Arnold v. State, 65597

• Decision Date: 21 February 1985
• Docket Number: No. 65597,65597
• Citation: 486 N.Y.S.2d 94,108 A.D.2d 1021
• Parties: Eugene B. ARNOLD et al., Appellants, v. STATE of New York, Respondent. Claim
• Court: New York Supreme Court — Appellate Division

Page 94

486 N.Y.S.2d 94

108 A.D.2d 1021

Eugene B. ARNOLD et al., Appellants, v. STATE of New York, Respondent.

Claim No. 65597.

Supreme Court, Appellate Division,

Third Department.

Feb. 21, 1985.

Friedman, Maksail, Hirschen & Miller, Schenectady (Jeffrey N. Miller, Schenectady, of counsel), for appellants.

Robert Abrams, Atty. Gen., Albany (Vernon Stuart, Asst. Atty. Gen., Albany, of counsel), for respondent.

Before MAHONEY, P.J., and KANE, CASEY, HARVEY and LEVINE, JJ.

HARVEY, Justice.

Appeal from a judgment of the Court of Claims entered February 27, 1984, which dismissed the claim.

Shortly before noon on May 15, 1981, a group of people, including a humane society law enforcement officer, the town dog warden, a veterinarian and a State trooper, arrived at claimant's home to inspect his animals. Claimant refused the inspection, making it clear that he would only permit such an inspection if he were served with a warrant. Later that afternoon, State Troopers Michael Wright and Paul La Point went to claimant's residence, knocked on the door and, when claimant came out of the house and stood on the porch with the troopers, one of the troopers explained that he had a warrant for claimant's arrest for a violation of Agriculture and Markets Law § 353. After a short exchange of conversation, claimant announced either that he was not going anyplace with the troopers or that he was not going anyplace without his shirt. The actual words he used are in controversy. When claimant turned around to reenter his house, one trooper attempted to restrain him by locking his arm around claimant's neck. When claimant resisted that effort, the other trooper joined in the scuffle and then forced claimant to the floor and placed him in handcuffs. Claimant commenced this action seeking damages for personal injuries resulting from the incident, largely the aggravation of prior injuries.

At the time of the incident, claimant was still partially disabled from the effects of an accident for which he had received a considerable amount of medical treatment and hospitalization. This fact was unknown to the troopers at the time. Claimant was not using crutches or a cane when he appeared on the porch, nor was there any other indication of any disability. He was larger than either of the troopers, being six feet tall and weighing 210 pounds.

Prior to going to the premises, the troopers were advised of an observation made by those members of the original visiting group who had remained in the vicinity of claimant's small farm. Claimant was observed pacing back and forth carrying two rifles.

This claim for money damages is based upon claimant's contention that the troopers used unreasonable force in making the arrest. He claims that he never threatened the safety of the troopers, nor did he intend to do anything other than to return to the inside of his house and put on a shirt. The State contends that no more than reasonable force was used to overcome claimant's efforts to resist arrest. The troopers had been apprehensive of misconduct on the part of claimant because of the information they had received concerning claimant's carrying of firearms. They point out that they used no weapons of any nature nor did they strike claimant in any manner, but only used such physical force as they deemed necessary to prevent claimant from reentering his house. The Court of Claims dismissed the claim after trial. It addressed the issue of reasonable force and found, as fact, that the troopers used no more than reasonable force in making the arrest (see Penal Law § 35.30[1] ). The evidence created an issue of fact which the trial court decided in favor of the State.

Since this case was tried before a court without a jury, the scope of review is not limited to whether the verdict is against the weight of the evidence, but this court may weigh the relative probative force of conflicting inferences that may be drawn from the testimony (People ex rel. MacCracken v. Miller, 291 N.Y. 55, 62, 50 N.E.2d 542; Georgiadis v. State of New York, 106 A.D.2d 706, 483 N.Y.S.2d 753; Koester v. State of New York, 90 A.D.2d 357, 363-364, 457 N.Y.S.2d 655; Brooks v. New York State Thruway Auth., 73 A.D.2d 767, 768, 423 N.Y.S.2d 543, affd. 51 N.Y.2d 892, 434 N.Y.S.2d 974, 415 N.E.2d 963) and grant the judgment which upon the evidence should have been granted by the trial court (Larkin v. State of New York, 84 A.D.2d 438, 444, 446 N.Y.S.2d 818; Shipman v. Words of Power Missionary Enterprises, 54 A.D.2d 1052, 1053, 388 N.Y.S.2d 721). Of course, even in a nonjury case, due regard must be given to the decision of the Trial Judge who was in a position to assess the evidence and the credibility of witnesses (see Huertas v. State of New York, 84 A.D.2d 650, 651, 444 N.Y.S.2d 307).

We conclude that, upon weighing the evidence, the determination of the trial court should not be disturbed. The troopers knew that claimant possessed firearms which he had openly brandished earlier in the day. Before endeavoring to reenter the house, he did not seek permission to do so. On the contrary, he indicated that he was going to do exactly that which he wanted to do. He was a big man. The only restraint was in the nature of wrestling with him, an effort which, had it not been for claimant's underlying disability, would not have produced an injury of any consequence. There was no evidence that the troopers were overly aggressive or threatening at any time during the arrest or that they provoked any misbehavior on the part of claimant.

We have examined the cases cited by claimant and have concluded that no legal basis exists which would warrant reversal.

Judgment affirmed, with costs.

KANE, CASEY and HARVEY, JJ., concur.

MAHONEY, P.J., and LEVINE, J., dissent and vote to reverse in the following memorandum by MAHONEY, P.J.

MAHONEY, Presiding Justice (dissenting).

A municipality may be held liable under a theory of battery where a police officer in its employ uses excessive force in effectuating an arrest (Jones v. State of New...