Rutuelo v. State, No. 61657

• Court: New York Court of Claims
• Writing for the Court: GERARD M. WEISBERG
• Citation: 449 N.Y.S.2d 419,113 Misc.2d 467
• Parties: John RUTUELO, Plaintiff, v. The STATE of New York, Defendant. Claim
• Docket Number: No. 61657
• Decision Date: 07 April 1982

Page 419

449 N.Y.S.2d 419 113 Misc.2d 467 John RUTUELO, Plaintiff,
v.
The STATE of New York, Defendant. Claim No. 61657. Court of Claims of New York. April 7, 1982.

Page 420

Gerald Zisholtz by Haskel Rosenbloom, Jericho, for plaintiff (claimant).

Robert Abrams, Atty. Gen. by Albert O. Marston, Asst. Atty. Gen., for defendant.

DECISION

GERARD M. WEISBERG, Judge.

This is a claim for false arrest and malicious prosecution in connection with two Uniform Traffic Tickets issued to claimant and for personal injuries.

The novel issue which this case addresses is whether a proceeding under a regulation that is subsequently declared unconstitutional can be the basis of an action for malicious prosecution.

On June 23, 1976, John Rutuelo drove his vehicle onto the Southern State Parkway. He was operating a pickup camper. Leopold Gasparik, Jr., a State Police Officer, stopped him and issued a Uniform Traffic Ticket for violating subdivision (e) of section 415.6 of the Rules and Regulations of the Long Island State Park and Recreation Commission (9 NYCRR 415.6). That section states "pickup camper shall be permitted to use a parkway regardless of type of registration."

The conduct of the claimant clearly fell within the ambit of the prohibition and therefore the officer had probable cause for the action he took. (CPL § 140.10 Church v. State of New York [Court of Claims, Feb. 23, 1982, Lowery, J.].)

However, the charge was dismissed on the ground that the regulation was unconstitutional. (People v. Rutuelo, 87 Misc.2d 754, 386 N.Y.S.2d 629.) Does this holding void ab initio the original probable cause?

There is no question that at the outset the officer had probable cause. In other words, a reasonably prudent person would have believed the claimant guilty of the infraction. (Munoz v. City of New York, 18 N.Y.2d 6, 271 N.Y.S.2d 645, 218 N.E.2d 527; Hyman v. New York Central R. Co., 240 N.Y. 137, 143, 147 N.E. 613; Colegrove v. City of Corning, 54 A.D.2d 1093, 388 N.Y.S.2d 964, mot. for lv. to app. den. 41 N.Y.2d 807, 396 N.Y.S.2d 1026, 364 N.E.2d 1138.) The subsequent finding of unconstitutionality did not vitiate the reasonableness of the officer's actions. Therefore, the probable cause was not invalidated and an action for malicious prosecution will not lie. (Broughton v. State of New York, 37 N.Y.2d 451, 373 N.Y.S.2d 87, 335 N.E.2d 310; Prosser, Law of Torts pp. 841-843.)

This conclusion is supported by the Restatement of the Law, Second, Torts which sets forth the following:

"A statute makes tampering with the gates of a dam a misdemeanor. A tampers with the gates of B's dam. B, knowing that the statute is on the books, swears out a complaint initiating the prosecution of A for its violation. In fact the legislature has repealed the statute the preceding week, although B neither knows nor should know that this has occurred. A is acquitted because the conduct is no longer a crime. B may be

Page 421

found to have probable cause." (Restatement, Torts 2d, § 662, Illustration 2.)

This example is based on Birdsall v. Smith, 158 Mich. 390, 122 N.W. 626, in which the unconstitutionality of a statute was placed in issue. (Reporter's Note, Restatement, Torts 2d, app. vol. 4, p. 375.)

In that case, a plaintiff in a malicious prosecution action had been charged under a statute which he contended was unconstitutional. Defendants did not know of any constitutional problem with the statute. In light of this, the possibility of unconstitutionality was found to have no bearing on the issue of probable cause. In so holding, the court noted that every statute should be considered valid until there is a judicial determination to the contrary. This logic should be applied to the instant case. (See McKinney's Cons.Laws of N.Y., Book 1, Statutes, § 150[b].)

There are decisions in other jurisdictions in which probable cause has not been vitiated by subsequent court action. One case, an...