Opinion
# 2014-048-149 Claim No. 121055 Motion No. M-84864 Cross-Motion No. CM-85050
07-22-2014
JORGE TIRSE v. THE STATE OF NEW YORK
JORGE TIRSE, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esq. Senior Attorney
Synopsis
The Court granted Defendant's motion for summary judgment dismissing Claimant's cause of action alleging false arrest and also dismissed Claimant's cause of action alleging defamation.
Case information
| UID: | 2014-048-149 |
| Claimant(s): | JORGE TIRSE |
| Claimant short name: | TIRSE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121055 |
| Motion number(s): | M-84864 |
| Cross-motion number(s): | CM-85050 |
| Judge: | GLEN T. BRUENING |
| Claimant's attorney: | JORGE TIRSE, Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esq. Senior Attorney |
| Third-party defendant's attorney: | |
| Signature date: | July 22, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, Jorge Tirse, commenced this action to recover damages for false arrest and defamation arising out of a January 13, 2012 arrest for the crime of forgery in the second degree. Specifically, Claimant alleges that he was unlawfully arrested by New York State Police Investigator Darryl Bazan without probable cause. Defendant brings the instant motion pursuant to CPLR 3212, for an order granting it summary judgment dismissing the cause of action alleging false imprisonment, and pursuant to CPLR 3211(a) (7), for an order dismissing the cause of action alleging defamation. Claimant opposes Defendant's motion and cross-moves seeking summary judgment on his Claim. Defendant opposes Claimant's cross motion.
In November 2011, Claimant entered into negotiations with Joseph Andrews regarding the lease of certain commercial space located at 16 East Main Street, Johnstown, New York (premises), out of which Claimant intended to operate a restaurant - Anthony's Brick Oven Pizza and Pasta. Andrews was the owner of the property, and his mother - Sarah Rowback - acted on his behalf in showing the rental space to Claimant. Prior to November 29, 2011, Andrews provided Claimant with a copy of an unexecuted lease agreement, keys to the premises, and verbal permission to enter the premises to prepare for the restaurant's opening, which included permission to move some items into the premises. On November 29, 2011, after Claimant had moved certain items into the premises and had started preparing for the restaurant's December 1st opening, Andrews locked Claimant out of the premises. The November 29th incident was the subject of a police report authored by Sergeant Christopher Stevens of the Johnstown Police Department, in which Andrews accused Claimant of, among other things, moving into the premises without having signed a lease agreement. According to that police report, Sergeant Stevens advised Andrews that he could change the locks on the building and contacted Claimant and advised that he was no longer permitted on the property (see Claimant's Cross Motion, dated May 2, 2014, Exhibit 25). On December 1, 2011, Claimant appeared at the Johnstown Police Department and made a complaint against Sergeant Stevens and Andrews, alleging that the two conspired to lock him out of the premises. On that date, Claimant was interviewed by Lieutenant Gilbo, which interview, unbeknownst to Claimant, was videotaped.
(see Claimant's Cross Motion, dated May 2, 2014, Exhibit 6).
On December 7, 2011, Andrews appeared at the New York State Police Barracks in Mayfield, New York, and provided Investigator Bazan with a sworn statement accusing Claimant of having forged Andrews' name on a copy of the lease agreement, which Claimant had submitted to the New York State Liquor Authority (SLA) in conjunction with an application for a liquor license. Andrews also asserted that Claimant had moved contents into the building without permission, without having an executed lease agreement, and without having made any payments towards the lease agreement. On December 8, 2011, Claimant commenced an action in Fulton County Supreme Court against Andrews and Mayflower, Inc. as owners of the property for, among other things, breach of contract (civil action) and obtained a preliminary injunction prohibiting Andrews from ether terminating the lease agreement or removing or altering any of the improvements made by Claimant during the pendency of that action. In an affidavit submitted with the application for an injunction, Claimant attested that Andrews' agent signed the lease agreement (see Affirmation of Thomas Trace, Esq., dated March 24, 2014, Exhibit A2).
Claimant executed his affidavit in support of his application for a preliminary injunction on December 7, 2011. The Order to Show Cause granting the injunction was executed by Supreme Court Justice Richard Giardino and delivered to Andrews' counsel on December 8, 2011 (see Affirmation of Thomas Trace, Esq., dated March 24, 2014; Claimant's Cross Motion, dated May 2, 2014, Exhibit 8).
In conjunction with his subsequent investigation into Andrews' accusations, Investigator Bazan found that there were actually two documents, both dated November 15, 2011, both appearing to be executed by Andrews, and both purporting to be lease agreements for Claimant's rental of the premises. An incomplete copy of the first document was attached to papers filed by Claimant in the civil action (see Affirmation of Thomas Trace, Esq., dated March 24, 2014, Exhibit A2). The signatures at the end of the first document appear to be different - indicating that the first document was signed by two different people. The second document was submitted in support of Claimant's application to the SLA, and was obtained by Investigator Bazan in response to a FOIL request (see Claimant's Cross Motion, dated May 2, 2014, Exhibits 1 and 2).
In his deposition, Claimant clarifies that he signed Andrews' name on the lease submitted to the SLA with Andrews' permission, and that such lease was a temporary lease. Claimant sealed that temporary lease with his application in an envelope to be mailed to the SLA. Claimant testified that the lease attached to the civil action was signed by Rowback on behalf of Andrews on November 15, 2011, but that he forwarded the temporary lease to the SLA, since that document was ready for mailing (see Claimant's Cross Motion, dated May 2, 2014, Exhibit 18, pages 28-32).
The signatures at the end of the second document appear to be the same - indicating that the second document was signed by the same person.
Investigator Bazan conducted interviews of Sarah Rowback, Stephen Cowles and Michael Mosconi, and contacted both Claimant's attorney in the civil matter (Michael W. Smrtic, Esq.) as well as Sergeant Christopher Stevens of the Johnstown Police Department. Attorney Smrtic did not give the Investigator permission to interview Claimant, and Claimant never provided Investigator Bazan with a statement. Claimant's Attorney, however, provided the Investigator with names of potential witnesses, and advised that Andrews had given Claimant permission to sign Andrews' name on the lease agreement submitted to the SLA. Andrews subsequently reviewed that document and provided the Investigator with a second sworn statement attesting that the signature on the lease agreement submitted to the SLA was not his own, and that he had not provided anyone with permission to sign his name. Rowback provided Investigator Bazan with a sworn statement that she had shown the property to Claimant on two occasions, but that she never signed any lease agreement and never received any money from Claimant as a down payment for the lease. Cowles, who is associated with Rowback, stated that he was not in possession of any information relevant to the accusations made by Andrews. Mosconi, who is Andrews' brother-in-law and has done work for both Andrews and Claimant, provided Investigator Bazan with a sworn statement that he was at the premises on November 13, 2011 and November 15, 2011, and that on November 13, he observed that Claimant received a copy of an unsigned lease and also observed Andrews, Rowback and Cowles speaking with Claimant. On November 15, Mosconi observed Claimant meet with Rowback and Cowles, after which Claimant had a copy of the lease in his possession. However, Mosconi did not witness any signatures or money changing hands. Sergeant Stevens provided a sworn statement that, while on duty on November 29, 2011, Andrews made a complaint of harassment and trespass against Claimant and that Claimant advised the Sergeant that he did not sign a contract yet, but that he had paid Andrews $1,300.00.
In the civil action, Claimant alleges that on November 13, 2011, he paid Andrews (and the co-defendant Mayflower, Inc.) $1,750.00 as a security deposit. Claimant, however, paid in cash, and did not obtain a receipt.
On January 13, 2012, Claimant was arrested and charged by felony complaint, affirmed by Investigator Bazan on January 12, 2012, with violating Penal Law § 170.10 (1) - forgery in the second degree - a class D felony, for allegedly signing Andrews' name on the lease submitted to the SLA. By prosecutor's information filed July 5, 2012, the charges were reduced to five misdemeanors: two counts of offering a false instrument for filing in the second degree (see Penal Law § 175.30), two counts of criminal possession of a forged instrument in the third degree (see Penal Law § 170.20), and forgery in the third degree (see Penal Law § 170.05; Claimant's Cross Motion, dated May 2, 2014, Exhibit 23). On November 27, 2012, City Court Judge Thomas C. Walsh, with the consent of the Special Prosecutor, ordered that all charges be dismissed in the interests of justice (see Claimant's Cross Motion, dated May 2, 2014, Exhibits 21 and 23).
In May 2012, the Special Prosecutor assigned to the criminal matter made a plea offer of attempted criminal possession of a forged instrument, a B misdemeanor, upon the condition that Claimant drop his civil action against Andrews (see Claimant's Cross Motion, dated May 2, 2014, Exhibit 20). To the extent that Claimant challenges the actions of the prosecuting attorneys in the criminal action, the State is not subject to liability in the Court of Claims for the consequences of official acts of a district attorney, who is not an officer or employee of the State (see Fuller v State of New York, 11 AD3d 365, 366 [1st Dept 2004]).
A movant for summary judgment bears the initial burden of establishing his or her right to summary judgment as a matter of law by tendering sufficient evidence, in admissible form, to eliminate any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). CPLR 3212 (b) provides that such a motion
shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit.
In this regard, "conclusory assertions are insufficient to demonstrate the absence of any material issues of fact" (Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993]), and the failure to make the initial prima facie showing requires the denial of Claimant's motion, "regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
In support of its motion, Defendant claims that, as a matter of law, Investigator Bazan had probable cause to arrest Claimant, and that any alleged defects in the investigation were relevant only as to whether guilt could have been proven beyond a reasonable doubt at trial. Defendant also asserts that the defamation cause of action should be dismissed based on Claimant's failure to particularize the words alleged to be defamatory.
In opposition, Claimant argues that Investigator Bazan, who penned Mosconi's sworn statement after the interview, chose not to include certain exculpatory information that would have negated probable cause. Specifically, Claimant points to Mosconi's deposition testimony (conducted in the instant action), in which Mosconi attests that, in November 2011, he overheard a conversation between Claimant and Andrews, at which time Andrews handed Claimant a temporary lease agreement and advised Claimant to "fill in the blank spots" so that Claimant could get his liquor license (Claimant's Cross Motion, dated May 2, 2014, Exhibit 17, pages 7-9, and 20). Mosconi also stated that thereafter, on or about November 13, 2011, he observed Claimant at the premises with an unsigned lease agreement and a certain amount of money. Mosconi attests that he observed Claimant go into a room with Rowback and Cowles for a meeting and that, upon exiting, observed that Claimant had no money, but had in his possession a signed lease agreement. In his deposition, Mosconi stated that he advised Investigator Bazan of this conversation, but that the Investigator chose not to include it in the statement that Mosconi ultimately signed. However, Mosconi conceded that he did not witness anyone sign the lease. Investigator Bazan, on the other hand, testified at a deposition that he believed that Mosconi's statement was written accurately and encompassed everything Mosconi said (see Claimant's Cross Motion, dated May 2, 2014, Exhibit 16, page 34). Claimant also alleges that Investigator Bazan knew that there was a dispute between Claimant and Andrews, indicating that Andrews' accusations were retaliatory and the investigation faulty, thus negating probable cause to arrest Claimant. Claimant also alleges that Investigator Bazan, together with Lieutenant Gilbo, tampered with evidence in that the videotape of the December 1, 2011 interview of Claimant was cut short.
Later in his deposition, Mosconi stated that, during the November conversation, Claimant advised Andrews that he needed to have somebody sign the lease for submission to the SLA and that, in response, Andrews advised Claimant to meet with his mother (Rowback) about signing the paperwork (see Claimant's Cross Motion, dated May 2, 2014, Exhibit 17, page 33).
According to Mosconi, a woman identified as Kiana Lopez may have accompanied Claimant.
In conjunction with the civil action, Mosconi signed an affidavit on December 23, 2011, in which he attests that, on November 13, 2011, Andrews provided Claimant with a temporary lease to forward to the SLA. After the criminal investigation was completed, Mosconi signed another affidavit on March 12, 2012, which provided additional information consistent with his deposition testimony.
Other than vague allegations that Investigator Bazan and Lieutenant Gilbo tampered with the video recording made December 1, 2011, there is no evidence that video recording, which was not produced in conjunction with either Defendant's motion or Claimant's cross motion, was relied on as part of the investigation (see Claimant's Cross Motion, dated May 2, 2014, Exhibit 1, Exhibit 16, page 50; Affirmation of Thomas Trace, Esq., dated May 23, 2014, Exhibit B). Furthermore, the report of Claimant's forensic expert (see Claimant's Cross Motion, dated May 2, 2014, Exhibit 19), who opines that the videotape recordings received by Claimant in discovery were cut short, is not in admissible form as it is unsworn (see Fallon v Duffy, 95 AD3d 1416, 1417 [3d Dept 2012]).
False arrest involves the intentional interference with "the personal interest of freedom from restraint of movement" (Broughton v State of New York, 37 NY2d 451, 456 [1975]). To establish this cause of action, Claimant must show that:
(1) the defendant intended to confine him, (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged
(Broughton v State of New York, 37 NY2d at 456 [citations omitted]).
Here, the undisputed facts sufficiently establish that, by his arrest, Defendant intended to confine Claimant, that Claimant was conscious of the confinement, and that Claimant did not consent to the confinement. At issue with respect to both Defendant's motion and Claimant's cross motion is whether, as a matter of law, Claimant's confinement was not otherwise privileged.
Where, as there, the arrest was effectuated without a warrant, there is a presumption that the arrest was unlawful (see Broughton v State of New York, 37 NY2d at 458). Thus, in order to prevail on its motion seeking summary judgment, Defendant must establish legal justification for the arrest, i.e. proof that at the time of the arrest, police possessed probable cause to believe that Claimant committed the crime (see id.). "The presence or absence of probable cause - defined as such grounds as would induce an ordinarily prudent and cautious person, under the circumstances, to believe that [Claimant] had committed the crimes - can be decided as a matter of law where the facts leading up to an arrest and inferences to be drawn therefrom are not in dispute" (Orminski v Village of Lake Placid, 268 AD2d 780, 781 [3d Dept 2000] [internal quotation marks and citations omitted]). "Police have probable cause to arrest an individual if, absent circumstances that would materially impeach the proffered information, an identified citizen provides information accusing that individual of committing a specific crime; such information is presumptively reliable" (People v Vanness, 106 AD3d 1262, 1264 [3d Dept 2013], lv denied 22 NY3d 1044 [2013]; see Orminski v Village of Lake Placid, 268 AD2d at 781]; compare Guntlow v Barbera, 76 AD3d 760, 763 n 2 [3d Dept 2010], appeal dismissed 15 NY3d 906 [2010]).
Here, Defendant has established its prima facie entitlement to judgment as a matter of law on the cause of action alleging false arrest by submitting evidence that Investigator Bazan acted upon information provided by an identifiable citizen regarding the forgery. In addition, the circulation of two lease agreements, both dated November 15, 2011, together with the sworn statement of Sergeant Stevens that Claimant advised that, as of November 29, 2011, there was no signed agreement, and the absence of a sworn statement by Claimant disputing these accusations would induce an ordinarily prudent and cautious person, under the circumstances, to believe that that a crime had been committed.
In opposition, Claimant fails to raise any genuine issues of material fact which illustrate that Investigator Bazan lacked probable cause to believe that a crime had been committed. The fact that Claimant made a complaint at the local police department and subsequently commenced a civil action against Andrews for, among other things, breach of the lease agreement, does not materially impeach Andrews' accusation that Andrews did not provide anyone with permission to sign his name on the lease agreement that was submitted to the SLA. Futhermore, even assuming that Investigator Bazan omitted certain facts from Mosconi's signed statement, such assertions - i.e. that Andrews had given Claimant permission to sign Andrews' name to the lease - had already been imparted to the Investigator by Attorney Smrtic. As a result, Investigator Bazan further investigated and obtained a second sworn statement from Andrews expressly denying that he provided such permission. The investigation revealed that Claimant signed Andrews' name to a lease agreement and mailed that lease agreement to the SLA, which Andrews claimed was forged. As to the alleged deficiencies in the investigation, Investigator Bazan was "not obligated to pursue every lead that may yield evidence beneficial to the accused, even though [he may have] had knowledge of the lead and the capacity to investigate it" (Gisondi v Town of Harrison, 72 NY2d 280, 284-285 [1988]). Along these lines, to the extent that Claimant alleges that Investigator Bazan was negligent in his investigation by failing to interview Kiana Lopez, who Claimant alleges was present when the lease was executed, such an allegation does not set forth a cause of action separate from Claimant's cause of action for false arrest (see Guntlow v Barbera, 76 AD3d at 762 n 1)
Whether Claimant was, indeed, given permission to sign Andrews' name, whether there was a misunderstanding between the parties, or whether Andrews was outright lying in his statement, the fact remains that, at the time of the arrest, there was sufficient grounds that would induce an ordinarily prudent and cautious person, under the circumstances, to believe that a crime had been committed. Any factual discrepancies or inconsistencies "may impair [the] ability to prove guilt beyond a reasonable doubt at trial, but they generally have little bearing at preliminary stages where the only relevant concern is whether there is sufficient evidence to show probable cause to believe the defendant committed the crime " (Gisondi v Town of Harrison, 72 NY2d at 285). Based on the foregoing, the Court finds that Claimant's arrest is privileged, and Defendant is entitled to summary judgment dismissing the cause of action alleging false arrest.
To the extent that Defendant seeks dismissal of Claimant's cause of action alleging defamation (see CPLR 3211 [a] [7]), Claimant has not addressed the merits of Defendant's motion in this regard, and the Court deems the defamation cause of action abandoned. In any event, to state a cause of action for defamation, Claimant must set forth the particular words complained of (see CPLR 3016 [a]). Claimant has not done so. Furthermore, a defamation action is subject to the absolute defense that the alleged defamatory statements are true (see Proskin v Hearst Corp., 14 AD3d 782, 783 [3d Dept 2005]). Here, there is no dispute that the statements published in the local newspaper - that Claimant was arrested - are true. Based on the foregoing, Claimant's cause of action for defamation must be dismissed (see Carlton v Nassau County Police Dept., 306 AD2d 365, 366 [2d Dept 2003]).
Accordingly, Defendant's Motion No. M-84864 is granted, Claimant's Cross Motion No. CM- 85050 is denied, and Claim No. 121055 is dismissed.
July 22, 2014
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Notice of Motion, filed March 25, 2014;
Affirmation of Thomas Trace, Esq., dated March 24, 2014, with Exhibits A, A1-A8, B and C;
Notice of Motion (Cross Motion), filed May 6, 2014;
Claimant's Cross Motion and Answer to Summary Judgment, dated May 2, 2014, with Exhibits 1-30;
Claimant's Affidavit in Support of Cross Motion, sworn to on May 2, 2014;
Affirmation of Thomas Trace, Esq., dated May 23, 2014, with Exhibits A-C;
Claimant's Reply Affidavit, sworn to on June 9, 2014, with attached disc containing the May 20, 2013 deposition of Investigator Bazan.