Lynn v State of New York

[*1] Lynn v State of New York 2004 NY Slip Op 51935(U) [21 Misc 3d 1127(A)] Decided on September 30, 2004 Ct Cl Lack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 30, 2004
Ct Cl

Sidney L. Lynn, Claimant,

against

The State of New York, Defendant.



107316



APPEARANCES:

For Claimant:

Gucciardo Associates Law Offices

By: James T. Gucciardo, Esq.

For Defendant:

Eliot Spitzer, New York State Attorney General

By: Denis McElligott, Assistant Attorney General

James J. Lack, J.

This is a timely filed claim based on alleged injuries suffered by Sidney Lynn (hereinafter "claimant"), due to the intentional torts of defendant. On March 4, 2004, a bifurcated trial was held to determine liability.

The initial facts of this case are not, for the most part, in question. Claimant and defendant's employee, Department of Environmental Conservation Officer John Fitzpatrick (hereinafter "Fitzpatrick"), were each driving a vehicle northbound on Nicolls Road in the Town of Brookhaven. Fitzpatrick was following a fellow DEC officer to the Region 1 office in Stony Brook. The two became separated and Fitzpatrick did not know his way. At the intersection of Nicolls Road and the entrance to The Suffolk County Community College, a light controlling the intersection was red. Claimant was stopped at the light when Fitzpatrick pulled up alongside him. Nicolls Road is a north/south road with two lanes in each direction. Fitzpatrick pulled up to the red light in the left hand turn lane, momentarily stopped, activated front and rear police lights and then went through the light.

Thereafter, the details of what happened differ. The next intersection was Coleman Road, which also had a red light and, according to Fitzpatrick, was much busier. Fitzpatrick stopped his vehicle at this intersection. Claimant pulled up alongside Fitzpatrick and motioned for Fitzpatrick to roll down his window. According to claimant, he then asked, "[a]re you someone special that you can go through a red light?" (Tr. 14). Fitzpatrick, who was driving an unmarked police vehicle, [*2]responded that he was a police officer. Claimant answered that he, too, was a police officer and then testified that Fitzpatrick directed him to pull over or he would be arrested for criminal impersonation (Tr. 15).

According to claimant, he pulled over onto the grassy shoulder and Fitzpatrick pulled his car in behind claimant's vehicle. Each of the drivers exited his vehicles and Fitzpatrick asked claimant for his police ID. Initially, claimant says that he refused to show his police ID, but then complied. When he asked to see Fitzpatrick's ID, claimant says Fitzpatrick took it out and flashed it quickly. According to claimant, he returned to his vehicle, got a pencil and paper and asked to see Fitzpatrick's ID again, but was refused. Claimant then wrote down the license plate number of Fitzpatrick's car and began to walk to his car to leave. Claimant testified that before he got into his car, Fitzpatrick told him not to get into the vehicle, but claimant did anyway. Upon Fitzpatrick ordering him a second time not to get in the vehicle, claimant responded "F you" (Tr. 16). At this point, Fitzpatrick approached claimant's vehicle, reached in and removed claimant's hand from the keys on the ignition and told claimant he was under arrest.

Fitzpatrick's testimony is a variant of claimant's . He testified that claimant was not initially compliant in the directive to pull over. The witness stated he had ordered the claimant to pull over because he was not driving a police vehicle (marked or unmarked) and was not in uniform. He stated claimant was directed two or three times to pull over before complying. After pulling over, Fitzpatrick pulled behind claimant's vehicle, but before he was able to exit his vehicle or radio for back-up, claimant "stormed" towards his car (Tr. 63). Fitzpatrick described claimant as "angry" and "irate" (Tr. 63 - 64). According to the witness, claimant demanded to see his identification and Fitzpatrick produced his police ID and badge. At this point, the witness asked to see claimant's police identification. Claimant then refused, on several occasions, to produce his identification (Tr. 64). When told that he would be arrested for impersonating a police officer, claimant finally produced his police identification - - a photo ID from the Village of Ashroken Police Department.Fitzpatrick testified claimant, after showing his identification, became extremely angry. He demanded that Fitzpatrick arrest him and claimant came into physical contact with him as he was yelling to be arrested. Claimant next went to the rear door of Fitzpatrick's car and waited to be arrested. Fitzpatrick stated that he approached claimant and said that he was not planning on arresting him.

Claimant then began to walk toward his vehicle demanding to see Fitzpatrick's credentials again. Fitzpatrick stated that he had already shown his identification. Claimant now began to leave, but Fitzpatrick testified that he ordered claimant not to leave. When claimant refused and got into his vehicle, Fitzpatrick arrested the claimant. Fitzpatrick testified that the only identification claimant showed him was a photo ID with no badge, which seemed strange to him.[FN1] The witness also stated that he was not familiar with the department listed on the photo ID (Tr. 84). In addition, claimant was not acting like a police officer. Fitzpatrick stated he felt the need to see claimant's driver's license to further prove his identity.

At this point, claimant got out of his vehicle, was frisked, handcuffed and placed in the rear of Fitzpatrick's vehicle. Fitzpatrick then notified his supervisor, Lt. Matera, who came to the scene. [*3]After making arrangements with the Suffolk County Police Department, claimant was transported to the Sixth Precinct for processing. Claimant was charged with Failure to Comply with a Lawful Order in violation of Vehicle and Traffic Law §1102 and Harassment Second Degree in violation of Penal Law §240.26(1). Ultimately, claimant received an Adjournment in Contemplation of Dismissal (Criminal Procedure Law §170.55), and the matter was dismissed.

Claimant seeks recovery for false arrest, wrongful detention, unlawful imprisonment, deprivation of civil rights, intentional infliction of emotional distress, and assault and battery. As for claimant's causes of action for false arrest, wrongful detention, unlawful imprisonment, and deprivation of civil rights, he must prove four elements: "(1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged" (Broughton v State of New York, 37 NY2d 451,456;see also Houghtaling v State of New York, 11 Misc 2d 1049).

There is no question that the first three elements have been met. Claimant's case rests on whether or not the confinement was privileged. If it can be shown that there was probable cause for the arrest, at the time of the arrest, then defendant will be relieved of liability (Broughton at 458). Likewise, if claimant's arrest was unlawful, defendant will be liable for assault and battery for the force used to arrest him (Budgar v State of New York, 98 Misc 2d 588).

Vehicle and Traffic Law §1102 states:

No person shall fail or refuse to comply with any lawful order or direction of any police officer or flagperson or other person duly empowered to regulate traffic.

To justify a charge pursuant to this statute, it must be shown that the officer was regulating traffic at the time a person refuse to comply with the lawful order (People v Bohn, 91 Misc 2d 132; People v DeCerbo, 4 Misc 3d 23).

In Budgar v State of New York, supra, claimant had been charged with Disorderly Conduct (Penal Law §240.20) and Failure to Comply (Vehicle and Traffic Law §1102). Claimant was approaching a toll booth when a trooper's vehicle made a U-turn, without warning, in front of claimant's car. Claimant blew his horn and shook his fist at the trooper. The trooper stopped claimant's vehicle to ask why he blew his horn. Claimant became irate and yelled at the trooper for his U-turn. The trooper demanded claimant's license and registration. Claimant refused to provide the documents several times, but eventually relented. At various points, claimant threw his insurance card out of his window and got out of his car to engage in a heated verbal exchange with the trooper. The criminal charges were dismissed for failure to prosecute in a timely manner. The Court of Claims found that the claimant's behavior did not justify an arrest for either Disorderly Conduct (Penal Law §240.20) and Failure to Comply (Vehicle and Traffic Law §1102).

As to the violation of Failure to Comply (Vehicle and Traffic Law §1102), in this matter, Budgar is on point. Fitzpatrick was not engaged in the regulation of traffic during the encounter with claimant. There was no testimony relative to traffic interference or that ordering claimant not to leave would in any way aid in the regulation of traffic.

However, the second charge against claimant is for Harassment Second Degree (Penal Law §240.26(1)) which states:

A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm [*4]another person . . . He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same . . .

During the course of claimant's ranting and raving on the side of the road, he made physical contact with Fitzpatrick. According to claimant's direct testimony and his cross-examination, he positively knew early in their encounter that Fitzpatrick was a police officer. Rather than calm himself and adopt a professional demeanor to discuss Fitzpatrick's traffic infraction, claimant became more irate as time went by. He continued the yelling and cursing he had begun while still in his vehicle at the red light.

Based upon claimant's behavior, the Court finds that Fitzpatrick had probable cause to arrest claimant for Harassment Second Degree (Penal Law §240.26(1)). Accordingly, the Court finds no merit to claimant's cause of action for intentional infliction of emotional distress (Van Buskirk v Bleiler, 46 AD2d 707).

Wherefore, the Court finds for defendant and dismisses the claim. The Clerk of the Court is directed to close the file. All motions not specifically ruled on are denied.

Let judgment be entered accordingly. Footnotes

Footnote 1:The witness explained that in the post 9/11 era it has become common practice, for security purposes, to show a photo ID and a badge when identifying yourself.