Lapidus v. State

• Decision Date: 28 October 2008
• Docket Number: 2007-04752.
• Citation: 866 N.Y.S.2d 711,57 A.D.3d 83,2008 NY Slip Op 08300
• Parties: BARBARA LAPIDUS, Appellant, v. STATE OF NEW YORK, Respondent. (Claim No. 11034.)
• Court: New York Supreme Court — Appellate Division

57 A.D.3d 83

866 N.Y.S.2d 711

2008 NY Slip Op 08300

BARBARA LAPIDUS, Appellant, v. STATE OF NEW YORK, Respondent. (Claim No. 11034.)

2007-04752.

Appellate Division of the Supreme Court of the State of New York, Second Department.

October 28, 2008.

Seiff Kretz & Abercrombie, New York City (Charles D. Abercrombie and Mariana Olenko of counsel), for appellant.

Andrew M. Cuomo, Attorney General, New York City (Peter H. Schiff and Michael S. Buskus of counsel), for respondent.

OPINION OF THE COURT

ENG, J.

It has often been observed that the concept of proximate cause is an elusive one, incapable of being precisely defined to cover all situations. This appeal calls upon us to consider principles relating to both proximate cause and superseding causation in order to determine whether the State can be held liable for allegedly negligent acts committed by court employees in the course of performing their everyday, ministerial duties. The claimant alleges that these negligent acts caused her to be wrongfully adjudicated a second felony offender based upon a nonexistent assault conviction. The claimant further alleges that this wrongful adjudication resulted in her being sentenced as a second felony offender and that her sentence of imprisonment, when calculated by the New York State Department of Correctional Services, was further improperly enhanced when the sentence for the nonexistent assault conviction was added consecutively to her sentence as a second felony offender. The Court of Claims dismissed the claim, concluding that the claimant's intervening act of failing to controvert the predicate felony offender statement filed against her was the superseding cause of her injuries. For the reasons that follow, we find that the Court of Claims erred in determining the issue of causation as a matter of law, and that the issues of whether the State's alleged negligence was a proximate cause of the claimant's injuries, and whether her conduct was a superseding cause, should await resolution at trial. Accordingly, neither the claimant nor the State should be awarded summary judgment at this juncture.

The claimant Barbara Lapidus, who is now 54 years old, has a long history of drug abuse and a lengthy criminal history, consisting primarily of drug-related offenses. Lapidus dropped out of school in the seventh or eighth grade because she was having problems at home, and began using speed and heroin as a teenager. Following a stay in a rehabilitation facility in the late 1970s, Lapidus was able to stop using drugs for a period of about nine years. However, toward the end of 1987, after both of her parents became seriously ill and passed away, Lapidus began misusing the valium pills which had been prescribed to her for depression and insomnia. Her drug use then escalated to include heroin.

On November 14, 1987, Lapidus, who was then known as Barbara Silver, was arrested with a codefendant, Ruben Silva, on charges, inter alia, of assault, burglary, and robbery. According to Lapidus, at the time of this offense, Silva was her boyfriend. The victim of the offense was a former boyfriend Lapidus had ended a relationship with several months earlier. Lapidus and the victim lived in the same apartment building in Brooklyn, and she claims that the assault was precipitated when she and Silva encountered the victim in the building's lobby, and the two men exchanged words. The exchange became heated, and culminated with Silva pushing the victim into the victim's apartment, and stabbing him with a kitchen knife.

On November 16, 1987, two days after her arrest, Lapidus was arraigned in the Criminal Court of the City of New York and released on her own recognizance. She and Silva were subsequently charged, in a 12-count indictment, with multiple offenses including assault in the second degree. When Lapidus failed to appear for arraignment on the indictment, a bench warrant was issued. Silva was thereafter arraigned on the indictment on April 5, 1988, and he alone proceeded to trial in December 1988. At the conclusion of Silva's trial, the jury found him guilty of assault in the second degree and, on January 9, 1989, he was sentenced to an indeterminate term of 1½ to 4½ years of imprisonment. Although Lapidus did not participate in the trial and was not tried in absentia, a part clerk mistakenly recorded on the court file jacket that she had been found guilty of the identical charge and sentenced on the same date as Silva. This incorrect information was entered into the court's computer system, and was reported to the New York State Division of Criminal Justice Services (hereinafter DCJS), the agency responsible for maintaining the criminal histories of individuals arrested in this state. Thus, the purported 1989 assault conviction became part of Lapidus's criminal record.

In the years following her November 1987 arrest for the assault of her former boyfriend, Lapidus was arrested 14 additional times, and convicted of a number of misdemeanor offenses and violations. For a period of approximately 10 years between 1987 and 1997, Lapidus claims that her drug habit spiraled out of control to such a degree that she ended up living in a subway tunnel on the Lower East Side, and supporting herself through prostitution. At one point in early 1996, she became so ill that she sought medical treatment at a free clinic, and learned that she was five months pregnant. Although she stopped using drugs for the remainder of her pregnancy, after the birth of her child, Lapidus once again began using heroin and cocaine, and funding her drug habit through prostitution.

On August 25, 1997, Lapidus was arrested and subsequently indicted in New York County for criminal sale of a controlled substance in the third degree. Following a jury trial, she was convicted of the charged offense. Prior to sentencing, the People filed a predicate felony statement (see CPL 400.21 [2]) alleging that on January 9, 1989, Lapidus had previously been convicted of the felony of assault in the second degree in Kings County. When Lapidus appeared for sentencing on the New York County indictment on January 13, 1998, she was arraigned on the predicate felony statement, and advised of her right to controvert any of the allegations in the statement and to challenge the constitutionality of her alleged prior conviction. However, when asked if the allegations set forth in the predicate felony offender statement were true, Lapidus answered "[y]es," and stated that she did not wish to challenge the constitutionality of her prior conviction. She was then adjudicated a second felony offender and was sentenced, in accordance with the prosecutor's recommendation, to a term of 4½ to 9 years of imprisonment. The sentence imposed was the minimum permissible term for a second felony offender convicted of a class B felony (see Penal Law 70.00 [3] [b]).

Upon being sentenced, Lapidus was transferred to the custody of the New York State Department of Correctional Services (hereinafter DOCS) at the Bedford Hills Correctional Facility (hereinafter Bedford Hills). Shortly after Lapidus arrived at Bedford Hills, DOCS employees reviewed her criminal history which included the purported 1989 conviction erroneously reported to DCJS. By letter dated March 11, 1998, Bedford Hills' inmate record coordinator asked the Clerk of the Kings County Supreme Court to forward the commitment order relating to the purported 1989 conviction. In response to this inquiry, on April 3, 1998, a sentence clerk prepared a "duplicate" commitment order, and forwarded it to DOCS. The "duplicate" commitment order indicated that Lapidus had been convicted of assault in the second degree on January 9, 1989, and sentenced to an indeterminate term of 1½ to 4½ years of imprisonment.

On April 10, 1998, DOCS, relying upon the duplicate commitment order, calculated the total term of imprisonment that Lapidus would be required to serve and included the term of 1½ to 4½ years purportedly imposed upon her for the 1989 assault conviction. Upon adding this apparently undischarged term to the term imposed for Lapidus's 1998 drug conviction, the DOCS determined that the total term of imprisonment that she would be required to serve was 6 to 13½ years.

Between May 12, 2003 and August 11, 2003, Lapidus wrote a number of letters to various individuals and agencies inquiring about her status with respect to her alleged 1989 Kings County conviction, and whether the term of imprisonment which had supposedly been imposed upon that conviction should run concurrently rather than consecutively to the term imposed for her 1998 drug conviction. At some point, Lapidus obtained assistance from a legal clinic operated by the Columbia University Law School. According to Lapidus, it was the inquiries made by two of the clinic's dedicated law students that led the Kings County Supreme Court Criminal Term Clerk's Office to conclude, in April 2004, that an error had been made, and that she had never been arraigned, convicted, and sentenced on the 1987 charges that resulted in her purported 1989 conviction. She was thereafter arraigned on the 1987 indictment on April 20, 2004. A few days later, on April 29, 2004, Lapidus pleaded guilty to assault in the second degree, and was sentenced to a term of 10 days of imprisonment. On May 4, 2004, she was resentenced, nunc pro tunc, on her 1998 conviction of criminal sale of a controlled substance in the third degree, to an indeterminate term of 1 to 3 years of imprisonment as a first time offender. Lapidus was released from custody that same day, having been imprisoned for more than six years.

About eight months after her release, Lapidus filed the instant claim against the State, essentially alleging that the negligence of State employees had caused her to be incarcerated for more than five years longer than she should have been. More specifically, she alleged that due to the negligence and carelessness of...