Defendant State of New York (defendant) moves to dismiss three claims (Claim
Nos. 112041, 112042, 112043)
filed by pro se
claimants John Peterec and Sherri Peterec.
Claimants oppose the motion.
It should be
noted that this motion, originally returnable on January 10, 2007, has been
adjourned several times for various reasons, which included the resolution of
claimant’s appeal of his criminal conviction. Both parties were permitted
to and did submit additional written arguments concerning the effect, if any,
that the decision on appeal had on the three claims pending in this
This Decision and Order will resolve
this motion to dismiss, which was ultimately returnable on January 4,
The factual basis for all three claims is the arrest, prosecution, and
conviction of claimant as follows. In December 2005, claimant was issued three
uniform traffic tickets charging him with violations of Vehicle & Traffic
Law § 1201 (a) (stopping, standing or parking on a highway outside of a
business or residence district), Vehicle & Traffic Law § 1192 (2)
(driving while intoxicated per se - with blood alcohol content [BAC] of 0.08% or
more), and Vehicle & Traffic Law § 1192 (3) (driving while intoxicated
[DWI]). After a non-jury trial, Town of Thompson Justice Court (Justice Court)
found claimant guilty of violating Vehicle & Traffic Law § 1201
(a) and Vehicle & Traffic Law § 1192 (1) (driving while ability
Justice Court imposed a fine of
$100 for the violation of Vehicle & Traffic Law § 1201 (a), and a fine
of $500, as well as a conditional discharge, for the violation of Vehicle &
Traffic Law § 1192 (1). Claimant’s conviction was affirmed by
Sullivan County Court (People v Peterec,
Sullivan County Ct, Oct. 12,
2007, LaBuda, J.). On February 29, 2008, a Certificate Denying Leave (to
appeal) was executed by the Honorable Eugene F. Pigott, Jr., Associate Judge of
the Court of Appeals.
Claimants, both individually and jointly, filed these claims against defendant
and sought damages in the amount of $1.5 million in each claim. Claim No.
112041 was brought by claimant Sherri Peterec and sought damages for
“[f]alse [a]rrests and abduction and violation of the [c]ivil rights all
done to [claimant Sherri Peterec’s husband] totally without merit by [a]
State Police [Trooper]. [The Trooper’s] actions were deliberate and
inflicted immense [s]train on [claimant Sherri Peterec]. Loss of [s]ervices are
caused to [her] with emotional and physical anxiety and financial [h]ardship,
etc.” (Claim No. 112041, ¶ 2).
Claimant filed and served Claim No. 112042 alleging that he was a victim
of an “[i]llegal [p]re-[t]ext stop of [his] legally parked vehicle [by a
Trooper who] completely and totally and deliberately violated [his] civil rights
[which] culminated into a false ticket of [Vehicle & Traffic Law §]
1201 (a) and two false [s]ummons for DWI, – Driving While
Intoxicated” (Claim No. 112042, ¶ 2). Claimant further alleges
that the arrest was illegal and without merit and constituted “1)
[v]iolation of [his] [c]ivil rights, 2) [f]alse arrest, harassment and
abduction” and that he suffered mental and physical anguish, loss of
services, pain and suffering, and legal expenses (id.).
In Claim No. 112043, both claimants allege that “[the Trooper]
[w]illfully and deliberately abused his authority by violating the civil rights
of [claimant] the husband of Sherri Peterec. [The Trooper] conducted an illegal
[p]re-[t]ext [s]top in full violation of [the Vehicle & Traffic Law and the
Penal Law]. This fruit from a poisonous tree resulted in a false arrest of two
charges of DWI - - Driving [W]hile [I]ntoxicated which are both A misdemeanors
[sic] crimes charged . . . Both claimants [s]uffer financial hardship, loss of
[s]ervices, emotional and [p]hysical [p]ain and [s]uffering and marriage
problems and hardship as a direct result” (Claim No. 112043, ¶ 2).
Defendant asserts that the Court lacks subject matter jurisdiction over the
alleged civil rights and Federal Constitutional violations, and that the
existence of an alternate remedy for the allegedly wrongful conduct precludes
any cause of action for violation of the State Constitution. Defendant also
argues that causes of action for harassment and intentional infliction of
emotional distress are not properly asserted against the State. Defendant
further contends that claimant’s conviction establishes that there was
probable cause for his arrest, and the causes of action for false
arrest/abduction and malicious prosecution are therefore without merit.
Claimants argue that because the Trooper is a “person” and an agent
of the State, defendant is liable for his alleged violation of their civil
rights under the State Constitution as well as for allegedly subjecting them to
harassment and intentional infliction of emotional distress. Claimants contend
that the Trooper’s stop and further inquiry of claimant was pre-textual,
and that all evidence obtained during that stop, including the results of the
field sobriety and breathalyzer tests, should be suppressed as fruit of the
poisonous tree. Claimants assert that, without that evidence, there was no
probable cause for claimant’s arrest and prosecution.
As defendant correctly contends, the Court of Claims does not have jurisdiction
to consider Federal Constitutional claims, including civil rights violations
brought under 42 USC
§ 1983, and those causes of action are hereby dismissed (see e.g. Brown
v State of New York,
89 NY2d 172, 184 ).
had an adequate remedy available for the Trooper’s allegedly unlawful
stop, that remedy being the suppression of any illegally obtained evidence
within the context of the criminal trial, this Court need not recognize a tort
cause of action under the State Constitution (see Martinez v City of
97 NY2d 78 ; Brown v State of New York, supra
Accordingly, that cause of action is also dismissed.
To the extent that claimants seek to recover for intentional infliction of
emotional distress and harassment, those causes of action are also dismissed.
It is well settled that a claim for the intentional infliction of emotional
distress does not lie against the State (see Brown v State of New York,
125 AD2d 750 , lv dismissed 70 NY2d 747 ). Further, a
common-law cause of action for harassment is not recognized at all in this State
(Monreal v New York State Dept. of Health, 38 AD3d 1118 ; Warren
v State of New York, Ct Cl, May 30, 2007, Lopez-Summa, J., Claim No. None,
Motion No. M-72367 [UID # 2007-045-007]).
Moreover, defendant does not dispute that the Trooper’s allegedly
wrongful conduct against claimant occurred during the course of his employment
with the State of New York. Under the doctrine of respondeat superior, this
conduct may provide the basis for defendant’s potential liability
(Rossetti v Board of Educ. of Schalmont Cent. School Dist., 277 AD2d 668
). For this reason, “no claim may proceed against [the State as]
employer for negligent hiring” (id. at 670), and that cause of
action is therefore dismissed.
In order to prevail on a cause of action for false arrest or false
imprisonment, the claimant must prove that the defendant intended to confine
him, that claimant was conscious of and did not consent to the confinement, and
that the confinement was not otherwise privileged (Broughton v State of New
York, 37 NY2d 451 , cert denied sub nom. Schanbarger v Kellogg,
423 US 929 ). It is undisputed that defendant intended to and did
confine claimant without his consent, and that claimant was conscious of such
confinement. However, claimant must still establish that the confinement was
not privileged. Although there is a presumption that a warrantless arrest and
imprisonment is unlawful (see id.), “[t]he existence of probable
cause serves as a legal justification for the arrest and an affirmative defense
to the claim” (Martinez v City of Schenectady, supra, at 85).
Although “[a]fter the fact judicial participation [such as an arraignment]
cannot validate an unlawful arrest . . . a conviction which
survives appeal would be conclusive evidence of probable cause”
(Broughton v State of New York, supra, at 458).
As set forth previously in this Decision and Order, claimant’s conviction
for violating Vehicle & Traffic Law §§ 1192 (1) and 1201 (a) has
been affirmed by Sullivan County Court, and his motion for leave to appeal to
the Court of Appeals has been denied (see supra at 2). Accordingly,
probable cause for claimant’s arrest has been conclusively established as
a matter of law, and any cause of action for false arrest or false imprisonment
is hereby dismissed (Broughton v State of New York, supra).
To the extent that claimants may be asserting causes of action for malicious
prosecution or unjust conviction, those causes of action are also without merit.
The essential elements of a cause of action for malicious prosecution are: (1)
commencement of a criminal proceeding against a claimant, (2) the termination of
the proceeding in favor of the claimant, (3) absence of probable cause for the
criminal proceeding, and (4) actual malice (see Martinez v City of
Schenectady, supra; Broughton v State of New York, supra). In order
to set forth a cause of action for unjust conviction under Court of Claims Act
§ 8-b, claimant must establish the facts of his criminal conviction, that
such conviction was reversed or vacated, and that the accusatory instrument was
dismissed on one of several enumerated grounds (Court of Claims Act § 8-b
). Because his criminal conviction has been affirmed on appeal, claimant is
unable to establish either that the termination of that criminal proceeding was
in his favor, or that there was no probable cause for that proceeding. The
absence of these two necessary elements is clearly fatal to a cause of action
for malicious prosecution (Broughton v State of New York, supra).
Furthermore, the existence of claimant’s conviction is also fatal to his
claim for unjust conviction under Court of Claims Act § 8-b. Accordingly,
those causes of action are both dismissed.
Claimants also appear to be asserting that there was a conspiracy among the
Trooper, the Justice Court, and the Sullivan County District Attorney’s
Office to convict claimant. That cause of action is also without merit. This
State does not recognize conspiracy to commit a tort as an independent cause of
action, but permits allegations of conspiracy solely “to connect the
actions of separate defendants with an otherwise actionable tort”
(Alexander & Alexander of N.Y. v Fritzen,
68 NY2d 968, 969 ;
see also Factory Point Natl. Bank v Wooden Indian,
198 AD2d 563, 565
). Because claimants cannot assert a claim in this Court against either
the individual Trooper, the Justice Court, or the Sullivan County District
Attorney’s Office, that cause of action fails and is hereby
Claimants make numerous unsupported allegations that both the Justice Court and
Sullivan County Court were biased against claimant, that the Trooper allegedly
offered perjured testimony, and that the evidence submitted during the criminal
proceeding was either insufficient or should have been suppressed. These
assertions are not properly pled in the Court of Claims, which has no appellate
jurisdiction over the Justice Court. Claimant has exhausted his remedies under
State law by pursuing an appeal of his criminal conviction to this State’s
highest court, and presumably has raised those very same allegations.
Nonetheless, claimant’s judgment of conviction stands.
In light of the affirmance of claimant’s conviction and conclusive proof
of probable cause for his arrest and subsequent prosecution, the causes of
action for false arrest and imprisonment, malicious prosecution, and unjust
conviction are dismissed. Further, the Court lacks subject matter jurisdiction
over the causes of action alleging violation of the Federal Constitution,
including those brought pursuant to 42 USC § 1983. The Court also finds no
basis to allow a cause of action for either a violation of this State’s
Constitution or negligent hiring. Additionally, neither a claim of harassment
nor an independent cause of action for conspiracy is viable against any
defendant in this State, and a claim for intentional infliction of emotional
distress specifically does not lie against this defendant.
Accordingly, defendant’s Motion No. M-72642 is granted in its entirety,
and Claim Nos. 112041, 112042, 112043 are hereby dismissed.