Opinion
# 2016-032-163 Claim No. 127982 Motion No. M-89024 Cross-Motion No. CM-89287
01-03-2017
JOSHUA G. STEGEMANN v. THE STATE OF NEW YORK
Joshua G. Stegemann, Pro Se Hon. Eric T. Schneiderman, NYS Attorney General By: Christina Calabrese, Assistant Attorney General, Of Counsel
Synopsis
Claim sounding in destruction of property, conversion, trespass, emotional distress, duress, mental anguish, post traumatic stress syndrome, excessive use of force, aerial sense-enhanced video surveillance, unlawful interception of mobile phone communications, and unlawful search and seizure is dismissed.
Case information
| UID: | 2016-032-163 |
| Claimant(s): | JOSHUA G. STEGEMANN |
| Claimant short name: | STEGEMANN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127982 |
| Motion number(s): | M-89024 |
| Cross-motion number(s): | CM-89287 |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Joshua G. Stegemann, Pro Se |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Christina Calabrese, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | January 3, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Background
In July 2016, claimant was sentenced to nearly 30 years in federal prison following his conviction of multiple drug and weapon possession charges arising from an extensive search of his property by various law enforcement agencies. On or about January 25, 2016, claimant, proceeding pro se, moved this Court for permission to file a late claim seeking monetary damages for the loss and destruction of his personal property during the search (see Court of Claims Act § 10 [6]). Specifically, claimant alleged that, between April 30, 2013 and May 2, 2013, the New York State Police executed two invalid search warrants upon his residence in Stephentown, New York and, during the execution of said warrants, the officers caused significant damage to various items of his personal property. The proposed claim asserted numerous causes of action, including destruction of property, conversion, trespass, emotional distress, duress, mental anguish, post traumatic stress syndrome, excessive use of force, aerial sense-enhanced video surveillance, unlawful interception of mobile phone communications, and unlawful search and seizure under Article I, § 12 of the New York State Constitution, and sought monetary damages in the amount of $3,085,000 (Claim ¶¶ 36, 42). By Decision and Order dated May 3, 2016, this Court granted late claim relief as to claimant's causes of action sounding in destruction of property, conversion, and trespass, but denied his motion with respect to the remaining claims.
Although claimant also names Massachusetts State Law Enforcement, the Rensselaer County Sheriff's Office, and other law enforcement agencies as participants in the search, the Court of Claims is a court of limited jurisdiction wherein claims are primarily brought against the State of New York and certain public authorities (see Court of Claims Act § 9 [2]; McGuinness v New York State Workers' Compensation Bd., 41 AD3d 557, 557 [2d Dept 2007]; Plath v New York State Olympic Regional Dev. Auth., 304 AD2d 885, 886-887 [3d Dept 2003]).
On May 24, 2016, claimant filed the instant claim, which is identical to the proposed claim that he submitted with his late claim motion in January 2016. Following joinder of issue, claimant moved for summary judgment in his favor. Defendant cross-moved to dismiss certain causes of action for lack of subject matter jurisdiction and for summary judgment in its favor as to the remaining causes of action. Now before the Court are claimant's motion for summary judgment (M-89024) and defendant's cross motion (CM-89287).
Cross Motion to Dismiss
The Court will first address defendant's cross motion to dismiss claimant's causes of action sounding in emotional distress, duress, mental anguish, post traumatic stress syndrome, excessive use of force, aerial sense-enhanced video surveillance, unlawful interception of mobile phone communications, and unlawful search and seizure under Article I, § 12 of the New York State Constitution, for which claimant was denied late claim relief pursuant to the May 3, 2016 Decision and Order.
As relevant here, "[a] claim to recover damages for injuries to property . . . caused by the intentional tort of an officer or employee of the state while acting as such officer or employee . . . shall be filed and served upon the attorney general within [90] days after the accrual of such claim" (Court of Claims Act § 10 [3-b]). "Failure to comply with the statutory filing and service requirements deprives the Court of Claims of subject matter jurisdiction and compels dismissal of the claim" (Maude v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Langner v State of New York, 65 AD3d 780, 781 [3d Dept 2009]; Best v State of New York, 42 AD3d 699, 700 [3d Dept 2007]). Where a motion for permission to file and serve a late claim is brought within the applicable statute of limitations for the underlying cause of action under CPLR article 2, such relief is left to the discretion of the Court (see Court of Claims Act § 10 [6]; Tartaglione v State of New York, UID No. 2016-016-002 [Ct Cl, Marin, J., Jan. 5, 2016]; compare Byrne v State of New York, 104 AD2d 782, 783 [2d Dept 1984]). For the reasons stated in the Decision and Order dated May 3, 2016, the Court declined to exercise such discretion with respect to the aforementioned causes of action.
To the extent that claimant alleges that the actions on the part of defendant constituted an unintentional tort, such as negligent infliction of emotional distress, such a claim is also subject to a 90-day statute of limitations (see Court of Claims Act § 10 [3]).
As alleged, the causes of action sounding in emotional distress, duress, mental anguish, post traumatic stress syndrome, excessive use of force, aerial sense-enhanced video surveillance, unlawful interception of mobile phone communications, and unlawful search and seizure accrued on May 2, 2013, at the latest. It is undisputed that claimant did not file and serve the instant claim until May 24, 2016 and May 31, 2016, respectively. Accordingly, the Court lacks subject matter jurisdiction over the aforementioned causes of action, and defendant's motion to dismiss those claims must be granted (see Vargas v State of New York, 62 AD3d 1170, 1171 [3d Dept 2009]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 [2005]).
Although claimant indicates that he did not become aware of the facts constituting the above causes of action until November 30, 2015 (Claim ¶ 3), a claim becomes enforceable "when all elements of the cause of action can be truthfully alleged, 'even though the injured party may be ignorant of the existence of the wrong or injury' when that moment occurs" (Thomas v State of New York, UID No. 2007-028-550 [Ct Cl, Sise, J., July 5, 2007], quoting Schmidt v Merchants Despatch Transp. Co., 270 NY 287, 300 [1936]; see Kronos, Inc. v AVX Corp., 81 NY2d 90, 94 [1993]; Wray v State of New York, UID No. 2014-016-041 [Ct Cl, Marin, J., Nov. 18, 2014]).
Motions for Summary Judgment
Turning next to the parties' respective motions for summary judgment, "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [2008]; Baird v Gormley, 116 AD3d 1121, 1122 [3d Dept 2014]). If the proponent's burden is met, "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324; see Town of Kirkwood v Ritter, 80 AD3d 944, 945-946 [3d Dept 2011]). In considering a summary judgment motion, the Court "must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations" (Black v Kohl's Dept. Stores, Inc., 80 AD3d 958, 959 [3d Dept 2011]; see Winne v Town of Duanesburg, 86 AD3d 779, 780-781 [3d Dept 2011]).
With respect to defendant's argument that claimant failed to submit a copy of his claim with his motion for summary judgment, the Court exercises its discretion to overlook said procedural defect inasmuch as the record is "sufficiently complete" to adjudicate the motion for the purposes of CPLR 3212 (b) (Welch v Hauck, 18 AD3d 1096, 1098 [3d Dept. 2005], lv denied 5 NY3d 708 [2005] [internal quotation marks and citations omitted]; see Washington Realty Owners, LLC v 260 Wash. St., LLC, 105 AD3d 675, 675 [1st Dept 2013]).
As to the claim of conversion, "[a]n actionable 'conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession'" (LM Bus. Assoc., Inc. v State of New York, 124 AD3d 1215, 1216-1217 [4th Dept 2015], lv denied 25 NY3d 905 [2015] [emphasis in original], quoting Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 49-50 [2006]; see State of New York v Seventh Regiment Fund, 98 NY2d 249, 259 [2002]). "Two key elements of conversion are (1) plaintiff's possessory right or interest in the property . . . and (2) defendant's dominion over the property or interference with it, in derogation of plaintiff's rights" (Colavito v New York Organ Donor Network, Inc., 8 NY3d at 50; accord Reeves v Giannotta, 130 AD3d 1444, 1445 [4th Dept 2015]). Notably, "the Court of Claims has not been reluctant to examine the conduct of the police authorities in the effectuation of a search warrant" (Onderdonk v State of New York, 170 Misc 2d 155, 162 [Ct Cl 1996]; see Terranova v State of New York, 111 Misc 2d 1089, 1094 [Ct Cl 1982]). Indeed, "[j]ust as the State can be liable for the use of unreasonable, excessive force in making an arrest, even though the arrest is proper and legally authorized," so liability may also lie "for unreasonably allowing damage in making a search, even though the search was similarly proper and legally authorized" (Terranova v State of New York, 111 Misc 2d at 1095-1096; see Onderdonk v State of New York, 170 Misc 2d at 163-164; see generally Jones v State of New York, 33 NY2d 275, 279-280 [1973]).
Based upon the evidence submitted, the Court finds that defendant has met its initial burden with respect to both elements of the conversion claim, and that claimant failed to meet his respective burden or raise a triable issue of fact to defeat defendant's motion for summary judgment (see Reeves v Giannotta, 130 AD3d at 1445; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Claimant contends that defendant lacked the requisite authority to exercise control over his property because the search warrants executed on April 30, 2013 and May 2, 2013 were invalid. With respect to the April 30, 2013 search warrant, he alleges that defendant exceeded the scope of said warrant by unlawfully extending the search to the property adjoining his own (hereinafter the Foody property) (Claim ¶ 14). With respect to the May 2, 2013 warrant, claimant alleges that said warrant was not supported by probable cause because defendant simply "piggy-backed" on the April 30, 2013 warrant (Claim ¶ 13). Based upon the evidence submitted, however, claimant has not shown that he owned or had possessory rights to the Foody property (see Reeves v Giannotta, 130 AD3d at 1445). In fact, the claim states that the Foody property was owned by his grandparents (Claim ¶ 14) and claimant submits proof to that effect in the form of an affidavit of his uncle, Thomas F. Foody (Exhibit C-12). Moreover, as defendant points out, claimant has already challenged the validity of the search warrants in the Federal Court action, and both warrants were declared valid and the fruits therefrom found admissible (Exhibit J; Exhibit K) (see United States v Stegemann, US Dist Ct, ND, May 6, 2015, Sharpe, J.; United States v Stegemann, 40 F Supp 3d 249 [ND NY 2014]). As relevant here, the Federal Court (Sharpe, J.) explained:
"During the execution of the search warrant, police literally and figuratively unearthed a treasure trove of contraband. While allegedly conducting a line search beginning in the area where [claimant] was apprehended after he fled - clearly outside of the parameters of his residence and on property belonging to his grandparents, the Foodys - a narcotics-detecting K-9 alerted to a rock pile on the Foody property. Ultimately, illegal narcotics were discovered in that location. From another rock pile, some forty yards away, but still on Foody property, police found a loaded and stolen Ruger 9 mm pistol and ammunition. Within the borders of [claimant's] property, officers seized additional illegal drugs, a large sum of suspected drug money, a loaded Smith & Wesson revolver and ammunition, and four envelopes with $5,000 cash in each. In addition, inside of [claimant's] residence, police found an envelope that appeared to contain three account numbers owned by [claimant] at Greylock Federal Credit Union" (United States v Stegemann, 40 F Supp 3d at 256-257 [internal quotation marks and citations omitted]).
In further support of its cross motion for summary judgment, defendant submits the affidavit of Arthur Hyde, an investigator with the Rensselaer County Sheriff's Department, who played a lead role in the 2013 search of claimant's property (Exhibit H). According to Hyde, following claimant's arrest in the early morning hours of April 30, 2013, a "line search" was conducted on claimant's property from the area where he was apprehended, proceeding east and west, and then north toward the point from which claimant fled (Hyde Aff. ¶¶ 19-20). It was during this line search that a narcotics K-9 alerted Hyde and the other officers to the presence of narcotics, which were unearthed from a rock pile on the Foody property (Hyde Aff. ¶ 20). Thereafter, investigators walked the K-9s due north and south along a tree line, where they uncovered a gun and ammunition buried in a second rock pile (Hyde Aff. ¶ 21). Notably, the Federal Court (Sharpe, J.) declined to suppress the items recovered during the line search of the Foody property on the basis that such items "were unearthed in open fields" (United States v Stegemann, US Dist Ct, ND, May 6, 2015, Sharpe, J., *6). Following the recovery of the items seized on April 30, 2013, a second warrant for a search of claimant's property was obtained on May 2, 2013 "to search the underground areas of [claimant's] premises and the remote, undeveloped areas adjoining [claimant's] premises" (Hyde Aff. ¶ 24). According to Hyde, however, "nothing of evidentiary value was recovered" in the execution of the second warrant (Hyde Aff. ¶ 25). Hyde further avers that "[a]t no point in time did any member of law enforcement negligently, maliciously, or without due cause damage any piece of property belonging to [c]laimant" (Hyde Aff. ¶ 29). In total, hundreds of thousands of dollars, over 700 grams of cocaine, heroin, oxycodone, and oxicontin, as well as numerous weapons and stolen property were seized from claimant's property between April 30, 2013 and May 2, 2013 (Hyde Aff. ¶ 30).
The Court finds that the foregoing evidence, even when viewed in a light most favorable claimant, demonstrates that defendant's exercise of control over claimant's property did not constitute conversion because defendant had the proper authority to exercise such control (see LM Bus. Assoc., Inc. v State of New York, 124 AD3d at 1217; Matter of White v City of Mount Vernon, 221 AD2d 345, 346-347 [2d Dept 1995]; compare Della Pietra v State of New York, 125 AD2d 936, 937-938 [4th Dept 1986], affd 71 NY2d 792 [1988]). Further, as detailed in the Hyde affidavit and the decisions rendered in the Federal Court action, a substantial amount of contraband had been concealed in remote parts of claimant's property and the Foody property. Thus, the Court finds that defendant has made out a prima facie case that its efforts to recover said contraband were consistent with a reasonable search and seizure, and that claimant has failed to raise an issue of fact in that regard (compare Terranova v State of New York, 111 Misc 2d at 1096-1097). Accordingly, claimant's motion for summary judgment with respect to his conversion claim is denied, and defendant's motion for summary judgment as to the same is hereby granted (see LM Bus. Assoc., Inc. v State of New York, 124 AD3d at 1217).
Turning next to the claim of trespass, "[t]respass is an intentional entry onto the land of another without justification or permission" (Sunset Café, Inc. v Mett's Surf & Sports Corp., 103 AD3d 707, 709 [2d Dept 2013] [internal quotation marks and citations omitted]). When executing a search warrant obtained by a valid court order, a police officer "may rely on the presumption of regularity that attaches to such an order, a presumption that may be overcome by a showing that he or she knowingly or negligently executed an invalid order of seizure or similar warrant" (Korsinsky v Rose, 120 AD3d 1307, 1309 [2d Dept 2014]; see Rodriguez v 1414-1422 Ogden Ave. Realty Corp., 304 AD2d 400, 401 [1st Dept 2003]; Iovinella v Sheriff of Schenectady County, 67 AD2d 1037, 1037-1038 [3d Dept 1979], lv denied 47 NY2d 707 [1979], appeal dismissed 47 NY2d 799 [1979]). Thus, as a general matter, "entry pursuant to a facially valid court order is not actionable in trespass" (Onderdonk v State of New York, 170 Misc 2d at 162; see Iovinella v Sheriff of Schenectady County, 67 AD2d at 1037-1038).
As set forth above, the evidence submitted by defendant indicates that it entered claimant's property under the authority of two valid search warrants, and claimant has failed to raise an issue of fact as to the validity of those warrants. While it is true that "the State can be held liable [in trespass] for damages attending a legally authorized search, but which is unreasonably conducted" (Onderdonk v State of New York, 170 Misc 2d at 162), the Court finds that claimant has not made out a prima facie case that defendant's execution of the warrants in question was not consistent with a reasonable search and seizure (compare id.; Terranova v State of New York, 111 Misc 2d at 1096-1097). Further, the Court finds that defendant is entitled to summary judgment as to the cause of action sounding in trespass, given that the evidence undisputedly establishes that the State's entry upon claimant's property was justified (see Korsinsky v Rose, 120 AD3d at 1309-1310) .
Turning lastly to the claim of destruction of property, "'[t]o establish a cause of action sounding in negligence, [claimant] must establish the existence of a duty on defendant's part to [claimant], breach of the duty and damages'" (id. at 1309, quoting Greenberg, Trager & Herbst, LLP v HSBC Bank USA, 17 NY3d 565, 576 [2011]). Viewing the evidence in a light most favorable to claimant and according him the benefit of every reasonable inference, the Court finds that he has not established that defendant knowingly or negligently executed an invalid search warrant, nor has he raised an issue of fact to preclude summary judgment in this regard (see Korsinsky v Rose, 120 AD3d at 1309). As set forth above, there is no evidence in the record to indicate that the officers overstepped the bounds of the warrants, that they engaged in excessive conduct in entering upon claimant's property, or that their execution of the warrants was accomplished with unnecessary force or severity (see generally Onderdonk v State of New York, 170 Misc 2d at 162). Further, there is no evidence to indicate that the officers "fail[ed] to give due respect to the property and carry out the search warrant[s] in an unprofessional, unreasonable or excessive manner" (id.). Accordingly, the Court finds that the cause of action sounding in negligent destruction of property in connection with the execution of the search warrants must be dismissed (see Cla-Mil E. Holding Corp. v Medallion Funding Corp., 6 NY3d 375, 378-379 [2006]; Korsinsky v Rose, 120 AD3d at 1309).
Conclusion
Based upon the foregoing, claimant's motion for summary judgment is denied. All arguments raised therein and in claimant's reply papers, to the extent that they are not specifically addressed in this Decision and Order, have been examined and found to be either academic or lacking in merit. Defendant's cross motion to dismiss is granted in its entirety, and the causes of action sounding in emotional distress, duress, mental anguish, post traumatic stress syndrome, excessive use of force, aerial sense-enhanced video surveillance, unlawful interception of mobile phone communications, and unlawful search and seizure under Article I, § 12 of the New York State Constitution, for which claimant was denied late claim relief pursuant to the Court's May 3, 2016 Decision and Order, are now dismissed. Further, defendant's cross motion for summary judgment as to the causes of action sounding in conversion, trespass, and destruction of property is granted, the Court having found no issues of fact related thereto. Accordingly, it is hereby
ORDERED, that claimant's motion (M-89024) is denied in its entirety; and it is further
ORDERED, that defendant's cross motion (CM-89287) is granted in its entirety; and it is further
ORDERED, that the claim (No. 127982) is dismissed.
January 3, 2017
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Claim, dated January 19, 2016. 2. Notice of Motion for Summary Judgment; and Affirmation in Opposition and Response to Defendant's Answer and in Support of Motion for Summary Judgment, sworn to by claimant on June 15, 2016. 3. Notice of Cross Motion; and Affirmation in Support of Cross Motion and in Opposition to Motion for Summary Judgment, affirmed by Christina Calabrese, AAG, on September 27, 2016. 4. Affirmation in Reply to Defendant's Cross Motion and Opposition to Summary Judgment, sworn to by claimant on October 6, 2016.