Faulk v. State
| Decision Date | 24 September 2012 |
| Docket Number | # 2012-038-562,Motion No. M-81150,Claim No. 120194 |
| Parties | ALFONZO FAULK v. THE STATE OF NEW YORK |
| Court | New York Court of Claims |
Defendant's motion for summary judgment granted in part on claim arising from claimant's confinement following execution of parole warrant. Despite the ALJ's finding after a preliminary hearing that there was not probable cause to find that claimant had violated his parole, the confinement of claimant of claimant was privileged because the parole warrant was facially valid, and thus, causes of action for false arrest and wrongful confinement and detention are dismissed. Defendant failed to demonstrate that its employees were entitled to absolute immunity with respect to the issuance of a violation of parole report and the parole warrant, but demonstrated its right to summary judgment on the issue of governmental immunity for discretionary determinations with respect to those discretionary actions. Defendant did not establish prima facie its right to judgment as a matter of law on causes of action for malicious prosecution, negligent and intentional infliction of emotional distress, negligent hiring and retention of employees, and libel and slander.
Case information
UID: 2012-038-562
Claimant(s): ALFONZO FAULK
Claimant short FAULK
name
Footnote (claimant
name)
Defendant(s): THE STATE OF NEW YORK
Footnote The caption has been amended sua sponte to reflect the
(defendant name) : State of New York as the only proper defendant in this
claim
Third-party
claimant(s)
Third-party
defendant(s)
Claim number(s): 120194
Motion number(s): M-81150
Cross-motion
number(s):
Judge: W. BROOKS DeBOW
Claimant's CRAIG L. DAVIDOWITZ, PC
attorney:
By: Craig L. Davidowitz, Esq.
ERIC T. SCHNEIDERMAN, Attorney General
Defendant's
attorney: of the State of New York
By: Michael T. Krenrich, Assistant Attorney General
Third-party
defendant's
attorney:
Signature date: September 24, 2012
City: Albany
Comments:
Official citation:
Appellate results:
See also
(multicaptioned
case)
This claim arises from claimant's confinement from September 3 to September 17, 2010 upon a parole warrant. After a preliminary hearing was conducted on September 16, 2010, a Hearing Officer found that there was not probable cause that claimant had violated a condition of his parole (see Krenrich Affirmation, Exhibit F), and directed claimant's release. The claim asserts that defendant is liable for tortious conduct in the nature of "negligence, negligent false and wrongful imprisonment, wrongful detainment in custody, malicious prosecution[,] negligent and intention infliction of emotional distress, negligent hiring and retention and violation of the claimant's civil rights" (Claim No. 120194, ¶17), as well as libel and slander (id. ¶43), all of which are set forth in greater detail in eight causes of action. Defendant moves for summary judgment dismissing the claim, and claimant opposes the motion.
The relevant facts that may be gathered from the parties' submissions on the motion follow. Claimant was a parolee subject to the supervision of Parole Officer (PO) Mercedes. The eighth condition of claimant's parole prohibited him from engaging in behavior that would "threaten the safety or well-being of [claimant] or others" (Krenrich Affirmation, Exhibit A). Henry Blackmon, a resident of a single-room occupancy residence where claimant was employed as a front desk attendant, contacted Senior PO Jones and complained of a verbal altercation with claimant that allegedly occurred on August 26, 2010. A violation of release report signed by PO Mercedes and SPO Jones states that claimant was threatening to "kick [Blackmon's] ass" and charged claimant with violating the eighth condition of his parole by telling Blackmon that he "will kill [his] ass when [his] shift is over" (id. Exhibit B). After a case conference with SPO Jones and another parole official, it was determined that a warrant be issued (id.), and warrant #617134 was issued by SPO Jones (id. Exhibit C). At the preliminary hearing, the Hearing Officer found that Blackmon was not a credible witness, that while Blackmon stated that claimant had said "kick your ass," the violation charge stated "kill your ass," and that there was not probable cause that claimant had violated condition eight of his parole (see Exhibit F). The theory underlying the instant claim for damages is that defendant's agents failed to conduct a proper investigation prior to issuing the parole warrant.
While the claim sets forth eight enumerated causes of action, most of those causes of action do not clearly assert the legal basis upon which liability allegedly rests. The first cause of action provides a detailed factual recitation and sets forth a plethora of theories of tortious conduct (see Claim No. 120194, ¶ 17 []). The second cause of action alleges a multitude of omissions and asserts that defendant was negligent. The third cause of action sounds in negligent hiring and retention of employees, and the fourth cause of actions asserts that defendant intentionally inflicted emotional distress upon claimant. The fifth cause of action alleges that there was a detention of claimant without probable cause, and it makes assertions of false and wrongful arrest and imprisonment, malicious prosecution, libel, slander, and negligence. The sixth, seventh and eighth causes of action are grounded in alleged violations of federal constitutional rights, and they seek remedies pursuant to 42 USC §§ 1983 and 1988.
It is well established that a movant for summary judgment must establish, by proof in admissible form, the right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). If the movant establishes prima facie entitlement to summary judgment, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (see Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). However, where a movant fails to demonstrate its entitlement to summary judgment as a matter of law in the first instance, the motion must be denied (see Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]; Tiano v Lane, 260 AD2d 908 [3d Dept 1999]).
Addressing the allegations of wrongful confinement, defendant asserts that claimant cannot establish the fourth necessary element of a cause of action for wrongful confinement, to wit, that the confinement was not privileged (see Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]; see also Davis v City of Syracuse, 66 NY2d 840, 842 [1985]). "A detention, otherwise unlawful, is privileged where the confinement was by arrest under a valid process by a court having jurisdiction" (id. [internal quotes and citations omitted]; see also Donald v State of New York, 17 NY3d 389, 395 [2011]). The privilege may arise from a facially valid parole warrant (see Nastasi v State of New York, 300 NY 473 [1949]), and the appropriate inquiry as to the validity of a warrant is its facial validity and not whether it was issued upon adequate or correct facts (see People v Briggs, 19 NY2d 37, 42-43 [1966]). A finding that there existed a facially valid warrant may also defeat a claim for false arrest (see Romero v State of New York, 294 AD2d 730, 733 [3d Dept 2002], appeal dismissed 98 NY2d 727 [2002] and lv denied 99 NY2d 503 [2002]). In support of its motion, defendant has submitted a facially valid parole warrant for retaking and detaining claimant (see Krenrich Affirmation, Exhibit C), and notwithstanding claimant's contentions that the warrant was defective because it was "based on bad faith and a non-existent investigation" (Davidowitz Affirmation, ¶30), claimant has failed to raise an issue of fact as to the facial validity of the warrant. Accordingly, defendant is entitled to judgment as a matter of law dismissing the claim insofar as it sounds in false arrest and wrongful confinement or detention.
Defendant next contends that the determinations to issue a violation of release report and a parole warrant are entitled to absolute immunity from liability, insofar as its employees acted in accordance with the laws, rules and regulations governing the Division of Parole (see Krenrich Affirmation, ¶¶ 24, 25). The process for the revocation of parole, and more specifically, the process for finding a parolee in violation of parole and for issuing a warrant for the retaking and temporary detention of a parolee is set forth in 9 NYCRR §8004.2, which states in relevant part:
(a) If a parole officer having charge of a releasee shall have reasonable cause to believe that such person has lapsed into criminal ways or company, or has violated one or more of the conditions of his release in an important respect, such parole officer shall report such fact to . . . a designated officer. Designated officer as used herein shall mean a senior parole officer . . . and any [other] officer who has been provided with specific authorization by the Board of Parole. No officer shall issue a warrant in a case where he is the one who furnishes the report upon which it is based. (b) The . . . designated officer may issue a warrant for the retaking and temporary detention of a releasee, provided that the designated officer issuing the warrant shall not also be the officer recommending issuance of the warrant. (c) A warrant for retaking and...
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