Stegemann v Rensselaer County Sheriff's Off.
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Stegemann v Rensselaer County Sheriff's Off. 2015 NY Slip Op 32513(U) September 14, 2015 Supreme Court, Rensselaer County Docket Number: 248213-14 Judge: Patrick J. McGrath Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] At an !AS Tenn of the Rensselaer County Supreme Court, held in and for the County of Rensselaer, in the City of Troy, New York, on the 61h day of July 2015 RESENT: HON. PA TRICK J. McGRATH, JSC TA TE OF NEW YORK SUPREME COURT COUNTY OF RENSSELAER osbua G. Stegemann, Plaintiff, Decision and Order Index No. 248213-14 -againstensselaer County Sheriff's Office, Rensselaer County, Rensselaer County Emergency esponse Team, Rensselaer County District Attorneys Office, Jack Mahar, Pat Russo, Richard . McNally, Jr., Art Hyde, Steve Wohlleber, William Webster, Shane Holcomb, J.S. Robclotto, ark Geracitano, Sandra Blodgett, Justin Wal read, Jami Panichi, New York National Guard, ichard J. Sloma, Chris Clifford, Warren County Sherifrs Office, Warren County, Nathan ork, Christopher Perilli, New York State Police, New York State Police SORT, Investigator iley, Fulton County Sheriff's Office, Fulton County, Berkshire County Sheriff's Office, erkshire County, Thomas Bowler, Scott Colbert, Pittsfield Police Department, City of ittsfield, Michael Wynn, Tyrone Price, John Mazzeo, Glenn F. Decker, Glenn Civello, assachusetts State Police, Captain of the Massachusetts State Police Troop B, David Brian oley, Travis McCarthy, William Scott, Dale Gero, Michelle Mason, John Stec, Todd Patterson, teve Jones, Berkshire County District Attorney's Office, David F. Capeless, Richard Locke, erkshire County Drug Task Force, Cellco Partnership, d/b/a Verizon Wireless, and ubsurface Informational Sun>eys, Inc., Defendants. PPEARANCES: JOSHUA G. STEGEMANN Self Represented Plaintiff HON. ERIC T. SCHNIEDERMAN (Tiffany M. Rutnik, of Counsel) For the Defendants New York State Police, Daniel P. Kiley, New York .State Army and Air National Guard, Richard Sloma, and Christopher Clifford n 10Ja1J r ~unJ.:f n'.}Uno:) Jau1assua)j dOt~IO SIOl'Sl doS Ef:J ! jJQ S~1Ji111J n'.}Uf'tO:) pall! a::r<1)j [* 2] cGRA TH, PATRICK J., J.S.C. " Plaintiff brings this motion for ;;no cost service" of his complaint and summons upon the efendants at their own expense as well as a motion. for an extension of time for service pursuant to PLR 306-b. Defendants New York State Police, Daniel P. Kiley, New York State Army and Air National uard, Richard Sloma, and Christopher Clifford (hereinafter, the "State defendants") oppose laintiff's motion, and bring a cross motion to dismiss. Plaintiff also moves to covert his opposition nto a motion for summary judgment pursuant to CPLR 3211 [c], and for an order compelling the State efendants to disclose the "reports" relied upon as referenced in the Affidavit of Daniel P. Kiley. dditionally, that the Court issue a subpoena to the Columbia County Jail to disclose his mail logs. he State defendants oppose this relief. The complaint alleges that various county law enforcement and district attorneys offices, state olice entities, individual officers and investigators, members of the National Guard, and private elecommunications services have violated his constitutional rights. Between April 30, 2013 and May , 2013, numerous defendants executed an allegedly invalid warrant to search and seize various roperty from Stegemann's residence in Stephentown, New York. Stegemann contends that his roperty was destroyed with his personal property being broken and scattered, residence walls being ipped down, gardens being destroyed, and yard excavated. Stegemann contends that the search arrant by which his property was searched and seized was improperly signed by a Rensselaer County udge who did not possess authority to sign the warrant. Further, Stegemann contends that once he as placed into the Rensselaer County Jail, his calls were improperly monitored and recorded. inally, Stegemann alleges that his cell phones, and the calls and text messages he sent and received, ere also unlawfully intercepted pursuant to wiretaps, pen registers, and trap and trace devices. The search warrants lead to the discovery of the following: Found buried in the grounds and in a rock wall located in the area which Stegemann was fleeing, were 819. 9 gross grams of cocaine and a handgun. Seized from within his bedroom was a loaded shotgun. Also discovered in the residence was a highly advanced surveillance system, along with 2066 gross grams of suspected marijuana and $16,000 of U.S. currency. Discovered and seized on the grounds of the residence were 108.2 gross grams of crack cocaine, 80.1 gross grams of cocaine, 100. I gross grams of heroin, 86 gross grams of oxycodone and $280, I 00 of U.S. currency. Found in the fields adjoining Stegemann's residence, investigators also seized 819.9 gross grams of suspected cocaine, 69.2 gross grams of oxycodone and 114.5 gross grams of heroin. On June 3, 2013, a federal criminal complaint was filed naming Joshua Stegemann as efendant. 2 [* 3] On September 18, 2013, the case was indicted. United States v. Stegemann, No. 13- CR-357 G LS). The three-count Indictment charged Stegemann with ( l) Possession with Intent to Distribute ontrolled Substances; (2) Possession of Firearms in Furtherance of a Drug Trafficking Crime; and 3) Possession of Firearms and Ammunition by a Prohibited Person. Stegemann entered a not guilty lea, and filed a motion to dismiss part of the indictment and to suppress various evidence. On July 29, 2014, Stegemann's motion to suppress evidence derived from the wiretaps and urveillance was denied. The Court reserved on whether the evidence intercepted from the Rensselaer aunty Jail, and any evidence derived therefrom, was admissible. United States v. Stegemann, 40 . Supp.3d 249 (NDNY 2014). Stegemann commenced a civiJ,rights complaint pursuant to 42 USC§ 1983 in federal court n the Northern District of New York against the same defendants as captioned above, as well an pplication for permission to proceed in for ma pauper is (IFP). In accordance with Section 1915(e) fTitle 28 of the United States Code, when a plaintiff seeks to proceed IFP, "the court shall dismiss he case at any time if the court determines that ... the action or appeal (i) is frivolous or malicious; ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief again'st a efendant who is immune from such relief." 28 U.S.C. § l 9 l 5(e)(2)(B). Thus, the matter was referred o US Magistrate Judge Hummel to determine whether plaintiff could properly maintain his complaint efore permitting him to proceed further with his action. On February 2, 2015, Judge Hummel issued his report/recommendation and held that the ction should be dismissed, pursuant to 28 USC 1915 for failure to state a cause of action upon which elief can be granted and lack of subject matter jurisdiction. Further, Judge Hummel found that laintiff would be unable to amend the complaint in a manner that would survive dismissal. te emann v. Rensselaer Count Sheriffs Office, 2015 U.S. Dist. LEXIS 20229 (NDNY 2015). Specifically, the Court found that all of Stegemann's Fourth and Fifth Amendment claims ere barred by Heck v .. Humphrey, 512 US 477 (1994). ln that case, the Supreme Court decreed, in ertinent part, that"in order to recover damages for allegedly unconstitutional conviction or mprisonment, or for other harm caused by actions whose unlawfulness would render a conviction r sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed n direct appeal," or that it would "otherwise be invalidated." The Supreme Court further stated that uch a claim would not otherwise be cognizable under the statute, and that if the district court were o determine that" a judgment [on the§ 1983 claim] in favor of the plaintiff would necessarily imply he invalidity of his conviction or sentence," it must dismiss the case until the litigant can prove that he conviction has been so invalidated." Judge Hummel detem1ined that the evidence that was seized n and surrounding Stegemann's property was the very basis of the pending criminal indictment. 'Thus, in finding that the warrant was invalid in this civil suit, the Court would be challenging the xact vehicle through which the named law enforcement agencies found the drugs, guns, and money hich compromise the evidence in the criminal indictment... were Stegemann to succeed on any heory espoused above~ he would necessarily call into question the validity of [the] theory behind his ending criminal prosecution." The Court found that all claims concerning the search warrants and 3 [* 4] he wiretaps would necessarily imply the invalidity of the indictments and prosecution, and that they ere all Heck barred. With respect to Stegemann's J41h Amendment claims concerning the unlawful estruction and seizure of property, Judge Hummel held that the federal courts do not provide redress or deprivation of property if there is an adequate state court remedy for the plaintift: and that Stegemann could proceed via Article 78, and seek monetary damages in the Court of Claims for any !aims against New York State. Finally, the Court noted that the complaint named several New York efendants, and that Stegemann was a citizen of New York, and thus he had not established complete iversity, depriving federal court of jurisdiction. On February 19, 2015, District Judge Thomas J. McAvoy accepted and adopted the ecommendation of Magistrate Judge Hummel and dismissed the action with prejudice. Stegemann . Rensselaer Count Sheriffs Office, 2015 U.S. Dist. LEXIS 20230 (NDNY Feb. 19, 2015) On August 5, 2015, plaintiff was convicted by a federal jury of all three counts of the ndictment. He is scheduled to be sentenced on December 2, 2015. Press Release, Department of ustice, U.S. Attorney's Office, Northern District of New York: "Jury Convicts Stephentown Man f Possessing Cocaine, Heroin And Oxycodone With The Intent To Distribute," ttp://www.justice.gov/usao-ndny/pr/jury-convicts-stephentown-man-possessing-cocaine-heroin-a d-oxycodone-intent-distribute. Plaintiff Stegemann has now commenced the present civil rights action on an essentially dentical complaint as the one filed in federal court, against the same defendants, asserting the same !aims. Specifically, Stegemann asserts claims for Constitutional Tort in violation ofNY Const Art 12, violations of the Massachusetts Declaration of Rights, Art IVX, violation of the 4ih, 5ih and 4 1h Amendments to the United States Constitution, violations of New York Criminal Procedure Law · § 690.05, 690.25, 690.35, 690.45, as well as the Federal and Massachusetts wiretap statutes. Again, e claims that defendants illegally monitored and recorded his calls prior to his arrest and those he ade from the County Jail. He claims that search warrants issued by Rensselaer County Court were llegal because the judge did not sit as a local court. He claims that law enforcement seized property utside the particulars of the warrant and destroyed his real property. ,* In this motion, plaintiff states that he served the above captioned defendants between March and 7, 2015 pursuant to CPLR §312-a. On March 7, 2015, he ti led a copy of the Complaint, ummons, Notice of Service and an affirmation of service with the County Clerk. Between March and 17, 2015, he served the defendants with an additional CPLR §312-a Notice and a pre-stamped elf addressed envelope. Plaintiff claims that the defendants were required to return a copy of the cknowledgment of Receipt within 30 days of receipt, but that he has not received an cknowledgment of Receipt from any defendant, or an Answer from any defendant. He cknowledges that he is required to effect service by some other means if the defendants fail to rovide the Acknowledgment of Receipt within 30 days ofreceipt, but that the "novel circumstances" f this case preclude him from effecting service as otherwise set forth in Article 3. These ircumstances include being an inmate, subject to immediate transfer at any time, and being an dj udged "poor person." He also claims these circumstances constitute good cause to extend the time 4 [* 5] or service pursuant to CPLR §306-b. He requests that the Court order service in a manner the Court eems necessary (CPLR § 308(5)), and that the cost be charged to the defendants. The State defendants argue that service was improper and that plaintiff has failed to effect ervice within the 120 days from the filing of the summons and complaint, which occurred on ecember 8, 2014. Defendants note that plaintiff failed to strictly adhere to the statutory requirements hat a summons and complaint be served by mailing to each person or entity to be served, by first lass mail, postage prepaid, a copy of the summons and complaint, together with two copies of a tatement of service by mail and acknowledgment of receipt, with a return envelope, postage prepaid, ddressed to the sender. Defendants note that plaintiff failed to provide two copies of the statement f service, failed to provide two copies of the acknowledgment, and failed to provide these papers to ach individual defendant. Defendants also argue that service was defective where plaintiff served rocess only by mail under CPLR § 312-a, defendant did not return acknowledgment, and plaintiffs id not attempt another manner of service. In reply, the plaintiff contends that the defendants have consented to jurisdiction by raising ther grounds for dismissal in their pre-answer motions in addition to their jurisdictional objections. 1 'An appearance by a defendant in an action is deemed to be the equivalent of personal service of a ummons upon him [or her], and therefore confers personal jurisdiction over him [or her], unless he ·or she] asserts an objection to jurisdiction either by way of motion or in his [or her] answer' .11 Ohio av. Bank v Munse , 34 AD3d 659, 659 (2006) quoting Skyline Agency v Coppotelli. Inc., 117 D2d 135, 140 ( 1986); see CPLR 320. "The effect of the adoption of CPLR 320 [b] was to abolish he special appearance and to permit the joinder of a defense on the merits with an objection lo urisdiction. In re Katz, 81 A.D.2d 145; Colbert v. lntemational Sec. Bureau, Inc., 79 A.D.2d 448 (2d ept. 1981 ). Therefore, plaintiff's claims in this regard lack merit, and the Court will consider the urisdictional question. The service requirements of CPLR §312-a are stated above, and courts construe them strictly. ee Strong v. Bi-Lo Wholesalers, 265 AD2d 745 (3d Dept. 1999); Nagy v. John Heuss House Drop n Shelter for the Homeless, 198 AD2d 115 (1 si Dept. 1993). It also is well established that mailing f process pursuant to CPLR § 312-a does not effect personal service; service is complete only when cknowledgment of receipt is mailed or returned to sender. Wells Fargo Bank, N.A. v Wine, 90 AD3d 216 (3d Dept. 2011 ); Koulkina v. City of New York, 559 F.Supp.2d 300 (SDNY 2008); Horseman nti ues Inc. v. Huch, 50 AD3d 963 (2d Dept. 2008); Dominguez v Stimpson Mfg. Corp., 207 D2d 375 (2d Dept. 1994); Shenko Electric, Inc. v Harnett, 161AD2d1212 (4 1ti Dept. 1990); Nagy . John Heuss House Oro In Shelter for the Homeless, supra; Patterson v Balaquiot, 188 AD2d 275 P 1 Dept. 1992). While the plaintiff requests that the Court issue a subpoena to the Columbia County Jail where he was housed when he attempted to serve the defendants) to produce his mail logs, to verity hat "all papers were mailed out to all parties to this lawsuit", he does not assert anywhere that he ully complied with the directives of 312-a, nor does his "Affirmation of Service" indicate proper ervice. The "Affirmation of Service" attached to plaintiffs papers is a generic Affirmation, with an 5 [* 6] riginal signature, addressed to "above listed defetid~nts" which states that they are being served with copy of the necessary papers. Obviously, if this Affirmation contains an original signature, it was ot mailed. Even if it was, there is no indication that the defendants returned the mailed cknowledgment ofreceipt to plaintiff, or- that he attempted another manner of service in the requisite ime period. Contrary to the plaintiff's contention, defendants are not obligated to "cooperate" with im. Rather, the obligation was on the plaintiff to attempt another manner of service if he did not eceive the Acknowledgment within 30 days. See Siegel, Practice Commentaries, McKinney's Cons aws of NY, Book 7B, § 312-a, at 17. Having failed to properly serve the defendants, plaintiff now aves for an extension of time to serve pursuant to CPLR 306-b, and for alternate service. Service of the summons and complaint shall be made within one hundred twenty days after he commencement of the action. CPLR 306-b. In Leader v Maroney, Ponzini & Spencer, 97 NY2d 5 (200 I), the Court of Appeals articulated that a determination as to whether to grant an extension f time under the "interest of justice" standard of CPLR 306-b is a discretionary determination equiring: "a careful judicial analysis of the factual setting of the case and a balancing of the ompeting interests presented by the parties. Unlike an extension request premised on good cause, plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, the ourt may consider diligence, or lack thereof, along wit~ any other relevant factor in making its etermination, including expiration of the Statute of Limitations, the meritorious nature of the cause faction, the length of delay in service, the promptness of a plaintiffs request for the extension of ime, and prejudice to defendant." Id. at 105-106; see also Della Villa v Kwiatkowski, 293 AD2d 886, . 87 (3d Dept 2002). As to the interest ofjustice standard, a review of the complaint and the papers before the Court ndicates that the plaintiffs claim ofnovel circumstances preventing him from making proper service re not in fact novel; the Third Department has upheld the dismissal of cases where other inmates ailed to effect service pursuant to CPLR 312-a. See Clarke v Smith, 98AD3d 756 (3d Dept. 2012); ilaire v. Dennison, 24 AD3d 1152 (3d Dept. 2005); Strong v. Bi-Lo Wholesalers, 265 AD2d 745 3d Dept. 1999). When the Court must detennine a motion pursuant to CPLR 306-b, "[t]he most significant actor ... is whether the action is meritorious." Pierce v. Village of Horseheads Police Dept., I07 D3d 1354, 1357-58 (3d Dept. 2013). Therefore, the Court will examine the complaint to determine hether the plaintiff has a meritorious cause of action. The State defendants argue that Judge Hummel's decision bars the plaintiffs instant claims ased on the doctrine of resjudicata. "Under resjudicata, or claim preclusion, a valid final judgment ars future actions between the same parties on the same cause of a~tion. As a general rule, once a Iaim is brought to a final conclusion, all other claims arising out of the same transaction or series of ransactions are barred, even if based upon different theories or if seeking a different remedy." Parker Blauvelt Volunteer Fire Co., 93 NY2d 343, 347 (1999) (citations and quotation marks omitted). It swell settled that "[t]he general doctrine of resjudicata gives binding effect to the judgment of a ourt of competent jurisdiction and prevents the parties to an action, and those in privity with them, 6 [* 7] rom subsequently re-litigating any questions that were necessarily decided therein." Landau v aRossa Mitchell & Ross, 11 NY3d 8, 13 (2008) quoting In re Shea's Will, 309 NY 605, 616 ( J 956). Collateral estoppel, by contrast, precludes a party from relitigating an issue that has already een decided against that party. Tuper v Tuper, 34 AD3d 1280, 1282 (2006). "Two requirements must e met before collateral estoppel can be invoked. There must be an identity of issue which has ecessarily been decided in the prior action and is decisive of the present action, and there must have een a full and fair opportunity to contest the decision now said to be controlling ... The litigant eeking the benefit of collateral estoppel must demonstrate that the decisive issue was necessarily ecided in the prior action against a party... The party to be precluded from relitigating the issu~ ears the burden of demonstrating. the absence of a foll and fair opportunity to contest the prior etermination." Buechel v Bain, 97 NY2d 295, 303-04 (200 I), cert denied 535 US J 096 (2002). Upon reviewing the complaint submitted in the tederal action, it is readily apparent that the ih and 5 h Amendment claims pertaining to both the search warrants and the wiretaps (including those )aims made pursuant to the federal wiretap statute) were squarely raised and conclusively decided o be Heck barred in the Federal action. The Court also notes that plaintiff has now been convicted fall crimes contained in the indictment, and that civil recovery in this Court would impugn that .onviction. Additionally, this Court concludes that plaintiff is barred by resjudicata and collateral Stoppel from asserting those § 1983 claims here. 1 However, dismissal of an action by a federal court does not have preclusi ve effect when the ederal court declines to exercise its pendent jurisdiction over related state law claims, or otherwise ismisses those claims without prejudice. See McLeam v Cowen & Co., 60 NY2d 686, 688 ( 1983); rown v State of New York, 9 AD3d 23 (3d Dept. 2004); Landsman v Village of Hancock, 296 D2d 728, 733 (3d Dept. 2002). The State defendants also argue that the suit lacks merit because sovereign immunity protects ny state official acting in his or her official capacities from suit for federal civil rights violations, and hat the Eleventh Amendment precludes claims against the state unless the state has expressly waived ts immunity, or Congress has expressed its intent to override such immunity under the Fifth mendment. A citizen may prosecute a claim under 42 USC § 1983 against a person who, under color of. tate law, causes a deprivation of the citizen's rights, privileges or immunities secured by the onstitution or federal laws. Due to sovereign immunity under the Eleventh Amendment, the state tself is not considered a "person" subject to suit under 42 USC § 1983; neither are state officers or mployees acting in their official capacities, as they are considered mere agents of the state. See Will Michi 1an De t. of State Police, 491 US 58, 71 ( 1989); Kentucky v Graham, 473 US l 59, 65-67( 1985); see also Matter of Gable Transp. v State of New York, 29 AD3d 1125, 1128 (3d Dept. 006). Contrary to plaintiffs assertions, 42 USC § l 983 does not allow for recovery against the State nder respondeat superior principles. Monell v New York Citv Dept. of Social Servs., 436 US 658, 91-94 (l 978). In this case, all of plaintiffs papers and affirmations make clear that the acts 7 [* 8] complained of plainly occurred in the exercise of defendants' governmental functions .. The Court agrees with the State defendants, but would note that there is an exception to the eneral rules stated above, namely, "where the municipality itself causes the constitutional violation t question." Canton v. Harris, 489 US 378, 385 ( 1989) citing Monell v. New York Dept of Social ervices, 436 US 658 ( 1978). The municipality itself causes the injury when either: ( l) the execution f the government's policy or custom causes the injury (Monell, 436 US at 694); or (2) the act of an mployee with final policy making authority in the particular area involved causes the injury (St. ouis v. Pra rotnik, 485 US 112, 121-23 (1988)). In this case, plaintiff has failed to allege the xistence of a policy or custom that caused the alleged violations, and therefore, does not fall within his exception. The Court notes that plaintiff makes various arguments concerning the viability of his claims gainst the State of New York, but out of the over fifty defendants sued in this action, the State of ew York is not among them. Nor would a suit against the State of New York be proper in Supreme ourt, as such actions are within the exclusive jurisdiction of the Court of Claims. N.Y. Const. art. I, § 9; see also Morell v Balasubramanian, 70 NY2d 297, 300 (1987) ("[A]ctions against (sJtate fficers acting in their official capacity in the exercise of governmental functions are deemed to be, n essence, claims against the [s ]tate and, therefore, suable only in the Court of Claims"). Plaintiff argues that his claims pursuant to Article I,§ 12 of the New York State Constitution re cognizable, and cites Brown v State of New York, 89 NY2d 172, 192 ( 1996). In that case, laintiffs alleged that state and local law enforcement officials investigating a reported knitepoint ttack allegedly engaged in racially motivated interrogations, citywide, ofnonwhite males in violation f their State constitutional rights; none of the plaintiffs was charged with a crime. The Court held hat implying a damage remedy was not only consistent with the purposes of the Search and Seizure nd Equal Protection Clauses that had allegedly been violated but also "necessary and appropriate lo nsure the full realization of the rights they state." Id. at 189. The remedy recognized in Brown, supra, ddressed two interests: the private interest that citizens harmed by constitutional violations have an venue ofredress, and the public interest that future violations be deterred. Under the facts of Brown, ·upra, neither declaratory nor injunctive relief was available to the plaintiffs, nor--without a rosecution--could there be suppression of illegally obtained evidence. As the Court noted in artinez v. Cit of Schenectad , 97 NY2d 78, 83 (2001), for the plaintiffs in Brown, supra. it was 'damages or nothing." Martinez v. City of Schenectady, 97 NY2d 78, 83 (2001 ). In strong contrast with Brown was the plaintiff in Martinez, supra. In that case, pursuant to search warrant, defendants - Schenectady police officers- entered the residence of plaintiff Melody artinez, and seized four ounces of cocaine from a dresser drawer in her bedroom and arrested her. he Court of Appeals held that "[r]ecognition of a constitutional tort claim here is neither necessary o effectuate the purposes of the State constitutional protections plaintiff invokes, nor appropriate to nsure full realization of her rights. Without question, the cost to society of exclusion of evidence and onsequent reversal of plaintiffs conviction notwithstanding proofof guilt beyond a reasonable doubt ill serve the public interest of promoting greater care in seeking search warrants. Unlike in Brown, 8 [* 9] ., he deterrence objective can be satisfied here by exclusion of the constitutionally challenged evidence." The Court concluded that plaintiff failed.to assert a cognizable constitutional tort claim. ee also Flemming v State ofNew York, 120 AD3d 848 (3d Dept. 2014); Waxter v. State of New York, 33 AD3d 1180 (3d Dept. 2006); Peterec v State ofNew York, 124 A.D.3d 858 (2d Dept. 2015); M Bus. Assoc. Inc. v State of New York, 124 AD3d 1215 (4in Dept. 2015). The instant plaintiff had the ability to contest the admissibility of the evidence against him ithin the context of the federal criminal proceeding. As noted above, the cost to society of the otential exclusion of evidence and consequent reversal of plaintitTs conviction notwithstanding roof of guilt beyond a reasonable doubt will serve the public interest of promoting greater care in eeking search warrants. As plaintiff does not fall in the "damages or nothing" category, he fails to ssert a cognizable constitutional tort claim under the New York Constitution. With respect to plaintiffs claims that the ofticers seized property outside the scope of the arrant, including a "weed whacker, tractors, la\vnmowers, ATV's, generators, power tools, home ecords, personal papers, chain saws, vehicles, etc." The plaintiff has provided the Court with a copy fthe Search Warrant Application and the Search Warrant. The warrant specifically includes papers books, records, receipts) related to the sale and/or distribution of controlled substances. The warrant Isa includes "rented vehicles" and "vehicles registered" to plaintiff. Finally, the warrant includes 'stolen property such as but not limited to'' a lawnmower, a raptor ATV, and a ;'cub car." Therefore, t appears from the very face of the warrant that plaintiffs claim lacks merit. The entirety of the instant analysis has been focused on whether plaintiff has a meritorious ause of action, such that he can correct the improper service he attempted via CPLR 312-a. Pierce . Villaoe of Horseheads Police De t., supra C'[t]he most significant factor here is whether the action s meritorious."). The Court has already determined that plaintiff has failed to provide a reasonable xcuse as to why he failed to follow the service requirements of CPLR 312-a, nor has he emonstrated that his incarceration prevented him from effecting proper service. The Court notes that ncarceration has not prevented plaintiff from attempting to commence two civil rights lawsuits, and rom extensive motion practice in both the federal court (in his civil and criminal cases) and before his Court. Further, an analysis of the instant complaint demonstrates that it is rife with procedural nd substantive impediments. Considering all of the factors, but especially given the lack of merit, n extension of time to effect service is not warranted in the interest of justice. As plaintiff has failed to obtain personal jurisdiction over the State defendants, his cross otion to convert the State defendants' motion to dismiss into one for summary judgment, as well s the motion seeking discovery and subpoenas, cannot be entertained, as the Court has no jurisdiction ver these defendants. Therefore, in accordance with the foregoing, it is hereby ORDERED that the plaintiffs motion for "no cost service" of his complaint and summons pon the State defendants at their own expense is denied, and it is further 9 [* 10] ORDERED that the plaintiff's motion for an extension of time for service pursuant to CPLR 06-b is denied, and it is furthef ORDERED that the complaint is dismissed as to New York State Police, Daniel P. Kiley, ew York State Anny and Air National Guard, Richard Sloma, and Christopher Clifford, and it is urther · ORDERED that plaintiffs motion to covert the motion to dismiss by defendants into one for ummary judgment, and for discovery and/or subpoenas, is denied. This shall constitute the Decision, Order and Judgment of the Court. This Decision, Order nd Judgment is being returned to the attorneys for the New York State Police, Daniel P. Kiley, New ork State Army and Air National Guard, Richard Sloma, and Christopher Clifford. All original upporting documentation is being filed with the Rensselaer County Clerk's Office. The signing of his Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved rom the applicable provisions of that rule relating to filing, entry, and notice of entry. Dated: September 14, 2015 Troy, New York n ,,, 10 [* 11] a ers Considered: 1. Notice of Motion, dated May 8, 20 l 5; Memorandum of Law in Support of Motion for Service of Complaint and Summons upon Defendants at their own Expense and Motion for Extension of Time for Service of Process upon Defendants Pursuant to CPLR 306-b, dated May 8, 2015. Notice of Cross Motion to Dismiss, dated June 11, 2015; Affidavit, Daniel P. Kiley, Esq., dated June 1, 20 I 5, with annexed Exhibits A-C; Affirmation, Robert G. Conway, Esq., dated June l l, 2015; Affirmation, Amanda N. Nissen, Esq., dated June 2, 2015; Affidavit, Michel A. Natali, dated June 11, 20 l 5, dated A-D; Affirmation, Tiffany M. Rutnick, Esq., dated June l 0, 2015, with annexed Exhibits A-F; Memorandum of Law in Opposition to Plaintiffs Motion to An Order Compelling Service at State Defendants' Expense and in Support of State Defendants' Cross Motion to Dismiss, Tiffany M. Rutnick, Esq., dated June 12, 2015. Notice of Cross Motion for Summary Judgment per CPLR 32 I 1(c] and 3212, for Production of Reports and Subpoena of Records, dated June 18, 2015; Affidavit, Joshua Stegemann, dated June 18, 20 l 5; Plaintiff's Memorandum of Law in Opposition to the State Defendants' Motion to Dismiss and in Support of Cross Motion for Summary Judgment and for Production of Reports and Subpoena of Records, Joshua G. Stegemann, dated June 18, 2015, with annexed Exhibits A-D. Reply Memorandum of Law in Further Support of State Defendants' Cross Motion to Dismiss and in Opposition to Plaintiffs Cross Motion for Summary Judgment, Discovery and the Issuance of a Subpoena, Tiffany M. Rutnick, Esq., dated July 2, 2015. a: 11
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