Rutuelo v. State

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

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.

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 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 action, inter alia, for malicious prosecution, involved a plaintiff who had been removed from her property by a court order issued under a presumptively valid tax deed. That order was later rescinded. Even though fraud in obtaining it was alleged, the order provided a complete defense to the action. (Laird v. Vogel, 334 So.2d 650, cert. den. 348 So.2d 949 [Fla.].)

In another case, an action that successfully challenged the constitutionality of a statute was reversed on appeal. That determination however did not preclude the finding that there had been probable cause for the original proceeding. The court, in dismissing the malicious prosecution action, noted that probable cause will be said to exist where a prior suit involved a constitutional issue over which reasonable men might differ. (Cobbey v. State Journal Co., 77 Neb. 626, 110 N.W. 643; see also, First National Bank of Omaha v. Marquette National Bank, 482 F.Supp. 514, 523, affd. 636 F.2d 195 cert. den. 450 U.S. 1042, 101 S.Ct. 1761, 68 L.Ed.2d 240.)

Finally, the circumstances of the instant case may be analogized to those situations in which a claim for tax refund has been held to accrue upon payment of tax and not upon the subsequent finding that the relevant tax statute was unconstitutional. (Citibank v. State of New York, 103 Misc.2d 348, 425 N.Y.S.2d 932; Guaranty Trust Co. v. State of New York, 299 N.Y. 295, 87 N.E.2d 685.)

Having found probable cause for the proceeding on the Uniform Traffic Ticket, the claim for malicious prosecution must be dismissed. (Broughton v. State of New York, supra.) The companion cause of action for false arrest must fail for two reasons. First, such a claim does not lie when predicated on the mere issuance of a traffic ticket. (Robart v. Post-Standard, 74 A.D.2d 963, 425 N.Y.S.2d 891, affd. 52 N.Y.2d 843, 437 N.Y.S.2d 71, 418 N.E.2d 664; Pritchett v. State of New York, 61 A.D.2d 1110, 403 N.Y.S.2d 579; Farkas v. State of New York, 96 Misc.2d 784, 409 N.Y.S.2d 696.) Second, the finding of probable cause mandates its dismissal. (Feinberg v. Saks & Company, 83 A.D.2d 952, 443...