Opinion
# 2012-038-546 Claim No. 115672 Motion No. M-81123
06-29-2012
SIDHU v. THE STATE OF NEW YORK THE NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, and THE CRIMINAL COURT OF THE CITY OF NEW YORK
Synopsis
Defendant's motion to dismiss claim for false arrest, false imprisonment and malicious prosecution arising from claimant's arrest for driving without license granted. Claimant was arrested and confined by the New York City police department, and the State cannot be held liable for the actions of those individuals who are not employees or officers of the State. To the extent that the claim alleges the negligence of the Brooklyn Criminal Court in failing to transmit notice of the dismissal of prior criminal charges to the DMV, such an act is not ministerial and thus, defendant is entitled to governmental immunity. Case information
UID: 2012-038-546 Claimant(s): RANJODH SIDHU Claimant short SIDHU name: Footnote (claimant name) : THE STATE OF NEW YORK, THE NEW YORK STATE DEPARTMENT OF Defendant(s): MOTOR VEHICLES, and THE CRIMINAL COURT OF THE CITY OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 115672 Motion number(s): M-81123 Cross-motion number(s): Judge: W. BROOKS DeBOW Claimant's KENNETH J. ARONSON, Esq. attorney: ERIC T. SCHNEIDERMAN, Attorney General Defendant's attorney: of the State of New York By: Suzette C. Rivera, Assistant Attorney General Third-party defendant's attorney: Signature date: June 29, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant moves pursuant to CPLR 3212 for summary judgment dismissing this claim, which arises from claimant's arrest for driving with a suspended license. In the alternative, defendant seeks permission to amend its answer to include a defense grounded in the statute of limitations. Claimant opposes the motion in its entirety.
Most of the salient facts are undisputed. Claimant possessed a Michigan driver's license on April 27, 2001, when an Order of Suspension Pending Prosecution was issued by the New York City Criminal Court in Brooklyn (see Aronson Affirmation, Exhibit B). The various charges, including violations of Vehicle and Traffic Law § 1192, that gave rise to that suspension were dismissed on speedy trial grounds on April 26, 2002 (see id., Exhibit A). It is undisputed that the disposition of those charges was not communicated from the Criminal Court to the New York State Department of Motor Vehicles (DMV), and that the suspension of claimant's driving privileges in New York was not lifted. On January 22, 2008, after a traffic stop, claimant was arrested for driving without being duly licensed (see id., Exhibit G). Claimant remained in custody for approximately two days (see Rivera Affirmation, Exhibit D, pp. 16-17) It is acknowledged by claimant that he was arrested by a New York City Police Officer (see id., pp. 13-15; see also Aronson Affirmation, ¶41).
The claim asserts that it is "to recover damages for false arrest, false imprisonment, and malicious prosecution" (Claim No. 115672, ¶ 2). It alleges that "[t]he failure of the Criminal Court in Brooklyn to advise the New York State Department of Motor Vehicles of the dismissal of all of the criminal charges was negligent" or, alternatively, if the Criminal Court so advised DMV, that the DMV "was negligent in failing and omitting to enter this vacatur in its data bank and on [claimant]'s abstract of driving record" (id.), and that, as a result of any such negligent omissions, "the January 22, 2008, arrest and prosecution of the Claimant were not based upon probable cause" (id.).
Defendant moves for summary judgment dismissing the claim on several grounds: (1) that the State is immune from liability because the actions of the State were discretionary; (2) that the State is immune from liability because its actions were ministerial and there was no special duty owing to claimant; or (3) that the State is not an actor who can be found liable upon this claim for false arrest, false imprisonment and malicious prosecution.
A movant for summary judgment must establish, by proof in admissible form, the right to judgment as a matter of law (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 (Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
Turning first to the last of defendant's contentions, defendant argues that "the Claim should be dismissed because the State is not responsible for the false arrest, false imprisonment and malicious prosecution of the claimant . . . [because] [c]laimant was arrested by police officers from the New York City Police Department, which is not an arm or agency of the State" (Rivera Affirmation, ¶ 14). The contention that claimant was arrested and confined by agents of New York City is supported by claimant's deposition testimony (see Rivera Affirmation, Exhibit D, pp. 13-15; see also Aronson Affirmation, Exhibit G), and is candidly acknowledged by claimant's counsel (see Aronson Affirmation, at ¶41). The State is not liable for the allegedly tortious acts of a local police officer (see Whitmore v State of New York, 55 AD2d 745 [3d Dept 1976], lv denied 42 NY2d 810 [1977]; Selby v State of New York, UID No. 2007-038-534 [Ct Cl, DeBow, J., May 11, 2007]; see also Fishbein v State of New York, 282 App Div 600, 603-604 [3d Dept 1953], appeal denied 282 AD2d 1093 [3d Dept 1953]; Murph v State of New York, 98 Misc 2d 324, 326 [Ct Cl 1979], rearg denied 105 Misc 2d 684 [Ct Cl 1980]). With respect to a cause of action for false arrest, there is no issue of fact that claimant's arrest was effectuated by a New York City police officer, and thus, the State cannot be held liable for the allegedly false arrest of claimant. Further, claimant acknowledges that an element to be proven to establish the tort of wrongful confinement is an intent to confine the claimant (see Aronson Affirmation, ¶ 41; see Broughton v State of New York, 37 NY2d 451, 456 [1975], cert. denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]), and here, because there is no factual dispute that the officer(s) who confined claimant were not agents of the State, such intent on behalf of defendant cannot be shown. Similarly, because elements of the tort of malicious prosecution require a showing that the defendant commenced a criminal proceeding against claimant, and that it did so out of actual malice (see Martinez v City of Schenectady, 97 NY2d 78, 84 [2001] [reciting the elements of the tort of malicious prosecution]), the State is entitled to summary judgment on such a cause of action because the State was not an actor involved in the arrest or charging of claimant with respect to the incident of January 22, 2008, and thus, defendant has demonstrated that the State did not commence a criminal proceeding, let alone out of actual malice. Thus, defendant State has demonstrated that it is entitled to summary judgment dismissing the claim.
Claimant's argument that the State can be held liable upon such causes of action because claimant's arrest and imprisonment were caused or instigated by defendant is unavailing where, as here, a City police officer effected the arrest upon information that was negligently provided by the State (see Secard v Department of Social Servs. of County of Nassau, 204 AD2d 425 [2d Dept 1994] [causes of action for false arrest and imprisonment did not lie against Nassau County, whose negligent maintenance of filed documents ultimately led to claimant's arrest and confinement by State Troopers]). Further, and to the extent that claimant contends that the State's negligence in allowing the continued suspension of claimant's driving privileges gives rise to liability against the State for false arrest or false imprisonment, one who merely supplies information to the police who determine that an arrest is appropriate will not be liable for damages flowing from the arrest (see Tzambazis v City of New York, 291 AD2d 397 [2d Dept 2002]; Byrd v Middleton-Bond, 253 AD2d 510, 511 [2d Dept 1998]). The cases cited by claimant do not warrant a different result because they demonstrate that the conduct of one who "caused or instigated" an arrest or prosecution gives rise to a cause of action only when the defendant has done something more than merely furnish incorrect information to the authorities who effectuate the arrest (see Vernes v Phillips, 266 NY 298 [1935] [prima facie case of false imprisonment was made out against attorney who caused void or irregular process to be issued upon false allegations that plaintiff had stolen funds]; Levy v Chasnoff, 245 App Div 607, 610 [1st Dept 1935] [an actor is liable (for false arrest and confinement) only if the confinement which the arrest involves is a part of the greater offense of instituting such proceedings without reasonable cause and for a purpose other than that for which the proceedings are provided]).
To the extent that the claim can be read as asserting a cause of action sounding in negligence, the Court will briefly discuss the immunity issues raised by defendant.It is now beyond cavil that the State enjoys governmental immunity from liability for the performance of discretionary acts, even if negligently performed (see Valdez v City of New York, 18 NY3d 69, 75-76 [2011]; McLean v City of New York, 12 NY3d 194, 202 [2009]). Liability against the State may attach, however, if the injured party demonstrates that the defendant owed it a special duty apart from a general duty owed to the public at large and if the governmental actor negligently performs a task that is ministerial in nature (see McLean, at 203). Assuming that a special duty to claimant could be proven on this claim, the issue that comes to the fore is whether the alleged negligence that occasioned the continuation of the suspension of claimant's driving privileges occurred in the performance of a discretionary or ministerial act.Subsequent to discovery and in opposition to this motion, claimant has focused upon the failure of the Clerk in the Criminal Court in 2002 to communicate to DMV that the criminal charges against claimant had been dismissed (see Aronson Affirmation, ¶37).
Defendant's verified answer asserted that defendant's actions were discretionary, and that it was entitled to governmental immunity (see Verified Answer, Third Affirmative Defense).
In the context of this particular motion, a discussion of whether a special duty was owed to claimant by defendant is mostly academic, since governmental immunity attaches because the task at issue involved the exercise of discretion, as discussed in greater detail below. The special relationship that claimant relies upon here (see Aronson Affirmation, ¶ 37), is one that is created by "(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking" (Cuffy v City of New York, 69 NY2d 255, 260 [1987]). Manifestly, whether claimant justifiably relied on the defendant's affirmative undertaking is a factual inquiry, as it turns upon what was done, said and expected as between the defendant and claimant (see e.g. Valdez v City of New York, at 83, fn 11; Dinardo v City of New York, 13 NY3d 872, 874 [2009]; cf. Sankara v State of New York, UID No. 2001-028-0534 [Ct Cl, Sise, J., June 5, 2001] [justifiable reliance established where claimant took several affirmative steps to remove incorrect suspension]). Here, in support of claimant's opposition to defendant's motion, and assuming that there was an affirmative undertaking upon which claimant could rely, there is no affidavit of claimant or other proof in admissible form that would raise an issue of fact with respect to claimant's justifiable reliance on defendant's affirmative undertaking. Counsel's affirmation is insufficient opposition to defendant's motion in this regard because it lacks independent evidentiary value (see Aronson Affirmation, ¶ 3), and no excuse has been offered for claimant's lack of tender of admissible evidence (see Zuckerman v City of New York, 49 NY2d 557, 562-563 [1980]).
The Court of Appeals has stated "discretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result" (Tango v Tulevich, 61 NY2d 34, 41 [1983]). "An institutional custom or practice may constitute a governing rule or standard" (Hunt v State of New York, 36 AD3d 511, 514 fn2 [citing Kagan v State of New York, 221 AD2d 7, 12 (2d Dept 1996)] [1st Dept 2007]). Here, in support of its motion, defendant presents evidence that the customary practice in Criminal Court in 2002 was that defendants whose driving privileges had been suspended were themselves responsible for notifying DMV that their suspensions should be lifted (see Rivera Affirmation, Exhibit B [EBT transcript of Timothy McGrath, at 18, 20, 22, 24]). In opposition to defendant's motion, claimant offers no citation or evidence of a governing statute, rule, regulation, standard, protocol, or any other requirement that the Criminal Court clerk was required to inform the DMV that claimant's criminal prosecution had been dismissed. Nor, in the absence of such evidence, is it persuasive that claimant contends that the statutory requirements that the Clerk notify DMV of the imposition of suspensions must have a corresponding obligation to inform DMV when the suspension should be lifted (see Aronson Affirmation, ¶ 40). Accordingly, the Court concludes that in 2002, the act of informing the DMV of a disposition that would permit the lifting of a suspension of driving privileges was not a ministerial act.
The cases cited by claimant do not compel a different conclusion, as all related to the handling by non-judicial personnel of court processes that are not accessible to individuals, such as vacatur and issuance of warrants and recording of judgments (see Lapidus v State of New York, 57 AD3d 83 [2d Dept 2008] [court clerk erroneously recorded criminal conviction and sentence of co-defendant where defendant had not been tried, convicted, or sentenced]; Marx v State of New York, 169 AD2d 642 [1st Dept 1991] [Housing Court clerks were unable to locate a file and erroneously caused the issuance and execution of a warrant of eviction after judgment of eviction had been vacated]; National Westminster Bank, USA v State of New York 155 AD2d 261, 262 [1st Dept 1989] ["The [County] Clerk has a duty to properly and timely docket judgments, and the acts of recording the judgment on the record is not discretionary"]; Haskins v State of New York, 145 AD2d 915 [4th Dept 1988] [court employee erroneously noted expungment of judgment against one of two joint debtors]; Schwandt v State of New York, 4 Misc 3d 405 [Ct Cl 2004] [City Court clerk had a ministerial duty to transmit information that an arrest warrant had been cancelled]; Ostrowski v State of New York, 186 Misc 2d 890 [Ct Cl 2001] [court clerk failed to correctly record claimant's full payment of fine and surcharge and arrest warrant was issued]). None of those cases involved an alleged ministerial duty to transmit to DMV information about a terminated criminal prosecution, and the asserted ministerial act by the Criminal Court clerk was not one that only court personnel could perform. Indeed, as demonstrated by this case, an individual is at liberty to obtain a document reflecting the disposition of criminal charges (see Aronson Affirmation, Exhibit H), and submit it to DMV on his own behalf. While the absence of a mandate that the Criminal Court clerk inform the DMV that a suspension of driving privileges should be lifted may be less than desirable and may not amount to the best practice (cf. Schwandt, supra at 411 [suggesting the adoption of uniform procedures to assure that cancelled arrest warrants were properly transferred from the Court to the police department]), it is the absence of any such mandate that affords defendant governmental immunity.
In sum, defendant's motion for summary judgment dismissing the claim will be granted because defendant has demonstrated, as a matter of law, that the State cannot be liable for the alleged false arrest, false imprisonment and malicious prosecution of claimant because his arrest was effectuated by a New York City police officer. Further, to the extent that the claim asserts causes of action against the Criminal Court of Brooklyn and the DMV sounding in negligence, defendant has established its entitlement to governmental immunity as a matter of law, and claimant has not raised a triable issue of fact with respect thereto. Thus, defendant's motion for summary judgment will be granted, and the claim will be dismissed. Accordingly, the Court need not consider defendant's request to amend its answer to include a statute of limitations defense. It is
ORDERED, that Motion No. M-81123 is GRANTED, and Claim No. 115672 is DISMISSED.
June 29, 2012
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Verified Claim #115672, filed August 11, 2008;
(2) Verified Answer, filed September 15, 2008;
(3) Notice of Motion, dated February 23, 2012;
(4) Affirmation of Suzette Corinne Rivera, AAG in Support of Defendant's Motion for Summary Judgment, dated February 23, 2012, with Exhibits A-E;
(5) Affirmation of Kenneth J. Aronson, Esq. in Opposition to Defendant's Motion for Summary Judgment, dated April 4, 2012, with Exhibits A-H.