Opinion
# 2014-038-521 Claim No. 123205 Motion No. M-84525
05-07-2014
COREY WRIGHT v. THE STATE OF NEW YORK
LAW OFFICE OF ANDREW C. LAUFER, PLLC By: Andrew C. Laufer, Esq. ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Robert J. Schwerdt, Assistant Attorney General
Synopsis
Claimant's motion to amend claim to replace cause of action for unjust conviction with assertions of malicious prosecution, false arrest, and unlawful confinement denied. Factual allegations in the claim did not satisfy all of the elements of any of the proposed common law torts, and thus, the proposed amended claim was insufficient as a matter of law.
Case information
| UID: | 2014-038-521 |
| Claimant(s): | COREY WRIGHT |
| Claimant short name: | WRIGHT |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123205 |
| Motion number(s): | M-84525 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | LAW OFFICE OF ANDREW C. LAUFER, PLLC By: Andrew C. Laufer, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Robert J. Schwerdt, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 7, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This claim arises from claimant's incarceration upon a parole violation warrant. The claim alleges that claimant was released to parole supervision in 2007, and that he was to reside in and be supervised pursuant to interstate compact by the Commonwealth of Virginia. It further alleges that in January 2013, the New York State Department of Corrections and Community Services (DOCCS), on the request of authorities in Virginia, issued a parole violation warrant and approved a Violation of Release Report containing three charges. It was asserted therein that claimant changed his address without his parole officer's permission (Charge 1), failed to report to his parole officer (Charge 2), and absconded from supervision (Charge 3) (see Laufer Affirmation in Reply, Exhibit A, at D1). Following a preliminary hearing on April 2, 2013, a Hearing Officer in Virginia explained why no probable cause was found for Charges 1 and 3, found that there was probable cause for Charge 2 without providing an explanation, and recommended that claimant be restored to parole supervision (see id. at F1, p. 2). The claim alleges that on April 5, 2013, representatives of DOCCS "picked up" claimant and returned him to New York for a final revocation hearing (see Claim, ¶ 11), which was ultimately scheduled to be conducted May 6, 2013. In an Order and Decision dated June 28, 2013, Supreme Court, Bronx County (Lorenzo, J.) granted claimant's application for habeas corpus relief and ordered him restored to parole, finding that further litigation on Charge 2 was collaterally estopped by the prior proceedings in Virginia (see Laufer Affirmation in Reply, Exhibit A, at H1, pp. 4-5). The claim alleges that "[a]s a result of this wrongful conviction, [claimant] was imprisoned from March 19, 2013 until June 27, 2013" (Claim, ¶ 16). The claim asserts that claimant sustained injuries "resulting from his unjust conviction and imprisonment on charges of a parole violation warrant" issued and lodged against claimant by DOCCS (Claim, ¶ 3).
Claimant moves to amend the claim by revising ¶ 3 thereof to assert that his injuries resulted from "his false arrest, malicious prosecution, and resulting imprisonment" rather than from unjust conviction (see Laufer Affirmation, Exhibit A). Claimant asserts that the purpose of the amendment is to change the legal theory of liability from unjust conviction pursuant to Court of Claims Act § 8-b to the above-recited common law torts as permitted by Court of Claims Act § 9 (2). The proposed amended claim includes no additional factual allegations or other alterations to the filed claim. Defendant opposes the motion on the grounds that "the Claim, in both its original and amended forms: 1) fails to comply with the strict pleading requirements of Court of Claims Act Section 11; 2) the Claim, in both its original and amended form[s], has no merit [and]; 3) this Court lacks subject matter jurisdiction over the Claim" (Schwerdt Affirmation, ¶ 2). In particular, defendant argues that the claim lacks merit because it does not contain sufficient factual allegations to support the elements of any of the proposed causes of action sounding in tort, and that it is undisputed that the parole warrant was valid and that defendant's conduct was therefore privileged. Defendant further asserts that this Court lacks subject matter jurisdiction over the claim because it concerns matters related to parole which are outside the scope of this Court's to review, and because matters related to interstate agreements and federal constitutional claims must be litigated in federal courts. Defendant submits that the motion to amend the claim should therefore be denied and that the Court should dismiss both the original and amended claims.
Defendant's request for affirmative relief in the nature of dismissal of the pending claim will not be considered or granted. Defendant has made its submission only in opposition to claimant's motion to amend the claim, but has not noticed it as a motion or cross motion for such relief, and claimant's reply does not treat it as such.
Leave to amend a claim shall be "freely given" (CPLR 3025 [b]), and whether to grant or deny such a motion is a matter within the discretion of the Court (see Swergold v Cuomo, 70 AD3d 1290, 1294 [3d Dept 2010]). While a motion pursuant to CPLR 3025 (b) may be granted where the proposed amendment is not plainly lacking in merit or is not palpably insufficient on its face and where the opponent of the motion does not demonstrate actual prejudice were the motion to be granted (see Paolucci v Mauro, 74 AD3d 1517, 1519 [3d Dept 2010]; Leclaire v Fort Hudson Nursing Home, Inc., 52 AD3d 1101, 1102 [3d Dept 2008]; Mathiesen v Mead, 168 AD2d 736, 736-737 [3d Dept 1990]), "denial is appropriate where the proposed amendment is wholly devoid of merit" (Waddell v Boyce Thompson Inst. for Plant Research, Inc., 92 AD3d 1172, 1174 [3d Dept 2012], lv denied 19 NY3d 805 [2012]).
Claimant seeks to amend the claim to substitute two theories of liability, or causes of action, for the cause of action that sounds in unjust conviction, to wit, false arrest and malicious prosecution, and the proposed amended claim asserts that these wrongful actions resulted in claimant's imprisonment. Defendant does not oppose the motion to amend with an argument of prejudice, and none is discernable from the proposed amendment, which merely alters the legal theory upon which claimant seeks to prosecute the claim. Rather, defendant contends that the proposed amendment lacks merit, essentially arguing that the allegations in the proposed amended claim fail to state a cause of action for false arrest and malicious prosecution. Upon such opposition, the proposed amended pleading should be examined to determine whether it would withstand a motion to dismiss pursuant to CPLR 3211 (a) (7) (see Lucido v Mancuso, 49 AD3d 220, 225 [2d Dept 2008]), and where the proposed amended pleading lacks factual allegations sufficient to make out all of the elements of a cause of action that is asserted therein, the proposed amendment is palpably insufficient as a matter of law and the motion to amend is properly denied (see Beshara v Little, 215 AD2d 823 [3d Dept 1995]; see also Glynn v 177 W. 26th Realty LLC, 102 AD3d 558, 559 [1st Dept 2013]; Sears v First Pioneer Farm Credit, ACA, 46 AD3d 1282, 1286 [3d Dept 2007]).
Defendant asserts that the failure of the proposed amended claim to comply with the pleading requirements of Court of Claims Act § 11 (b) would severely prejudice defendant because the assertedly general and conclusory allegations in the amended claim are insufficient to notify defendant of its alleged wrongdoing (see Schwerdt Affirmation, ¶ 8), but this contention does not address whether defendant would suffer prejudice due to the proposed amendment.
"The elements of a cause of action for false arrest or imprisonment are (1) an intentional confinement (2) of which plaintiff was conscious and (3) to which plaintiff did not consent, and (4) that was not otherwise privileged" (Guntlow v Barbera, 76 AD3d 760, 762 [3d Dept 2010], appeal dismissed 15 NY3d 906 [2010], citing Martinez v City of Schenectady, 97 NY2d 78, 85 [2001]; Broughton v State of New York, 37 NY2d 451, 456-457 [1975], cert denied sub nom. Schanbarger v Kellogg 423 US 929 [1975]; see also Nazario v State of New York, 75 AD3d 715, 718 [3d Dept 2010], lv denied 15 NY3d 712 [2010]). Assuming without deciding that the proposed amended claim states the first three elements of a cause of action for false arrest or unlawful imprisonment, the proposed amended claim does not allege that defendant's actions were without privilege. To the extent that the claim alleges that defendant brought claimant into custody without probable cause (see Proposed Amended Claim, ¶ 13), that assertion is flatly contradicted by the proposed amended pleading itself, which also alleges that probable cause was lacking as to only two of the three violation charges against him (see id. ¶ 7). Further, to the extent that the documents submitted by claimant in support of the motion are properly considered on this motion, they clearly demonstrate that after a preliminary hearing in Virginia, the Hearing Officer found probable cause that he had violated condition #4 of his parole (see Laufer Affirmation in Reply, Exhibit A, at F1, p.2). Indeed, the finding of probable cause in Virginia was acknowledged by Supreme Court, Bronx County (see id. at H1, p.4), even though Supreme Court ultimately determined that the finding of probable cause was unexplained by the Hearing Officer and could not be evaluated on claimant's habeas corpus petition due to the lack of a record of the preliminary hearing that occurred in Virginia (id. at p.5).
Further, an otherwise unlawful arrest and detention are privileged if defendant is acting upon a facially valid warrant (see Nazario, at 718; Forshey v State of New York, 113 AD3d 985, 986 [3d Dept 2014]). In the proposed amended claim, it is acknowledged that claimant was arrested and confined upon a parole warrant that had been issued by defendant upon the request of Virginia authorities, and the proposed amended claim does not allege "that either the warrant was invalid on its face or that the [defendant] lacked jurisdiction to issue the warrant" (Nazario, at 718). Thus, the proposed amended claim does not state a cause of action for false arrest or unlawful confinement, and accordingly, to the extent claimant seeks amend the claim to include such causes of action, the proposed amended claim is insufficient as a matter of law.
A similar conclusion is reached with respect to any proposed cause of action sounding in malicious prosecution. Such a cause of action also has 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" (Guntlow v Barbera, 76 AD3d at 765, citing Cantalino v Danner, 96 NY2d 391, 394 [2001] [internal quotation marks omitted] and Broughton v State of New York, 37 NY2d at 457). Again, assuming without deciding that the proposed amended claim states facts that support the first three of these elements, including the self-contradicted allegation that there was not probable cause that claimant violated a condition of parole, the proposed amended claim is devoid of any allegation that a proceeding was brought or maintained out of actual malice defendant, i.e. that defendant acted with reckless or grossly negligent disregard of claimant's rights (see Guntlow v Barbera, 76 AD3d at 766), or that defendant's conduct with regard to the parole revocation proceeding was "due to a wrong or improper motive, something other than a desire to see the ends of justice served" (Nardelli v Stamberg, 44 NY2d 500, 503 [1978]). Thus, the proposed amended claim does not state a cause of action for malicious prosecution.
Inasmuch as the proposed amended claim does not set forth facts that would support all of the elements of the new proposed causes of action, claimant's motion to amend the claim will be denied. Defendant's remaining arguments in opposition to the motion need not be addressed. Accordingly, it is
ORDERED, that claimant's motion number M-84525 is DENIED.
May 7, 2014
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Verified Claim, filed September 12, 2013; (2) Verified Answer, filed October 30, 2013; (3) Notice of Motion to Amend Claim, dated January 7, 2014; (4) Affirmation of Andrew C. Laufer, Esq., in Support of Motion to Amend the Claim, dated January 7, 2014, with Exhibit A; (5) Affirmation of Robert J. Schwerdt, AAG, in Opposition, dated January 22, 2014, with Exhibit A; (6) Affirmation of Andrew C. Laufer, Esq., in Reply, dated January 29, 2014, with Exhibit A.