Duverney v. State

CourtNew York Court of Claims
Writing for the CourtALBERT A. BLINDER; As was mentioned above
Citation96 Misc.2d 898,410 N.Y.S.2d 237
PartiesDr. Cecil DUVERNEY, Claimant, v. The STATE of New York, Long Island State Park and Recreation Commission, Defendants.
Decision Date29 October 1978

Page 237

410 N.Y.S.2d 237
96 Misc.2d 898
Dr. Cecil DUVERNEY, Claimant,
v.
The STATE of New York, Long Island State Park and Recreation
Commission, Defendants.
Court of Claims of New York.
Oct. 29, 1978.

Page 239

Robert Rivers, P. C., Hempstead by Robin Willcox, Port Washington, for claimant.

Louis J. Lefkowitz, Atty. Gen. by Stanley Q. Casey, Asst. Atty. Gen., for defendants.

MEMORANDUM OPINION

ALBERT A. BLINDER, Judge.

THE MOTIONS

Motion M-20793 is the claimant's motion for an order pursuant to CPLR 3212 granting summary judgment on the grounds that no triable issue of fact exists. This contention is premised upon the theory of collateral estoppel. The motion also seeks, in the alternative, leave to amend the claim to include a cause of action for indemnification. By Motion M-21011 the State moved for an order pursuant to CPLR 3212 dismissing the claim, directing the entry of judgment against the claimant upon the ground that there is no triable issue of fact and, in the alternative, for an order pursuant to CPLR 3025(b); and Rule 16(b) of the Rules of the Court of Claims permitting the defendant, The State of New York, leave to serve an amended answer to include the affirmative defenses of Collateral estoppel and Res judicata. Motion M-20429 is claimant's motion for a further examination before trial. Motion M-20448 is the State's cross-motion for further examination before trial of the claimant. 1 All motions are consolidated for purposes of decision thereon.

The Court will first direct its attention to the motion by claimant for summary judgment.

FACTS BEFORE THE COURT

Claimant's position is premised on the entry of a judgment in the United States District Court for the Eastern District of New York against one Vincent Prajka in an action entitled "DR. CECIL DUVERNEY

Page 240

vs. PATROLMAN VINCENT PRAJKA AND PATROLMAN THOMAS R. STRUM". Judgment for $950,000.00 in compensatory damages and $250,000.00 in punitive damages was entered in the Clerk's Office on March 8, 1978. That action was brought under the Civil Rights Act, 42 U.S.C. § 1983.

In his affidavit presented to this Court in support of his motion, Dr. Duverney alleges that on April 14, 1976 he visited with an old friend and patient who was seriously ill. He stated that he bought a bottle of vermouth to help his friend's appetite and the two opened the bottle and drank three small drinks. At approximately 12:05 in the afternoon, Dr. Duverney took leave of his friend and left to return to his residence. As he proceeded, he took some medication he had neglected to take earlier and then drove on his way home.

As he was traveling east on the Southern State Parkway, he began to feel ill and feared, so he states, that he might be having a heart attack or a reaction to the medication. Deciding to proceed to a friend's house so that they might call medical help, he exited and re-entered the Southern State Parkway, westbound. He then noticed a State police car pull up alongside his vehicle with its red light flashing and sounding its siren. He stopped and was ordered out of the car.

An officer, later ascertained to be Thomas Strum, asked him whether he had been drinking. Dr. Duverney states that he replied that he had been drinking with a friend but that he was not drunk. Despite this statement, the officer took out handcuffs and told Dr. Duverney that he was going to take him in. After some discussion, the claimant allowed himself to be handcuffed.

A second police officer then arrived, Vincent Prajka. Prajka examined the claimant's vehicle which had some damage on the passenger side. Claimant states that he was not aware of the damage and had no accident. At this point Dr. Duverney states that Prajka addressed Strum asking "What do you have?" and Strum replied "I got me a nigger dude." Dr. Duverney states that he made no comment on this racial remark. He was hoping to reason with the officer, explaining that he was sick and not drunk and requesting the removal of the handcuffs. Dr. Duverney was placed in the police car, handcuffed, with Strum driving and Prajka in the back seat. He continued requesting that the handcuffs be loosened as his hands were numb and extremely painful. The officers ignored the request.

Dr. Duverney deposed that Strum said "You niggers always cause alot (sic) of trouble." Dr. Duverney claims that he ignored the comment and asked again that the handcuffs be loosened. Strum answered with another racial comment. At that point, Dr. Duverney states, "I then replied that you are nothing but gangsters in uniform, white animals, in fact, two white bastards." After this, "Strum swung his arm back and struck me in my mouth, splitting my lip." Strum pulled the car off the road and stopped at the police parking lot getting on his knees facing Dr. Duverney and started punching him with his fist, knocking his glasses off and injuring his eyes, face, ears, etc. Prajka joined in striking Dr. Duverney in his ears. Dr. Duverney states in his affidavit "(t)he blows were so severe and numerous that I blacked out."

After this, Dr. Duverney recounted that Prajka went into the front seat of the car. The car started off and drove for about 10 to 15 minutes with Dr. Duverney alone in the back seat. He stated that he called both police officers damned cowards for beating a handcuffed man. After he made that statement Prajka ". . . turned, got on his knees and punched me on the left side of my face. The car was again stopped, and both officers punched me until I lost consciousness. The car then sped on to the Belmont Police Headquarters and came to a stop in the parking lot." Because of the injuries sustained, the claimant was unable to leave the vehicle. "Strum grabbed me by the hair and yanked me out of the car, causing me to lose my balance. At that same time, Prajka struck me a very severe blow with a hard object at the back of my right ear."

Page 241

The three entered the headquarters building. Dr. Duverney was crying and protesting the type of treatment he had received. He made complaint to those present in the police station that he had been brutalized, with his hands handcuffed behind him. A Captain ordered that Dr. Duverney be taken to a hospital.

It is alleged that Dr. Duverney sustained serious injuries as a result of the assault. The claim alleges that the assault caused the claimant to be hospitalized and claimant sustained severe, diverse, serious and permanent damage to the external and internal organs of his body and his nervous system. It is alleged that Dr. Duverney continues to suffer pain and discomfort and permanent injuries. Further allegations of anxiety and neurosis are set forth. 2

THE PLEADING IN THE COURT OF CLAIMS

The claim in this Court basically alleges three causes of action. The first is assault and battery for which compensatory damages of $2,000,000.00 and exemplary damages of $1,000,000.00 are sought. The second is wrongful, unlawful and malicious imprisonment. It also alleges that as a result the doctor was subjected to ridicule, scorn and derision by his imprisonment. It seeks $500,000.00 as compensatory damages and $500,000.00 as exemplary damages. The third, in addition to alleging false arrest, is for malicious prosecution. It seeks compensatory damages of $500,000.00 and exemplary damages of an additional $500,000.00. The total damages claimed are $5,000,000.00.

POSITIONS OF THE ADVERSARIES

The Court is advised by the affidavits submitted by both claimant and his attorney that all criminal charges brought against the claimant allegedly arising from these facts have been dismissed.

It is to be noted that, initially, the claimant herein and his wife, as plaintiffs, commenced an action in the United States District Court against not only Prajka and Strum, but other individuals as well, and against the Long Island State Parkway Police, County of Suffolk 3 and the State of New York. Pursuant to a motion to dismiss against certain defendants in the complaint made by an Assistant Attorney-General, prior to trial, Judge Weinstein ordered dismissal against the defendants, State of New York, Long Island State Parkway Police and Captain Henry Springer. 4

The claimant's able attorney, in requesting the Court to find that no triable issue of fact exists and that the Court employ the doctrine of collateral estoppel, refers to the Federal trial court's charge to the jury, 5 in which, it is argued the Court required the jury to make specific decisions on disputed areas of fact, as it found for the plaintiff. Claimant's attorney also argues that the State of New York has never denied that the two alleged assailants were, at the time of the assault, State employees, acting within the course of their employment. 6

The State also asks that the doctrine of collateral estoppel be employed in deciding the motions herein. It is asserted by the defendant that the issue litigated in the

Page 242

Federal court action established that Strum was not culpable since no verdict was returned against him. The verdict against Prajka was premised on a civil rights violation under 42 U.S.C. § 1983. It is argued that such acts outside the scope of employment preclude vicarious liability against the employer. The defendant argues that mutuality of estoppel is not a condition precedent to the offensive application of the doctrine of collateral estoppel. The application so invoked may be utilized without subjecting its proponent to similar use by the opposing party.
COLLATERAL ESTOPPEL

Collateral estoppel is a doctrine which has often been said to be a fundamental principle of jurisprudence. It applies when issues of fact have been previously decided in a former action and were judicially determined in such a manner that they may not again be litigated in a subsequent litigation. See Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N.Y. 304, 165 N.E. 456; Zabriskie v. Zoloto, 22 A.D.2d 620, 257 N.Y.S.2d 965. One of the...

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16 practice notes
  • Cerbone v. County of Westchester, No. 80 Civ. 3589.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 18, 1981
    ...N.Y.S.2d 739, 740 (2d Dep't 1976); Klein v. Oscar Gruss & Son, 18 A.D.2d 1085, 239 N.Y.S.2d 434, 435 (2d Dep't 1963); Duverney v. State, 96 Misc.2d 898, 410 N.Y.S.2d 237, 245 (Ct.Cl.1978). But cf. Duverney v. State, 96 Misc.2d 898, 410 N.Y.S.2d 237, 246 (Ct.Cl. 25 Winters v. Lavine, 574 F.2......
  • Pitt v. City of New York
    • United States
    • New York Supreme Court
    • November 12, 1981
    ...or laws of the United States (Johnson v. Glick, 481 F.2d 1028 cert. den. 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 Duverney v. State, 96 Misc.2d 898, 410 N.Y.S.2d 237; Nieves v. New York City Transit Authority, 91 Misc.2d 214, 397 N.Y.S.2d 531) and that such person in so doing acted under......
  • Pack v. Artuz, No. 99 CIV. 4604(VM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 27, 2004
    ...must be evaluated. This requires an exploration of the various elements which make up the realities of litigation." Duverney v. New York, 96 Misc.2d 898, 906, 410 N.Y.S.2d 237, 242-43 (N.Y.Ct.Cl.1978). Thus, when determining whether a prior proceeding was "full and fair," we must consider m......
  • Connecticut General Life Ins. Co. v. Cole, No. 91 CIV 7408.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • May 7, 1993
    ...whether or not he is guilty of depraved mind murder because his appeal from his conviction is pending. See Duverney v. State of New York, 96 Misc.2d 898, 410 N.Y.S.2d 237, 245-46 (Ct.Cl.1978) (stating in dictum that the existence of an appeal is a factor to be considered in determining whet......
  • Request a trial to view additional results
16 cases
  • Cerbone v. County of Westchester, No. 80 Civ. 3589.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 18, 1981
    ...N.Y.S.2d 739, 740 (2d Dep't 1976); Klein v. Oscar Gruss & Son, 18 A.D.2d 1085, 239 N.Y.S.2d 434, 435 (2d Dep't 1963); Duverney v. State, 96 Misc.2d 898, 410 N.Y.S.2d 237, 245 (Ct.Cl.1978). But cf. Duverney v. State, 96 Misc.2d 898, 410 N.Y.S.2d 237, 246 (Ct.Cl. 25 Winters v. Lavine, 574 F.2......
  • Pitt v. City of New York
    • United States
    • New York Supreme Court
    • November 12, 1981
    ...or laws of the United States (Johnson v. Glick, 481 F.2d 1028 cert. den. 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 Duverney v. State, 96 Misc.2d 898, 410 N.Y.S.2d 237; Nieves v. New York City Transit Authority, 91 Misc.2d 214, 397 N.Y.S.2d 531) and that such person in so doing acted under......
  • Pack v. Artuz, No. 99 CIV. 4604(VM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 27, 2004
    ...must be evaluated. This requires an exploration of the various elements which make up the realities of litigation." Duverney v. New York, 96 Misc.2d 898, 906, 410 N.Y.S.2d 237, 242-43 (N.Y.Ct.Cl.1978). Thus, when determining whether a prior proceeding was "full and fair," we must consider m......
  • Connecticut General Life Ins. Co. v. Cole, No. 91 CIV 7408.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • May 7, 1993
    ...whether or not he is guilty of depraved mind murder because his appeal from his conviction is pending. See Duverney v. State of New York, 96 Misc.2d 898, 410 N.Y.S.2d 237, 245-46 (Ct.Cl.1978) (stating in dictum that the existence of an appeal is a factor to be considered in determining whet......
  • Request a trial to view additional results

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