New York State Court of Claims

New York State Court of Claims

PETEREC v. THE STATE OF NEWYORK, #2008-044-527, Claim Nos. 112041, 112042, 112043, Motion No. M-72642


Synopsis


Court granted defendant’s motion to dismiss three claims for numerous causes of action arising out of claimant’s convictions for, among other things, DWAI. Claimant’s conviction was affirmed by County Court and leave to appeal was denied by the Court of Appeals, thus conclusively establishing probable cause for the arrest, and requiring dismissal of claims for false arrest and imprisonment and malicious prosecution. Court lacked subject-matter jurisdiction over other claims, and some claims were not viable.

Case Information

UID:
2008-044-527
Claimant(s):
SHERRI PETEREC
1 1.The Court has, sua sponte, amended the captions to reflect the State of New York as the sole proper defendants.
Claimant short name:
PETEREC
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEWYORK
Footnote (defendant name) :
The Court has, sua sponte, amended the captions to reflect the State of New York as the sole proper defendants.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112041, 112042, 112043
Motion number(s):
M-72642
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
SHERRI PETEREC, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 31, 2008
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)
2008-044-528, 2008-044-529


Decision

Defendant State of New York (defendant) moves to dismiss three claims (Claim Nos. 112041, 112042, 112043)[2] filed by pro se claimants John Peterec and Sherri Peterec.[3] Claimants oppose the motion.[4] 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 Court.[5] This Decision and Order will resolve this motion to dismiss, which was ultimately returnable on January 4, 2008.[6]

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 impaired).[7] 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 [1996]).[8] Because claimant 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 Schenectady, 97 NY2d 78 [2001]; 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 [1986], lv dismissed 70 NY2d 747 [1987]). 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 [2007]; 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 [2000]). 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 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]). 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 [3]). 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 [1986]; see also Factory Point Natl. Bank v Wooden Indian, 198 AD2d 563, 565 [1993]). 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 dismissed.[9]

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.


March 31, 2008
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on defendant’s motion:

1) Notice of Motion filed on December 8, 2006; Affirmation of Carol A. Cocchiola, AAG, dated December 6, 2006, and attached Exhibits A through H.

2) Claimants’ “Notice of Counter-Motion” filed on January 19, 2007, “Affirmation” of John L. Peterec and Sherri Peterec sworn to on January 17, 2007, and attached Exhibits A through O.


3) Letter from claimants dated May 31, 2007, and attached exhibits.


4) Letter from claimants dated June 10, 2007, and attached exhibits.

5) Letter from AAG Cocchiola dated October 17, 2007, and attached Decision and Order.


6) Letter from claimants dated November 20, 2007, and attached exhibits.


7) Letter from AAG Cocchiola dated November 26, 2007.


8) Letter from claimants dated November 27, 2007, and attached exhibits.


9) Letter from claimants dated November 28, 2007, and attached exhibits.

10) Undated letter from claimants (received in the Court’s Office of the Chief Clerk on December 7, 2007), and attached exhibits.


11) Certificate Denying Leave dated February 29, 2008.

Filed papers: Claim Nos. 112041, 112042 and 112043 all filed on March 6, 2006; Verified Answers thereto all filed on April 10, 2006.


[2]. Defendant also moves to amend the three captions to reflect the State of New York as the sole defendant, which motion is granted. Contrary to claimants’ repeated arguments, the State Police and State Trooper K.J. Kroeger are not proper defendants in these Court of Claims actions (Court of Claims Act §§ 9, 11 [a] [ii]; see also Monreal v New York State Dept. of Health, 38 AD3d 1118 [2007]).
[3]. Claimant Sherri Peterec's claim is, at best, derivative in nature and, unless otherwise indicated or required by context, the term “claimant” shall refer to John Peterec.
[4]. Claimants have submitted a “notice of counter-motion” and supporting documents in which they request “an order to continue these claims and deny in full an order by the defendants to dismiss.” Because claimants do not seek any affirmative relief in their “notice of counter-motion,” the Court is treating the entirety of their papers as opposition to the motion.
[5]. Claimants made several requests for oral argument on this motion, initially seeking eight hours, which could be spread over two days. Contrary to claimants’ contention, motions in the Court of Claims are on submission “[u]nless oral argument has been requested by a party and permitted by the [C]ourt” (Uniform Rules for the Court of Claims [22 NYCRR] § 206.9 [c] [emphasis supplied]). The Court reviewed defendant’s motion papers and claimants’ opposition papers, and, in the exercise of its discretion, denied claimants’ initial and subsequent requests for oral argument (see e.g. Forest Hills Gardens Corp. v Kamp, 165 Misc 2d 915 [1995], affd 171 Misc 2d 334 [1997]).
[6]. Brief submissions from both parties concerning an attempted further appeal were also accepted.
[7]. Notwithstanding that the charge before Justice Court alleged a violation of Vehicle & Traffic Law § 1192 (2), Vehicle & Traffic Law § 1192 (9) specifically authorizes conviction of a violation of Vehicle & Traffic Law § 1192 (1).
[8]. The Court notes that many of the cases cited by claimants to support their contention that they may proceed with these three pending claims, notwithstanding the affirmance of claimant’s criminal conviction, are inapplicable, as those cases concern violations of the Federal Constitution and actions brought pursuant to 42 USC § 1983 (see e.g. Lambert v City of Dumas, 187 F3d 931 [1999]; Gonzalez v Entress, 133 F3d 551 [1997]; Soares v State of Connecticut, Dept. of Envtl. Protection, 8 F3d 917 [1993]).
[9]. In any event, the underlying tort would either be a claim for malicious prosecution, false arrest/imprisonment or unjust conviction, none of which have merit under the circumstances present in this case (see supra at 7-8).