[*1]
Hughes v State of New York
2015 NY Slip Op 51000(U) [48 Misc 3d 1207(A)]
Decided on April 6, 2015
Ct Cl
Marin, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on April 6, 2015
Ct Cl


Hezekiah Hughes, Claimant,

against

The State of New York, Defendant.




122991


For Claimant:
Sivin & Miller, LLP
By: Edward Sivin, Esq.

For Defendant:
Eric T. Schneiderman, Attorney General
By: Robert J. Schwerdt, AAG


Alan C. Marin, J.

The defendant State of New York moves to dismiss the claim of Hezekiah Hughes, which arose from his arrest on July 26, 2012 in Manhattan, in front of Penn Station, on a "mistaken record of an alleged outstanding warrant."[FN1] According to Mr. Hughes, the police initially asked for his identification because he was holding an open can of beer.[FN2]

The defendant in its motion and reply papers argues that Mr. Hughes' claim was untimely, [*2]lacked the specificity required under section 11 (b) of the Court of Claims Act (the "Act"), and that the confinement was privileged because the July 26, 2012 arrest of claimant was executed pursuant to a valid warrant. Claimant, for its part, opposes each such argument of defendant, and cross-moves for summary judgment.

Initially, it should be noted that a claim for wrongful arrest accrues upon release from custody, which in claimant's case was August 2, 2012; Hughes' claim was served and filed well within the statutory 90-day limitation period. See for example, Williams v CVS Pharmacy Inc., 2015 WL 1211277 (2d Dept). As for specificity, Hughes' claim, on balance, is sufficiently detailed to enable the defendant to promptly investigate the matter and determine its liability (Lepkowski v State of New York, 1 NY3d 201, 207 [2003]).

However, Mr. Hughes has two substantive problems. First, an October 17, 2014 affidavit from the Deputy Clerk of the Bronx Family Court, Steve Byrnes, after indicating that one warrant was vacated in 2005, states that "A second Warrant of Arrest for Hezekiah Hughes was issued on August 22, 2005 by Hon. Gayle P. Roberts and remained active until it was vacated on July 30, 2012."[FN3] Claimant responds that he "justifiably was under the impression that the outstanding warrant was taken care of on July 13, 2012 by virtue of the Family Court's order resolving the issues of outstanding child support . . ." [FN4] The Family Court, Bronx County, that day issued an order modifying an Order of Support by Default, which had a reference number matching the warrant that Deputy Clerk Byrnes had indicated was still outstanding as of the date of arrest - - CSMS No. NK65736M1.[FN5]

Whether officials in Family Court should have alerted Hughes that it might take some time for his warrant to be cleared from any computer system (if that were so) and given him some written proof, or whether such was erroneously not entered, the State is insulated by immunity.

To sustain a cause of action where a ministerial act is involved, a plaintiff or claimant must demonstrate the existence of a special duty [FN6] (Valdez v City of New York, 18 NY3d 69 [2011]). The Court of Appeals has set forth the elements of such special duty or relationship as follows: " (1) an assumption by the municipality [or governmental entity], through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking [citations omitted]" (Cuffy v City of New [*3]York, 69 NY2d 255, 260 [1987]).

The Cuffy court characterized reliance by the injured person as the critical element in determining the existence of a special duty (which typically would involve direct contact with governmental authorities):



" That element [of reliance] provides the essential causal link between the special duty' assumed by the municipality and the alleged injury. Indeed, at the heart of most of these special duty' cases is the unfairness that the courts have perceived in precluding recovery when a municipality's voluntary undertaking has lulled the injured party into a false sense of security and has thereby induced him either to relax his own vigilance or to forego other available avenues of protection [citation omitted]. " [69 NY2d at 261]

For example, the plaintiff in Coleson v City of New York, 24 NY3d 476, 481 (2014) had orders of protection against her husband. After he had threatened to stab her with a screwdriver, Ms. Coleson was transported by the police to the precinct and told not to worry, that she would be given protection. The Court of Appeals reversed an affirmance of summary judgment dismissing Ms. Coleson's case, and ruled that whether there was a special duty or relationship was for the trier of fact.



Valdez, supra, also involved a violation of protection orders (against plaintiff's ex-boyfriend), although the Court of Appeals upheld the First Department's vacating of the jury's verdict in favor of plaintiff on the ground that given Ms. Valdez's one phone call to the precinct, it was unreasonable for her to relax her vigilance.



McLean v City of New York, 12 NY3d 194 (2009) was the clearest, perhaps the first, enunciation of the principle that a ministerial error in the exercise of a governmental function will not result in liability unless a special duty obtained. This Court some years ago decided a case in favor of claimants who had been attacked by a convicted felon who was released from prison because of a ministerial error. The claimants were members of the general public, without any special relationship implicated; my decision, which was upheld on appeal in 2003, would not stand today in light of McLean (Steel v State of New York, 307 AD2d 919 [2d Dept 2003]).

In view of the foregoing, and having read the parties submissions,[FN7] IT IS ORDERED that motion No. M-85880 be granted; cross-motion No. CM-86251 be denied and claim No. 122991 be dismissed.



New York, New York



April 6, 2015

ALAN C. MARIN

Judge of the Court of Claims

Footnotes


Footnote 1:Defendant's Affirmation, exhibit A, which is the claim (paragraph 4).

Footnote 2:Id., exhibit D, which is Mr. Hughes' November 14, 2012 section 50-h hearing (pages 8 through 10).

Footnote 3:Id., exhibit B (page 2).

Footnote 4:Claimant's Affirmation of Edward Sivin in Opposition to Motion and in Support of Cross-Motion (paragraph 2).

Footnote 5:Id., exhibit 2.

Footnote 6:The act or omission must be in the course of a governmental, not a proprietary, capacity. See Wittorf v City of New York, 23 NY3d 473 (2014); Applewhite v Accuhealth, Inc., 21 NY3d 420, 425 (2013).

Footnote 7:The following were reviewed: from defendant, a Notice of Motion and Affirmation (with exhibits A through E) and an Affirmation in Reply and Opposition; from claimant, an Affirmation of Edward Sivin in Opposition to Motion and in Support of Cross-Motion (with exhibits 1 and 2).