Opinion
# 2019-044-549 Claim No. 128191 Motion No. M-93472
08-06-2019
DANIEL GRINOLS v. THE STATE OF NEW YORK
SIVIN & MILLER, LLP BY: Andrew C. Weiss, Esq., of counsel HON. LETITIA JAMES, ATTORNEY GENERAL BY: Aaron J. Marcus, Assistant Attorney General
Synopsis
In claim for damages incurred as a result of charges brought against claimant by state police, defendant's motion for summary judgment granted to the extent that the casue of action for negligent hiring, training and retention was dismissed, and further that claimant could not recover for malicious prosecution in relation to charges of violation V&T § 402 (1). Defendant's motion otherwise denied.
Case information
| UID: | 2019-044-549 |
| Claimant(s): | DANIEL GRINOLS |
| Claimant short name: | GRINOLS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128191 |
| Motion number(s): | M-93472 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | SIVIN & MILLER, LLP BY: Andrew C. Weiss, Esq., of counsel |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL BY: Aaron J. Marcus, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 6, 2019 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed this claim to recover damages allegedly suffered as a result of charges brought against him by several members of the State Police. Defendant State of New York (defendant) answered and asserted several affirmative defenses. Defendant now moves for summary judgment dismissing the claim. Claimant opposes the motion in part.
In his claim, claimant alleges that defendant "was negligent and reckless in its hiring, training and retention of the . . . [p]olice troopers and officials" (Claim, ¶ 5). Defendant does not contest that the members of the State Police were acting within the scope of their employment when the allegedly wrongful conduct took place. Accordingly, defendant's liability, if any, is pursuant to respondeat superior (Rossetti v Board of Educ. of Schalmont Cent. School Dist., 277 AD2d 668 [3d Dept 2000]), and claimant may not proceed with the causes of action for negligent hiring, training, and retention (Ashley v City of New York, 7 AD3d 742, 743 [2d Dept 2004]). Claimant specifically does not oppose the portion of defendant's motion which seeks dismissal of these causes of action (Affirmation of Andrew C. Weiss, Esq., dated May 14, 2019, ¶ 1), and they are accordingly dismissed.
Some background information is necessary before addressing the merits of defendant's motion. Claimant and off-duty State Trooper Brandon Beers were involved in what the parties have described as a road rage incident on the evening of July 15, 2014. As a result of the incident, Beers contacted the North Hornell State Police Station. The following day, claimant was stopped by Trooper Devin Dunn and ultimately issued two Uniform Traffic Tickets (UTTs) for violation of Vehicle and Traffic Law (V&T) § 402 (1) (no distinctive license plate) and V&T § 1225-C (2) (a) (talking on a cell phone while operating a motor vehicle). Apparently, Dunn also advised claimant that the State Police wanted to discuss the incident of the prior evening. Claimant voluntarily went to the Bath State Police barracks, but did not provide a statement at that time. It is undisputed that various members of the State Police thereafter interviewed several witnesses and took their statements. On August 8, 2014, claimant was arrested and charged with violations of various sections of the V&T and Penal Law. Eventually, all of the charges were dismissed.
It appears that shortly after claimant was issued the first ticket, Dunn stopped him another time and issued the second ticket.
Defendant argues that a cause of action for malicious prosecution has not been adequately stated and further that there was an objectively reasonable basis to institute criminal proceedings against claimant. Conversely, claimant contends that he has sufficiently stated a cause of action for malicious prosecution and that there are questions of fact as to whether defendant had probable cause to charge him with several violations and/or offenses.
Defendant, as the proponent of a summary judgment motion, is required to set forth evidentiary facts in admissible form which establish a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, absent such a prima facie showing by the movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad, 64 NY2d at 853).
In support of its motion, defendant has submitted the affidavit of Brandon Beers. Beers states that at the time of the incident, he was a road patrol trooper. He indicates that on July 15, 2014 at approximately 9:41 p.m., he was driving home in his 2007 Yukon with his wife, three-year-old son, and one-year-old daughter. As he approached the intersection of Seneca Road and County Route 70A, Beers saw two motorcycles stopped at the stop sign and another two approaching the intersection. Beers waited for them to proceed, but they waved him through the intersection.
The day after the incident, Beers provided a supporting deposition in which he stated that after he cleared the intersection of Seneca Road with County Route 70A, two of the motorcycles followed him northbound on Seneca Road. He noted that one of the motorcycles was swerving in and out of the proper lane while alternately accelerating quickly and then slowing down. He later learned that claimant was operating this motorcycle. Beers indicated that claimant appeared to be driving drunk and he (Beers) feared for the safety of everyone on the road. Beers asserted that claimant was getting closer and closer to the back of the Yukon and as he (Beers) approached a stop sign, he was worried that if he actually stopped, claimant would end up in the backseat where his children were sitting. He stated that he slowed down, scanned the intersection and when he was sure there were no vehicles coming, he rolled through the intersection without stopping.
Beers turned onto Airport Road and saw that the motorcycles were still behind him. He noted that claimant continued to drive up along side of him, then slow down and weave back and forth across the solid double line. Beers indicated that he was driving at approximately 35 mph when claimant, who had a female passenger (later identified as Alicia McLaughlin) on the motorcycle, passed him. The second motorcycle was still behind Beers. According to Beers, claimant then slowed down and stopped abruptly right in front of his vehicle, forcing him to stop suddenly as well. At that point, the second motorcycle (which he later learned was operated by Charles Fink) stopped alongside Beers' door, essentially pinning him in the vehicle. Beers stated that his vehicle remained in the northbound lane of traffic because he was unable to get to the shoulder of the road as a result of the positions of the motorcycles. Beers indicated that he did not know whether the drivers had weapons and he was afraid for his safety and that of his family. He noted that claimant approached his vehicle and began screaming at him. Beers stated that even after he advised both drivers that he was an off-duty trooper and had his wife and children in the car, claimant continued to scream at him. Beers indicated that both of his children were crying. He stated that McLaughlin was trying to pull claimant away from the vehicle, and the two of them and Fink left shortly thereafter. Beers stated that his wife wrote down claimant's license plate number and once he arrived at his home, he contacted the North Hornell State Police to report the matter. Beers noted that the next morning, he reported the incident to his sergeant at the Bath State Police barracks and he was interviewed by Investigator Donald Rodbourn.
Beers noted that shortly after the incident, Steuben County Deputy Sheriff Marcus Smith contacted him to discuss the matter. Smith allegedly stated that claimant had called him the night of the incident. Beers indicated that when they met, he relayed his version of the incident to Smith, and Smith allegedly confirmed that claimant had told him the same version. Smith apparently told Beers that claimant called him immediately after the incident and admitted that he was swerving in and out of the opposing lane, accelerating to Beers' bumper, and then decelerating. Beers stated that on July 22, 2014, he met with Smith and Rodbourn.
Devin Dunn, a Trooper, also submits an affidavit in support of the motion. He asserts that on July 16, 2014, he was performing a moving patrol on Seneca Road when he observed a white vehicle which did not appear to have a front license plate. After he made a U-turn and eventually got within a few cars of the vehicle, Dunn also noticed the rear license plate was obstructed. Dunn indicates that he was previously advised that claimant was a "person of interest" in a road rage incident from the prior evening and when he pulled the vehicle over and realized that claimant was the driver, he briefly questioned him about it. Dunn notes that after he contacted Rodbourn, he advised claimant that he could either immediately drive to the Bath barracks to meet with Rodbourn or he would be arrested. Dunn states that claimant agreed to drive to the station. He then issued claimant a UTT for violation of V&T § 402 (1) (no distinctive plate/insecure/dirty). Dunn asserts that as he was following claimant to his residence to drop off a passenger, he observed claimant holding his cell phone to his right ear and talking on it. Dunn pulled claimant over again and issued him a UTT for a violation of V&T § 1225-c (2) (a). Dunn indicates that he then continued to follow claimant to his residence and then onto the State Police barracks in Bath. Dunn states that he had no contact with claimant after that.
Dunn thereafter interviewed Rachelle Beers, Brandon Beers' wife, pertaining to the road rage incident and obtained her supporting deposition. In her deposition, R. Beers stated that Brandon Beers was driving their vehicle and she was in the backseat with their son and daughter. R. Beers indicated that they proceeded north on Seneca Road through its intersection with Route 70A. She asserted that two motorcycles were behind them. She stated that she saw the one motorcycle swerving into the oncoming lane of traffic. R. Beers said that they continued northbound and as the weaving motorcycle got close to their bumper, she became anxious and scared because her children were in the backseat.
R. Beers noted that as they approached State Route 21, Beers made a right turn, then a quick left turn onto Airport Road and claimant followed them. She asserted that claimant then began to ride in the oncoming lane along side of their vehicle. She noticed that he had a female passenger and wondered whether he had a weapon or was going to run them off the road. She specifically stated that there was a solid double line in the center of the roadway. Claimant eventually passed them and Brandon Beers indicated that he was going to speed up to get the license plate number. However, because claimant was going so fast, they could not get the plate number and they backed off. Claimant then began slowing down and speeding up, repeating the movement several times, and then he stopped in the middle of the road, causing Beers to stop. Both claimant and McLaughlin got off the motorcycle and claimant approached the driver's door while McLaughlin stayed at the passenger door. R. Beers indicated that the second motorcycle then stopped along the driver's side doors, and prevented them from being opened. She stated claimant then approached the driver's window and asked whether Beers had a problem and told him to get out of the car. She said at that point Beers told claimant that he was a State Trooper, that his children were in the car and that he (claimant) was driving like a jerk. She noted that claimant responded that he would like to see Beers do something about it and then he proceeded to the front of the car and kept repeating their license plate number. R. Beers indicated that the second motorcyclist apologized and said it wasn't him, it was his friend. She noted that her son was scared and began screaming and crying for his father. Claimant continued to curse and verbally abuse them until Beers threatened to call the police. At that time, claimant returned to his motorcycle, got on it and revved the engine a few times before driving away. R. Beers stated that she was able to get the license plate number and when they got home, Beers reported the incident to the State Police.
The Court notes that in their statements to Rodbourn, both claimant and McLaughlin stated that Beers slowed down when approaching the intersection of Seneca Road and State Route 21, but that he then drove through the intersection without coming to a complete stop. Neither claimant nor McLaughlin indicated that Beers turned right at that intersection. However, in his affidavit in opposition to this motion, claimant erroneously stated that Beers drove through the intersection of Seneca Road and County Route 66 without stopping (see infra at 15). Both Beers and claimant actually turned right onto County Route 66 (see n 7 infra)
Investigator Rodbourn has provided an affidavit in support of defendant's motion as well. Rodbourn states that on July 16, 2014, he was assigned to investigate the road rage incident between claimant and Beers. Rodbourn indicates that he interviewed Beers and documented the information in his incident report. He also obtained a supporting deposition from Beers. Rodbourn states that after the interview, he discussed the incident with Steuben County District Attorney (DA) Brooks Baker, but did not initially reveal that Beers' was a Trooper. He notes that Baker advised that claimant's conduct could support a charge of endangering the welfare of the children in the vehicle and possibly other criminal charges as well. DA Baker allegedly indicated that Beers' position as a Trooper would not make any difference and advised Rodbourn to complete an investigation.
Rodbourn asserts that as part of his investigation, he eventually interviewed claimant and Alicia McLaughlin in the presence of their counsel. Rodbourn avers that he detailed all of the steps of his investigation in the incident report and incorporates the substance of that report into his affidavit. Pursuant to the Incident Report, claimant stated that he and McLaughlin had been riding on his motorcycle along with three other motorcyclists and had dinner in Hornell. They then drove to Canisteo and then onto Bath and back to Hornell. Claimant denied drinking any alcohol during that time. He noted that when the four motorcycles reached the intersection of Seneca Road and County Route 70A, two of them headed south on Seneca toward Hornell while he and Charles Fink headed north. Claimant asserted that he was enjoying the ride and weaving back and forth within the northbound lane. He specifically denied crossing into the southbound lane.
Claimant stated that he saw a white vehicle ahead of him and the driver appeared to be speeding up and then slowing down, as well as weaving back and forth into the southbound lane. He later learned that Beers was operating the vehicle. He indicated that he thought Beers may have been drunk and watched him proceed through the intersection of Seneca Road and State Route 21 without stopping at the stop sign. Claimant and Fink stopped and proceeded through the intersection. Claimant asserted that Beers then turned onto Airport Road and immediately activated his blinker so that claimant thought he was turning into Maple City Dodge. Claimant alleged that he went around the vehicle and then Beers cut in between him and Fink. Claimant stated that Beers was right behind him and came up close to his rear tire, so he accelerated to 55 mph to get away, but Beers was following at a high speed and flashing his headlights. Claimant noted that because he was approaching the I-86 overpass and he knew he could not make the turn at that speed, he pulled off the road to let Beers go by him. According to claimant, before he could even turn off the engine and put down his kickstand, Beers stopped behind him and was standing in the car doorway screaming at him, stating that he had passed on a double solid line. Claimant also indicated that Fink had pulled alongside Beers to keep him from getting out. Claimant admitted that he started yelling back at Beers, accusing him of running a stop sign. Claimant stated that they continued to exchange words when McLaughlin starting pulling on his arm to go back to the motorcycle. At that point she told him there were two children crying in the backseat of the vehicle. Claimant indicated that because Beers told him that he knew where claimant lived and would be back, he watched his driveway for several hours afterward. He also realized that he had encountered Beers on a previous occasion when he ran claimant off the road and that he had two children in the car at that time. After the interview with Rodbourn, claimant refused to provide a sworn statement.
Thereafter, Rodbourn interviewed McLaughlin. She confirmed many of the details claimant had provided. She also stated that Beers was driving north on Seneca in front of them when he began to speed up and slow down and weave right to left. It appeared to her that he was intoxicated. She noted that claimant was also moving his motorcycle back and forth within in the northbound lane. McLaughlin indicated that Beers tapped his brakes and slowed down while rolling through the intersection of Seneca Road and Route 21, but he did not stop. She stated that claimant stopped at the intersection, and they discussed the fact that Beers did not stop and they should be careful around him. She explained that Beers turned left by Maple City Dodge, and then turned left again onto Airport Road. McLaughlin noted that when they were behind him, Beers slowed down and claimant drove around him. She confirmed that Beers then entered the roadway between claimant and Fink, and she could tell by the way the headlights were shining that he was close to the motorcycle. McLaughlin indicated that when claimant accelerated, Beers accelerated. She noted that claimant finally stopped the motorcycle by the I-86 overpass, close to the white line on the pavement. She stated that Beers was standing in the doorway of the vehicle screaming at claimant. At that point, Fink pulled next to the driver to keep him near the vehicle and claimant got off his motorcycle and began yelling at Beers. She noted that while they were screaming at each other, she saw two small children in the backseat of the vehicle and noticed that the little boy was crying. McLaughlin indicated that she got claimant back on the motorcycle and they left. She asserted that claimant told her that he had a similar incident with the Beers the prior year. McLaughlin also declined to provide a sworn statement.
The Court notes that the other witnesses stated that Beers turned right and then left at Airport Road.
Rodbourn also interviewed Charles Fink. Fink confirmed that the four motorcycles had been on a ride together and he and claimant headed north toward Airport Road at the County Route 70A intersection in Hornell. He stated that claimant was three to four bike lengths ahead of him and turning his wheel to weave back and forth across the lane. He also indicated that there was an SUV approximately 40 feet in front of claimant and that vehicle was also going back and forth across the lane. Fink noted that he saw Beers go through a red light without stopping and that he and claimant discussed it. He asserted that the SUV then turned right and then left onto Airport Road, the same route that they were taking to claimant's house. Fink stated that he and claimant were riding close to each other when Beers signaled and turned off the road. Claimant drove around the vehicle and then Beers pulled out behind him, separating him from Fink. Fink indicated that claimant accelerated and Beers also accelerated. Fink further noted that Beers tapped the brakes at least three or four times. Fink stated that claimant pulled over and stopped as he approached the I-86 overpass and Beers stopped as well. Fink asserted that Beers had his door open and was standing on the running board yelling at claimant. Fink said he could see two children in the backseat and one of them was crying. He told claimant they should go home. However, claimant and Beers argued a little more before Fink and claimant drove away.
According to Rodbourn, Fink initially stated that he rolled alongside the SUV at that point and the driver told him that he did not have any problem with Fink. However, when Fink provided his supporting deposition, he apparently clarified that Beers had already returned to his vehicle, shut the door and rolled down his window before Fink pulled alongside the door.
On July 22, 2014, Rodbourn interviewed Deputy Marcus Smith, with Beers present. Smith indicated that he and claimant are casual friends and claimant had called him the night of the road rage incident. Smith stated that claimant told him that as they drove past Club 57 on Seneca Road, he saw a vehicle in front of him slow down, then drive through the intersection without stopping. Smith noted that claimant said Beers then turned at Maple City Dodge and then onto Airport Road, and shortly thereafter, claimant passed him. Smith asserted that claimant indicated that Beers then flashed his lights up and down. Claimant allegedly told Smith that he stopped and got into an argument with Beers who said he was going to call Tommy Khork (presumably a police officer) and then identified himself as a State Trooper. Claimant also allegedly acknowledged to Smith that McLaughlin told him there were kids in the car. Smith stated that claimant believed he had a prior incident with the same vehicle in 2013, and that he should have accepted a ticket for passing on a double solid line.
Rodbourn went to the area of Airport Road where claimant stopped his motorcycle and took photographs. He stated that Airport Road is a two-lane road without any shoulders or fog lines and the only safe area to pull over is directly underneath I-86 on the north side of the road. He further noted that because the roadway is unlit, stopping in the driving lane would be hazardous.
Rodbourn indicated that he reviewed the security camera footage from Magic City Dodge showing Beers' vehicle turning from Seneca Road onto State Route 21, and then onto Airport Road. The video also shows claimant's and Fink's motorcycles approaching the same turn. Rodbourn stated that the video showed Beers' vehicle taking four seconds to cross the screen while claimant crossed in only two seconds.
Although both R. Beers and Rodbourn indicated that Beers turned right from Seneca Road onto State Route 21, Deputy Smith testified at his deposition that Beers and claimant would have traveled from Seneca Road to County Route 66 and then made a quick left onto Airport Road (Affirmation of Andrew C. Weiss, Esq., dated May 14, 2019 in Partial Opposition to Motion, Exhibit 5 at 6. It appears that Rodbourn erroneously stated that Beers turned onto State Route 21, because when he reviewed the security camera footage from Time Buyers (see infra), he indicated that Beers' vehicle was north of the Seneca Road and State Route 21 intersection. As Beers and claimant had been traveling northbound on Seneca Road since they met at its intersection with County Route 70A, Beers had to have traveled through the intersection with State Route 21 rather than having turned right.
Rodbourn and Investigator Wood reviewed security camera footage taken at Time Buyers on Airport Road. Rodbourn indicated that as they watched the footage, they noted that Beers' vehicle was northbound and north of the intersection of Seneca Road and State Route 21. After Beers' vehicle passed a certain landmark, it took claimant six seconds to also pass that landmark. Rodbourn and Wood then went to the intersection of Seneca Road and State Route 21 and drove the same distance as claimant and Beers had, accelerating normally to the landmark. Rodbourn stated that it took them thirteen seconds to cover the same area that claimant did in six seconds.
Based upon this information, the Court finds that while traveling northbound on Seneca Road, both Beers and claimant passed through its intersection with State Route 21, turned right onto County Route 66, and then made a quick left onto Airport Road.
Rodbourn noted that after reviewing the videos from Time Buyers and Maple City Dodge, he began to doubt claimant's statement that he believed Beers was intoxicated. Rodbourn stated that it did not make sense for claimant to be speeding to catch up with a driver who he thought was intoxicated and as a result, he questioned the veracity of claimant's entire statement.
Rodbourn stated that at that point, he deemed the investigation complete and believed that there was probable cause to arrest claimant. Nevertheless, he first discussed the investigation with DA Baker. Baker advised Rodbourn to arrest claimant and charge him with reckless endangerment in the first degree, unlawful imprisonment in the first degree, falsifying business records in the first degree and endangering the welfare of a child. On August 8, 2014, claimant was arrested, processed, arraigned, and then released after agreeing to participate in a pre-trial release program.
On August 14, 2014, Fink was arrested and thereafter released after also agreeing to participate in the same pre-trial release program.
In his affidavit, Rodbourn indicates that DA Baker also determined that claimant should be charged with violations of V&T §§ 1126 (a), 1180 (a), 1201 (a), and 1212, driving to the left of pavement markings, speed not reasonable and prudent, no stopping, standing, parking on a highway, and reckless driving, respectively. However, Rodbourn notes that because investigators do not issue traffic tickets, he requested Trooper Lindsey Mark to issue the UTTs.
Defendant has also submitted the affidavit of DA Baker in support of this motion. Baker confirms that based upon the information Rodbourn provided him from Beers' supporting deposition, Baker believed there was probable cause to charge claimant with endangering the welfare of a child. Baker states that he advised Rodbourn to complete an investigation and that he (Baker) would make a final determination based upon the results. Baker indicates that when the investigation was complete, he determined that claimant should be arrested and charged with reckless endangerment in the first degree, unlawful imprisonment in the first degree, falsifying business records in the first degree and endangering the welfare of a child as well as driving to the left of pavement markings, speed not reasonable and prudent, no stopping, standing, parking on a highway, and reckless driving. Baker notes that he did not personally prosecute claimant, but believes that the felonies and non-traffic misdemeanors were dismissed on speedy trial grounds and that the traffic offenses were also dismissed.
As set forth previously herein, defendant bears the initial burden to establish its entitlement to judgment as a matter of law on this motion for summary judgment before claimant is required to submit admissible evidence in opposition. However, in an effort to avoid confusion, the Court will now set forth the facts as contained in claimant's opposition papers. In his affidavit, claimant states that on the date in question, he was riding his motorcycle with passenger Alicia McLaughlin, along with Charles Fink who was operating his own motorcycle. Claimant asserts that he saw a white vehicle operated by Beers which was proceeding northbound on Seneca Road, a substantial distance ahead of him. Claimant notes that the vehicle was drifting in and out of the lane and he told McLaughlin that he thought the operator may have been intoxicated. Claimant indicates that he watched Beers drive through a four-way intersection with a flashing red light, at County Route 66 and Seneca Road, without stopping. He states that he stopped at that intersection and waited for Fink who confirmed that he also saw the driver go through the red light without stopping.
As previously noted, claimant indicated in his statement to Rodbourn that Beers had driven through the intersection of Seneca Road and State Route 21 (rather than County Route 66) without coming to a complete stop (see n 3, supra).
Claimant asserts that he continued down the road to go home and that at some point, Beers slowed, turned on his right turn signal, and pulled to the right side of the lane. Claimant states that without crossing into the southbound lane, he passed Beers to continue down Airport Road. Claimant indicates that once he passed him, Beers pulled back onto Airport Road between him and Fink. He said that Beers accelerated until he was nearly touching the back tire of claimant's motorcycle. Claimant explains that because he feared for his safety, he sped up to gain distance between the two vehicles but Beers also accelerated. Beers then began flashing his headlights at claimant, who believed that Beers wanted him to pull over. He said he pumped his brakes and pulled over to the far right of the paved roadway so that other vehicles could pass him if necessary. Claimant states that he put down his kickstand and turned off the motorcycle. Beers pulled over directly behind claimant. Claimant indicates that he got off the motorcycle and took a step or two diagonally away from it toward the center of the road. He states that Beers stood on the floor of the vehicle and leaned out the open door and they engaged in a verbal exchange. Beers screamed at claimant for passing him and threatened to call the police. Claimant replied that Beers had run a red light. Claimant notes that at some point Fink pulled alongside the vehicle, but claimant did not believe that he was close enough to prevent Beers from getting out. Claimant asserts that at that point, McLaughlin pulled his arm and told him there were children in the backseat and they should leave. Claimant states that was the first time he knew there were children present and he asked Beers "what kind of idiot would chase down a motorcycle with kids in the car."According to claimant, Beers told him to go home and that he (Beers) would take his kids home and be back for him. Claimant indicates that he went to his home a few minutes away and called Deputy Smith. He denied making any admissions to Smith and also denied knowing that Beers was a Trooper.
Affidavit of Daniel Grinols, sworn to May 14, 2019, ¶ 5 (internal quotation marks omitted).
Claimant notes that the following day, he was driving his truck and was stopped by Trooper Dunn. He states that Dunn told him that he was wanted for questioning about the road rage incident and that he needed to go to the Bath State Police barracks or he would be arrested. Claimant indicates that he was issued a ticket for an obscure or missing license plate. He attempted to drive home to drop off his passenger, James Yahnite, and called his lawyer on the way. He notes that Dunn pulled him over again and issued a ticket for using his cell phone while driving. Claimant insists that he was speaking by using the hands-free bluetooth/speaker phone system. Claimant asserts that approximately one month after the incident he was charged with three felonies, two misdemeanors and three additional V&T violations. He states that he had never previously been arrested and denies committing any of the offenses. Claimant indicates that he had not had any alcoholic beverages and had obeyed all traffic laws except for driving above the speed limit when he believed he was in danger of being rear-ended by Beers. He further asserts that he was maliciously prosecuted without probable cause solely in order to harass and intimidate him to conceal Beers' culpable and aggressive conduct.
Claimant has also included deposition testimony from several witnesses: James Yahnite, Trooper Dunn, Investigator Rodbourn, Deputy Smith, Brandon Beers, and Curt Eaton. Yahnite, claimant's passenger the day after the incident, testified that Trooper Dunn said he stopped claimant for not having a front license plate. However, Yahnite stated that because Dunn then went around the front of the vehicle to look, he did not believe that was the reason for the stop. Yahnite also confirmed that as they were driving to claimant's house, claimant called Brian Schu, his attorney, using the bluetooth capability. Yahnite stated that then Dunn pulled claimant over again and gave him a citation for talking on the cell phone while driving.
Trooper Dunn testified that he was driving northbound on Seneca Road while claimant was driving southbound. Dunn stated that he saw that claimant did not have a front license plate, so he (Dunn) turned around and eventually stopped claimant. Dunn indicated that he informed claimant he was going to follow him to the State Police barracks in Bath.
Rodbourn testified concerning the manner in which he conducted his investigation. He admitted that he deviated slightly from normal investigative techniques by allowing Beers to write his own supporting deposition. He also stated that his supervisor, Senior Investigator Curt Eaton, actually ordered him to have Beers present during the interview with Marcus Smith. The remainder of Rodbourn's testimony was consistent with the information contained in his incident report.
Marcus Smith testified that he has had a social relationship with claimant since 2014. Smith indicated that he worked with Beers' father at the Hornell Police Department and as a result has known Beers since he was a child. Smith noted that he and Beers had been friends until this incident involving claimant. Smith stated that during his interview, Rodbourn would ask him a question and then turn to Beers and ask him if the statement was correct. Smith opined that it was not appropriate for Rodbourn to bring Beers, an alleged victim, into the interview.
Brandon Beers testified that when claimant was behind him, he was accelerating and decelerating on the motorcycle in such a manner that Beers thought if he slowed down, claimant would go through the rear windshield. Beers stated that as a result, he slowed a bit at an intersection, but when he saw that it was clear, he rolled through the stop sign without stopping. Beers also indicated that after claimant passed him on Airport Road, he (Beers) accelerated his vehicle to approximately 50 or 55 mph in an attempt to get claimant's license plate number. The remainder of Beers' deposition testimony was consistent with the information contained in his supporting deposition.
Curt Eaton, a Senior Investigator, also testified. Eaton stated that several of the troopers and investigators at the Bath barracks had the opinion that Marcus Smith would place his friendship with claimant over his position as a law enforcement officer. Eaton indicated at as a result, he made the suggestion that Beers be present during the interview to determine if Smith was telling Rodbourn the same thing he had previously told Beers.
The Court will now address the merits of defendant's motion. Defendant initially argues that the cause of action for malicious prosecution should be dismissed because claimant has failed to specifically allege that there was a lack of probable cause for commencing the criminal proceedings. Conversely, claimant contends that the claim, his bill of particulars, and his affidavit in opposition satisfy the pleading requirements.
In order to set forth a cause of action for malicious prosecution, a claimant "must establish 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" (Martinez v City of Schenectady, 97 NY2d 78, 84 [2001]). Defendant's argument that the cause of action for malicious prosecution is deficient because the claim fails to specifically plead a lack of probable cause is not persuasive. On a motion to dismiss the claim for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the Court must "accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see also Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). In addition to the claim, the Court may also consider any information contained in a responding affidavit in order to determine whether any cause of action has been stated (Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]).
In his claim, claimant alleges that he was falsely (and maliciously) charged with several V&T violations as well as violations of several sections of the Penal Law. Claimant additionally has indicated that all of the charges were dismissed. In his bill of particulars, claimant also asserts that he was innocent of all charges. He further states in his affidavit that he was prosecuted without probable cause solely in order to harass and intimidate him to conceal Beers' culpable and aggressive conduct. Based upon the information contained in the claim and the evidence submitted in opposition to this motion and accepting the truth of such allegations, the Court finds that claimant has sufficiently pleaded a cause of action for malicious prosecution.
With respect to that portion of the motion seeking summary judgment, defendant contends that Rodbourn thoroughly investigated the matter and based upon the evidence obtained, he reasonably believed that there was probable cause to arrest and prosecute claimant. Defendant also asserts that the element of malice is lacking because the criminal proceedings were commenced solely to see justice served.
Conversely, claimant alleges that based upon his recitation of what occurred during the incident as well as the manner in which the investigation proceeded, there are numerous questions of fact and issues of credibility as to whether there was probable cause to institute criminal proceedings. Claimant further states that Rodbourn's reliance solely on Beers' statement along with the fact that he allowed Beers and fellow Bath State Police members to participate in the investigation, provides support for the inference that the criminal proceeding was commenced out of malice.
It is undisputed in this case that criminal proceedings were commenced against claimant and that all charges were dismissed. Therefore, the only issues remaining to be addressed are whether there was probable cause to commence the proceedings and whether there was actual malice.
"Probable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe [claimant] guilty" (Colon v City of New York, 60 NY2d 78, 82 [1983] [citations omitted]). However, "probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed by the suspected individual" (Mahoney v State of New York, 147 AD3d 1289, 1291 [3d Dept 2017]; lv denied 30 NY3d 906 [2017][internal quotation marks and citation omitted]). "Where there is no real dispute as to the facts or the proper inferences to be drawn from such facts, the issue of probable cause is a question of law to be decided by the court" (Brown v Sears Roebuck & Co., 297 AD2d 205, 210 [1st Dept 2002]; see also Parkin v Cornell Univ., 78 NY2d 523, 529 [1991]).
As an initial matter and notwithstanding that the charges were not all dismissed at the same time, defendant has not addressed the issue of whether there was one or more criminal proceedings and whether probable cause for any one charge within a given proceeding is sufficient to defeat a cause of action for malicious prosecution. Claimant, however, has cited Federal cases which indicate that there must be probable cause for each individual charge and the Court will address the motion accordingly.
See Posr v Doherty, 944 F2d 91 (2d Cir 1991); Rodriguez v City of New York, 2011 US Dist LEXIS 122871 (SD NY Oct. 24, 2011 No. 10-CV-891 BSJ/THK); Davis v City of New York, 373 F Supp 2d 322 (SD NY 2005); see also Broome v City of N.Y., 2018 NY Slip Op 31237 (NY Sup Ct 2018).
Claimant was charged with violating V&T § 402 (1) (a) which provides in pertinent part that "[n]o person shall operate, drive or park a motor vehicle on the public highways of this state unless such vehicle shall have a distinctive number assigned to it . . . and a set of number plates . . . conspicuously displayed, one on the front and one on the rear of such vehicle." According to Dunn, as he approached claimant's vehicle from the opposite direction, he saw that it was lacking a front license plate. Based upon this evidence, a reasonable person would believe that claimant had committed a violation of the statute. The Court finds that Dunn had probable cause to issue claimant a UTT and file a simplified traffic information to commence a proceeding against him on this charge. Accordingly, defendant has met its burden of entitlement to judgment as a matter of law with respect to this charge.
The burden now shifts to claimant to establish that there exist questions of fact concerning probable cause for this violation. Although claimant indicates that someone must have removed the license plate, he does not specifically deny or offer any further evidence that his front license plate was on the vehicle when Dunn issued the UTT. Claimant has not met his burden of raising a material issue of fact. Accordingly, the Court finds that there was probable cause for Dunn to issue a ticket for the violation of V&T § 402 (1) as a matter of law. Consequently, claimant cannot recover for malicious prosecution based upon this charge.
Given that probable cause existed as a matter of law, it is not necessary to address the element of malice.
Pursuant to V&T § 1225-C (2) (a) and with exceptions not relevant here, "no person shall operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion." V&T § 1225-C (2) (b) further provides that "[a]n operator of any motor vehicle who holds a mobile telephone to, or in the immediate proximity of, his or her ear while such vehicle is in motion is presumed to be engaging in a call." Dunn states that he stopped claimant for a second time because he saw claimant holding a cell phone up to his right ear and claimant appeared to be talking into it. In his information, Dunn affirmed that he directly observed claimant operating a motor vehicle while on the mobile phone. The Court finds that a reasonable person observing this would believe that claimant had violated V&T § 1225-C, and accordingly Dunn had probable cause to issue claimant a UTT and commence the proceeding against him on that charge.
In his affidavit in opposition, claimant admits that he called his attorney while driving, but affirmatively states that he was using the cell phone's bluetooth that allowed him to speak through his car's radio. Yahnite, claimant's passenger, also testified that claimant was using the bluetooth system because he was able to hear the conversation. The Court finds that claimant has set forth sufficient evidence to raise an issue of credibility as to whether claimant was engaged in a call while operating a motor vehicle in violation of the statute. Accordingly, summary judgment with respect to this charge is not appropriate.
After Rodbourn completed his investigation and consulted with DA Baker, Trooper Lindsey Mark issued claimant four UTTs for violation of V&T §§ 1126 (a), 1180-a, 1201 (a), and 1212. Because Mark did not personally observe any violations, all of the tickets were issued solely upon the evidence gathered during Rodbourn's investigation, that being that claimant was weaving back and forth across the solid double line and that he passed Beers by crossing a solid double line, that he was alternating between accelerating and decelerating when he was both in front of and behind Beers, and that he abruptly stopped in the middle of the lane of travel on an unilluminated roadway and got off his motorcycle to confront Beers. There is also evidence that Beers' two children, ages one and three, were in the backseat of the vehicle.
V&T § 1126 (a) provides that "[w]hen official markings are in place indicating those portions of any highway where overtaking and passing or driving to the left of such markings would be especially hazardous, no driver of a vehicle proceeding along such highway shall at any time drive on the left side of such markings." The Court finds that based upon claimant's alleged conduct, a reasonable person would believe that claimant violated this statute. Accordingly, defendant has established that there was probable cause for this charge.
The burden now shifts to claimant to create a material issue of fact. Although claimant has admitted weaving back and forth within his lane of travel, he has specifically denied that he crossed the double solid line either while swerving back and forth or when he went around Beers' stopped vehicle on Airport Road by Maple City Dodge. He also denies violating any traffic laws except for driving at an excessive speed when he was attempting to get away from Beers who was purportedly tailgating him. Further, there is evidence that claimant did not stop in the middle of the roadway, but had instead parked his motorcycle close to the edge of the pavement and had to take a step or two away from it to reach the center of the road. Accordingly, the Court finds that there are issues of fact and or credibility which preclude summary judgment with respect to a violation of V&T § 1126 (a).
Claimant was also charged with a violation of V&T § 1180 (a). This statute provides that "[n]o person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing" (V&T § 1180 [a]). The Court finds that based upon claimant's conduct as alleged by defendant, a reasonable person would believe that claimant had committed a violation of this statute. Accordingly, there is probable cause for this charge.
Notwithstanding that claimant admitted driving at an excessive speed, he has stated that he only did so in response to Beers' driving up to his rear tire at a higher than permitted speed. The Court finds that claimant's evidence is sufficient to create an issue of fact as to whether there is probable cause for a violation of V&T § 1180 (a).
Claimant was additionally charged with a violation of V&T § 1201 (a) which prohibits one from stopping, parking, or standing "upon the paved or main-traveled part of the highway when it is practicable to stop, park, or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway." Again, based upon defendant's version of the event, a reasonable person would believe that claimant violated the statute and there is probable cause for the charge.
Nevertheless, claimant's recitation of the facts is sufficient to create questions of fact and credibility as to whether claimant stopped his motorcycle in violation of V&T § 1201 (a). Accordingly, summary judgment is not appropriate with respect to this charge.
Claimant was further charged with a violation of V&T § 1212 which prohibits reckless driving. Reckless driving is defined as "driving or using any . . . motorcycle . . . in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway" (V&T § 1212). Based upon claimant's alleged conduct, a reasonable person would believe that claimant violated the statute. Accordingly, there is probable cause for the reckless driving charge.
However, once again, claimant's conflicting evidence is adequate to create issues of fact and/or credibility which warrant denial of the motion with respect to this charge.
Based upon his investigation and the previous description of claimant's conduct, Rodbourn also charged claimant with several violations of the Penal Law. Specifically, claimant was charged with violating Penal Law § 120.25 which provides that "[a] person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person." In People v Feingold (7 NY3d 288, 290 [2006]), the Court of Appeals held that the "depraved indifference to human life" component is a culpable mental state and is the same under both the depraved indifference murder statute and the reckless endangerment statute. "[D]epraved indifference is best understood as an utter disregard for the value of human life--a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not. To evince depraved indifference, the actor's reckless conduct must be so imminently dangerous that it presents a grave risk of death. [T]his calculus requires an objective assessment of the degree of risk presented by defendant's reckless conduct" (People v Williams, 111 AD3d 1435, 1435-36 [4th Dept 2013], affd 24 NY3d 1129 [2015] [internal quotation marks and citations omitted]). "[T]he point of distinction between a criminal act committed with intent and a criminal act committed with depraved indifference is that the former is motivated by the conscious objective to cause death or serious physical injury, while the latter is recklessly indifferent, depravedly so, to whether death [or serious physical injury] occurs" (People v Archie, 118 AD3d 1292, 1294 [4th Dept 2014][internal quotation marks omitted], lv denied 26 NY2d 965 [2015]).
The Court finds that a reasonable person could believe that claimant's alleged reckless conduct in operating his motorcycle might pose a grave risk of danger to both his passenger and the occupants of the vehicle. Thus, there was probable cause for the reckless endangerment charge. However, based upon claimant's version of the incident, there are questions of fact precluding summary judgment on this charge.
Claimant was also charged with endangering the welfare of a child in violation of Penal Law § 260.10 (1). As is pertinent here, the statute provides that "[a] person is guilty of endangering the welfare of a child when . . . [h]e or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old." There does not need to be actual harm to the child. It is "sufficient that the defendant act in a manner which is likely to result in harm to the child, knowing of the likelihood of such harm coming to the child" (People v Simmons, 92 NY2d 829, 830 [1998]).
Based upon the manner in which claimant was alleged to have been driving his motorcycle and shouting at Beers with the two children in the vehicle, a reasonable person could find that claimant was guilty of endangering the welfare of a child. Thus, there was probable cause for this charge. However, there are factual issues concerning the manner in which claimant was operating his motorcycle and whether/when he knew that there were children in the Beers' vehicle. Accordingly, summary judgment on this charge is inappropriate.
Claimant was also charged with a violation of Penal Law § 175.10 which provides that "[a] person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof." As is relevant in this situation, "[a] person is guilty of falsifying business records in the second degree when, with intent to defraud, he . . . [m]akes or causes a false entry in the business records of an enterprise" (Penal Law § 175.05 [1]). Intent to defraud is not defined in the Penal Law, but has been construed as deceiving, tricking, or inducing another to part with something of value, whether money, property, or a legal right, or to lead them into disadvantage (People v M., 31 Misc 3d 1236 [A], 2011 NY Slip Op 51016 [U] [Crim Ct Kings County 2011]).
In the felony complaint, Rodbourn states that claimant caused him to enter false information into the record of an official State Police investigation in order to conceal the commission of the crime of endangering the welfare of a child. Presumably, the charge is based upon claimant's statement concerning his knowledge or lack thereof that there were children in Beers' vehicle. Even accepting the truth of all allegations, the Court finds that the conduct does not satisfy the elements of falsifying business records in the first degree. Notably, there is no evidence to establish that claimant had the intent to defraud as he did not gain anything of value, nor was defendant somehow lead into disadvantage. The Court finds that a reasonable person would not believe that there was a violation of the statute. Accordingly, there was not probable cause as a matter of law for this violation and defendant's motion for summary judgment is denied with respect to this charge.
Claimant was also charged with violating Penal Law § 135.10 which provides that "[a] person is guilty of unlawful imprisonment in the first degree when he restrains another person under circumstances which expose the latter to a risk of serious physical injury." " 'Restrain' means to restrict a person's movements intentionally and unlawfully in such manner as to interfere substantially with his liberty by . . . confining him . . . without consent and with knowledge that the restriction is unlawful. A person is . . . confined 'without consent' when such is accomplished by (a) physical force, intimidation or deception (Penal Law § 135.00 [1]). Penal Law § 10.00 (10) provides that " '[s]erious physical injury' means physical injury which creates a substantial risk of death, or . . . protracted impairment of health or protracted loss or impairment of the function of any bodily organ."
Based upon Rodbourn's investigation, claimant allegedly stopped abruptly and directly in front of Beers, and then Fink stopped alongside the driver's door, so that Beers could not move forward or off to the side of the road, or get out of the vehicle. Beers indicated that he was afraid for his safety and that of his family, believing that claimant and/or Fink had weapons or that a vehicle could easily strike them from behind. The Court finds that it is difficult if not impossible to see how Beers could not have left the scene by backing up the vehicle and driving around claimant and/or Fink. Moreover, there is absolutely no evidence that claimant somehow directed Fink to stop alongside Beers' door. The Court finds that a reasonable person would not believe that claimant had violated the statute. Because there is no probable cause for this charge as a matter of law, defendant has failed to meet its initial burden. Accordingly, the motion for summary judgment with respect to this charge is denied.
There is also no indication that Beers could not have gotten out of the passenger side of the vehicle.
The Court finds that there is probable cause as a matter of law with respect to the violation of V&T § 402 (1) and claimant may not establish his cause of action for malicious prosecution based upon that charge. However, the Court finds that there is no probable cause for charging claimant with violations of Penal Law §§ 135.10 and 175.10, and further finds that there are questions of fact as to whether there is probable cause for the violations of V&T §§1225-C, 1126 (a), 1180 (a), 1201 (a), and 1212 as well as Penal Law §§ 120.25, and 260.10. Because the issue of probable cause cannot be determined in defendant's favor as a matter of law and the Court may infer the element of actual malice from the absence of probable cause, defendant cannot meet its burden of showing the lack of malice as a matter of law. Accordingly, defendant's motion for summary judgment, to the extent that it seeks dismissal the cause of action for malicious prosecution is denied.
Martin v City of Albany, 42 NY2d 13, 17-18 (1977).
Defendant also contends that the claim fails to state a cause of action for abuse of process because there are no facts to support a finding that there was a collateral objective to claimant's prosecution. Conversely, claimant asserts that the prosecution was undertaken solely to harass, intimidate, and retaliate against him for the heated argument he had with Beers and to conceal Beers' aggressive conduct.
As set forth previously, the Court must accept the alleged facts of the claim as true, allow claimant the benefit of all favorable inferences, consider any information contained in the opposing affidavit and determine whether any cause of action has been stated (Leon, 84 NY2d at 87-88; see also Goshen, 98 NY2d at 326; Rovello, 40 NY2d at 635-636). A cause of action for "[a]buse of process has three essential elements: (1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective" (Curiano v Suozzi, 63 NY2d 113, 116 [1984]). In other words, abuse of process is available "[w]here process is manipulated to achieve some collateral advantage, whether it be denominated extortion, blackmail or retribution" (Board of Educ. of Farmingdale Union Free School Dist. v. Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 NY2d 397, 404 [1975]).
In his claim, claimant alleges that he was falsely charged with several V&T violations as well as several violations of the Penal Law which were instituted at the urging of Beers, thereby establishing the first element. The second element is satisfied in the allegation that as a result of the criminal proceeding, claimant was subjected to humiliation, loss of liberty and has incurred various legal expenses. He further states in his affidavit that the charges were brought against him solely to harass and intimidate him in order to conceal Beers' culpable and aggressive (and possibly illegal) conduct which could constitute a collateral objective, establishing the third element. Accepting these facts as true and affording claimant the benefit of all favorable inferences, the Court finds that he has sufficiently pleaded a cause of action for abuse of process. To the extent that defendant may be seeking summary judgment on this cause of action, there is sufficient admissible evidence that defendant may have commenced the proceeding for a collateral purpose.
In conclusion, defendant's motion for summary judgment is granted solely to the extent that the cause of action for negligent hiring, training, and retention of defendant's employees is dismissed, and the Court further finds that there was probable cause to charge claimant with a violation of V&T § 402 (1) and claimant may not recover on his cause of action for malicious prosecution based upon this charge.
August 6, 2019
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on defendant's motion: 1) Notice of Motion filed February 4, 2019; Affirmation of Aaron J. Marcus, Assistant Attorney General, dated February 4, 2019; Affidavit of Brandon Beers, sworn to January 31, 2019; Affidavit of Devin Dunn, sworn to January 31, 2019; Affidavit of Donald Rodbourn, sworn to January 31, 2019; Undated Affirmation of Brooks Baker; Exhibits A - R; Memorandum of Law dated February 4, 2019. 2) Affirmation in Partial Opposition of Andrew C. Weiss, Esq., dated May 14, 2019, and attached exhibits. Filed Papers: Claim filed July 11, 2016; Verified Answer filed August 18, 2016.