Green v State of New York

[*1] Green v State of New York 2013 NY Slip Op 50931(U) Decided on May 29, 2013 Ct Cl Collins, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 29, 2013
Ct Cl

Danny B. Green, Claimant,

against

The State of New York, Defendant.



120730



For Claimant:

Kindlon Shanks & Associates

By: Gennaro D. Calabrese, Esquire

For Defendant:

Honorable Eric T. Schneiderman, Attorney General

By: Michael T. Krenrich, Esquire

Assistant Attorney General

Francis T. Collins, J.

Claimant moves for an Order compelling the production of "all materials denominated as the employment and personnel files of Parole Officer Kerri Hughes" pursuant to CPLR 3124. Defendant cross-moves for summary judgment dismissing the claim.

This action for false arrest, false imprisonment, malicious prosecution and negligence is premised on the contention that claimant's arrest and imprisonment for a purported parole violation was procured through his Parole Officer's false accusation of drug use and her failure to disclose the negative results of a urine sample prior to and/or during a preliminary parole revocation hearing. The following facts are alleged in the claim: On June 6, 2011 claimant reported to his newly assigned Parole Officer, Kerri Hughes, and was subjected to a drug test which allegedly tested positive for cocaine (claimant's Exhibit A, Amended Claim, ¶ 3 [c]). Claimant, who denied the use of cocaine at all times (id.), was immediately arrested and [*2]transported to the Albany County Correctional Facility (id. at ¶ 3 [d]). At claimant's insistence, his urine sample was sent to an independent laboratory for testing (id. at ¶ 3 [e]). On June 9, 2011 the results of the independent laboratory tests were received by Parole Officer Hughes (id. at ¶ 3 [e]). The results were negative for cocaine (id.). On June 16, 2011 a preliminary parole revocation hearing was held (id. at ¶ 3 [f]). It is alleged that Parole Officer Hughes concealed from the Hearing Officer the negative urinalysis report and falsely testified that claimant's urine tested positive for cocaine (id. at ¶ 3 [f]). The Hearing Officer found probable cause to believe claimant had violated the conditions of his parole, and claimant remained confined to the Albany County Correctional Center until his release on July 25, 2011 (id. at ¶ 3 [g]). According to the claim, claimant suffered emotional pain and suffering, loss of earnings, loss of his apartment, credit cards and health insurance as the result of Officer Hughes' conduct, (id. at ¶ 5). Claimant alleges causes of action for false arrest, false imprisonment, malicious prosecution and "common law negligence" (id. at ¶ 13). A fifth cause of action for negligent infliction of emotional distress was withdrawn (claimant's Memorandum of Law, p. 14).

Parole Officer Hughes states in an affidavit submitted in support of defendant's cross motion that she met claimant for the first time on June 6, 2011 when he appeared at the Albany Parole Office for his initial report following his move to the City of Albany from his previous residence in Troy, New York (Hughes affidavit, ¶ 8). Though new to the case, she had been informed by claimant's former parole officer that he had previously tested positive for cocaine (Hughes affidavit, ¶ 9). Parole Officer Hughes avers that at their initial meeting the claimant "verbally admitted to using crack/cocaine on June 2, 2011" but that he later denied it after a urinalysis performed in the office tested positive for cocaine (id. at ¶ 11).[FN1] Claimant, on the other hand, denies he ever admitted using cocaine and refused to sign the on-site drug and alcohol test record indicating a positive test result (see Exhibit 2, dated June 6, 2011, annexed to Hughes affidavit; Green affidavit, ¶ 5).Parole Officer Hughes avers that she discussed the claimant's case with two senior parole officers and that it was her recommendation, at that time, that claimant be declared delinquent in abiding by the conditions of his parole. A parole warrant was issued and claimant was arrested (affidavit of Kerri Hughes, ¶¶ 12-13 and Exhibit 3 attached thereto).

Parole Officer Hughes stated both in her affidavit and at an examination before trial that the urine specimen provided by the claimant was sent to an independent laboratory, which was standard procedure when a parolee denies using drugs and declines to sign a drug test report (claimant's Exhibit A attached to affirmation of Gennaro D. Calabrese dated April 9, 2013, p. 35; Hughes affidavit, ¶ 16). It is undisputed that the test results from the independent laboratory were negative for drugs (claimant's Exhibit A attached to affirmation of Gennaro D. Calabrese dated April 9, 2013, p. 54; Hughes affidavit, ¶ 18 ). It is also undisputed that these results were received in the Albany parole office by facsimile transmission on June 9, 2011 (claimant's [*3]Exhibit A attached to affirmation of Gennaro D. Calabrese dated April 9, 2013, pp. 52-53; Exhibit 6 attached to affidavit of Kerri Hughes, facsimile transmission from Norchem Drug Testing). Officer Hughes testified that test results received from independent laboratories by facsimile are placed in the respective parole officers' mailbox (claimant's Exhibit A attached to affirmation of Gennaro D. Calabrese dated April 9, 2013, p. 53). She states in her affidavit that she received the results from the laboratory on June 13, 2011 and consulted with Senior Parole Officer Casamassima (Hughes affidavit, ¶ 18). According to her affidavit, Officer Casamassima:

"advised that I had the option to dispense with the preliminary hearing and request that parole warrant number 585772 be lifted. However, upon further discussion I determined that there was sufficient evidence that Daniel Green violated the conditions of his parole based upon Mr. Green's verbal admission made on June 6, 2011 that he had used cocaine on June 2, 2011" (id. at ¶ 18).

Parole Officer Hughes' notes regarding her consultation with Officer Casamassima relate the following:

"06/13/2011 01:50PM Case Conference

SPO Casamassima consulted - PO can state the division does not have adaquet [sic] evidence to go forward w/the hearing and request to have warrant lifted" (Exhibit 1 annexed to Hughes affidavit).

The warrant was not withdrawn and a preliminary hearing to determine whether there was probable cause for the parole violation charges was held on June 16, 2011, three days after Parole Officer Hughes admittedly received the test results from the independent laboratory. It is undisputed that prior to the date of the hearing, neither claimant nor the Hearing Officer conducting the preliminary hearing were given a copy of the lab report or otherwise made aware of the results (Exhibit A annexed to Calabrese affirmation, Hughes EBT transcript, p. 58). Instead, Parole Officer Hughes testified at the hearing as follows:

"HEARING OFFICER WILLARD: Okay. Tell me about the urinalysis results.

PAROLE OFFICER HUGHES: The result was positive. We used a E-Z cup, submitted his urine to Parole Officer Scott Hurteau and at that time I came in and read the results and it was positive for cocaine" (Exhibit 7 annexed to the affidavit of Kerri Hughes, p. 7).

Following the hearing, the Hearing Officer issued the following Decision and Summary:

"Probable cause is found on charge No.1 based on the testimony of P.O. Hughes that you submitted a urine sample that tested positive and admitted to using cocaine the prior Thursday. Your denial that you made that admission is noted" (Exhibit 7 annexed to the Hughes affidavit).[FN2] [*4]

Claimant thereafter filed a Petition For a Writ of Habeas Corpus seeking his immediate

release from the Albany County Correctional Facility (Exhibit B annexed to affirmation of Gennaro D. Calabrese dated April 9, 2013). He states in the petition, dated July 11, 2011, that he appeared at a final parole revocation hearing on July 5, 2011 [FN3] and that, upon his return from the hearing, he received in the mail the independent laboratory test report indicating a negative test result (id.).

The parole records reflect that on July 6, 2011 a Parole Revocation Specialist, H.S. Jeffords, recommended cancelling the parole warrant stating:

"Reason For Recommendation: Subject is serving 6 sentences C.C. out of NYC for Rob 1 7-21 years. He was originally released in 1997 and violated in 2002. That was a Board restore. He violated again in 2005 with a domestic violence problem. That resulted in a 24 month hold.

Since his re-release in 2007 he has maintained a positive adjustment. He held two jobs, maintained a stable employment. Unfortunately, he had a relapse with cocaine. The onsite test was positive but the lab reported a negative sample. As such we can not prove this case in a final hearing. Permission requested to lift warrant. Referral will be made to a substance abuse program. He only has until November on his sentence" (defendant's Exhibit O [emphasis added]).

A Writ of Habeas Corpus issued by the Hon. Joseph C. Teresi on July 18, 2011 required that the claimant be produced before the Hon. Dan Lamont at the Albany County Judicial Center on August 1, 2011 (see Writ of Habeas Corpus, attached as Exhibit B to the affirmation of Gennaro D. Calabrese dated April 9, 2013). Claimant alleges he was released from confinement on or about July 25, 2011, following termination of the parole proceeding in his favor (claimant's Exhibit Aannexed to affidavit of Gennaro D. Calabrese dated January 3, 2013, ¶ 3 [g]).

Claimant's Motion To Compel Discovery

In support of his motion to compel production of Parole Officer Hughes' employment and personnel records, claimant asserts that the claim, as amplified by the bill of particulars, states a cause of action for negligent hiring, training, retention and supervision. According to the claimant, information contained in the records is likely to be material and necessary to the prosecution of such an action, thus warranting disclosure of the records. Defendant objects to the production of the records on the ground they are privileged under Civil Rights Law § 50-a.

Civil Rights Law § 50-a (1) exempts from disclosure the personnel records of parole [*5]officers without either the express written consent of such officer or a court order.[FN4] The law is settled that absent a legitimate need for the officer's personnel records, disclosure is prohibited. "Thus, the initial burden is on the party seeking the subject records to demonstrate 'in good faith, "some factual predicate" warranting the intrusion into the personnel records' " (Matter of Dunnigan v Waverly Police Dept., 279 AD2d 833, 834 [3d Dept 2001], lv denied 96 NY2d 710 [2001], quoting Taran v State of New York, 140 AD2d 429, 432 [2d Dept 1988] [other citation omitted]; see also Matter of Prisoners' Legal Servs. of NY v New York State Dept. of Correctional Servs., 73 NY2d 26 [1988]; People v Gissendanner, 48 NY2d 543, 549-550 [1979]; Blanco v County of Suffolk, 51 AD3d 700 [2d Dept 2008]; Telesford v Patterson, 27 AD3d 328 [1st Dept 2006]; Petroski v Petroski, 6 AD3d 1194 [4th Dept 2004]). Only after a threshold showing has been made is an in camera review of the records warranted to determine those parts of the records, if any, which are relevant and material to the claim (McFarlane v County of Suffolk, 79 AD3d 706 [2d Dept 2010]; Blanco v County of Suffolk, 51 AD3d at 702; Telesford v Patterson, 27 AD3d at 330; Petroski v Petroski, 6 AD3d at 1195; Ohnmacht v State of New York, 23 Misc 3d 1134[A], 2009 NY Slip Op 51100[U] [Ct Cl 2009]). No such showing has been made here.

In the first instance, claimant sets forth no factual basis to support his assertion of the materiality and relevance of the records sought other than counsel's good faith belief. Furthermore, while the law is well settled that personnel records may be relevant and material to claims alleging negligent hiring, retention or supervision (see e.g. Pickering v State of New York, 30 AD3d 393 [2d Dept 2006]),[FN5] the amended claim in the instant matter fails to allege facts sufficient to state such a cause of action (see Romero v State of New York, 294 AD2d 730, 733-[*6]734 [3d Dept 2002], lv denied 99 NY2d 503 [2002]). In fact, nowhere in the claim itself are the words negligent hiring, supervision or retention mentioned. As a result, the claimant's bill of particulars alleging the defendant "failed to use reasonable care in the employment, training and supervision of its employees" does not serve merely to amplify the pleadings but, rather, asserts a theory of liability not previously set forth in the claim (cf. Pickering v State of New York, 30 AD3d at 394).Inasmuch as a cause of action for negligent hiring, retention or supervision was not asserted in the claim, the requested personnel records lack relevance (Kourtalis v City of New York, 191 AD2d 480, 481 [2d Dept 1993], quoting Matter of Brandon, 55 NY2d 206, 210-211 [1982] ["[I]t is improper to prove that a person did an act on a particular occasion by showing that he did a similar act on a different, unrelated occasion"]). Claimant's motion to compel production of Parole Officer Kerri Hughes' employment and personnel files is therefore denied.

Defendant's Cross Motion For Summary Judgment

To establish a cause of action for false arrest and imprisonment a 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 451, 456 [1975], cert. denied sub nom., Schanbarger v Kellogg, 423 US 929, 96 [1975]). The law is settled that an arrest and imprisonment are privileged where the arrest is "made pursuant to a warrant valid on its face and issued by a court having jurisdiction of the crime and person . . . and this is so even though the process may have been erroneously or improvidently issued" (Boose v City of Rochester, 71 AD2d 59, 66 [4th Dept 1979]; see also Donald v State of New York, 17 NY3d 389, 395 [2011]; Davis v City of Syracuse, 66 NY2d 840 [1985]; Middleton v State of New York, 54 AD2d 450 [3d Dept 1976], affd 43 NY2d 678 [1977]; Broughton v State of New York, 37 NY2d at 457—458; Jackson v State of New York, 94 AD3d 1166 [3d Dept 2012]; Russ v State Empls. Fed. Credit Union [SEFCU], 298 AD2d 791 [3d Dept 2002]; Holmberg v County of Albany, 291 AD2d 610 [3d Dept 2002], lv denied 98 NY2d 604 [2002]; St. John v Town of Marlborough, 163 AD2d 761 [3d Dept 1990]; Mullen v State of New York, 122 AD2d 300, 301-302 [3d Dept 1986], lv denied 68 NY2d 609 [1986], cert. denied 480 US 938 [1987]). Absent an "express or inferable" allegation that the parole warrant was invalid on its face or that the issuing entity lacked jurisdiction to issue the warrant, a claim for false arrest and imprisonment lacks merit as a matter of law (Ferrucci v State of New York, 42 AD2d 359, 361 [3d Dept 1973], affd 34 NY2d 881[1974]).

Claimant does not allege any defect in the process by which he was arrested and confined or in the jurisdiction of the Parole Board which issued that process.As a result, claimant's arrest and confinement for the purported parole violation was privileged. Claimant's causes of action for false arrest and imprisonment must therefore be dismissed as a matter of law.

The Court of Appeals in Broughton clarified that "[w]hen an unlawful arrest has been effected by a warrant an appropriate form of action is malicious prosecution" (37 NY2d at 457-458). Although the causes of action for false imprisonment and malicious prosecution are related, critical distinctions give rise to different elements of proof. Whereas an action for false arrest and imprisonment redresses the violation of an individual's freedom of movement, an action for malicious prosecution redresses an individual's right to be free from unjustifiable litigation (id. at 457, 459). Thus, it not the unlawful arrest and confinement which gives rise to a [*7]malicious prosecution claim, but "the perversion of proper legal procedures" (id. at 457). "The elements of an action for malicious prosecution are (1) the initiation of a proceeding, (2) its termination favorably to plaintiff, (3) lack of probable cause, and (4) malice" (Colon v City of New York, 60 NY2d 78, 82 [1983]).

While the initiation of a "judicial proceeding" is the sine qua non of a cause of action for malicious prosecution (Broughton, 37 NY2d at 457), it is clear that the initiation of an administrative proceeding, having sufficient attributes of a judicial proceeding, may also form the basis of a cause of action for malicious prosecution (Groat v Town Bd. of Town of Glenville, 73 AD2d 426, 429 [3d Dept 1980], appeal dismissed 50 NY2d 928 [1980]; New York City Tr. Auth. v Manti, 165 AD2d 373, 381 [1st Dept 1991]; Nazario v State of New York, 24 Misc 3d 443 [Ct Cl 2009]; Glenn v State of New York, 144 Misc 2d 101 [Ct Cl 1989]; cf. Gittens v State of New York, 132 Misc 2d 399 [Ct Cl 1986]; Treacy v State of New York, 131 Misc 2d 849 [Ct Cl 1986] [prison disciplinary hearing not the type of full-scale proceeding for which an action for malicious prosecution may lie]). As stated by the Appellate Division, Third Department, "administrative proceedings which require a hearing and trial of the issues on evidence and testimony under oath, with the right of cross-examination, have sufficient attributes of judicial proceedings to be considered judicial proceedings for the purposes of a cause of action for malicious prosecution" (Groat, 73 AD2d at 429). As this Court observed in Nazario, although parole revocation hearings are classified as administrative, certain constitutional protections must be afforded the alleged parole violator because of the serious consequences which may befall a parolee if the charges are sustained (24 Misc 3d at 443; see Executive Law § 259-i). Like the issuance of an arrest warrant issued pursuant to CPL 120.20 requiring "reasonable cause to believe" that the defendant committed the offense charged, a parole warrant may be issued for the retaking and temporary detention of the releasee upon a showing of "reasonable cause to believe that the releasee has lapsed into criminal ways or company or has violated the conditions of his release in an important respect" (Executive Law § 259-i [3] [a] [i]; 9 NYCRR 8004.2 [c]). A preliminary hearing is required, unless waived, within 15 days of execution of the warrant and the standard of proof applied at the hearing is "probable cause to believe that the presumptive releasee, parolee, conditional releasee . . . has violated one or more conditions of his or her presumptive release, parole, conditional release . . . in an important respect" (Executive Law § 259-i [3] [c] [iv]). Evidence is presented regarding the charges and cross-examination of witnesses is permitted (Executive Law § 259-i [3] [c] [v]). A final revocation hearing is required within 90 days of the probable cause determination (Executive Law § 259-i [3] [f] [i]). The alleged violator is permitted representation by counsel, the right to cross-examine witnesses and present witnesses and documentary evidence both in defense of the charges and on the issue of whether reincarceration is appropriate (Executive Law § 259-i [3] [f] [v]). The presiding officer may sustain any or all of the charges "only if the charge is supported by a preponderance of the evidence adduced" (Executive Law § 259-i [3] [f] [viii]). As this Court concluded in Nazario, the statutory scheme governing the conduct of parole revocation hearings evinces sufficient attributes of a judicial proceeding to support a cause of action for malicious prosecution. The first required element of a malicious prosecution action, the initiation of a proceeding having sufficient attributes of a judicial proceeding, is therefore satisfied.

As a general rule, "any final termination of a criminal proceeding in favor of the accused, [*8]such that the proceeding cannot be brought again, qualifies as a favorable termination for purposes of a malicious prosecution action" (Smith-Hunter v Harvey, 95 NY2d 191, 195 [2000]). An exception to the rule exists, however, where the circumstances underlying termination of the criminal proceeding are inconsistent with the innocence of the accused (id. at 196; Cantalino v Danner, 96 NY2d 391 [2001]; Martinez v City of Schenectady, 97 NY2d 78 [2001]; Romero v State of New York, 294 AD2d 730 [3d Dept 2002]). Here, defendant's proof established that the parole violation charges were withdrawn after the preliminary hearing was held because, in the words of Parole Officer Hughes' superiors, "we cannot prove this case in a final hearing" (defendant's Exhibit 8 attached to the affidavit of Kerri Hughes). The termination of the proceeding was therefore final (cf. 9 NYCRR 8004.2 [g], [h]) and clearly consistent with the claimant's claim of innocence.

Lack of probable cause, the third element of a malicious prosecution claim, must also be established in a claim alleging malicious prosecution arising from parole revocation proceedings. Indeed, the standards for an arrest and detention prior to a criminal trial or final parole revocation hearing are the same. Both require probable cause. "Probable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty" (Colon v City of New York, 60 NY2d at 82). Notably, a judicial determination that there exists probable cause to effectuate an arrest and proceed to a Grand Jury creates a presumption of probable cause which is not overcome by a subsequent Grand Jury vote to dismiss the charges (Gisondi v Town of Harrison, 72 NY2d 280, 284 [1988]). A Grand Jury indictment also creates a presumption of probable cause, which is "founded upon the premise that the Grand Jury acts judicially and it may be presumed that it has acted regularly" (Colon v City of New York, 60 NY2d at 82; see also Boose, 71 AD2d at 69). However, even where a presumption of probable cause attaches, it may be overcome "by evidence establishing that the police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, [or] that they have misrepresented or falsified evidence, that they have withheld evidence or otherwise acted in bad faith" (Colon v City of New York, 60 NY2d at 82 - 83; see also Gisondi, 72 NY2d at 284). " The continuation of a criminal proceeding without probable cause may support a cause of action for malicious prosecution' " (Kinge v State of New York, 79 AD3d 1473, 1479 [3d Dept 2010] [citations omitted]).

The requirement of probable cause to arrest and prosecute a criminal defendant being no less applicable to parole violators, the presumption of probable cause that attaches upon judicial evaluation or grand jury indictment applies equally to the issuance of parole warrants and determinations of probable cause following a preliminary parole revocation hearing. To overcome this presumption, therefore, it must be shown that the arrest warrant or probable cause determination "was produced by fraud, perjury, the suppression of evidence or other . . . conduct undertaken in bad faith" (Colon v City of New York, 60 NY2d at 83). In Ramos v City of New York (285 AD2d 284 [1st Dept 2001]) the Court held that plaintiff's proof regarding defendant's failure to disclose exculpatory evidence, and incomplete witness testimony, before the grand jury, if proved at trial, would overcome the presumption of probable cause. Similarly, in Kinge an award of damages for negligent supervision and malicious prosecution was affirmed by the Appellate Division, Third Department, where fabricated fingerprint evidence and perjury by a State Police investigator resulted in the claimant's conviction of various crimes. With respect to [*9]the malicious prosecution cause of action, the trial court's finding that claimant's proof rebutted the presumption of probable cause was affirmed as a fair interpretation of the evidence.

Here, too, questions of fact exist regarding whether the subject parole revocation proceedings were continued notwithstanding the absence of probable cause. While Parole Officer Hughes may have had reasonable cause to believe claimant guilty of a parole violation when his urine sample initially tested positive, a question of fact exists whether her failure to disclose the contrary independent laboratory test results prior to the preliminary hearing, and her testimony during the course of the hearing in which she stated only that claimant's urine sample test results were positive for cocaine may reasonably be considered so misleading as to be tantamount to fraud or perjury.

Nor can the Court conclude, as a matter of law, that probable cause existed for the continuation of the parole revocation proceedings based only on Parole Officer Hughes' allegation that claimant verbally admitted using cocaine. Claimant denied ever making such an admission. Even in the face of such a statement, however, the negative test results received by Parole Officer Hughes three days prior to the hearing would appear to have provided ample reason to question the alleged admissions's veracity and/or reliability.

Malice, the last element of a malicious prosecution cause of action, " may be inferred if the defendant has acted with a reckless or grossly negligent disregard of the [claimant's] rights' " (Guntlow v Barbera, 76 AD3d 760, 766 [3d Dept 2010], quoting Harris v State of New York, 302 AD2d 716, 717 [3d Dept 2003]; see also Kinge v State of New York, 79 AD3d at 1481; Putnam v County of Steuben, 61 AD3d 1369, 1370 [4th Dept 2009]; cf. Brownell v LeClaire, 96 AD3d 1336, 1338 [3d Dept 2012]).Parole Officer Hughes' failure to reveal the negative laboratory test results prior to the preliminary hearing, and her testimony at the hearing revealing only the positive results of the test performed in her office, raise questions of fact as to whether her conduct was motivated by malice.

Inasmuch as questions of fact exist requiring a trial, defendant's motion for summary judgment dismissing the malicious prosecution action must be denied.

Turning to claimant's "common law negligence" cause of action, the law is well settled that where a negligence cause of action is asserted in the same pleading, and on the same facts, as causes of action for false arrest, imprisonment, and malicious prosecution, the negligence claim must be dismissed as a negligence cause of action may not supplant traditional tort remedies (Greer v National Grid, 89 AD3d 1059, 1060 [2d Dept 2011]; Brown v State of New York, 45 AD3d 15, 26 [3d Dept 2007], lv denied 9 NY3d 815 [2007]; Simon v State of New York, 12 AD3d 171 [1st Dept 2004]; Pandolfo v U.A. Cable Sys. of Watertown, 171 AD2d 1013, 1014 [4th Dept 1991]; cf. Kinge v State of New York). Here, no facts are alleged other than those supporting the false arrest, imprisonment and malicious prosecution claims. As a result, claimant's fourth cause of action asserted in the amended claim is dismissed.

Based on the foregoing, claimant's motion to compel discovery is denied and defendant's cross motion for summary judgment dismissing the claim is granted to the limited extent of dismissing claimant's first, second, fourth and fifth causes of action asserted in the amended claim and is otherwise denied.

Saratoga Springs, New York [*10]

May 29, 2013

FRANCIS T. COLLINS

Judge of the Court of Claims Footnotes

Footnote 1: During the course of her examination before trial, however, Officer Hughes testified that claimant initially denied using cocaine and did not admit it until after he was handcuffed (claimant's Exhibit A attached to affirmation of Gennaro D. Calabrese dated April 9, 2013, pp. 33, 42, 59).Her notes for June 6, 2011 also indicate that claimant initially denied using cocaine and then admitted it (Exhibit 1 annexed to Hughes' affidavit).

Footnote 2: The Violation of Release Report indicates claimant was charged with using cocaine on June 2, 2011 (charge # 1); failing to reply promptly and truthfully to his Parole Officer when asked about the use of controlled substances (charge 2); and using cocaine on June 6, 2011 (charge # 3). The report, dated June 9, 2011 was signed by claimant's former Parole Officer J. Premo and signed by a Senior Parole Officer M. Coleman (defendant's Exhibit J).

Footnote 3:The parole revocation hearing was adjourned upon the claimant's refusal to attend a 28-day inpatient drug treatment program.

Footnote 4: Civil Rights Law § 50-a states, in relevant part:

"All personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency . . . and such personnel records under the control of . . . the department of corrections and community supervision for individuals defined as peace officers pursuant to subdivisions twenty-three and twenty-three-a of section 2.10 of the criminal procedure law shall be considered confidential and not subject to inspection or review without the express written consent of such police officer, firefighter, firefighter/paramedic, correction officer or peace officer within the department of corrections and community supervision except as may be mandated by lawful court order."

Criminal Procedure Law § 2.10 [23] defines peace officers to include parole officers.



Footnote 5: Where an employee is acting within the scope of his or her employment when the conduct giving rise to the claim occurred, a cause of action alleging negligent hiring, investigation, training or supervision is subject to dismissal as a matter of law (Medina v City of New York, 102 AD3d 101, 108 [1st Dept 2012]; Leftenant v City of New York, 70 AD3d 596, 597 [1st Dept 2010]; Passucci v Home Depot, Inc., 67 AD3d 1470, 1471-1472 [4th Dept 2009], lv denied 72 AD3d 1658 [2010]; Segal v St. John's Univ., 69 AD3d 702 [2d Dept 2010]; Sato v Correa, 272 AD2d 389 [2d Dept 2000]).