Opinion
Claim No. 132469
09-09-2024
Randy Guyette Claimant(s) v. State of New York, Defendant(s)
Claimant's attorney: Hach Rose Schirripa & Cheverie, LLP By: John Blyth, Esq., of Counsel Defendant's attorney: Hon. Letitia James, New York State Attorney General By: John Jensen, Esq., Assistant Attorney General
Unpublished Opinion
Claimant's attorney:
Hach Rose Schirripa & Cheverie, LLP
By: John Blyth, Esq., of Counsel
Defendant's attorney:
Hon. Letitia James, New York State Attorney General
By: John Jensen, Esq., Assistant Attorney General
Anthony Brindisi, J.
Claimant Randy Guyette seeks damages for personal injuries suffered on October 8, 2018 when troopers from the New York State Police (NYSP) effectuated arrest warrants on the claimant at the premises located at 450 and 454 Pink Schoolhouse Road, Canton, New York. Specifically, claimant alleges that the troopers used excessive force during the execution of the arrest warrants when a NYSP dog was directed to find and bite him. The defendant submits that it is not liable because the use of force by the troopers was objectively reasonable under the circumstances and claimant was not bitten by the NYSP dog.
The address is referred to interchangeably as both "Pink Schoolhouse Road" and "Pink School Road" in the pleadings and testimony. The Court will refer to this address as "Pink Schoolhouse Road."
The liability trial of this Claim was conducted on April 17 and 18, 2024 at the Court of Claims in Utica, New York. Claimant testified and called one additional witness. Defendant called three witnesses. Claimant submitted three exhibits, marked as Exhibits 1-3, which were received into evidence by stipulation of the parties . The Defendant submitted 11 exhibits, marked as Exhibits A - K, which were received into evidence by stipulation of the parties.
Defendant stipulated on the record that Exhibit 1 was "admissible and authentic". However, defendant made a general objection to any hearsay statements contained within said exhibit (T1-11) but did not identify specifically during the trial which statements contained within the exhibit were considered objectionable. Defendant conceded that any statements of the troopers would be admissible as "party agent admissions" (T1-10).
At the commencement of the trial, defendant made a motion to dismiss the Federal constitutional claims for lack of subject matter jurisdiction. The Court reserved decision on the motion, permitting claimant to respond to the motion in his post-trial submission. At the conclusion of claimant's case, defendant made a motion to dismiss which claimant opposed. After defendant's case, claimant made a motion for judgment in his favor as a matter of law and defendant renewed its motion to dismiss. The Court reserved decision on the motions and permitted the parties to submit post-trial memoranda.
After listening to and observing the demeanor of the witnesses as they testified, and upon consideration of their testimony, as well as all of the other evidence received at trial as set forth more particularly below, the applicable law, and the parties' post-trial submissions, the Court makes the following findings:
FACTS
In October of 2018, claimant resided in an apartment located on the second floor of the garage on the property at 450 Pink Schoolhouse Road, Canton, New York (T1-27) . According to claimant, the apartment in which he resided had a different address (454 Pink Schoolhouse Road) (id.). The garage has an exterior staircase which leads to the front door of the apartment (T1-58). There is also an interior staircase at the rear of the apartment which leads down to the garage (T1-65-66). The garage has three bays with two bays located to the front of the building (T1-59-60). The third bay is located behind those bays and there is an interior wall with a door separating it from the other two bays (id.).
"T1-#" refers to the relevant page(s) of the trial transcript for April 17, 2024 and "T2-#" refers to the relevant page(s) of the trial transcript for April 18, 2024.
During the spring and early summer of 2018, claimant was issued several appearance tickets for various drug possession charges (T1-36-37). Claimant testified that he failed to appear in Norfolk Town Court and Potsdam Town Court (T1-37). As a result of his failures to appear, warrants were issued for his arrest (T1-188; Exhibit E, pp. 30, 50). Claimant was aware of at least two arrest warrants for him on October 8, 2018 (T1-139). He was also aware that the NYSP had been to his residence to execute the warrants prior to that date (id.; T1-77). Claimant testified that he "wasn't home" on the previous occasions when troopers attempted to execute the warrants (T1-77).
On October 8, 2018, claimant walked across the driveway on the property to his grandmother's house in the morning to have coffee with her (T1-59). After he finished his coffee, claimant returned to the garage to work on a four-wheeler which was located in the rear bay (T1-59-60). While he was working on the four-wheeler, claimant's mother came to see him (T1-75-76). She stood in the door in the interior wall which divided the garage bays while she spoke with him (T1-76). Claimant's mother told him that there were three NYSP vehicles on Pink Schoolhouse Road (T1-77). After the conversation, she left the garage and returned to his grandmother's house (T1-79).
Claimant testified that he did not believe that the troopers would be coming to the property at that time (T1-78). He felt that the charges and his missed court dates were not "very severe" (id.). Despite his knowledge of the outstanding warrants and prior attempts to execute them, he did not believe his mother's intention was to warn him of the troopers' presence in the vicinity (T1-79). Based upon his belief that the troopers were not intending to come to his residence, claimant continued working on the four-wheeler (T1-80). He did not attempt to evade the troopers or hide from them (id.). Nor did he attempt to barricade any of the doors in the building (id.).
Shortly after the conversation with his mother, claimant heard footsteps from his residence above him (id.). Prior to hearing the footsteps in the residence, claimant did not hear any announcement or anyone knock on the residence door (T1-82-83). Claimant testified, even though he was working in the garage, he would have been able to hear someone had they knocked on the front door to his residence (T1-83-84). He also testified that while he was working in the garage the front door to his residence would have been closed (T1-82).
After hearing the footsteps above him, claimant heard the door at the top of the interior staircase open (T1-80). He then heard the footsteps coming down the interior stairs (T1-81). When he heard the door at the top of the stairs open and footsteps down the stairs, claimant testified he was sitting on a bucket behind the four-wheeler he was working on (id.). As the person approached the bottom of the stairs, claimant heard the announcement - "Let it be known if you are in here or my dog will bite you" (T1-82). He also testified that he heard "the rattle of a dog leash" at that time (T1-86). Upon hearing the announcement, claimant stood up from the bucket (T1-85-86). After he stood up, claimant was able to see the door into the garage from the interior stairwell (T1-86).
Claimant then observed the interior door open and saw the dog followed by a trooper (id.). According to claimant, the trooper had his hand by the dog's collar (T1-87). Claimant testified that he raised his hands into the air as soon as he saw the trooper and dog (id.). He also loudly said "I'm right here" to the trooper (id.; T1-89). Claimant also testified he made eye contact with the trooper while his hands were up (T1-87). After making eye contact with him, the trooper released the dog and it ran towards claimant (T1-88-89). He denied attempting to flee from the trooper after he saw him (T1-89). When he saw the dog running towards him, claimant got into "a protective stance" (id.).
When the dog reached claimant, it "latched"onto his right hand (T1-90). Prior to biting claimant, the dog did not stop or bark at him (id.). Claimant testified that he did not hear the trooper give any recall command to the dog prior to it biting him (id.). Claimant described the bite as painful which caused him to drop to his knees (T1-91). As he was on his knees, claimant testified the trooper walked over to him and commanded the dog to release its bite (id.). He was then placed in handcuffs by the trooper (id.). Claimant testified that the trooper was able to see that the dog was biting his right hand when he walked to him (T1-94). According to claimant, he and the trooper, who he recognized as Trooper D'Arienzo (D'Arienzo), were the only people in the garage when the bite occurred (T1-91).
As a result of being bitten, claimant testified he had puncture wounds on his right hand and it "was bleeding pretty well" (T1-94). He denied having any such wounds on his right hand prior to being bitten by the NYSP dog (T1-95). Despite the bite injury to his right hand, claimant told the trooper that he did not want any medical attention (id.). Claimant testified that he declined medical attention at that time because he was upset at being bitten (id.). Claimant felt he "had surrendered" and should not have been bitten by the dog (id.).
After he was handcuffed, claimant was taken out of the garage (T1-96). He observed that there were three additional troopers present on the property (id.). Claimant recognized two of the other troopers: Trooper Dowdle (Dowdle) who he went to high school with (T1-96-97) and Trooper Clary (Clary) from an arrest a few months prior (T1-98-99). Claimant testified that he held Dowdle in high regard and that he is "a great man" (T1-97). He also described Dowdle as "a really good guy, really sincere" (id.).
At some point after the arrest, claimant learned that the troopers had requested his grandmother sign a consent to search the property for him (T1-107). Claimant believes the consent was signed after the troopers had entered his residence above the garage (T1-116-117). However, claimant acknowledged that he had outstanding arrest warrants at that time (T1-98). He further acknowledged the warrants resulted from his failure to appear in court as required (id.).
Once in custody, claimant was taken to either Potsdam or Norfolk for arraignment on the criminal possession charges (T1-100). According to claimant, there were no additional charges arising from his arrest on October 8, 2018 (id.). At the time of the arraignment on October 8, 2018, claimant was unable to recall if he reported the dog bite to the judge (T1-166). The first documented report claimant was bitten was when he presented to the Canton-Potsdam Hospital Emergency Room on October 10, 2018 (T1-101-102; Exhibit 1, p. 45). At that time, claimant had swelling of his right hand and pain from the puncture wounds (id.).
While in the Emergency Room, a NYSP sergeant came to the hospital to investigate his reported bite by the NYSP dog (T1-101). As part of the investigation, claimant provided a written statement to the sergeant (T1-105; Exhibit 1, p. 38; Exhibit B). In his written statement, claimant stated that the trooper made the announcement after the dog came through the door (Exhibit B). In his statement, claimant also averred that he put his hands up and said "I'm here" following the announcement (id.). After he did so, claimant stated that the trooper released the dog and it bit him (id.). In addition to the written statement, claimant permitted the sergeant to take photographs of his injuries (Exhibit F; Exhibit G; Exhibit H; Exhibit I).
Following his arrest on October 8, 2018, claimant testified his drug addiction progressed (T1-119). Eventually, claimant was arrested on September 25, 2020 (T1-127). Claimant was incarcerated for approximately five months following that arrest (T1-129). He was then released to St. Joseph's Rehab in Saranac Lake, New York where he completed a 90-day inpatient rehabilitation program (id.). After completing the inpatient program, claimant was transferred to North Country Freedom Homes in Canton, New York (id.). He remained in that halfway house for approximately five months (T1-129-130). Claimant testified that he has been sober since his arrest on September 25, 2020 (T1-127-128).
Since being released from the halfway house, claimant has been employed by the I.B.E.W. in vegetation management (T1-131). Initially, claimant was a working foreman for T.T.S. Tree Service and, eventually, became a general foreman (id.). At the time of the liability trial, claimant was overseeing approximately 40 workers (T1-132). Claimant works four 10-hour days as a general foreman and also operates a lawn and landscaping business (T1-133).
Additionally, following his release from the halfway house, claimant has reported to a probation officer (T1-132). A condition of his probation involves regular drug screening tests (id.). Claimant testified that he has not failed a drug screening test since his release from the halfway house (id.). He also testified that since his release from the halfway house he has not missed any child support payment (T1-132-133). In addition, claimant is making weekly payments on the child support arrears which accrued prior to becoming sober (id.).
On cross-examination, claimant testified he was aware there were at least two warrants for his arrest on October 8, 2018 (T1-139). He was also aware the NYSP had been to his residence looking for him prior to that day (id.). Claimant testified when he heard the footsteps in his residence, he did not go to investigate because it could have been his mother or grandmother (T1-144). He did not expect the NYSP to be in his residence (id.).
When he first saw the dog, "the trooper was right behind" it (T1-155). Prior to seeing the dog, he heard the trooper make an announcement (id.). Claimant denied hearing the trooper make two announcements prior to entering the garage (T1-156). Claimant testified the announcement occurred prior to the dog being released by the trooper (id.). After hearing the announcement, the door from the interior staircase opened and he raised his hands (id.). He also said, "I'm right here" (id.). Claimant also testified he was "not sure" when the announcement was made by the trooper (T1-170). Although he was unable to recall specifically when the announcement was made, claimant testified that he heard the trooper make it (T1-171).
In addition, claimant admitted on cross-examination he was using illegal drugs in October 2018 (T1-148). However, he could not recall if he had used any illegal drugs on October 8, 2018 prior to his arrest (id.). Therefore, claimant was unable to state if he was high when the NYSP entered his residence (id.). By the time of the arrest, claimant had begun to take drugs intravenously (T1-171). Claimant conceded his life had become unmanageable by that time (T1-149). He denied his drug use impaired his ability to observe and perceive what was happening around him (T1-150).
On October 8, 2018, claimant owned a Pit Bull/Bullmastiff mix dog (T1-146). He got the dog when she was a puppy (id.). Claimant conceded that he had been bitten by his dog (id.). However, he denied that he sustained a puncture wound from his dog (T1-147). Claimant also denied that his dog bit him between the time of his arrest on October 8, 2018 and when he presented to the hospital a couple days later (T1-148).
Claimant also testified, in 2014, he had been charged with menacing in the second degree (T1-135). He, however, was unable to recall the circumstances surrounding that arrest (T1-137). In addition, he had previously been charged with a domestic violence offense (id.). That charge resulted in an order of protection which claimant admitted he violated a couple of times (id.). Claimant also admitted that he was a hunter previously but "lost interest" when he became addicted to drugs (T1-138).
Additionally, claimant admitted to a felony conviction for burglary in the third degree (id.). However, this conviction occurred after the arrest in this matter (T1-180). At the time of the burglary, claimant was using Xanax (T1-181). As a result, he was unaware of what he was doing and walked into the wrong apartment (id.). While in the wrong apartment, claimant took property from it (id.). He testified he did not have any recollection of what he had done afterwards (id.).
D'Arienzo was employed as a NYSP Trooper on October 8, 2018 (T2-65). He retired from the NYSP with his dog, Shay, in 2022 (T2-65-66). D'Arienzo testified that he and Shay completed training at the NYSP K9 academy (T2-75). In addition to narcotic detection, Shay received training in building searches and commands at the NYSP canine training academy (T2-76). D'Arienzo testified the use of commands provides a dog with the specific task to be accomplished, whether looking for a person or drugs (T2-77). Prior to using a dog to search a building for a person, troopers were trained to obtain information regarding whether there were other people or children in the building (T2-79). They also were trained to inquire regarding the presence of any animal or firearms (id.).
D'Arienzo stated that when Shay was given the "find-the-man" command, Shay would search the building for a person (T2-23). If she located a person during the search, Shay would bite the person if she could (id.; T2-24; T2-78). If she was unable to locate a person, Shay would alert D'Arienzo to the door or location where the person may be located (T2-23). Once given the command, Shay continues to search until she encounters a person, unless D'Arienzo gives her another command (T2-24). If D'Arienzo wanted Shay to stop searching for a person, he would give her the recall command (T2-85). Unless recalled, Shay was trained to bite a person she located, even if the person had their hands up, unless D'Arienzo called her off (T2-30). From his experience, D'Arienzo testified, when a Belgian Malinois dog like Shay bites a person, there is a puncture wound, bruising and swelling (T2-80-81).
D'Arienzo explained that when entering a building to search, safety of troopers is the primary concern (T2-88). Because of this concern, dogs are utilized for building searches for officer safety (T2-87). When entering an unfamiliar building, troopers would be concerned about a person hiding or laying in wait (T2-88). Additionally, there are other hazards in a building which would be of a concern to a trooper (id.). When entering a residence in St. Lawrence County, a trooper could not be certain there were no firearms present (T2-91). According to D'Arienzo, it is generally safer to use a dog to locate a person because it will sense their presence before the trooper (T2-87-88). When a dog is available, it is used by the NYSP to search a building (T2-92). Additionally, the decision to deploy a dog to perform a building search for a person is based upon multiple factors (T2-120-121). The criminal offense the subject is charged with and whether there are warrants are among the factors considered (T2-120). The presence of other people, animals, or firearms is also a consideration (id.). Whether the subject has attempted to evade arrest previously is a factor as well (T2-121-122). Further, the layout and size of the building to be searched is a consideration (T2-124).
On October 8, 2018, D'Arienzo had been the handler for Shay for a number of years (T2-7). He had developed a close relationship with her (T2-8). D'Arienzo testified Shay was a good police dog and was obedient (id.). He did not have any issues with Shay's obedience prior to October 8, 2018 (id.). He did not recall any times prior to that date when Shay had failed to follow his commands (T2-9). When conducting building searches, Shay never failed to follow his command (T2-82). Prior to conducting a building search, D'Arienzo would place Shay into a harness (T2-86). In October of 2018, D'Arienzo did not own a chain for Shay (T2-86-87). While Shay did have field bites, D'Arienzo could not recall if those occurred prior to or after claimant's arrest (T2-8). Shay never bit a person she was not directed to bite based on her training (T2-84). D'Arienzo testified that Shay had escaped a boarding kennel in 2017 (T2-9). However, while Shay was loose at that time, there were no reports of Shay biting anyone (T2-84).
D'Arienzo testified that on October 8, 2018, he along with Shay, were called to claimant's residence to assist in the execution of an arrest warrant (T2-6). He was called to assist because he was a member of the K9 Unit (T2-7; T2-18). According to D'Arienzo, the other troopers requested a dog to assist with the execution of the warrant (id.; T2-11). He was with Clary when the request for assistance was received (T2-10). He and Clary each had their dogs and drove to the location separately (T2-10-11).
D'Arienzo testified that upon arriving at the residence, the troopers were provided information by claimant's mother that claimant was inside the building (T2-38-39). Prior to approaching the building, he and Clary met with troopers Dowdle and Joseph Knox (Knox) down the road since they were arriving from different locations (T2-9). He did not recall claimant or having any encounters with him prior to that date (T2-6-7). D'Arienzo did not recall being provided a photograph of claimant (T2-12). Nor did he recall being provided a description of claimant during the meeting with the other troopers (id.). He further did not recall being provided any information that claimant was violent or posed a danger to the troopers (id.). However, D'Arienzo testified that he was informed that claimant had run from troopers in the past (id.; T2-121-122). He believed that was the reason why a dog was requested to assist (T2-12-13).
According to D'Arienzo, the dogs were requested to be available in the event one was needed (T2-20-21). D'Arienzo described the building where claimant was taken into custody as four-sided with exterior stairs leading to a second floor residence (T2-93). When they arrived at the building, Clary went up the stairs to the door of the residence (T2-96). At that time, D'Arienzo remained on ground level and was watching the back of the building (T2-21; T2-96). While D'Arienzo was still on ground level, Clary told him the door to the residence was open (T2-21). Prior to retrieving Shay, D'Arienzo did not recall looking at the door to the residence (T2-22). Instead, he relied upon Clary's statement that the door was open (id.).
Because Clary had already made his way to the residence door, Clary requested D'Arienzo get his dog (T2-97). D'Arienzo also testified Shay had a better personality for searching for humans than Clary's dog (id.). As requested, he retrieved Shay and went up the exterior stairs to the second floor entrance (T2-22; T2-98). Once on the second floor, D'Arienzo saw the door to the residence was open and he did not see anyone inside (T2-98). To him, the open door was unusual and out of the ordinary (T2-99). Prior to entering the residence with Shay, D'Arienzo gave three loud announcements, "State Police K9, announce yourself or you will get bit" (T2-23; T2-99). While giving the announcements, Shay was laying to D'Arienzo's left (T2-100). When he did not receive a response, he gave Shay the "find-the-man" command and released her into the residence (T2-23-24; T2-100).
The residence was an open floor plan and did not have a significant amount of furniture (T2-102). Directly across from the entrance were the bedrooms and the doors to the bedrooms were open (T2-24-25; T2-102). As Shay was searching the residence, D'Arienzo was trailing her (T2-25). She searched the bedrooms and did not locate a person (id.). He and Shay were able to search the residence quickly (T2-102).
D'Arienzo then observed a closed, interior door which led to a staircase to the lower level (T2-25). According to D'Arienzo, this was a "new environment" and, therefore, he gave two more loud announcements (id.; T2-106). D'Arienzo testified the second set of announcements at the interior door was given in the event that claimant did not hear the initial set (T2-106). Again, Shay was laying at his side during the second set of announcements (id.). When he did not hear a response, D'Arienzo released Shay down the stairs to continue searching for claimant (T2-26; T2-106-107).
At the bottom of the stairs, there was an opening into one of the garage bays where Shay stopped (T2-26; T2-107). Prior to her going through the door, D'Arienzo saw Shay's tail, hackles, and ears go up indicating that she had detected a person (T2-107). When Shay entered the garage bay, she was out of D'Arienzo's sight briefly (T2-31). D'Arienzo followed Shay down the stairs and was standing in the opening (T2-108). D'Arienzo did not see anyone when he first stepped into the garage bay (T2-108). While Shay was out of his sight, D'Arienzo heard "scuffling" (id.; T2-31). He could not see what or who was making the scuffling sound (T2-32). D'Arienzo then heard what he thought was an exterior door to the building open and close (id.; T2-109-110). Upon hearing the door, he believed that another person had entered or exited the area (T2-32-33). At that point, D'Arienzo recalled his dog (T2-33; T2-35; T2-110). In response to his recall command, Shay returned to his side immediately (T2-35).
D'Arienzo testified he first saw claimant in the garage bay after Shay returned to his side (T2-39). According to D'Arienzo, claimant was wearing a heavy, black jacket (T2-39). D'Arienzo did not recall the weather on the day the warrant was executed (T2-39-40). Prior to seeing claimant, D'Arienzo did not hear a human voice in the garage bay (T2-110). Nor did he hear anyone scream or yell prior to seeing claimant for the first time (id.). Claimant was standing upright when first seen by D'Arienzo (T2-40). He could not recall where claimant's hands were placed initially (id.). D'Arienzo did not observe any injuries when he first saw claimant (id.). He testified Clary took claimant into custody (T2-41; T2-111). As he approached claimant while Clary was taking him into custody, D'Arienzo did not observe any injuries to claimant (id.). Clary then escorted claimant out of the building and placed him in one of the NYSP vehicles (T2-41-42).
When claimant was walked out of the building, D'Arienzo put Shay away in his vehicle (T2-42). While he was doing so, Clary came over and told him that claimant had an injury on his hand (id.). Clary told him that claimant had denied being bitten (id.). After being informed of the injury, D'Arienzo spoke with claimant whom he believed was under the influence (id.; T2-117; Exhibit 1, p. 51). At that time, D'Arienzo saw a "small amount" of blood on claimant's hand (T2-43; T2-120). D'Arienzo testified claimant denied being bitten by Shay when he asked him (T2-44). In addition, claimant declined medical attention at that time (id.). Prior to Clary taking him into custody, claimant did not say anything to D'Arienzo (T2-110-111). Claimant did not speak to D'Arienzo at any time while they were in the garage (T2-111). D'Arienzo testified that Shay did not bite claimant prior to him being taken into custody (T2-112). D'Arienzo also testified that he did not release Shay after he saw claimant (id.). Had D'Arienzo seen claimant with his hands up, he would not have permitted Shay to continue searching for him (T2-112-113).
Prior to having Shay search the building, D'Arienzo did not consider asking claimant's mother to ask him to come out (T2-36-37). D'Arienzo testified he would not ask a civilian to take a subject into custody (T2-37). He believes doing so is bad police practice and would put the civilian at risk (T2-73-74). Additionally, D'Arienzo was aware of situations where a person injured or killed family members (T2-74). Had the troopers requested claimant's mother speak with him and been injured, it would be their fault for placing her at risk (T2-73-74).
Knox, an investigator with the NYSP, testified that he was employed as a Trooper on October 8, 2018 (T1-186). He was involved in the execution of the warrant on October 8, 2018 (T1-186-187). Knox testified that the warrants were for claimant whom he recognized from previous encounters with him (T1-188). According to his testimony, Clary had requested assistance with executing the warrant (id.). He went to the location with Dowdle (id.). When they arrived, Clary and D'Arienzo were present (T1-189). Both of them had their dogs (id.). Prior to going to the residence, the troopers met to "get the plan straight" (T1-189-190). On that day, he did not know if claimant was armed because "[y]ou never know if somebody is armed" (T1-199). Knox testified that their main priority during the execution of the warrant was safety (T1-190). In connection with officer safety, the NYSP utilizes dogs to assist in building searches (id.; T1-199).
After the meeting was concluded, the troopers went to the building (T1-191). According to the plan, Knox was going to knock on the front door to claimant's residence (id.). He described the building as two-stories with a garage on the lower level and a second floor residence (id.). To access the second floor, the troopers used an exterior staircase (id.). He went up the stair along with Clary and Dowdle (T1-192). When they did, D'Arienzo remained on the ground level outside of the building (id.).
Knox testified that the door to the residence was open when he reached it (T1-191-192). Upon seeing the door open, the troopers announced their presence (T1-192). At that point, none of the troopers had entered the residence (T1-193). He observed drug paraphernalia inside the residence (id.). He knew the residence was claimant's residence (id.). Knox believes Clary requested D'Arienzo retrieve his dog (T1-192-193). D'Arienzo returned with his dog and came to the second floor as requested by Clary (T1-193). Knox heard D'Arienzo make his announcements outside the door (id.). After waiting for a response, D'Arienzo entered the residence with his dog (id.).
While still outside the building, Knox observed D'Arienzo come to another door inside the residence (T1-194). When he encountered the interior door, D'Arienzo made two more announcements (id.). After waiting for a response, D'Arienzo went through the interior door and Knox lost sight of him (T1-194). Shortly after losing sight of him, Knox heard D'Arienzo giving orders for somebody to come out with their hands up (id.). He then went to where he heard D'Arienzo giving the orders (T1-194-195). When he reached the area, Knox observed claimant coming out from the lower portion of the building with his hands raised (T1-194).
Knox testified Clary handcuffed claimant and walked him out of the garage (T1-195). At that time, claimant stated that he may have some drug paraphernalia on him (id.). Therefore, another search of claimant was conducted (id.). The troopers did not discover any additional drug paraphernalia during the second search (T1-196). While in custody, claimant denied being injured or bitten (id.). Knox also overheard D'Arienzo ask claimant if he had been bitten by Shay (id.). Again, he heard claimant deny being bitten (id.). Knox did not recall seeing any injuries to claimant's right arm or hand (T1-196-197). Nor did he recall if claimant was bleeding at that time (T1-197). Knox testified that claimant denied being injured and declined medical assistance after the arrest (id.).
Knox testified he has seen individuals bitten by NYSP dogs during his career (id.). When an individual is bitten, Knox testified there would be "immediate compliance" (T1-198). Additionally, there would be blood and ripped flesh (id.). There also would be bite marks on the subject (id.). Knox stated he has seen "some pretty gruesome" injuries following NYSP dog bites (id.). According to Knox, bites tend to result in very significant injuries to the subject (id.). He also testified he had been bitten by a dog while wearing a bite suit (T1-197-198). When bitten, Knox felt pain and intense pressure even though he was bit through a bite suit (T1-198).
Following claimant's arrest, Knox did not observe anything which he considered consistent with claimant being bitten by the dog (id.). Additionally, Knox testified that when an individual is bitten they are "very loud, very vocal" (T1-199). Typically, the individual would be screaming in pain and asking for the trooper to get the dog off of them (id.). Knox did not hear claimant scream, yell, or cry out in pain during the arrest (id.).
Knox also testified that he had not seen anyone who was bitten by Shay (T1-213). He did not observe anything which led him to believe that Shay bit claimant (id.). Despite nothing indicating that claimant was bitten, the troopers asked him if he needed medical attention (id.). According to Knox, they did so because being arrested can be traumatic for a subject (id.). In addition, he did not observe the interaction between claimant and Shay (id.).
On cross-examination, Knox conceded that he had prior encounters with claimant and had a decent rapport with him (T1-200). The prior encounters were traffic stops with drug possession charges likely involved (id.). None of his prior encounters with claimant involved firearms or violent crime (T1-200-201). Although the prior encounters did not involve firearms or violent behavior, there is always a concern for officer safety when executing a warrant (T1-201-202). According to Knox, officer safety is always a priority for troopers (T1-202). He testified whenever a trooper executes a warrant, they have a "safety first" mind set (id.).
According to Knox, the purpose of the meeting with the other troopers was to review the plan for execution of the warrant (T1-202-203). During the meeting, the troopers would discuss the subject they intended to arrest (T1-203). A subject's criminal background and criminal history is pertinent information to troopers (T1-204). Knox testified that he was aware that claimant had a prior menacing charge; however, did not recall if the troopers discussed it at the meeting prior to executing the warrant (id.).
Knox testified it was unusual for the residence door to be open when the troopers arrived (T1-208-209). He also testified that the open door to the residence "raised concern" in his mind (T1-208). Typically, a person would not leave a door open with drug paraphernalia laying around (id.). This led him to believe that somebody was in the residence at that time (id.). In addition, the presence of drug paraphernalia may indicate the presence of guns to him (T1-209). He testified that he did not observe any guns (id.). However, a trooper never knows if a subject is armed (id.). He did not know whether claimant possessed any firearms at the time the warrant was executed (T1-210).
Dowdle, a NYSP Investigator, testified that he also went to claimant's residence on October 8, 2018 (T1-221). At that time, he was employed as a Trooper (id.). According to Dowdle, Knox received a telephone call from Clary requesting assistance locating claimant (id.). Dowdle went to the residence with Knox (T1-221-222). They met with Clary and D'Arienzo on the shoulder of the road after arriving (T1-222). The meeting was to establish the plan for entering the residence (id.). This was a common practice when executing a warrant because the troopers were going into a situation with many unknowns (id.). Dowdle explained that some subjects may flee and others may fight during the execution of a warrant (id.). There are also multiple ways to enter or exit a residence (T1-222-223). Dowdle testified the troopers wanted to make sure they had their bases covered before attempting to enter the residence (T1-223).
Dowdle also testified that even though the troopers plan the execution of a warrant, the arrest may not go as planned (T1-235). According to him, sometimes the subject is cooperative and complies with the troopers (id.). Other times, the subject is not cooperative and does not respond to the troopers' commands (id.). Even if the subject is inside the residence, they may hide (id.). Therefore, Dowdle testified that troopers "do not know what's going to happen" when they execute a warrant (id.).
Prior to October 8, 2018, Dowdle had several encounters with claimant (T1-223). While Dowdle had a good rapport with claimant, he had also observed him act aggressively with other troopers (T1-235-236). On the day the warrant was executed, Dowdle did not know if claimant had any weapons or posed a risk to the troopers (id.; T1-237-238). Even if troopers are familiar with a subject, they still take all necessary precautions to prevent injuries to themselves or others during the execution of a warrant (T1-223; T1-232). When executing a warrant, dogs are "a very valuable resource" (T1-223-224). Because dogs are trained to detect people and drugs they can aid when entering a building which has numerous unknowns (T1-224). Therefore, dogs are a tool that the NYSP utilize in such circumstances when available (id.).
Following the meeting on the road, he along with Knox and Clary went up the exterior stairs to the second-floor residence (T1-225). As they approached the door to the residence, Dowdle observed that it was open (id.). He also observed drug paraphernalia which was in plain view (id.). The troopers announced their presence and there was no answer from inside the residence (id.). At that point, D'Arienzo went and got his dog (id.). Prior to entering the residence with his dog, D'Arienzo announced their presence (T1-226). D'Arienzo and his dog then entered the residence with Clary (T1-227). Shortly after they entered the residence, Dowdle heard a commotion which sounded like yelling (id.).
When he heard the commotion, Dowdle entered the building with Knox and went to the garage area (id.). Once in the garage area, he saw claimant walking towards the troopers (id.). Clary then took claimant into custody (id.). Dowdle testified there were no other people in the residence besides claimant (id.). After claimant was placed in a NYSP vehicle, Dowdle had a conversation with him (T1-228). Dowdle told claimant that he needed to get help and clean his life up (id.). At no time did claimant tell Dowdle he had been bitten by the NYSP dog (T1-229). During the conversation, the only injury Dowdle observed was an "old" scab on one of claimant's arms (id.).
On cross-examination, Dowdle testified that he did not observe the interaction claimant had with D'Arienzo and Shay (T1-233). Prior to hearing the commotion, he stayed on the porch outside the residence to prevent claimant from escaping (id.). From his position on the porch, Dowdle was able to see the garage door below him as well as the back door to the house on the property (T1-234). Dowdle testified that Clary's dog was "very vicious" (T1-241). He also testified that the troopers felt that Shay was the better dog for the situation (id.). Therefore, Clary requested that D'Arienzo use his dog to search the building (id.).
Dowdle obtained consent from claimant's grandmother to conduct a search of the residence (T1-242). He did not recall if he spoke with her prior to the arrest (T1-241-242). Dowdle testified the consent was requested because he observed drug paraphernalia inside the residence (T1-242). He did not recall if the troopers found anything additional when they searched the residence following the arrest (id.). As a result of the arrest and search, claimant was not charged with any additional crimes (id.). Dowdle did not observe claimant attempt to run from the troopers (T1-245). Nor did Dowdle observe claimant fight while being taken into custody (id.).
On re-direct examination, Dowdle testified that claimant did not respond to four or five loud requests to exit the building (id.). According to Dowdle, Shay did not have the same propensity for vicious conduct as Clary's dog (T1-246). Since Shay had the better temperament, she was the better choice for the situation (id.). Dowdle believed that the use of Shay to search the building resulted from the troopers decision to use "the lesser of the available forces" (id.). Although the troopers could have chosen not to use a dog, they "utilized the resources" available to them to execute a warrant (id.).
Sergeant Ryan Edmundson (Edmundson), the Assistant K9 Unit Coordinator, testified that all trooper handlers and dogs are required to complete a twenty-week academy (T2-178). He is involved in the training of troopers and dogs at the NYSP K9 Training Center in Cooperstown, New York (T2-178-179). The training focuses on odor detection (narcotics or explosives), tracking, building searches, and handler protection (T2-180). NYSP dogs are not trained to conduct building searches for injured or unconscious persons (T2-196). Upon completing training, the team is issued a certification (T2-188). Trooper handlers are only required to be certified by the NYSP (id.).
Edmundson testified with regard to building searches, dogs are trained to locate a subject and engage (bite) them (T2-181-182). Trooper handlers are trained to ensure nobody besides the subject is inside of the building to be searched (T2-182-183). They were trained to make an announcement three times prior to releasing their dog (T2-183). If there is no response to the announcements, only then are trooper handlers trained to release the dog (id.). Once the dog is released, trooper handlers are trained to follow the dog through the building and keep eye contact on it as long as possible (id.). If a dog is released and the subject becomes compliant, the trooper handler should recall the dog before it engages the subject (T2-197-199). The decision whether to use a dog to search a building is left to the discretion of the trooper handler (T2-187).
Edmundson testified that when a subject is engaged by a dog, trooper handlers are trained to get them into custody as quickly as possible (T2-185). After the subject is in custody and the dog removed, trooper handlers are trained to seek medical attention for the subject (id.). If a dog is deployed and engaged a subject, the trooper handler is required to report it to the K9 Unit Coordinator (id.). Edmundson testified any time a NYSP dog bite occurs, the trooper handler is required to report it "immediately" (T2-186). Failure to do so may result in dismissal from the K9 Unit (id.). If a trooper handler is unsure if their dog engaged a subject, the trooper handler should report it to the K9 Unit Coordinator for a determination on how to proceed (id.).
Edmundson testified that when claimant reported he had been bitten by Shay during the arrest, the NYSP investigated the incident (Exhibit 1). In connection with the NYSP investigation, Clary prepared a memorandum detailing his involvement with the arrest of claimant on October 8, 2018 (Exhibit 1, pp. 55-56). In the memorandum, Clary stated when he went to the front door of the residence which was open, he announced himself several times (Exhibit 1, p. 55). From his position outside, Clary was able to observe drug paraphernalia in the residence (id.). He requested D'Arienzo retrieve his dog to perform a building search for claimant (id.). Prior to entering the building, D'Arienzo loudly announced his presence three times (id.). After Shay was released into the residence, Clary and D'Arienzo entered to "clear the building" (id.). Clary observed D'Arienzo and his dog go down an interior staircase (id.). He again heard D'Arienzo announce their presence (id.). Clary then heard D'Arienzo yelling and went down to the garage area (id.). At that time, D'Arienzo informed Clary that claimant was inside the garage area (id.). Clary called claimant out of the garage (id.). Clary stated that he took claimant into custody (id.). When he did, Clary noticed blood on claimant's right hand (id.). Clary asked claimant about the blood (id.). In response, claimant told Clary that "he was picking scabs on his hands" (id.). When Clary asked claimant if he needed medical attention, claimant declined (id.). In addition, Clary overheard D'Arienzo ask claimant twice if he had been injured or needed medical attention (Exhibit 1, p. 56). Both times, claimant stated he was not injured and did not need medical attention (id.). Thereafter, Clary transported claimant to court for arraignment (id.). During the approximately two hours Clary was with claimant following the arrest, claimant did not report being bitten (id.). Nor did claimant complain of being injured or request medical attention (id.).
Clary was unavailable during the trial because he was out of the country and did not testify (T2-133).
APPLICABLE LAW AND DISCUSSION
The parties submitted post-trial briefs expanding upon their arguments made during trial. The Claim in this matter sets forth seven causes of action. In the Court's view the crux of this claim is whether the NYSP used excessive force in taking claimant into custody during the arrest on October 8, 2018.
Claimant argues that the use of a dog by the NYSP and being bitten by the dog during the execution of the warrants was unreasonable under the circumstances. In support of his position, claimant argues that he did not pose an immediate threat to either the troopers or the general public. Claimant further argues that his underlying crime and failure to appear in court were "not serious". Claimant also argues that he did not attempt to evade arrest on October 8, 2018. Therefore, claimant argues that the use of a dog by the NYSP constituted excessive force.
Defendant argues that it is immune from suit pursuant to the professional judgment rule. Further, defendant argues that claimant failed to establish that the troopers violated any policy or procedure of the NYSP. Defendant also argues that this Court lacks subject matter jurisdiction over any of claimant's federal constitutional claims. Additionally, defendant argues that the use of a dog during the execution of the warrant was objectively reasonable under the circumstances and consistent with what a reasonable officer would have done under the circumstances.
With regards to any federal constitutional claims set forth by claimant in this matter, defendant correctly asserts "[t]he State is not a 'person' and it cannot be liable" for federal constitutional torts in this Court (see Brown v State of New York, 89 N.Y.2d 172, 185 [1996]). Because this Court lacks subject matter jurisdiction over any federal constitutional claims, defendant's motion to dismiss those claims is now granted.
In his Verified Claim, claimant set forth causes of action for both respondeat superior and negligent hiring, training, retention and supervision (Verified Claim, ¶¶ 54-80). It is well-settled that a claimant cannot prevail on both these causes of action (see Passucci v Home Depot, Inc., 67 A.D.3d 1470, 1472 [4th Dept 2009]; Thurber v State of New York, UID No. 2018-032-19 [Ct Cl, Hard, J., March 14, 2018]). During the trial, claimant and defendant both conceded that the troopers were acting within the scope of their employment during the execution of the warrant (T2-142). "It is well settled... that 'where an employee is acting within the scope of [their] employment, the employer is liable for the employee's negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training'" (Taylor v City of Buffalo, 229 A.D.3d 1125, 1128 [4th Dept 2024] [internal citation omitted]). Therefore, the Court grants defendant's motion, and claimant's cause of action for negligent hiring, training, retention and supervision is dismissed.
The Court will next address the claimant's cause of action for false imprisonment and arrest. Where a "warrant [is] valid on its face and issued by a court having jurisdiction", an arrest pursuant to the warrant is privileged (Boose v City of Rochester, 71 A.D.2d 59, 66 [4th Dept 1979]; see also St. John v Town of Marlborough, 163 A.D.2d 761, 762 [3d Dept 1990] [an arrest pursuant to a validly issued warrant precludes a claim of false arrest]). Here, claimant testified that he was aware of warrants for his arrest on October 8, 2018. Additionally, the NYSP investigative file for the incident which was admitted into evidence during the trial contains two warrants issued for claimant's arrest. At trial, claimant did not challenge the validity of either warrant. Nor did he present any evidence that his arrest by the NYSP was not otherwise privileged. Therefore, the Court grants the defendant's motion to dismiss the cause of action for false imprisonment and arrest.
Moving to the crux of the claim, it is well-established that battery is the unjustified touching of another person, without that person's consent, with the intent to cause bodily contact which a reasonable person would find offensive (see Rivera v State of New York, 34 N.Y.3d 383, 389 [2019]). Whereas assault involves placing a person in fear of harmful or offensive contact (see Gould v Rempel, 99 A.D.3d 759, 760 [2d Dept 2012]; Rivera, 34 N.Y.3d at 389). The State can be held liable for an assault and/or battery committed by NYSP troopers (see Arteaga v State of New York, 72 N.Y.2d 212, 220-221 [1988]; Jones v State of New York, 33 N.Y.2d 275, 279 [1973], rearg dismissed 55 N.Y.2d 878 [1982]).
It is equally well-established, however, that police officers are entitled to use force when effectuating an arrest (see Passino v State of New York, 175 Misc.2d 733, 736 [Ct Cl 1998], affd 260 A.D.2d 915 [3d Dept 1999], lv denied 93 N.Y.2d 814 [1999]; see also Faccioli v State of New York, 46 Misc.2d 983 [Ct Cl 1965], affd 26 A.D.2d 604 [3d Dept 1966]). However, an officer is only "authorized to use force that is objectively reasonable under the prevailing circumstances" (Passino, 175 Misc.2d at 736). Claims that an officer used excessive force must be "analyzed under the 4th Amendment [of the U.S. Constitution] and its standard of objective reasonableness" (Diaz v State of New York, 144 A.D.3d 1220, 1222 [3d Dept 2016] [ internal quotation marks omitted ]; see also Passino v State of New York, 260 A.D.2d at 915; Graham v Connor, 490 U.S. 386, 388 [1989]).
The reasonableness of a particular use of force is judged from" 'the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight'" (Williams v City of New York, 129 A.D.3d 1066, 1066 [2d Dept 2015], quoting Washington-Herrera v Town of Greenburgh, 101 A.D.3d 986, 989 [2d Dept 2012]; see also Lepore v Town of Greenburgh, 120 A.D.3d 1202, 1203 [2d Dept 2014]). "The determination of an excessive force claim requires an analysis of the facts of the particular case, including 'the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [he or she] is actively resisting arrest or attempting to evade arrest by flight'" (Vizzari v Hernandez, 1 A.D.3d 431, 432 [2d Dept 2003], quoting Graham v Connor, 490 U.S. at 396). "The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene" (Relf v City of Troy, 169 A.D.3d 1223, 1224 [3d Dept 2019], quoting Graham v Connor, 490 U.S. at 396). The determination whether the forced used by the officers was reasonable under the circumstances is "intensely factual [in] nature" (Holland v City of Poughkeepsie, 90 A.D.3d 841, 844 [2d Dept 2011]).
The claimant has the burden of proving his case by a fair preponderance of the credible evidence (see Rinaldi & Sons v Wells Fargo Alarm Serv., 39 N.Y.2d 191, 196 [1976]; Weinberger v New York State Olympic Regional Dev. Auth., 133 A.D.3d 1006 [3d Dept 2015]). In determining whether the use of force against claimant was more than was reasonably necessary under the circumstances, "the court's assessment of the credibility of the testimony, and the extent to which the other evidence bears on that assessment of credibility, is crucial" (Barrington v State of New York, UID No. 2008-029-028 [Ct Cl, Mignano, J., July 25, 2008]; see also Shirvanion v State of New York, 64 A.D.3d 1113, 1114 [3d Dept 2009]; Bush v State of New York, 57 A.D.3d 1066 [3d Dept 2008]; Lewis v State of New York, 223 A.D.2d 800, 801 [3d Dept 1996]; Smith v State of New York, UID No. 2012-041-506 [Ct Cl, Milano, J., Aug. 14, 2012]). Therefore, the Court, as fact-finder, will assess the evidence and credibility of the witnesses and resolve any factual disputes to determine whether the claimant has met their burden to establish the claim (see Ring v State of New York, 8 A.D.3d 1057 [4th Dept 2004], lv denied 3 N.Y.3d 608 [2004]; Janczylik v State of New York, 126 A.D.3d 1485 [4th Dept 2015]).
The Court notes that a large part of the resolution of the claim rests upon the relative credibility of the witnesses as well as the weight of the evidence claimant presented to substantiate his claim that the troopers used excessive force to effectuate his arrest. While claimant is to be commended for his actions to confront his addiction, the Court is able to give his testimony little weight due to a lack of corroboration by other evidence. Additionally, the Court's observations of claimant's demeanor and inconsistencies during his testimony and in his written statement mitigate against giving his testimony significant weight. Claimant conceded his addiction caused his life to become "unmanageable" and, as a result, he missed required court appearances. Claimant also testified that his drug use during the relevant period impacted his ability to accurately recall events as they occurred. Further, claimant was unable to testify whether he was under the influence of drugs at the time of his arrest on October 8, 2018.
The Court found portions of the substance of claimant's testimony to be inconsistent and not creditworthy. For example, he testified that he would have been able to hear someone knock on the front door to his residence. However, he denied hearing the troopers loudly announce their presence. Additionally, he testified that he heard an announcement when there were footsteps coming down the interior staircase. On cross-examination, however, claimant testified he could not remember if he heard the announcement before or after D'Arienzo appeared in the opening from the staircase to the garage bay.
After hearing the testimony and observing the demeanor of claimant as well as D'Arienzo, Knox, Dowdle and Edmundson, and considering all of the testimonial and documentary evidence, the Court finds that claimant failed to prove by a preponderance of the credible evidence that the decision to utilize a dog to search the building was objectively unreasonable under the circumstances. The troopers who were present on the day the warrant was executed all credibly testified that safety, both of the troopers and others, is their main priority. They further testified that the execution of warrants is dangerous and involves numerous unknowns. Given the potential dangers to troopers involved in execution of warrants, as well as others present, the NYSP utilizes dogs to perform building searches when available.
The determination whether to use a dog to perform a building search is based upon numerous factors, including the criminal charges. In addition to the charges, troopers consider whether other people or children are present in the building to be searched. The complexity of a building also factors into the determination to use a dog to search it. Troopers also consider whether firearms are known to be in the building. However, the troopers testified, even without information that firearms are present, they cannot be certain that a subject is unarmed. Further, D'Arienzo and the other troopers testified credibly that firearms may be present when executing warrants.
With regard to the execution of the warrant by them, the troopers credibly testified they knew claimant had pending drug possession charges. Claimant conceded during his testimony the NYSP had been to his residence previously to execute the warrants. Even though the troopers had encounters with claimant prior to October 8, 2018, his compliance with the troopers during those encounters was not indicative of him being compliant during the execution of the warrant. Further, Dowdle, whom claimant testified he held in high regard, testified that he had observed claimant behave aggressively with other troopers. The troopers also testified that claimant had a known prior menacing charge.
In addition, the credible testimony establishes that the front door to claimant's residence was open when the troopers arrived to execute the warrant. This finding was uncommon and raised concerns in their minds. Additionally, the troopers observed drug paraphernalia in the residence prior to entering the building. They also had information that claimant was in the building and, despite loudly announcing themselves, did not respond. Further, prior to releasing the dog to search the residence, D'Arienzo loudly announced their presence three times as he was trained. D'Arienzo also testified that when he encountered the door to the interior staircase, he again loudly announced their presence twice prior to releasing his dog to continue her search of the building.
The Court further finds that claimant failed to prove by a preponderance of the credible evidence that the troopers used excessive force during the execution of the warrants. Specifically, the Court finds that claimant failed to prove by a preponderance of the credible evidence that he was bitten by the NYSP dog. Claimant testified D'Arienzo released his dog after he saw the claimant had surrendered. Claimant also testified the dog only released the bite when D'Arienzo arrived to place him in handcuffs. During his testimony, claimant conceded that he did not tell any of the troopers that he had been bitten. Claimant was also unable to recall if he reported to being bitten when he was arraigned after his arrest. To the Court, claimant's testimony regarding the arrest and actions of D'Arienzo and his dog are not credible.
In contrast, D'Arienzo testified that he released his dog to search the stairwell and garage bay at the top of the staircase. He followed Shay down the stairs and recalled Shay when he heard an unseen door in the garage open. Only after he recalled his dog did D'Arienzo see claimant. D'Arienzo specifically denied releasing Shay after he saw claimant. He also denied seeing Shay bite claimant or that he took claimant into custody. Additionally, Knox and Dowdle testified that Clary took claimant into custody that day. In his statement contained in the investigative file for the incident, Clary also stated that he took claimant into custody. Further, none of the troopers present observed D'Arienzo's dog bite claimant.
In addition, Knox testified when a subject is bitten by a Belgian Malinois dog, like Shay, the subject would scream, yell, or cry out in pain. Knox further testified that he did not hear claimant respond in the way he would if the dog had bitten him. Knox and D'Arienzo also testified that a bite by a dog like Shay would result in a significant wound. There would be bite marks, blood, and torn flesh. The troopers all testified that the appearance of claimant's right hand following the arrest was not consistent with a subject who had been bitten. In addition, the photographs taken when claimant presented to the hospital support the testimony of the troopers that claimant was not bitten during the execution of the warrant. Therefore, the Court finds that claimant failed to establish by a preponderance of the evidence that he was bitten during the execution of the warrant.
With regard to claimant's negligence and negligent infliction of emotional distress claims, the State has governmental immunity "when official action involves the exercise of discretion or expert judgment" (Haddock v City of New York, 75 N.Y.2d 478, 484 [1990] [internal citations omitted]). Under the professional judgment rule, the State is insulated "from liability for its employees' performance of their duties where the... conduct involves the exercise of professional judgment such as electing one among many acceptable methods of carrying out tasks, or making tactical decisions" (Malay v City of Syracuse, 151 A.D.3d 1624, 1625 [2017], lv denied 30 N.Y.3d 904 [2017], quoting Johnson v City of New York, 15 N.Y.3d 676, 680 [2010]). In order to avail itself of the rule, the employees' exercise of judgment and discretion must be "in compliance with the [State]'s procedures" (Relf v City of Troy, 169 A.D.3d at 1227, quoting Johnson v City of New York, 15 N.Y.3d at 681).
At trial, claimant failed to present any evidence of a specific NYSP policy or procedure which the troopers purportedly violated by utilizing Shay during the execution of the warrant. The sole testimony regarding any applicable policies and procedures was from Edmundson. He testified, if a subject was compliant or surrendered, a dog should not be permitted to engage the subject. Instead, Edmundson testified the dog should be recalled prior to engaging such a subject.
The testimony of D'Arienzo is consistent with the policies and procedures. He testified he did not see claimant prior to releasing his dog to search the building. In addition, when he heard an unseen door open and close, D'Arienzo recalled his dog. According to D'Arienzo, he recalled his dog because he did not know if someone other than claimant had entered the garage bay. When he recalled his dog, D'Arienzo had yet to see claimant in the garage bay. Further, D'Arienzo credibly denied releasing his dog after he saw claimant. D'Arienzo also testified that he would have recalled his dog if he had observed claimant surrendering prior to being engaged by the dog.
Further, D'Arienzo did not see his dog bite claimant during the execution of the warrant. He also did not observe any injuries to the claimant consistent with being bitten. In addition, the other troopers who were present did not hear claimant respond as would be expected if he had been bitten. They also testified that claimant did not have any injuries consistent with being bitten by D'Arienzo's dog. Following the arrest, claimant repeatedly denied being bitten and declined medical attention. Claimant also did not report being bitten during his arraignment on the day of the arrest. The first documented report of claimant alleging he was bitten is when he presented to the hospital two days after the arrest.
As discussed above, the Court accords little weight to claimant's testimony. The credible testimony of the officers and evidence before the Court belies claimant's assertion that he was bitten during the execution of the warrant. Under the circumstances, absent credible proof that the troopers violated any applicable policy or procedure of the NYSP, claimant failed to establish by a preponderance of the evidence his negligence and negligent infliction of emotional distress claims against defendant.
Finally, claimant's cause of action pursuant to the doctrine of respondeat superior must also be dismissed. Respondeat superior may be used to hold an employer vicariously liable for the negligent acts of its employees acting in the scope of their employment (Kingsley v Leija, 260 A.D.2d 761 [3d Dept 1999]). Where there has been no finding of negligence on the part of the troopers, as the employees of defendant, a cause of action for respondeat superior will not stand.
Accordingly, defendant's motion to dismiss, made at the conclusion of trial, is now GRANTED and Claim No. 132469 is hereby dismissed.
Any and all evidentiary rulings or motions upon which the Court may have previously reserved, or which were not previously determined, are hereby denied.
Let judgment be entered accordingly.