|Claimant(s):||TANYA HOOVER and JAYSHAWN CLEMENTE, AN INFANT UNDER THE AGE OF FOURTEEN, BY HIS M/N/G, TANYA HOOVER|
|Claimant short name:||HOOVER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Leventhal & Klein, LLP
By: Jason Leventhal, Esq.
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: John M. Hunter, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||March 16, 2010|
|See also (multicaptioned case)|
This is the decision following the liability trial of the claim arising from the events of November 16, 2006, when Tanya Hoover went to the housing or landlord-tenant part of the New York City Civil Court in Brooklyn regarding back rent on her apartment. In tow, was one of her three children, the six-year old Jayshawn. Things did not go well to say the least; arriving just before 9 a.m., by midday Ms. Hoover had been arrested for disorderly conduct(1) and struck in the face by a court officer, who believed she was going for his gun.
Claimant(2) explained at trial that when she first moved into her apartment, about eight or nine months earlier, the Human Resources Administration of the City of New York had mistakenly sent rent payments to her old address. After receiving an eviction notice, Hoover went to the courthouse to try to straighten things out, and by the date of the subject incident had gone to Brooklyn's landlord-tenant part five or six times in connection with her rent. As for these earlier visits, Hoover stated that they each lasted about 20 or 30 minutes and were uneventful. Claimant testified that the original mixup had apparently been resolved as of November 16, 2006, describing her appearance that day as relating to "[p]robably new rent arrears."
On that day, when claimant and her son arrived at the court, which was located at 141 Livingston Street, she went to the sixth floor, was directed to the fourth floor and signed in. Hoover and Jayshawn sat down on a bench and waited to be called.
The next thing claimant recalled was awaking after having fallen asleep on the bench for "a couple hours." Worried that her name had been called in the interim, Hoover walked back into the room where she had signed in, which was not staffed by an employee of the court system, but by a field coordinator of the Human Resources Administration -- Frantz Dextra. Claimant proceeded to ask Mr. Dextra, "When will I be seen or who can I . . . speak to to find out when I'm going to be seen." According to claimant, Dextra responded by telling her to "just wait my turn . . . Just shoving me out [of] the room." Hoover added that Dextra was "real hostile and he had an attitude . . ." Claimant asked him, "[W]hy are you talking to me like that? . . . don't talk to me like that . . . I didn't do anything to you . . ." She added that, "He kept on telling me go. I felt offended. I think I told him . . . F you. I recall saying the F word to him." At some point, claimant asked Dextra if she could speak to his supervisor. When he said no, she walked out of the room and had no further conversation with him.
Hoover then returned to the benches, and shortly thereafter, saw three court officers run up the steps and go into the room, and she could hear them questioning Dextra. Dextra then came out with the officers and pointed down the hall toward her. The officers approached claimant and told her that she had to be escorted out. Hoover described what happened next as follows:
I said, you know, this is not right because you're kicking me out of the building, you escorting me out the building, I'm here to take care of my business, I don't want to get kicked out. I just moved into my apartment. I haven't been here that long, and I'm repeatedly saying that to him. Like it was no confrontation between me and these men, it was just the words that was passed back, and I felt that's all it was. So for me to be escorted out this building, I don't feel like it's fair. So I'm constantly repeating it to this officer as I'm walking to the elevator.
Claimant recalled that the officer told her that the procedure was that if you have "any type of mishap with anybody in the building," you have to leave and come back another day. The conversation continued as they walked away from the bench, although claimant conceded that "[i]t was mainly me talking." Hoover described herself as "in shock" and "upset" that she was being escorted out of the building, and she recalled that she was talking the entire time they walked toward the elevator. She described her tone as "a little bit aggravated, annoyed, hot. You know, medium high pitch." She remembered repeating herself and saying, "[T]his is not fair . . . this is f'd up, this is f'd up . . . ya'll think you can do what you want to do to me.
When the elevator doors opened, claimant, her son and the three officers stepped in. Hoover recalled that as they went down to the first floor, she was "talking the whole ride." She did not recall the officers responding. Asked if she was cursing while in the elevator, she conceded that, "I may have slipped a couple curse[s] in there. I was just talking so fast . . ."
Claimant said that when the elevator arrived at the first floor, they got off, and after taking two or three steps, she began to zip up her son's coat, at which time, "I might have still been . . . running my mouth . . . ," when, "somebody says, tell your story walking." She didn't know which of the officers said it, but she responded, "fuck you, and that's when I felt someone hit me . . . [o]n my left eye."* * *
Dextra recalled the incident with claimant on November 16, 2006. Put on the stand by defendant, he testified that as another tenant was being called in, Hoover walked in at the same time, "and demanded to be seen, and I told [her], you cannot be seen, you have to wait for your turn, your name to be called . . . and she refused. She says she wants to be seen right now. I said, no, you are not going to be seen, you have to wait for your turn, and she started cursing out and I was afraid that she was going to be physical, so I said - she called me [a] name, I said I don't have to take that from you, and I don't recall if I called security or if one of my colleagues called security." He described the volume of claimant's speech as yelling and said she had called him "mother fucker, asshole . . ., et cetera . . ." Dextra said that this went on at least five to ten minutes, although on cross-examination, he described the entire incident as very brief.
Contrary to claimant's testimony, Dextra testified that when the officers arrived, claimant was still in his office, adding that, "She didn't want to leave when the officers ordered her to step out . . . this is when she started . . . calling them name[s], you can't do anything to me, et cetera . . ."
Defendant also called to the stand two court officers, Sergeant William Luhrs and Officer John Blom. Luhrs, who by the time of trial had become a sergeant, testified that on the date in question, he was assigned to the Livingston Street courthouse, and that at approximately 12:30 p.m. was called by the operations office with regard to a disturbance on the fourth floor. Luhrs responded with two other court officers, Officer Blom and Officer Ocapora. When they arrived, he saw Dextra standing by his office door. Dextra informed him that "a woman was giving the staff a hard time by using foul and abusive language." Luhrs asked where the woman was, and Dextra pointed out the door to claimant. Luhrs recalled that he explained to Hoover that Dextra had told them that she was giving the staff a hard time and being disrespectful, and that she would not be seen that day. According to Sergeant Luhrs, claimant then "became irate, started
. . . to curse at us, said . . . you can't do this to me, I have rights, started to yell." He further recalled that claimant said, "Fuck you, I have rights, you guys are assholes, you white pieces of shit, you can't tell me what to do." Luhrs testified that he told claimant that she could not curse like that in the courthouse, but let her vent for 30 or 40 more seconds, after which he told her she had to leave the building.
Sergeant Luhrs recalled that claimant continued to curse and be abusive, and kept repeating herself as they waited for the elevator. The three court officers, claimant and her son all got on the elevator. Luhrs recalled that after the elevator arrived at the first floor and the doors opened, they all stepped out and claimant "got loud again, started to curse and scream at us again." According to Luhrs, there were 30 to 50 people in the lobby. He testified that when claimant started cursing and getting loud, he decided to arrest her for disorderly conduct because she was "causing a really big scene with the public . . . Down the elevator, it was just us so it really didn't matter, but once she got to the lobby and kept doing it, now she was causing a real problem in the lobby. A lot of people looking and turning around seeing what was going on." Luhrs testified that he then told claimant that she was under arrest and was going to get a disorderly conduct summons.
Officer Blom testified that at 12:30 p.m. that day, he responded to the fourth floor, where he witnessed claimant being loud and cursing, which continued as they rode down in the elevator. He recalled that after they left the elevator, they "walked down the hallway a bit and at one point, [claimant] kind of veered off towards where the lobby area was, which is not where the exit is." Blom testified that at that point, Hoover was "just extremely abusive towards Officer Luhrs, towards all of us, and pretty much making a scene." He described the lobby as very crowded.
Blom said that after several warnings to calm down and keep moving, Sergeant Luhrs told claimant that she was going to be placed under arrest if she didn't stop, and she continued cursing and flailing her arms, after which she was told that she was under arrest.
The testimony of the two officers together with Dextra's and, for that matter, aspects of Hoover's testimony, lead this trier of fact to conclude that claimant was first placed under arrest for her profane behavior - - which was sufficiently disruptive to constitute grounds for a disorderly conduct charge.(3)* * *
What happened next was an unfortunate, if not ugly, development. In order to effect the disorderly conduct arrest, Sergeant Luhrs testified that he then grabbed Ms. Hoover's left arm with his left arm, and she was still holding onto her child with her right arm and wouldn't let go. He recalled that, "Eventually, Officer Blom was able to wrest the child away from her, and at that point, she pulled her right arm in and started to turn towards the right to face me, and I was forced to let go with my other hand because she was pulling me in towards her." Then, "I felt two tugs on my weapon in her general direction . . . we were inches apart, we were very close, all I could see is her face, and I said, she's going for my gun. I swung my arm. When my arm came down, I grabbed my weapon and pulled my hip out and fell backwards down in a pile." Asked why he had struck claimant, Sergeant Luhrs testified that he did so "[t]o prevent my weapon from being taken by this individual." Luhrs was also asked on cross-examination whether he had punched claimant as hard as he could, and he responded in the negative. Photographs of claimant taken a day or so after the incident show a bruise on claimant's left eye. See claimant's exhibits 2 and 3.
Luhrs said that after falling, he got up off the floor, looked at his weapon, and the top snap was open. He re-secured it, "and at that point, the other officers had pulled her down to a prone position on the floor and then handcuffed her."
According to Officer Blom, Sergeant Luhrs had told claimant to place her hands behind her back, but she didn't comply. Blom recalled that Luhrs then took claimant's wrist, upon which she started resisting and "it turned into . . . a little scrap . . ." Officer Blom said that he bent over to try to get Jayshawn, because the child was in the middle of things and he didn't want him to get hurt. He was ultimately able to remove Jayshawn and hand him off to another officer. Blom testified that at some point, he heard Sergeant Luhrs yell, "she's got my gun . . . he yelled it twice." Blom conceded that he did not see claimant grab the gun.
Ms. Hoover vigorously denied reaching for the gun; the fact that she was upset, angry and cursing does not give rise to the inference that she would therefore reach for a court officer's weapon. But that having been said, Sergeant Luhrs testified that he felt two tugs on his weapon, and that upon inspection, he noted the top snap to be open. Moreover, Sergeant Luhrs' testimony was corroborated by Officer Blom, who testified that he heard Luhrs yell that claimant had gone for his gun. Claimant, who called no witnesses on her behalf, argued that Luhrs' testimony about the relative positions of the officer and claimant did not support the former's testimony that Hoover was reaching for his gun.
Hoover also pointed to Sergeant Luhrs' testimony that he did not punch claimant as hard as he could, arguing that if his reaction had been to punch, he would not have held back, and moreover, that if she had gone for his gun, Luhrs' first reaction would have been to grab the gun, not to punch her in the face. Sergeant Luhrs testified that he had received training on the use of force when someone attempts to grab your weapon. He described that as, "it's a force continuum from verbal all the way up to heavy physical force." Luhrs added that, "We're told to basically use the least amount of force possible to end the threat and prevent that person from obtaining your firearm . . . you're trained to get as much distance from the person as possible, if you have to strike, to strike, to prevent - hold your weapon. I mean, do whatever you can to keep that weapon from being taken out of the holster."
In any event, the claimant has the burden of proving the particular issue by a preponderance of the evidence, and where the evidence on a particular issue weighs evenly, then defendant prevails. PJI 1:23 and 1:60. In view of the foregoing, this Court is constrained to accept defendant's view of the facts, and find that claimant has failed to prove that physical force was improperly used against her person. Ms. Hoover's causes of action for assault, negligence, State constitutional violation, and emotional distress must thus fail.* * *
As to claimant's claim for false arrest, Sergeant Luhrs testified that he initially proceeded to arrest her for disorderly conduct (Penal Law §240.20). Given that there was probable cause to believe that Hoover had violated §240.20, her false arrest claim cannot succeed. Broughton v State of New York, 37 NY2d 451 (1975).
Probable cause is a complete defense to a cause of action for malicious prosecution. See, Broughton, supra. Along with two charges of disorderly conduct (Penal Law §§ 240.20(1) and 240.20(3), claimant was also charged with reckless endangerment in the second degree (Penal Law §120.20); attempted petit larceny (Penal Law §§110 and 155.25); attempted grand larceny in the fourth degree (Penal Law §§110 and 155.30(5); resisting arrest (Penal Law §205.30); endangering the welfare of a child (Penal Law §260.10(1); and attempted criminal possession of a weapon in the fourth degree (Penal Law §§110 and 265.01(1). See exhibit 1. Having found that claimant failed to meet her burden of proof to defeat defendant's version of events, this Court finds that probable cause existed to arrest claimant for all charged offenses, and accordingly, claimant's cause of action for malicious prosecution cannot succeed.(4) Broughton, supra.
In view of the foregoing, claim no. 114488 is dismissed. Let judgment be entered accordingly.
March 16, 2010
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. Disorderly conduct was one of several charges; see claimant's exhibit 1 and below.
2. Unless the context indicates otherwise, "claimant," as used herein, shall refer to Tanya Hoover.
3. Norasteh v State of New York, 44 AD3d 576 (1st Dept 2007), lv denied 10 NY3d 709 (2008); compare DePaula v State of New York, 2009 WL 2170243 (Ct Cl 2009). See Penal Law §240.20.
4. Claimant elicited testimony as to what could be termed the officers' indifference toward the prosecution of claimant; for example, Sergeant Luhrs at one point credibly testified that,"Once I pressed the charges, I was just waiting for the DA to call me. At that point, it's out of my hands . . . It's not personal." Such does not constitute the actual malice necessary to make out a claim for malicious prosecution. Broughton v State of New York, supra). On malicious prosecution generally, claimant cited Janetka v Dabe, 892 F2d 187 (2d Cir 1989), which is inapposite.