Lazarus v State of New York

[*1] Lazarus v State of New York 2013 NY Slip Op 51444(U) Decided on August 5, 2013 Ct Cl Marin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 5, 2013
Ct Cl

Mark D. Lazarus, Claimant,

against

The State of New York, Defendant.



119460



For Claimant:

Robert Dembia, Esq.

For Defendant:

Eric T. Schneiderman, Attorney General

Edward J. Curtis, Jr., AAG

Alan C. Marin, J.

Mark Lazarus and Janet Goldstein were arrested following a verbal altercation between the two, both lawyers, at Housing Court in Bronx County on July 13, 2010. This is the decision following the trial of the claim of Mr. Lazarus brought against the defendant State of New York.

Claimant's causes of action essentially focus on three issues: was there probable cause to arrest him; was excessive force used to do so; and was claimant subject to an additional period of confinement because he refused to promise that he would not sue or otherwise complain.

The court is situated in a fairly new building (having opened in the late 1990's) located at 1118 Grand Concourse, and occupies three floors. Bronx Housing Court is a noisy, boisterous venue with litigants and lawyers spilling out into the corridors where most of the work seems to get done. It can be a place of high emotions where litigants face the risk of losing their residences. The subject incident occurred on the fourth floor which, on a daily basis, according to claimant, will see about 250 cases. [*2]

Lazarus is a partner in a law firm that does primarily landlord-tenant work; he is in Bronx Housing Court virtually every day and has been practicing there for some thirty years. A well known figure in the courthouse, familiar to the staff and other lawyers, Lazarus knew Ms. Goldstein for upwards of 20 years.

At about noon on July 13, 2010, claimant was with his client and Jason Hadley, a lawyer representing one of his client's tenants. Lazarus and Hadley were talking about the tenant's case in the corridor. Space was at a premium, so they put their papers down on a garbage can right outside the courtroom; as claimant noted, "It's used by everybody; it's like a table."[FN1]

Mr. Lazarus explained that he had been out for about a week with a bad back; it hurt when he stood still, so he said to his client, "go over the numbers with Jason," and proceeded to walk up and down the hall. When he returned (it was "not that long" claimant recalls), Janet Goldstein was talking to Jason about another case. Lazarus testified that he said something like, "Janet, what are you doing, I'm in the middle of a case," and that she responded that she did not know that - - he was not there.

Lazarus recalled that he then said to Goldstein, "my back went out, you didn't see me all last week, I'm wearing sneakers; I can't stand, I can't sit, I have to keep walking . . . let me finish my case, you just can't come in, I started saying excuse me, excuse me." He continued, "then Janet starts getting uptight," pointing out that he wasn't around, with Lazarus responding that his client and Hadley were there working on their case. Claimant said that Goldstein was "uptight, yelling and cursing at me," and that he yelled back (but he did not mention any cursing on his part). Later, on cross-examination, claimant agreed that he raised his voice, and "I may have cursed back," remarking that he was a "passionate" individual. Claimant agreed that this (initial) dispute with Ms. Goldstein lasted two or three minutes.

Claimant then walked away because, "I heard Officer Bernard say Stop' - and we did, that's why I took the walk." Claimant recalled walking back to the garbage receptacle; Ms. Goldstein was walking out of the courtroom by the stairs opposite the receptacle, and claimant testified that when Goldstein spied him, she said something again, "We had one or two words . . . next thing I know court officers were coming to arrest us," and Lazarus was issued a ticket for disorderly conduct.

The ticket describes the offense as follows: " . . .With intent to cause public inconvenience and alarm subject was yelling and using obscene language in the crowded hallway outside of the courtroom and refused several requests to stop said behavior" (def exh A).

Officer Harvel Bernard was assigned to the fourth floor on the day in question. The officer was a credible witness with a matter-of-fact demeanor. He conveyed no animus towards claimant, whom he had known for six years as of that day. Bernard described Lazarus as always respectful, never condescending, and said that he had not previously ignored the officer's requests.

With that said, what Bernard says he saw and heard differs in significant respects from claimant's version of events or perhaps knowledge of events (Lazarus testified that because he was focused on Goldstein, he may not have heard the officer). Officer Bernard said that he was [*3]ten feet or so away from the two of them and heard claimant shouting and cursing with another attorney, Ms. Goldstein, whom the officer had also known for some time - - five or six years. While the dispute unfolded, Bernard was not aware of the subject, but testified that he heard claimant say, "get out of my way fat bitch." For her part, according to the officer, Goldstein said, "fuck you" and the officer recalled that she "kept saying it."

According to Bernard, the two lawyers were "very loud." The officer said there was "quite a crowd" on the fourth floor at the time, at least 50 persons. Some bystanders were "shocked," and some became "interested" in the situation. Bernard testified that since he was friendly with claimant, he initially handled it this way: "Mark, this is not the place, keep your voice down, this is a courthouse." He also turned to Janet, and made essentially the same plea, adding, " Stop the cursing." But both ignored him. Then he gave them "several requests" and the two lawyers continued to ignore him. Bernard also estimated the time of this first round at a few minutes.

Seeing Lazarus then walk back into a courtroom, Bernard believed that the dispute was at its end. But the officer said that claimant came out in a few minutes and "[he] and Ms. Goldstein went right back at it." Officer Bernard testified that he informed the two lawyers that if they kept it up they would be arrested. According to the officer, people were gathering around, the sound level was increasing, things were "getting out of control. I was concerned; I was the only officer." So Bernard got on his radio and called for assistance, explaining that he knew that once he made such call, he expected Lazarus and Goldstein to be arrested.

Bernard was credible in his testimony that he told claimant (and Goldstein) "more than twice" to lower things, and that it was "not possible" that claimant had not heard him. Bernard recalled that bystanders were grumbling that if they were acting like that, they would be locked up.

Also taking the stand at trial were Officer Emmanuel Ortiz and Harold Bordowitz, a lawyer with the Lazarus firm, neither of whom witnessed the Lazarus-Goldstein confrontation. Officer Ortiz effected the arrest, handcuffing claimant (assisted by Major Bernardo Aviles) and Mr. Bordowitz testified about the way the handcuffs were applied. In addition, we heard portions of the depositions of Major Aviles and Lieutenant Michael Peace.

Aviles noted that when he arrived on the scene, there were quite a few officers and a "lot of people . . . some people carried on, some were curious." Lt. Peace testified that he "tried" to speak to claimant when he got to the fourth floor, but that Lazarus was "not accountable," was upset and didn't just say something like, "sorry, I had a bad day." Such observation of claimant was apparently made prior to the handcuffing because the lieutenant said that the decision to arrest was not his call, but was the major's to make. Peace testified that everybody has a bad day, and he did not want to see Lazarus put through the system.

* * *

The ticket issued to claimant specified subdivision 3 of Penal Law § 240.20, which provides that "A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . In a public place, he uses abusive or obscene language, or makes an obscene gesture . . ."

The offense of disorderly conduct is one addressed to the public dimension and comprehends the potential, as well as the immediate, effect thereon: "The clear aim was to [*4]reserve the disorderly conduct statute for situations that carried beyond the concern of individual disputants to a point where they had become a potential or immediate public problem" (People v Munafo, 50 NY2d 326, 331[1980]; see also People v Baker, 20 NY3d 354 [2013] and People v Weaver, 16 NY3d 123 [2011]).

This trier of fact concludes that claimant was loud, used abusive or obscene language that attracted the attention of the already crowded corridor, had been told on several occasions to cease and was acting at least recklessly, if not with intent. Thus, there was probable cause to arrest Mr. Lazarus.

This was not a situation limited to the two disputants. In that regard, claimant in his post-trial submission cites DePaula v State of New York, 24 Misc 3d 1222(A) (Ct Cl 2009), affd 82 AD3d 827 (2d Dept 2011): " . . . DePaula . . . noticed the same Court Officer walking down the aisle towards him, and when he arrived beside him he said something to the effect that you should know better, you're not supposed to use a cell phone in the courtroom.' At that point, the claimant said to the Court Officer: You're just being a prick.' According to the claimant, the foregoing exchange between them had been in a conversational tone, but at that point the Court Officer became angry and said to him: You called me a prick, you're under arrest.'"

An eyewitness confirmed that DePaula's tone was soft and calm. There was no finding of any impact beyond DePaula and the officer.

Claimant maintains, on a number of grounds, that Lazarus (and Goldstein) were unfairly targeted - - two lawyers had had a heated dispute the previous week, nothing had happened to them and the powers that be decided to crack down; secondly, the comments of bystanders that if it were them they would have been arrested improperly goaded the officers into action here. Claimant offers insufficient factual and legal basis for this Court to so conclude. Among other things, we received no direct evidence on the previous week's alleged incident, a number of witnesses said only they had heard about it. This is not to say that if proven, such would necessarily implicate some legal flaw in Lazarus' subsequent arrest.

* * *

An otherwise lawful arrest can still be actionable where excessive force was used, as this Court found in Raefski v State of New York, UID No. 2004-016-040 (Ct Cl, Marin, J., July 21, 2004). Lazarus testified that when Major Aviles directed him to put his hands behind his back to be cuffed, he said he was unable to because of a bad back, but Aviles proceeded to do so. Bordowitz testified that he saw the Major forcibly put claimant's hands behind his back and that Lazarus winced and exclaimed in pain. Lazarus testified that Goldstein, who he thought had a bad shoulder, was cuffed in front for that reason, but it was unclear if claimant saw this directly.

In any event, no precedent was offered that the facts as presented by claimant (and his colleague at the firm) support a claim for excessive force. Officer Ortiz testified that he went to take Lazarus' hand, but that Lazarus pulled away, saying he did not want to be cuffed, and then the Major took his arm behind his back and told Ortiz to apply the cuffs. Ortiz recalls that Lazarus complained about his back, and "I told him to stop fighting and just relax; I won't put the cuffs too tight." [*5]

Officer Ortiz testified that everything in this matter was done by the book: summons, handcuffing, removal to a secure area and a warrant check, facts which were not materially challenged. Lazarus was taken downstairs in the elevator, searched, his property inventoried, and placed in one of three pens. He was there less than an hour; some of the time was needed to check for outstanding warrants, which is standard - - the summons has a "Yes" or "No" box for "Warrant Check" (def exh A).

Claimant argues that he was detained longer than necessary because he refused to promise that he would not sue or otherwise file a complaint over the incident. He quoted Major Aviles as saying to him that he could not stop him from filing a lawsuit - - there is no basis to conclude that the officers would assume that a verbal exchange in a detention pen would preclude a subsequent lawsuit or other recourse. Overall, there is no basis in fact or law to support such cause of action.

In view of the foregoing, the Court finds that Mark Lazarus has failed to meet his burden of proof on his claim, and the Clerk of the Court is directed to dismiss claim No. 119460.

LET JUDGMENT BE ENTERED ACCORDINGLY.

New York, New York

August 5, 2013

ALAN C. MARIN

Judge of the Court of Claims Footnotes

Footnote 1: A trial transcript was not ordered; quoted testimony in this decision is drawn from the notes made by the Court from the audio recording of the trial.