2004 015 602 by Ua4DeN1t


									NOSAL v. THE STATE OF NEW YORK, #2004-015-602, Claim No. 105588


        After trial Court found claimant had satisfactorily demonstrated that State Trooper had
not acted reasonably in effecting a warrantless arrest of claimant where proof demonstrated
warrant was issued for claimant's brother and trooper neither possessed nor saw the warrant prior
to the arrest. Liability found under these circumstances.

                                       Case Information

UID:                                 2004-015-602

Claimant(s):                         LEO J. NOSAL, JR.

Claimant short name:                 NOSAL

Footnote (claimant name) :

Defendant(s):                        THE STATE OF NEW YORK

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):                     105588

Motion number(s):

Cross-motion number(s):

Judge:                               FRANCIS T. COLLINS

Claimant’s attorney:                 Higgins & Moran, PLLC
                                     By: Dean J. Higgins, Esquire
Defendant’s attorney:                Honorable Eliot Spitzer, Attorney General
                                     By: Dennis M. Acton, Esquire
                                     Assistant Attorney General
Third-party defendant’s attorney:

Signature date:                      December 10, 2004

City:                                Saratoga Springs


Official citation:

Appellate results:

See also (multicaptioned case)
          This claim arose out of an initial stop of claimant's motor vehicle on Route 9P in the Town of Saratoga on
January 27, 2001. As a result of the stop the claimant was issued a uniform traffic ticket for excessive speed in
violation of Vehicle and Traffic Law § 1180(d). Claimant pled not guilty to that charge and requested a supporting
deposition from the arresting officer (NYS Trooper Philip Poitier) on February 9, 2001. The supporting deposition
remained unserved until February 23, 2001. On that morning the trooper was allegedly informed by Saratoga Town
Justice James Priest that a bench warrant had been issued for claimant's arrest. Without having seen the warrant
Trooper Poitier traveled to claimant's residence, arrested him, placed him in handcuffs and transported him back to
the State Police satellite office in Schuylerville, New York. Once there, claimant was chained to the floor until the
trooper obtained the warrant and discovered that it had been issued for Michael Nosal, the claimant's brother.
Trooper Poitier then issued the supporting deposition for the Vehicle and Traffic Law 1180(d) ticket and two
additional uniform traffic tickets arising from the January 27, 2001 traffic stop charging claimant with failing to use
his seatbelt and failing to use headlights when required by weather conditions. The Vehicle and Traffic Law
violations were disposed of and the instant action was commenced alleging false arrest/false imprisonment,
malicious prosecution, abuse of process and constitutional tort.
          Trial on the issue of liability took place in Albany on June 17, 2004.
          Claimant called New York State Trooper Philip Poitier as his first witness. Trooper Poitier testified that
he is a twenty-year employee of the New York State Police and explained his education and training as a New York
State Trooper relative to the Penal Law, Criminal Procedure Law (CPL) and the Vehicle and Traffic Law (V & T).
He acknowledged that he received training regarding warrantless arrests including arrests based upon violations of
the V & T Law.
          Trooper Poitier testified that on January 27, 2001 at approximately 10:40 a.m. he was proceeding north on
Route 9P in the Town of Saratoga when he observed a yellow jeep in the southbound lane proceeding at what the
radar in the trooper's car indicated was an excessive rate of speed. The vehicle did not have its headlights on
despite the fact that it was snowing and as the vehicles passed one another the trooper noticed that the vehicle
operator's seatbelt was not engaged. The witness stopped, turned his patrol car around and proceeded south on
Route 9P and stopped the claimant's vehicle. When he went to issue the traffic tickets he discovered he had only a
single ticket left in his 20-ticket pack. Trooper Poitier testified that he issued claimant a uniform traffic ticket for
excessive speed and advised claimant that two additional tickets would be served upon him at his home at a later
          On February 23, 2001 the witness arrived at the New York State Police satellite office in Schuylerville,
New York at approximately 6:50 a.m. Sometime later that morning Trooper Poitier was informed by Saratoga
Town Justice James Priest that an arrest warrant had been issued for Leo Nosal. The trooper testified that he
confirmed with the Justice that the warrant was for Leo Nosal, Jr., the claimant, and requested a copy of the warrant.
The Justice responded that he was late for a medical appointment for his infirm wife and was therefore unable to
supply a copy of the warrant but that a copy would be waiting for him at the Justice's office at 9:00 a.m. The
Justice was unable to recall the charge contained in the warrant but told the trooper to arrest the claimant if he was
present at his home when he served the additional traffic tickets and supporting deposition.
          Trooper Poitier testified that he then went on patrol eventually arriving at the New York State Police
substation in Malta, New York. The witness testified that he thereafter left the Malta substation and proceeded to
the claimant's residence near Saratoga Lake intending to serve the supporting deposition and additional traffic
tickets upon the claimant and take him into custody as instructed by Justice Priest.
          Upon his arrival at the claimant's residence Trooper Poitier was greeted by the claimant's mother, Mrs.
Dabek, and inquired whether Leo Nosal Jr. was home. Mrs. Dabek responded in the affirmative and entered the
home. The claimant then came to the door and the trooper informed him that he was serving the additional traffic
tickets from the January 27, 2001 traffic stop as well as the supporting deposition claimant had requested. He also
informed the claimant that he had been advised by Justice Priest that there was a warrant for his arrest and that he
would be taken into custody. The claimant inquired regarding the reasons for the arrest and the charge contained in
the warrant to which the trooper responded that he wasn't sure but he was advised by the Town Justice that a warrant
had been issued. Claimant, who was only partially clothed, was permitted to dress, taken outside, handcuffed and
placed in the trooper's patrol car. After an approximately 15-minute trip to the Schuylerville Town Hall the
claimant was taken from the vehicle and brought inside to the State Police satellite office. Trooper Poitier testified
that the claimant was permitted to contact his father by telephone while he wrote the additional traffic tickets arising
from the original January 27, 2001 traffic stop. The trooper then attached one end of the handcuffs to a chain
bolted to the floor and contacted Justice Priest to inform him that Mr. Nosal was in custody. The trooper then left
the satellite office and walked to the Justice's chambers where Justice Priest provided a copy of the warrant. Upon
reviewing the document the trooper noticed that the warrant was for Mr. Nosal's brother, Michael J. Nosal. Trooper
Poitier returned to the satellite office where he showed a copy of the warrant to the claimant and explained that the
Justice had mistakenly identified him as the subject of the warrant. He then removed the handcuffs, handed
claimant the additional traffic tickets and brought him before Justice Priest for arraignment. After the arraignment
Trooper Poitier offered to drive the claimant home. That offer was refused and claimant exited the building.
           Leo Nosal was called as his own witness and, in substance, testified that on the morning of January 27,
2001 he and his friend Jared Mahay were in Mr. Nosal's Jeep Cherokee on Route 9P heading south to a junkyard
when he allegedly made eye contact with a passing trooper. The trooper turned his vehicle around and pulled him
over. Upon being asked for his license, registration and proof of insurance the witness told the trooper that he did
not have his license with him. The trooper went to the patrol car and returned with a speeding ticket which
claimant was instructed to sign and send in. The witness stated that he told the trooper he was not going to sign and
return the ticket because he was going to contest it. He alleged that the trooper told him that he would be waiting at
court with more tickets for claimant.
           As to the morning of February 23, 2001 the claimant testified that he was told to get out of bed by his
mother when she informed him that a trooper was outside. Claimant went to the door and was informed that he
would be taken into custody pursuant to a warrant for this arrest. He asked to see the warrant and the trooper
replied that he did not have it. The claimant also alleges that both of his parents requested that the trooper produce
the warrant.
           Claimant alleges that with his hands cuffed behind his back he was placed in a patrol car and driven to the
State Police substation in Schuylerville, a journey that took approximately 20-25 minutes. After arriving there the
trooper assisted claimant in exiting the car and opened the handcuffs temporarily so that claimant could tie his shoe.
Once inside the station claimant was seated in a chair and chained to the floor. Thereafter the trooper left the room
and returned to advise claimant that there was a mistake and that the warrant had actually been issued for Michael,
his brother. The trooper then handed him two additional traffic tickets and claimant left the station. He related
that now he thinks every trooper car he sees is Poitier's car.
           On cross-examination claimant testified that he was issued a speeding ticket for driving 52 mph in a 30
mph zone. He alleged that he could not have been proceeding that fast because he was the middle car in a three car
lineup. He admitted, however, that all three cars could have been exceeding the posted speed limit. The witness
further explained that he did not have his driver' s license with him because he had been to jail to see his brother
Michael a day or two prior to the January 27, 2001 stop and had removed the license from his wallet as required for
jail visitation.
           The next witness called was Jared Mahay who testified that he was a passenger in claimant's vehicle at the
time of the January 27, 2001 stop. He substantiated claimant's allegation that the two were on the way to get auto
parts and that when claimant saw the trooper he commented that the trooper didn't like him and that they were going
to get pulled over. He further testified that when the trooper presented the claimant with the speeding ticket Leo
complained about it and questioned the accuracy of the radar gun. This witness was not cross-examined.
           The claimant's mother, Mary Dabek, was the next witness and related a story of the events of the morning
of February 23, 2001 similar to that related by both Trooper Poitier and claimant. She corroborated her son's
testimony that they both asked the trooper to see the warrant. She alleged that the trooper did not respond to her
son's inquiry but told her that the Justice had the warrant. She testified that the entire event, from arrival of the
trooper to his departure with Leo took approximately 5 minutes. Ms. Dabek was not cross-examined.
           Claimant's attorney then offered into evidence Exhibit 9, a death certificate for James Priest and a transcript
of Justice Priest's examination before trial testimony (Exhibit 1). These were received in evidence without
objection. After the receipt of these exhibits the claimant rested.
           Defense counsel moved to dismiss the claim for claimant's failure to prove a prima facie case. The Court
reserved decision on the motion and now denies it.
           The defendant offered Harry Czosnykowski as its sole witness. Mr. Czosnykowski testified that he is a
20-year employee of the New York State Attorney General's Office where he is employed as a senior investigator.
He further testified that in that capacity he obtained a written statement from James Priest and witnessed Priest's
signature thereon as a notary public. That statement marked as defendant's Exhibit A was received in evidence as a
prior inconsistent sworn statement over the objection of claimant's counsel.
           On cross-examination the witness stated that at the time the statement was made Justice Priest was 83
years old. Mr. Czosnykowski admitted that the statement as introduced was written in his hand and then signed by
Justice Priest. He further admitted that he had discussed the case with Trooper Poitier prior to taking the statement
from the town justice.
          At the conclusion of this witness's cross-examination the defendant rested.
          Claimant's attorney requested that the case be reopened to allow him to testify regarding the authenticity of
a letter he received from Justice Priest regarding the sworn statement given to Investigator Czosnykowski. Defense
counsel objected to the proposed trial testimony of claimant's counsel as improper. The Court sustained the
objection and declined to reopen the case to allow counsel to testify.
          In order to establish a cause of action for false arrest/false imprisonment a claimant must show that "(1)
defendants intended to confine him, (2) he was conscious of the confinement, (3) he did not consent to the
confinement and (4) the confinement was not otherwise privileged (see, Parvi v City of Kingston, 41 NY2d 553,
556; Broughton v State of New York, 37 NY2d 451, 456, cert denied sub nom. Schanbarger v Kellogg, 423 US
929; Martinez v City of Schenectady, 276 AD2d 993, 995, affd 97 NY2d 78)" (Holmberg v County of Albany, 291
AD2d 610, 612). In the instant case the only disputed issue is whether the fourth element was sufficiently
          The defendant called no witnesses other than Senior Investigator Harry Czosnykowski and offered only a
single exhibit, a sworn statement of the late Justice James Priest sworn to on May 13, 2002 in which the affiant
states that he informed Trooper Poitier that he had issued a warrant for the arrest of Leo Nosal. That statement,
however, was contradicted by Justice Priest at his examination before trial where he testified that he advised the
trooper that a warrant had been issued for Michael Nosal. The defendant's proof, even if it had not been directly
contradicted by Justice Priest at his examination before trial (see claimant's Exhibit 1, pp 21-23; see also, p. 34), is
inadequate to avoid a finding of liability. In arriving at this determination the Court is mindful of the Appellate
Division, Third Department's holding in Holmberg v County of Albany, supra, at 612 where the Court stated:
"Generally, where a facially valid order issued by a court with proper jurisdiction directs confinement, that
confinement is privileged (see, Ellsworth v City of Gloversville, 269 AD2d 654, 656) and everyone connected with
the matter is protected from liability for false imprisonment."
          An arrest made pursuant to a warrant is privileged where the warrant is valid on its face and issued by a
court of competent jurisdiction (Boose v City of Rochester, 71 AD2d 59). To be facially valid a warrant of arrest
must follow the statutory form prescribed in CPL § 120.10 (2) (Dabbs v State of New York, 88 AD2d 1093, 1094).
In the instant matter, however, there was no warrant, valid or otherwise, authorizing the arrest of the claimant Leo
Nosal Jr. Under these circumstances the detention of Mr. Nosal could not be privileged unless the claimant
knowingly caused Trooper Poitier to believe that he was the person named in the warrant (Maracle v State of New
York, 50 Misc 2d 348; Restatement [Second] of Torts § 125, Comment a). There is no evidence that the claimant
caused such a mistaken belief on the part of Trooper Poitier and, as discussed below, there is no basis for finding
that the trooper acted diligently in determining the person to whom the warrant properly applied (Williams v City of
Buffalo, 72 AD2d 952).
          Under certain circumstances a mistake in properly identifying the person to be arrested pursuant to a
warrant may be justified where the arresting officer has exercised reasonable diligence in assuring that he is
arresting the individual intended to be detained under the warrant (Davis v City of Syracuse, 66 NY2d 840; Dennis v
State of New York, 96 AD2d 1143). In this case, however, the circumstances do not justify a finding that Officer
Poitier exercised reasonable diligence. First, the trooper's own testimony established that he did not possess the
warrant and did not even know the basis for issuance of the warrant at the time he took claimant into custody.
Although Trooper Poitier requested a copy of the warrant, which he never actually saw, his request was denied by
Justice Priest who told the officer that the warrant would be available upon his return to the office at 9:00 a.m.
Given the brief nature of the encounter with Justice Priest, the paucity of information available to the trooper and the
fact that the warrant would be available within two hours, the Court finds that under the circumstances of this case
Trooper Poitier did not act with reasonable diligence to ensure that he was arresting the person named in the
warrant. As a result it seems clear that the arrest was not privileged as made pursuant to a warrant.
          "Whenever there has been an arrest and imprisonment without a warrant, the officer has acted
extrajudicially and the presumption arises that such an arrest and imprisonment are unlawful" (Broughton v State of
New York, 37 NY2d 451, 458). It is the defendant's burden to establish privilege or legal justification by showing
that the arrest was based upon probable cause (Quigley v City of Auburn, 267 AD2d 978; Lawson v New York
City Hous. Auth., 223 AD2d 532). A warrantless arrest is based upon probable cause and therefore privileged
where there exists such grounds as would cause a reasonably prudent person to believe, under the circumstances
existing at the time an arrest is effectuated, that the plaintiff or claimant committed a crime (Wallace v City of
Albany, 283 AD2d 872; Saunders v County of Washington, 255 AD2d 788). For the reasons stated earlier in this
decision, the Court finds that Trooper Poitier failed under the circumstances to act reasonably in effecting the arrest
of Michael Nosal upon a warrant he had not seen for a charge which he could not identify.
           Claimant may recover on the false arrest/false imprisonment cause of action.
           The Court reaches a different conclusion with regard to that portion of the claim alleging malicious
prosecution. In order to recover on such a cause of action claimant must prove "(1) the initiation of a proceeding,
(2) its termination favorably to plaintiff, (3) lack of probable cause, and (4) malice (see, Martin v City of Albany,
42 NY2d 13, 16; Broughton v State of New York, 37 NY2d 451, 457 cert den sub nom., Schanbarger v Kellogg, 423
US 929)" (Colon v City of New York, 60 NY2d 78, 82).
           Claimant presented proof that on January 27, 2001Trooper Poitier issued a uniform traffic ticket to
claimant alleging a violation of Vehicle and Traffic Law (V & T) § 1180 (d) (speed in zone) and on February 23,
2001 issued two additional tickets for violations of V & T § 1229-c (3) (seat belt) and V & T § 375 (2) (a) (1)
(lighted head lamps) which allegedly occurred at the time of claimant's initial violation. No proof whatsoever was
presented at trial regarding the disposition of these tickets and claimant therefore failed to satisfy the second
essential element of this cause of action; namely the favorable termination of the charges (see, MacFawn v Kresler,
88 NY2d 859, 860). Nor did claimant demonstrate that Trooper Poitier lacked probable cause to issue the traffic
tickets or that in doing so he acted with malice. The testimony of claimant and that of his passenger Jared Mahay
support the trooper's contention that one traffic ticket was issued at the January 27, 2001 stop and that additional
traffic charges would be forthcoming. The Court declines to find the issuance of those additional charges on
February 23, 2001 demonstrates a malicious intent on the part of the arresting officer. There was no meaningful
proof of ill will or a prior course of interaction between the claimant and Trooper Poitier. Even if claimant's
unsubstantiated assertions in this regard were true, his failure to demonstrate termination of the charges in his favor
requires a dismissal of this cause of action.
           Claimant's cause of action for abuse of process appears to have been abandoned as it was not addressed in
claimant's pretrial motion for summary judgment nor discussed in claimant's posttrial brief. The elements of such a
cause of action were "articulated in Board of Educ. v Farmingdale (38 NY2d 397, 403), to wit: (1) regularly issued
process, civil or criminal, compelling the performance or forbearance of some prescribed act; (2) the person
activating the process must be moved by a purpose to do harm without economic or social excuse or justification;
(3) the defendant must be seeking collateral advantage or correspondent detriment to the claimant which is outside
the legitimate ends of the process, and (4) actual or special damages" (Onderdonk v State of New York, 170 Misc 2d
155, 160). In this bifurcated trial claimant's special damages, if any, were not addressed. However, the evidence
offered has failed to establish either the second or third element of the cause of action to the Court's satisfaction. It
is accordingly dismissed for failure of proof.
           Finally, the claim asserts a constitutional tort cause of action alleging that the claimant was deprived of his
right to due process of law, equal protection under the laws; freedom from excessive force; freedom from false
arrest; freedom from false imprisonment and freedom from malicious abuse of process and unreasonable search
and seizure. As was true with regard to his cause of action for abuse of process, it appears that claimant abandoned
his constitutional tort claim since it was not addressed in the posttrial brief. To the extent that this claim was not
abandoned the Court finds no proof that claimant was denied due process or equal protection of the laws. Claimant
did not convince the Court that Trooper Poitier employed excessive force in effecting claimant's arrest nor did the
trooper obtain any evidence in this case as a result of an unlawful search or seizure. As noted above claimant failed
to prove an abuse of process.
           It is now settled that a cause of action for a constitutional violation under Brown v State of New York, 89
NY2d 172 is a "narrow remedy" (Martinez v City of Schenectady, 97 NY2d 78, 83). In fact, the Courts of this
State are properly reluctant to recognize a constitutional tort under the New York State Constitution where the
claimant has an alternative remedy available to redress a purported wrong (see Martinez v City of Schenectady,
supra; Bullard v State of New York, 307 AD2d 676; Lyles v State of New York, 2 AD3d 694). Here claimant was
afforded an adequate alternative remedy to vindicate his rights under the State Constitution in the form of a cause of
action for false arrest/false imprisonment and it is therefore unnecessary and inappropriate to imply a constitutional
tort cause of action for money damages under the present circumstances (see Bullard v State of New York, supra;
see also Remley v State of New York, 174 Misc 2d 523). Claimant's cause of action sounding in constitutional tort
is therefore dismissed.
           An interlocutory judgment shall be entered by the Clerk in accordance with this decision. Based upon this
finding of liability on the false arrest/false imprisonment cause of action a trial on the issue of damages shall be
scheduled at the Court's convenience. A teleconference to select the trial date will be arranged by Chambers within
20 days of the filing of this decision.

                                                                                                   December 10, 2004
Saratoga Springs, New York

Judge of the Court of Claims

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