New York State Court of Claims

New York State Court of Claims

NIEBLAS v. STATE OF NEW YORK, #2009-047-002, Claim No. 103210


Synopsis



Case Information

UID:
2009-047-002
Claimant(s):
PEDRO NIEBLAS
Claimant short name:
NIEBLAS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103210
Motion number(s):

Cross-motion number(s):

Judge:
HON. O. PETER SHERWOOD
Claimant’s attorney:
PEDRO NIEBLAS, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERAL
By: Cheryl Rameau, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 7, 2009
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 of liability.


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 dispute.

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 [1988]). 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 [1986]; 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 [1983]). 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 agrees.

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 [1980]). 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 [1993]).

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 [2007]; 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
New York, New York

HON. HON. O. PETER SHERWOOD
Judge of the Court of Claims