NIEBLAS v. STATE OF NEW YORK, #2009-047-002, Claim No. 103210
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
HON. O. PETER SHERWOOD
PEDRO NIEBLAS, pro se
HON. ANDREW M. CUOMO, ATTORNEY GENERAL
By: Cheryl Rameau, Assistant Attorney General
April 7, 2009
See also (multicaptioned
This claim arises from a series of drug tests which claimant Pedro Nieblas
(“claimant”) was required by his Parole Officer Paul Taylor to
undergo based upon a condition of his parole requiring claimant to refrain from
using or possessing any controlled substance without medical authorization.
Claimant, appearing pro se, alleges in his claim that on three dates,
specifically August 15, 2000, September 12, 2000, and September 19, 2000, his
Parole Officer Paul Taylor (“Officer Taylor”) made false accusations
against him of drug use based upon unreliable toxicology reports and coerced him
into admitting drug use by threatening to have him incarcerated on the basis of
a parole violation stemming from the alleged positive toxicology reports, even
though claimant denies that he was using drugs. Claimant further alleges that
Officer Taylor made it clear that such harassment would not stop unless he
became an informant for him. Claimant contends that the false allegations of
drug use have, among other things, injured his name and caused him mental
anguish and loss of freedom. Trial of the matter was bifurcated and held in the
New York District on December 1, 2008. This decision addresses only the issue
Claimant’s first witness was Parole Officer Paul Taylor who testified
that he had no independent recollection of the events at issue concerning the
claimant’s drug testing. His testimony was made by referring to
documentary evidence of the drug test results, reliance upon his usual practices
with respect to collection of urine samples for testing, and knowledge of the
policies and procedures of the New York State Division of Parole (NYSDOP)
concerning urinalysis testing of parolees.
NYSDOP’s Policy and Procedures Manual, admitted into evidence without
objection, requires that the parole officer witness the parolee urinating into
the specimen container after which the parole officer must complete a Chain of
Custody form, pre-addressed to the testing lab, indicating the parolee’s
name, New York State Identification number and the test date which is then
affixed to the specimen container. The specimen is then forwarded to an outside
lab for testing. The test results are forwarded to the bureau whose address
appears on the Chain of Custody form.
Officer Taylor testified that his general practice adhered to these procedures
and that to the best of his knowledge he followed these practices when
collecting samples from claimant on each of the dates in question. The drug
test results for each of the dates of August 15, 2000, September 12, 2000, and
September 19, 2000, were admitted into evidence. Review of the test results by
“CTS” revealed that the claimant’s tests were positive for
cocaine metabolite and that such positive finding was confirmed by a second test
performed by “GC/MS”. Also admitted into evidence without objection
were Officer Taylor’s chronological notes. An entry dated October 3,
2000, indicates that claimant “denies drug use” and claims that the
drug tests are incorrect based upon “certain technicalities”.
Officer Taylor stated that even though claimant tested positive on these three
occasions no violation of parole was filed against him, but claimant was sent
for further drug rehabilitation at the direction of Officer Taylor’s
supervisor, Senior Parole Officer Herminio Pagan, who at the time of trial was
no longer employed by NYSDOP.
On cross-examination, Officer Taylor stated that in August and September 2000,
no in-house testing of urine samples was required by NYSDOP to be performed.
Rather, all samples were sent to an outside lab for testing.
Mr. Nieblas testified that on August 15, 2000, Officer Taylor had him submit a
urine sample for testing which he put in a bag and placed on top of a
refrigerator. Claimant denied signing the bag. Claimant testified that when he
appeared for his parole appointment on September 12, 2000, Officer Taylor yelled
and screamed at him that he had tested positive for cocaine and threatened to
have him incarcerated unless claimant admitted to using drugs. Claimant stated
that he had not used drugs since getting out of prison and that he could not be
positive. That same date, Officer Taylor had claimant provide another urine
sample which was placed in a bag which claimant admitted signing. Claimant
stated that Officer Taylor again placed the urine sample on top of the
refrigerator even though claimant said he protested that this was not the proper
procedure. Claimant also testified that he complained that the drug test result
of “positive” was improperly based upon only one test rather than
the required two and that a second test would disprove the positive result. On
September 19, 2000, claimant argued with Officer Taylor that he was using false
positive drug tests to harass and humiliate him and was trying to coerce him
with the false positives to become an informant. Claimant testified that
Officer Taylor’s partner, Parole Officer Felix Aquino, witnessed the
On cross-examination, claimant acknowledged that Officer Taylor began to
supervise him in May of 2000 and he had claimant submit to monthly drug testing.
Until August 15, 2000, claimant’s drug test results were negative and he
had no complaints with the manner in which Officer Taylor collected the samples
or with the lab results.
Parole Officer Felix Acquino was called as a witness. He testified that he was
Officer Taylor’s partner at the time of the events in question. He had no
recollection of witnessing any conflict between Officer Taylor and claimant on
September 19, 2000, or of writing any reports concerning the claimant.
No other witnesses testified and no other documentary evidence was submitted.
After both sides rested, the Court permitted the parties to submit posttrial
memoranda in the nature of closing statements.
DISCUSSION AND CONCLUSION
At the outset, the Court notes that the State enjoys immunity “for those
governmental actions requiring expert judgment or the exercise of
discretion” (Arteaga v State of New York, 72 NY2d 212, 216 ).
Thus, the courts have held that decisions of the Division of Parole related to
parole release and revocation decisions are governmental, discretionary acts
that are quasi-judicial, and render the State absolutely immune from tort
actions arising from such decisions (see Tarter v State of New York, 68
NY2d 511 ; Semkus v State of New York, 272 AD2d 74, 75 [1st Dept
2000]; Rivera v State of New York, 8 Misc 3d 1025[A]). However, a
different principle applies to ministerial acts which require adherence to a
governing rule or standard with a compulsory result (Tango v Tulevech, 61
NY2d 34, 41 ). In the latter situation, the State “receives only
qualified immunity, shielding the government except when there is bad faith or
the action is taken without a reasonable basis” (Arteaga v State of New
York, supra, at 216). In denying a summary judgment motion by defendant to
dismiss this claim, Presiding Judge Richard Sise rejected the defendant’s
contention that this Court lacks jurisdiction because the decisions of NYSDOP
upon which the claim is based are quasi-judicial in nature and subject to
immunity. Specifically, Judge Sise held that the instant case is not a
challenge to a decision about parole revocation or release but, rather, an
action based on illegal acts of a parole officer that caused direct harm to
claimant - - in other words, a common-law tort for which the State is liable
under a theory of respondeat superior (Decision and Order, Motion No. M-71314,
filed February 13, 2007).
Claimant bears the burden of proving by a preponderance of the competent and
credible evidence that the non-discretionary actions by Parole Officer Taylor,
an agent of NYSDOP, constituted negligence sufficient to sustain a finding of
liability. Defendant argues that claimant failed to meet his burden of proving
a prima facie case of negligence on the part of the NYSDOP. The Court
Upon review of all the evidence, including listening to the testimonial
evidence and observing the witnesses as they testified, the Court finds that
claimant failed to establish an adequate basis for the State’s liability
by a preponderance of the evidence.
To establish a prima facie case of negligence, claimant must demonstrate that:
(1) defendant owed claimant a duty of care; (2) a breach of that duty; and (3)
defendant’s breach of duty was a substantial factor in the events that
caused the injury sustained by the claimant (see Derdiarian v Felix Contr.
Corp, 51 NY2d 308, 315 ). In part, resolution of this claim rests
upon the relative credibility of the witnesses which is within the province of
this court as the trier of fact (see LeGrand v State of New York, 195
AD2d 784 [3d Dept 1993], lv denied 82 NY2d 663 ).
The Court finds the proof presented to be wholly inadequate to support
claimant’s contention that NYSDOP personnel, namely Officer Taylor,
violated the appropriate testing procedures. In his posttrial memorandum,
claimant contends that Officer Taylor violated the NYSDOP policy and procedures
by failing to conduct an initial on-site urinalysis test on the dates in
question and to record the fact that he had taken urine samples on those dates.
In his arguments, claimant continues to suggest that only one, rather than the
required two tests, were performed producing false positive results which
Officer Taylor then used to intimidate and harass him. Claimant’s
arguments are correct insofar as citing the principle that for a urine test to
be considered “positive” for drug use, two separate tests must be
performed on the same urine sample and a positive test for drug use can only be
found where both tests reveal a positive result (see e.g. 7 NYCRR 1020.4
[e]; Matter of Selby v Coombe, 249 AD2d 597 [3d Dept 1998]). No proof
other than the claimant’s own bare allegations establish that Officer
Taylor violated NYSDOP’s policies and procedures for collecting, storing
or transmitting his urine samples for testing. Contrary to claimant’s
contention, Officer Taylor testified that at the time of the events in question
no on-site testing of urine samples was routinely performed. The lab test
results also confirm that two tests were performed on each of the relevant dates
producing positive results for cocaine. To continue to insist in the face of
contrary documentary evidence that two tests were not performed renders
claimant’s testimony less credible, or at the very least, mistaken.
Moreover, while Officer Taylor’s recordkeeping may have been sloppy, this
does not rise to the level of establishing a breach of a duty owed to claimant
to follow proper testing procedures. In reaching this determination, the Court
notes that it was readily capable of determining the alleged negligence or lack
thereof of NYSDOP employees without the necessity of expert testimony.
Nor does claimant’s effort to establish a cause of action for harassment
meet with any greater success. “New York does not recognize a common-law
cause of action to recover damages for harassment” (Daulat v Helms
Bros., Inc., 18 AD3d 802, 803 [2d Dept 2005]; see Santoro v Town of
Smithtown, 40 AD3d 736, 738 [2d Dept 2007]; Monreal v New York State
Dept. of Health, 38 AD3d 1118, 1119 [3d Dept 2007]).
Lastly, claimant’s argument that the statements allegedly made by Officer
Taylor concerning claimant’s drug use are defamatory per se must fail in
light of the documentary proof of the truth of such statements. Truth provides
a complete defense to defamation claims (see Rosenberg v MetLife,
Inc., 8 NY3d 359, 370 ; Silverman v Clark, 35 AD3d 1, 12
[1st Dept 2006]; Dillon v City of New York, 261 AD2d 34, 39 [1st Dept
1999]) Therefore, statements which are true are not actionable.
Based upon the foregoing, the Court finds in favor of the defendant and
dismisses the claim.
Let judgment be entered accordingly.
April 7, 2009
HON. HON. O. PETER SHERWOOD
Judge of the Court of