Opinion
# 2012-038-562 Claim No. 120194 Motion No. M-81150
09-24-2012
ALFONZO FAULK v. THE STATE OF NEW YORK
Synopsis
Defendant's motion for summary judgment granted in part on claim arising from claimant's confinement following execution of parole warrant. Despite the ALJ's finding after a preliminary hearing that there was not probable cause to find that claimant had violated his parole, the confinement of claimant of claimant was privileged because the parole warrant was facially valid, and thus, causes of action for false arrest and wrongful confinement and detention are dismissed. Defendant failed to demonstrate that its employees were entitled to absolute immunity with respect to the issuance of a violation of parole report and the parole warrant, but demonstrated its right to summary judgment on the issue of governmental immunity for discretionary determinations with respect to those discretionary actions. Defendant did not establish prima facie its right to judgment as a matter of law on causes of action for malicious prosecution, negligent and intentional infliction of emotional distress, negligent hiring and retention of employees, and libel and slander. Case information
UID: 2012-038-562 Claimant(s): ALFONZO FAULK Claimant short FAULK name: Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote The caption has been amended sua sponte to reflect the (defendant name) : State of New York as the only proper defendant in this claim. Third-party claimant(s): Third-party defendant(s): Claim number(s): 120194 Motion number(s): M-81150 Cross-motion number(s): Judge: W. BROOKS DeBOW Claimant's CRAIG L. DAVIDOWITZ, PC attorney: By: Craig L. Davidowitz, Esq. ERIC T. SCHNEIDERMAN, Attorney General Defendant's attorney: of the State of New York By: Michael T. Krenrich, Assistant Attorney General Third-party defendant's attorney: Signature date: September 24, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
This claim arises from claimant's confinement from September 3 to September 17, 2010 upon a parole warrant. After a preliminary hearing was conducted on September 16, 2010, a Hearing Officer found that there was not probable cause that claimant had violated a condition of his parole (see Krenrich Affirmation, Exhibit F), and directed claimant's release. The claim asserts that defendant is liable for tortious conduct in the nature of "negligence, negligent false and wrongful imprisonment, wrongful detainment in custody, malicious prosecution[,] negligent and intention infliction of emotional distress, negligent hiring and retention and violation of the claimant's civil rights" (Claim No. 120194, ¶17), as well as libel and slander (id. ¶43), all of which are set forth in greater detail in eight causes of action. Defendant moves for summary judgment dismissing the claim, and claimant opposes the motion.
The relevant facts that may be gathered from the parties' submissions on the motion follow. Claimant was a parolee subject to the supervision of Parole Officer (PO) Mercedes. The eighth condition of claimant's parole prohibited him from engaging in behavior that would "threaten the safety or well-being of [claimant] or others" (Krenrich Affirmation, Exhibit A). Henry Blackmon, a resident of a single-room occupancy residence where claimant was employed as a front desk attendant, contacted Senior PO Jones and complained of a verbal altercation with claimant that allegedly occurred on August 26, 2010. A violation of release report signed by PO Mercedes and SPO Jones states that claimant was threatening to "kick [Blackmon's] ass" and charged claimant with violating the eighth condition of his parole by telling Blackmon that he "will kill [his] ass when [his] shift is over" (id. Exhibit B). After a case conference with SPO Jones and another parole official, it was determined that a warrant be issued (id.), and warrant #617134 was issued by SPO Jones (id. Exhibit C). At the preliminary hearing, the Hearing Officer found that Blackmon was not a credible witness, that while Blackmon stated that claimant had said "kick your ass," the violation charge stated "kill your ass," and that there was not probable cause that claimant had violated condition eight of his parole (see Exhibit F). The theory underlying the instant claim for damages is that defendant's agents failed to conduct a proper investigation prior to issuing the parole warrant.
While the claim sets forth eight enumerated causes of action, most of those causes of action do not clearly assert the legal basis upon which liability allegedly rests. The first cause of action provides a detailed factual recitation and sets forth a plethora of theories of tortious conduct (see Claim No. 120194, ¶ 17 ["negligence, negligent false and wrongful imprisonment, wrongful detainment in custody, malicious prosecution negligent and intentional infliction of emotional distress, negligent hiring and retention and violation of the claimant's civil rights"]). The second cause of action alleges a multitude of omissions and asserts that defendant was negligent. The third cause of action sounds in negligent hiring and retention of employees, and the fourth cause of actions asserts that defendant intentionally inflicted emotional distress upon claimant. The fifth cause of action alleges that there was a detention of claimant without probable cause, and it makes assertions of false and wrongful arrest and imprisonment, malicious prosecution, libel, slander, and negligence. The sixth, seventh and eighth causes of action are grounded in alleged violations of federal constitutional rights, and they seek remedies pursuant to 42 USC §§ 1983 and 1988.
It is well established that a movant for summary judgment must establish, by proof in admissible form, the right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). If the movant establishes prima facie entitlement to summary judgment, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (see Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). However, where a movant fails to demonstrate its entitlement to summary judgment as a matter of law in the first instance, the motion must be denied (see Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]; Tiano v Lane, 260 AD2d 908 [3d Dept 1999]).
Addressing the allegations of wrongful confinement, defendant asserts that claimant cannot establish the fourth necessary element of a cause of action for wrongful confinement, to wit, that the confinement was not privileged (see Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]; see also Davis v City of Syracuse, 66 NY2d 840, 842 [1985]). "A detention, otherwise unlawful, is privileged where the confinement was by arrest under a valid process by a court having jurisdiction" (id. [internal quotes and citations omitted]; see also Donald v State of New York, 17 NY3d 389, 395 [2011]). The privilege may arise from a facially valid parole warrant (see Nastasi v State of New York, 300 NY 473 [1949]), and the appropriate inquiry as to the validity of a warrant is its facial validity and not whether it was issued upon adequate or correct facts (see People v Briggs, 19 NY2d 37, 42-43 [1966]). A finding that there existed a facially valid warrant may also defeat a claim for false arrest (see Romero v State of New York, 294 AD2d 730, 733 [3d Dept 2002], appeal dismissed 98 NY2d 727 [2002] and lv denied 99 NY2d 503 [2002]). In support of its motion, defendant has submitted a facially valid parole warrant for retaking and detaining claimant (see Krenrich Affirmation, Exhibit C), and notwithstanding claimant's contentions that the warrant was defective because it was "based on bad faith and a non-existent investigation" (Davidowitz Affirmation, ¶30), claimant has failed to raise an issue of fact as to the facial validity of the warrant. Accordingly, defendant is entitled to judgment as a matter of law dismissing the claim insofar as it sounds in false arrest and wrongful confinement or detention.
Defendant next contends that the determinations to issue a violation of release report and a parole warrant are entitled to absolute immunity from liability, insofar as its employees acted in accordance with the laws, rules and regulations governing the Division of Parole (see Krenrich Affirmation, ¶¶ 24, 25). The process for the revocation of parole, and more specifically, the process for finding a parolee in violation of parole and for issuing a warrant for the retaking and temporary detention of a parolee is set forth in 9 NYCRR §8004.2, which states in relevant part:
(a) If a parole officer having charge of a releasee shall have reasonable cause to believe that such person has lapsed into criminal ways or company, or has violated one or more of the conditions of his release in an important respect, such parole officer shall report such fact to . . . a designated officer. Designated officer as used herein shall mean a senior parole officer . . . and any [other] officer who has been provided with specific authorization by the Board of Parole. No officer shall issue a warrant in a case where he is the one who furnishes the report upon which it is based. (b) The . . . designated officer may issue a warrant for the retaking and temporary detention of a releasee, provided that the designated officer issuing the warrant shall not also be the officer recommending issuance of the warrant. (c) A warrant for retaking and temporary detention may issue when there is reasonable cause to believe that the releasee has lapsed into criminal ways or company, or has violated the conditions of his release in an important respect. Reasonable cause exists when evidence or information which appears reliable discloses facts or circumstances that would convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that a releasee has committed the acts in question or has lapsed into criminal ways or company. Such apparently reliable evidence may include hearsay.
With respect to the actions involved in the issuance of the parole warrant, if an individual is authorized and exercises his or her discretion pursuant to 9 NYCRR §8004.2(a) and (b), such action would be entitled to absolute immunity (see Mertens v State of New York, 73 AD3d 1376 [3d Dept 2010] lv denied 15 NY3d 706 [2010]; see also Semkus v State of New York, 272 AD2d 74, 75 [1st Dept 2000] lv denied 95 NY2d 761 [2000], citing Lublin v State of New York, 135 Misc 2d 419 [Ct Cl 1987] affd 135 AD2d 1155 [1st Dept 1987] lv denied 71 NY2d 802 [1988]).
It is well-established that "[a]s the movant for summary judgment, defendant [bears] the initial burden of demonstrating its entitlement to sovereign immunity as a matter of law" (Metz v State of New York, 86 AD3d 748, 749 [3d Dept 2011], citing Alvarez v Prospect Hosp., supra). Here, defendant broadly argues that defendant is entitled to absolute immunity because "the decision to issue a violation of release report and the subsequent decision to issue a parole warrant were discretionary determinations made by Parole Officer Mercedes while acting within the scope of his [sic] authority in accordance with the laws[,] rules and regulations governing the Division of Parole" (Krenrich Affirmation, ¶24). However, as claimant asserts, PO Mercedes was "performing an investigatory rather than a prosecutorial function . . . [and is] entitled to qualified rather than absolute immunity" (Best v State of New York, 264 AD2d 404, 404-405 [2d Dept 1999]). With respect to the issuance of a warrant, defendant's submission reflects that it was SPO Jones and not PO Mercedes who issued the warrant. Moreover, defendant's submission demonstrates that SPO Jones executed both the Violation of Release Report (see Krenrich Affirmation, Exhibit B) and the warrant (see id. Exhibit C), so there is a question of fact as to whether there was a violation of 9 NYCRR §8004.2(b) ("the designated officer issuing the warrant shall not also be the officer recommending issuance of the warrant"). In sum, defendant has not demonstrated that the acts of its employees are entitled to absolute immunity as a matter of law, and accordingly, defendant's motion for summary judgment on the ground of absolute immunity will be denied.
Because defendant does not assert in support of its motion that the acts of its employees are entitled to qualified immunity, the Court need not address claimant's contentions that defendant's agents acted without a reasonable basis or in bad faith.
In its argument in support of absolute immunity, defendant has blended the separate contention that defendant enjoys governmental immunity for the discretionary acts of its officials involving the exercise of reasoned judgment (see Krenrich Affirmation, ¶ 22), asserting that "the decision to issue a violation of release report and the subsequent decision to issue a parole warrant were discretionary determinations made by Parole Officer Mercedes" (id. ¶ 24). In examining whether defendant is entitled to governmental immunity, the Court must first focus on whether the parole officials were afforded the discretion to issue the violation of release report and the parole warrant, which involves review of the pertinent provisions of the parole regulations. The regulations first require a parole officer who is supervising a parolee to make a violation of release report to a "designated officer" when the parole officer has "reasonable cause to believe" that a parolee has violated the terms of their parole (9 NYCRR §8004.2[a]). This provision manifestly requires a discretionary act, as it plainly requires a parole officer to exercise professional judgment. Further, the use of a permissive term in the parole regulation expressly vests parole officials with discretion to issue a parole warrant (see 9 NYCRR § 8004.2[c] ["(a) warrant for retaking and temporary detention may issue"] [emphasis added]). Thus, the regulations vest parole officials with discretion in the issuance of violation of release reports and parole warrants.
Next, defendant bears the burden on this motion for summary judgment of making a prima facie showing that its employees actually exercised their discretion or engaged in an exercise of reasoned judgment (see Metz, at 752, quoting Alvarez v Prospect Hospital, supra). Defendant submits the violation of release report which recites the complaints made by Henry Blackmon, reviews claimant's parole history and adjustment to parole supervision, and states that "[a]fter a case conference with SPO Jones and A/S it was determined that a warrant is to be issued" (Krenrich Affirmation, Exhibit B). Thus, defendant's submission in support of the motion clearly reflects that both PO Mercedes and SPO Jones engaged in an exercise of discretion in issuing the violation of release report and issuing the warrant, and as such, defendant has demonstrated that it is immune from liability for allegedly negligent performance of this discretionary function (see McLean v City of New York, 12 NY3d 194, 202 [2009]). Claimant argues that any investigation conducted by PO Mercedes consisted exclusively of her reliance upon Henry Blackmon's statement, and that any such investigation was insufficient because PO Mercedes failed to check whether there was a related criminal case pending against claimant, and whether there existed circumstances that would undermine Blackmon's credibility (see Davidowitz Affirmation, ¶¶ 18, 19 and 27). These arguments are, essentially, that there was "a failure by government to do its job" (McLean, at 197), for which governmental immunity attaches when, as here, defendant has demonstrated that its employees were engaged in discretionary conduct and that they actually exercised their discretion. Accordingly, claimant has failed to raise any triable issue of fact as to whether defendant should be entitled to governmental immunity for its discretionary actions.
Defendant next argues that the claim does not state a cause of action for malicious prosecution because claimant cannot demonstrate the necessary element of "actual malice" required to sustain such a claim. "In order to recover for malicious prosecution, a plaintiff must establish four elements: that a criminal proceeding was commenced; that it was terminated in favor of the accused; that it lacked probable cause; and that the proceeding was brought out of actual malice (see, Smith-Hunter v Harvey, 95 NY2d 191, 195; Broughton v State of New York, 37 NY2d 451, 457, cert denied sub nom. Schanbarger v Kellogg, 423 US 929)" (Cantalino v Danner, 96 NY2d 391, 394-395 [2001]). Defendant asserts that "it cannot be said that the Division of Parole or any of its employees acted with malice when commencing parole revocation proceedings" (Krenrich Affirmation, ¶27) because the determination to issue a parole violation was based upon Blackmon's factual allegations that claimant had threatened Blackmon, thereby violating the eighth condition of claimant's parole. However, while defendant's motion is supported by documentary evidence that demonstrates defendant's reliance on Blackmon's allegations (see Krenrich Affirmation, Exhibit B), the motion also demonstrates that there was a finding that there was not probable cause to find that claimant violated a condition of parole (see Exhibit F). "'The continuation of a criminal proceeding without probable cause may support a cause of action for malicious prosecution' (Kemp v Lynch, 275 AD2d 1024, 1026 [2000]). In establishing the element of actual malice, 'a plaintiff need not demonstrate the defendant's intent to do him or her personal harm, but need only show a reckless or grossly negligent disregard for his or her rights' (Ramos v City of New York, 285 AD2d 284, 300 [2001]). Actual malice may be inferred from the facts and circumstances of the case, i.e., 'something other than a desire [on the part of the defendant] to see the ends of justice served' (Nardelli v Stamberg, 44 NY2d 500, 503 [1978]; see Ramos, 285 AD2d at 300)" (Putnam v County of Steuben, 61 AD3d 1369, 1370-1371 [4th Dept 2009] lv denied 13 NY3d 705 [2009]). Inasmuch as defendant's submission in support of its motion for summary judgment demonstrates a lack of probable cause and does not demonstrate any other facts that go to the absence of actual malice, defendant has failed to demonstrate that "it cannot be said" that there was a lack of malice. Accordingly, defendant has not shown its entitlement to judgment as a matter of law on claimant's cause of action for malicious prosecution.
Subsequent to the events alleged in the claim, the Division of Parole merged with the Department of Correctional Services to become the Department of Corrections and Community Supervision.
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Lastly, defendant correctly contends that claims alleging violation of federal constitutional rights and seeking remedies therefor pursuant to 42 USC §1983 are not properly asserted against the State (see Zagarella v State of New York, 149 AD2d 503, 504 [2d Dept 1989]; Brady v State of New York, Inc., 36 Misc 3d 1230[A] [Ct Cl 2012]). Claimant has not asserted any opposition to this aspect of defendant's motion.
In sum, defendant has established its entitlement to judgment as a matter of law on those parts of the claim alleging false arrest and wrongful confinement or detention and the negligent issuance of the revocation warrant or the negligent performance of discretionary actions related thereto, and has demonstrated its entitlement to summary judgment on the sixth, seventh, and eighth causes of action. Defendant has not made a prima facie showing of entitlement to summary judgment on the claim for malicious prosecution. Unaddressed by defendant's motion and therefore surviving it are those parts of the claim sounding in negligent and intentional infliction of emotional distress, negligent hiring and retention of employees, and libel and slander. Accordingly, it is
ORDERED, that defendant's motion number M-81150 is GRANTED IN PART, and those parts of Claim Number 120194 sounding in false arrest, wrongful confinement or detention, negligent issuance of the revocation warrant or the negligent performance of discretionary actions related thereto, and the sixth, seventh, and eighth causes of action asserted in the claim are DISMISSED, and it is further
ORDERED, that motion number M-81150 is DENIED in all other respects.
September 24, 2012
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Verified Claim Number 120194, filed August 5, 2011;
(2) Verified Answer, filed September 12, 2011;
(3) Notice of Motion, dated March 1, 2012;
(4) Affirmation in Support of Michael T. Krenrich, AAG, dated March 1, 2012, with Exhibits A-H;
(5) Affidavit of William B. Gannon, Esq., sworn to February 22, 2012;
(6) Affirmation in Opposition of Craig L. Davidowitz, Esq., dated May 31, 2012, with Exhibits A-B;
(7) Affidavit in Opposition of Alonzo Faulk, sworn to May 31, 2012;
(8) Affirmation in Reply of Michael T. Krenrich, AAG, dated June 11, 2012.