20, 2000.

[1].While the operative, objective facts underlying claimant's arrest and this claim are not in dispute, the underlying circumstances preceding the event such as whether the ATV riders were intentionally trespassing or whether the old roadway was posted in an obvious manner, differ.
[2].Reckless endangerment in the first degree requires proof that "under circumstances evincing a depraved indifference to human life, [one] recklessly engages in conduct which creates a grave risk of death to another person" (Penal Law § 120.25).
[3].“A person is guilty of menacing in the second degree when . . . [h]e or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm” (Penal Law 120.14 [1]) and is guilty of “criminal mischief in the fourth degree when, having no right to do so nor any reasonable ground to believe that he or she has such right, he or she . . . [i]ntentionally damages property of another person” (Penal Law 145.00 [1]).