Opinion
# 2015-015-594 Claim No. 120730
02-23-2015
DANNY B. GREEN v. THE STATE OF NEW YORK
Kindlon Shanks & Associates By: Lee C. Kindlon, Esquire Honorable Eric T. Schneiderman, Attorney General By: Michael T. Krenrich, Esquire Assistant Attorney General
Synopsis
Court awarded damages in malicious prosecution claim arising from parole revocation proceedings.
Case information
| UID: | 2015-015-594 |
| Claimant(s): | DANNY B. GREEN |
| Claimant short name: | GREEN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120730 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Kindlon Shanks & Associates By: Lee C. Kindlon, Esquire |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Michael T. Krenrich, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 23, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
By Decision dated May 7, 2014, the Court found defendant liable for malicious prosecution arising from certain conduct of a Division of Parole employee that culminated in a finding of probable cause at a preliminary parole revocation hearing, and claimant's subsequent confinement in the Albany County Jail until the parole violation charges against him were withdrawn (Green v State of New York, UID No. 2014-015-578 [Ct Cl, Collins, J., May 7, 2014]). Specifically, the Court found that the Parole Officer's testimony at a preliminary hearing on June 16, 2011 regarding a positive drug test result that had been performed in her office, without disclosing in response to a direct question by the Hearing Officer the negative test result that had been received from an independent laboratory, was so misleading as to be comparable to fraud or perjury. Defendant was therefore found liable for malicious prosecution and claimant's 39-day confinement which followed the preliminary hearing on June 16, 2011. A trial on the issue of damages was held on October 28, 2014.
Prior to the date of the preliminary hearing, defendant had reasonable cause to believe claimant had violated a condition of his parole in an important respect based upon the positive urinalysis test for drugs (the E-Z Cup Test), which had been performed on June 6, 2011, the date of his arrest (see Executive Law § 259-i [3]). .
Claimant, age 55, was born and raised in Brooklyn, New York. In 1991, he was sentenced to an indeterminate prison term of 7 to 21 years and incarcerated for seven years until his release in 1997. Claimant thereafter earned an Associates Degree from North Country Community College and a Bachelor's Degree from Audrey Cohen College. Claimant has been married for over 15 years and has two daughters, ages 26 and 15.
At trial the claimant recounted that he was imprisoned for two years upon a violation of the conditions of his parole in 2005. In February 2011, he admittedly tested positive for drug use and was required to attend an outpatient drug treatment program. Claimant was arrested on the instant parole violation charges before he enrolled in the program, however,
At the time of his arrest on June 6, 2011, claimant had been employed by the Mental Health Empowerment Project in Albany for over a year earning $1,038.46 every two weeks (Exhibit 1). His duties at the Mental Health Empowerment Project required him to travel to various mental health facilities in order to conduct group meetings. In the evenings, he worked part-time for Stockade Consulting Group, Inc., earning $331.00 every two weeks (Exhibit 2). He was debt free, paid his child support, had his own apartment, and owned a car.
Claimant testified that his employment was terminated, he was evicted from his apartment, and his car was repossessed by the bank and sold for $7,000.00 less than the amount he owed as the result of his confinement on the instant parole violation charges, (see Exhibits 3, 5 and 6). In addition, claimant's health insurance through his full-time employer ended when his employment was terminated and he was unable to afford the COBRA coverage offered.
Claimant testified that he was released from the Albany County Jail on July 24, 2011. Now without a job or place to live, he stayed in homeless shelters or at friends' houses. His credit score plummeted and he was therefore unable to secure a loan for the purchase of a car. Claimant's child support was in arrears and, although claimant searched daily for a job, his efforts were unsuccessful as he was unable to satisfactorily explain the recent loss of his employment. It was not until February 2014 that the claimant was able to secure permanent employment at a residential drug treatment facility. However, claimant must take three buses to work from his apartment in Troy as he is still unable to secure financing for the purchase of a car. In addition, claimant testified that since his release from jail he suffers from stress, which aggravated his pre-existing health problems.
Claimant testified that the most significant impact of his incarceration was on his relationship with his family. Claimant tearfully recounted that his children were aware of his criminal history and experience with drugs but thought he had changed. As the result of this incident, they believed he had relapsed into drug use. Although claimant admittedly violated the conditions of his parole in February 2011, he testified that neither his employer nor his family were aware of it. Claimant testified that he and his wife live apart as a condition of his parole and he described their relationship as "civil." Claimant testified that he continues to suffer from being prosecuted for a parole violation he did not commit. His credit score remains poor, he is unable to finance a vehicle, and he lost the job he loved. In addition, he has unpaid medical bills and owes $7,000.00 to the bank for a vehicle he no longer owns.
Damages for malicious prosecution may include " 'the direct, natural and proximate results of the criminal prosecution, including those for suffering arrest and imprisonment, injury to reputation and character, injury to health, well-being and feelings, and counsel fees and expenses in defending the criminal prosecution' " (Kinge v State of New York, 79 AD3d 1473, 1481 [3d Dept 2010], quoting Burlett v County of Saratoga, 111 AD2d 426, 427 [3d Dept 1985]). Here, the Court is persuaded that claimant suffered lost wages, mental anguish and injury to his reputation and character as the result of the malicious prosecution. Although claimant had two college degrees and a consistent employment history for at least the last year prior to his arrest and confinement, he was unable to secure new employment until February 2014. Notably, claimant was terminated from this job by letter dated June 10, 2011 (Exhibit 3). Although the termination preceded the date of the preliminary hearing, the Court nevertheless finds that claimant's inability to secure meaningful full-time employment following his release from jail was due to the negative stigma attached to the loss of his former position with the Mental Health Empowerment Project. The Court therefore awards claimant lost wages for the period July 1, 2011 through January 2014 in the total amount of $64,384.52 (31 months at the rate of $2,076.92 per month). No award is made for future lost earnings as claimant failed to establish "with reasonable certainty" any such loss (McKay v Ciani, 288 AD2d 587, 591 [3d Dept 2001]). In fact, there was no evidence presented at trial regarding claimant's current earnings, nor any evidence which would tend to establish a reduced earning capacity.
Claimant's non-economic damages include proof of the damage to his character and reputation as the result of the prosecution of the parole violation charges. The Court credits claimant's testimony that his children were deeply disappointed in his conduct, believing at that time that the charges which had been brought against him were true.
Moreover, claimant was confined to the Albany County Jail for 39 days following the preliminary hearing and may be compensated for the "discomfort, fear, lack of privacy and degradation" he suffered during this period of time (Sanabria v State of New York, 29 Misc 3d 988, 993 [Ct Cl 2010], [citation and internal quotation marks omitted]). Lastly, following his release from jail, claimant was evicted from his apartment and became homeless, circumstances this Court finds were proximately caused by defendant's conduct.
Consideration of the foregoing leads the Court to award claimant the sum of $75,000.00 for the mental anguish and other compensable damages suffered as a result of his ordeal (compare Miller v State of New York, 124 AD3d 997 [3d Dept 2015] [claimant wrongfully confined for three weeks beyond his maximum release date was awarded $35,000]; Strader v Ashley, 61 AD3d 1244 [3d Dept 2009] [malicious prosecution action in which claimant was awarded $250,000.00, including unspecified lost wages for part-time work and damages for emotional pain and suffering although claimant was not confined to jail]; Kinge v State of New York, supra [malicious prosecution action in which claimant was awarded $250,000.00 for mental anguish and loss of liberty as the result of her 2 ½ year period of imprisonment but no damages for injury to her character or reputation]; Sanabria v State of New York, supra [prison inmate was awarded $20,000.00 in non-economic damages for the 91-day period he was imprisoned beyond his maximum release date]; Burlett v County of Saratoga, supra [malicious prosecution action in which award of $75,000.00 was reduced to $40,000.00 for mental anguish and humiliation as well as attorneys fees for the defense of the criminal action]).
Based on the foregoing, the Court awards claimant the following damages:
Past loss of earnings - $64,384.52;
Past non-economic damages - $75,000.00
As claimant is now gainfully employed and housed in an apartment, no award for future economic or non-economic damages made. Nor is an award made for attorneys fees incurred in the defense of the parole violation charges as no such proof was adduced at trial.
The Clerk of the Court of Claims is directed to enter judgment in claimant's favor in the amount of $139, 384.52, together with interest at the statutory rate from May 7, 2014, the date of the liability Decision. In addition, to the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).
Any motions on which the Court may have previously reserved or which were not previously determined are hereby denied.
Let judgment be entered accordingly.
February 23, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims