New York State Court of Claims

New York State Court of Claims
RIORDAN v. THE STATE OF NEW YORK, # 2017-015-275, Claim No. 124274

Synopsis

Claim alleging, inter alia, false arrest and imprisonment and violations of the Search and Seizure Clauses of the State and Federal Constitutions was dismissed following trial. Court credited testimony of certain correction staff at Green CF that claimant, also a correction officer at Greene CF, had called the facility and threatened to commit suicide. Claimant's arrest and confinement to a hospital was authorized under Mental Hygiene Law 9.41.

Case information

UID: 2017-015-275
Claimant(s): THOMAS J. RIORDAN, III
Claimant short name: RIORDAN
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 124274
Motion number(s):
Cross-motion number(s):
Judge: FRANCIS T. COLLINS
Claimant's attorney: Law Office of Thomas J. Riordan, Jr.
By: Thomas J. Riordan, Jr., Esq.
Defendant's attorney: Honorable Eric T. Schneiderman, Attorney General
By: Douglas R. Kemp, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 15, 2017
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The claim herein asserts causes of action for false arrest and imprisonment, slander/libel, assault and battery, conversion and violations of the State and Federal Constitutions, all arising from his involuntary detention and commitment to a hospital, purportedly pursuant to Mental Hygiene Law 9.41. The claim was bifurcated and the issue of liability was tried on April 20 and 21, 2017.

According to claimant's trial testimony, January 28, 2014 was his regularly-scheduled day off from work as a Correction Officer for the Department of Corrections and Community Supervision (DOCCS). Claimant described himself as "a bit agitated" that day concerning recent changes in his dental plan and prescription drug coverage, so he decided to discuss the matter with someone from Greene Correctional Facility (Greene CF) where he worked. He was on a first-name basis with Lieutenant Robert Trudell, both men were members of the Employee Assistance Program Committee (EAP), and called Greene CF to obtain his number. Sergeant Michael Ritter(1) answered the phone and claimant testified they talked about hunting. Claimant asked Sergeant Ritter if he had ever shot a Colt Python .357 Magnum and he shared information regarding the gun with Sergeant Ritter. According to the claimant, he never had the gun in his hand that day and never removed it from the secure gun case where it was stored.

After his conversation with Sergeant Ritter, claimant used his cell phone to call Lieutenant Trudell. Lieutenant Trudell said "it sounds like . . . you'd like to talk" so he invited claimant to his house for a cookout and provided him directions to get there (T37)(2) . As he was speaking to Lieutenant Trudell, claimant's home phone rang. With his cell phone in one hand, claimant answered the home phone with the other. It was his wife, Robin Riordan, who informed him that the police were looking for him. After resuming his phone conversation with Lieutenant Trudell, claimant testified that the lieutenant asked him "what [he] was doing right now" to which claimant responded "I just was looking at my gun" (T39). According to the claimant, Lieutenant Trudell asked him where the gun was, and he responded "on my bed" (T40). Claimant explained that at the time he was speaking to Lieutenant Trudell he was in the process of changing his clothes and had emptied his pants pockets onto the bed. His gun was in one of his pockets, along with a rosary, a handkerchief, loose change and a wallet, all of which he had deposited onto the bed. After receiving directions from Lieutenant Trudell, claimant left his home to drive to Lieutenant Trudell's house. As he was driving, Lieutenant Trudell called to ask claimant where exactly he was and what type of vehicle he was driving. Claimant testified that he viewed the conversation as more of an interrogation, so he decided not to go to Lieutenant Trudell's house and, instead, went to visit a friend in Troy who was repairing the claimant's car. Claimant was unable to locate his friend's house in Troy so he stopped for lunch and returned home at approximately 2:30 p.m.

Claimant testified that he lives in a rural area and his house is approximately 300 feet from the road with a winding driveway surrounded by trees. He parked his truck behind a woodshed located behind his house, entered the house and went to his office in the basement. At approximately 5:30 p.m., claimant exited the office to see if his wife was home and to retrieve the mail from the mailbox at the end of his driveway. As he walked down the driveway he noticed a strange car parked in the driveway facing out toward the road. Claimant tapped on the window and a man wearing a black police jacket exited the vehicle, introduced himself as an Investigator with the New York State Police, and informed the claimant that people were worried about him. The weather was cold and the claimant was shivering so he invited the Investigator into his house. Once inside, the Investigator asked claimant if he was carrying a gun, to which claimant responded in the affirmative, and the officer asked claimant to put the gun on the kitchen counter, which he did. Claimant testified the gun was a .32 Seecamp handgun, small enough to put in his pocket and cover with his hand. Claimant testified that the Investigator was adamant that he wanted claimant "to go someplace to talk to somebody" (T48) and, although claimant initially indicated that there was no reason to go, he ultimately acquiesced as he saw more cars pulling into his driveway. The Investigator told the claimant he would not place him in handcuffs and would allow him to sit in the front seat. However, as they exited the house another trooper "grabbed" him, threw claimant on the hood of his car, frisked him, handcuffed his hands behind his back, and placed him in the front seat of a police car (T51-52). Claimant testified that he was taken to the Catskill State Police barracks where he was chained to a wall of the interrogation room. He remained handcuffed for several hours while he was questioned concerning his activities that day and the whereabouts of his guns. According to the claimant, he was never told the reason for his arrest and he never consented to a search of his house.

From the State Police barracks, a State Trooper drove claimant to Columbia Memorial Hospital where he was admitted for ten days. Claimant later learned that all of his guns had been confiscated by the State Police.

On cross-examination, claimant testified that all of his guns have been returned to his possession. He also acknowledged that he had consumed whiskey before calling Sergeant Ritter on the morning of his arrest, that he had a handgun in his pocket that day, that he was agitated and upset about his health and dental benefits, and that Lieutenant Trudell had nothing to do with health or dental benefits at Greene CF. Although claimant had never been to Lieutenant Trudell's house or visited with him socially, claimant testified that he knew him from the facility and trusted him enough to seek his advice. Claimant again testified that when Lieutenant Trudell asked him what he was doing right now, he said he was looking at his gun, and that the gun was on the "bed" (T71). Claimant agreed that a correction officer is a "mandatory reporter," obligated to report any instance where he or she becomes aware of an individual with suicidal ideations (T68). Although he testified that his wife had informed him that the police were attempting to locate him, claimant denied he was trying to avoid detection by the police when he parked his truck behind the woodshed located behind his house.

Claimant also testified on cross-examination that he was not injured while being cuffed and placed in the police car, nor was he injured at the police barracks. Claimant stated that he was in the Columbia Memorial Hospital for approximately ten days and that the hospital denied his request to be discharged sooner. Although claimant indicated that he challenged the determination not to release him, he did not appear in court and was released after approximately ten days.

Finally, claimant acknowledged that DOCCS revoked his authority to carry a firearm while off-duty at some point following the January 28, 2014 incident (Exhibit A, Directive 2020; 7 NYCRR 57.3, 57.5).

Claimant's next witness was his wife, Robin Riordan, who is employed by DOCCS as a Nurse Administrator. She testified that in the late morning of January 28, 2014, she received a call from a Sergeant at Greene CF informing her that her husband drank an entire bottle of alcohol and had a gun to his head, and that the police had been sent to their house to investigate the matter. After she received the call from the Sergeant, the witness testified that she contacted her husband by phone to ask if everything was alright, but the call was quickly disconnected. Mrs. Riordan testified that she did not notice that her husband was agitated or excited either while at home earlier that morning or during their brief telephone conversation. When Mrs. Riordan returned home that evening there were four or five State Troopers in the kitchen, one of whom had already searched the gun cabinet in her husband's office. Mrs. Riordan testified that no one asked permission to search the house, but when the Troopers asked her whether there were any other guns in the house, she indicated there were additional guns in one of the bedrooms. She testified that she "went with the officers upstairs to retrieve the rest of the weapons out of the bedroom" (T101). According to Mrs. Riordan, at that time the police had already taken a number of guns without a search warrant. She later went to see her husband in the hospital where she described his state of mind as calm but confused.

On cross-examination Mrs. Riordan testified that she did not believe what the Sergeant from Greene CF told her regarding his conversation with the claimant, so she was not concerned when her call to her husband was disconnected. During their brief conversation she was only able to ask whether he was okay, to which he responded in the affirmative, before the call was disconnected (T109).

Claimant rested his case at the conclusion of his wife's testimony and the Court reserved decision on defendant's motion to dismiss claimant's causes of action for defamation and assault and battery.

Defendant called Lieutenant Michael Ritter as its first witness. Lieutenant Ritter, currently a Watch Commander at Greene CF, was promoted from Sergeant to Lieutenant in October 2016. On the day in question, January 28, 2014, Lieutenant Ritter was a Chart Sergeant assigned to field incoming calls received from outside the facility. According to the witness, claimant called the facility to obtain Lieutenant Trudell's home phone number, and sometime later called back to say that Lieutenant Trudell did not answer his home phone. He went on to tell Lieutenant Ritter that "he had a loaded .357 to his head, and I just consumed a bottle of liquor" (T119). Due to background noise, Lieutenant Ritter asked the claimant to repeat himself, and claimant stated that "he couldn't take it any more" (id.). Lieutenant Ritter testified that he tried to calm claimant and asked him where he was. Claimant replied that he was at his wife's house in Napanoch (the house was actually in Ravena, NY), but when asked for a specific address, the claimant hung up the phone. After the call ended, Lieutenant Ritter notified his Watch Commander, retrieved claimant's personal references from the Personnel Department, and notified the State Police of the situation. He then called the claimant's wife to advise her of his conversation with her husband and attempted, unsuccessfully, to contact claimant on his cell phone. Lieutenant Ritter agreed that as a "mandatory reporter" he is required to report suicide threats which, he said, is exactly what he did in the instant matter involving the claimant.

On cross-examination, Lieutenant Ritter stated that he only recently started hunting and does not recall discussing a Colt Python .357 Magnum with the claimant. Lieutenant Ritter repeated that he heard claimant say over the phone: "I have a .357 to my head, and I just drank a bottle of alcohol" (T126). Due to background noise, Lieutenant Ritter asked claimant to repeat himself, to which claimant responded simply "I can't take it anymore" (T131). Lieutenant Ritter testified that he believed claimant was going to harm himself.

Robert Trudell, a Correction Lieutenant employed by DOCCS at Greene CF, was the defendant's next witness. On January 28, 2014, Lieutenant Trudell received a message from the claimant requesting a return phone call. When Lieutenant Trudell returned the call claimant told him he was upset with his life and that he was contemplating suicide. According to Lieutenant Trudell, claimant said he felt like a failure, was having difficulty dealing with his children, and felt his father was disappointed in him. Claimant said he had a specific type of gun in his hand (the witness could not recall the type of gun) and was "thinking about shooting himself" (T138). Lieutenant Trudell was "shocked", and tried to get the claimant to put the gun down (id.). He stated that he was involved in the Greene CF Employee Assistance Program (EAP) and wanted to get claimant help through either the EAP program or an outside mental health provider, so he invited the claimant over to his house, but he never arrived. While Lieutenant Trudell was speaking with the claimant, he heard another phone ring and could hear that it was the claimant's wife telling him that the police had been notified and that help was on the way. At that point, claimant became agitated and hung up the phone.

Lieutenant Trudell testified that as he is required to do as a mandatory reporter, he called the Catskill State Police barracks to report his interaction with the claimant who he believed was potentially in danger of harming himself. He also contacted Lieutenant Orins at Greene CF who advised him that the police had already been notified.

On cross-examination, Lieutenant Trudell testified that during their conversation the claimant stated that he "was thinking of shooting himself" and that he had a gun placed to his head (T150).

Benjamin Ahrberg was defendant's next witness. He has been employed by the New York State Police for 18 years and was promoted from the rank of Trooper to Investigator in 2013. On January 28, 2014, he received a report from his supervisor that an individual was threatening to harm himself. He was asked to go to the claimant's house in Ravena and to meet claimant's wife so that his firearms could be secured. When he arrived at the claimant's residence he rang the doorbell and, when no one answered the door, he parked his car in the driveway facing the road. Sometime later the claimant approached the car from the left side and Investigator Ahrberg informed him the State Police had received a report that he was threatening to harm himself. Claimant responded that "he was having a bad day earlier . . . but that he was fine now" (T172). The witness described claimant's demeanor at the time as "very short", "defensive", "agitated" and "very on edge" (T173).

After his initial conversation with the claimant, Investigator Ahrberg contacted Senior Investigator Kusminsky to let him know that he had located the claimant at his house. Because it was very cold, Investigator Ahrberg asked the claimant if he would like to wait inside and the two men entered the house. Once inside, Investigator Ahrberg told the claimant that he had information indicating he was carrying a handgun, and asked claimant "if he wouldn't mind, you know, disarming" (T174). Claimant responded that that would put him at a "tactical disadvantage", but agreed to disarm when asked a second time (T174). Claimant remained "very, very on edge the whole time" he and the witness were talking in the kitchen waiting for other officers to arrive, and the claimant kept repeating "I was having a bad day earlier, but I'm fine now" (T175). Investigator Ahrberg testified that in situations such as that involving the claimant, where a credible report is received that an individual may be suicidal, the State Police must bring the individual to a facility for an appropriate mental health evaluation, since individual Troopers are not qualified to make such determinations. After explaining this to the claimant, he finally agreed "to go speak to someone" but indicated that he did not want to be treated like a "scumbag", which the witness interpreted to mean handcuffed and treated without respect (T177). After he and the claimant exited the house Investigator Ahrberg introduced claimant to Trooper VanBramer who patted claimant down, which the Investigator described as standard operating procedure prior to placing someone in a State Police vehicle. However, as soon as Trooper VanBramer put his hands on the claimant he "became very defensive verbally and started to physically pull away" (T178). Trooper VanBramer "grabbed" claimant's arms, applied handcuffs, and placed him in the State Police car (T178).

On cross-examination Investigator Ahrberg testified that all law enforcement personnel were instructed to secure the claimant when he was located because he was threatening to harm himself. The Investigator testified that "[t]he report that was told to me [by a Senior Investigator] was that he was driving around, he was despondent, making suicidal threats, and was armed with a handgun" (T181). Investigator Ahrberg described the gun the claimant possessed that day as small enough to fit in your pocket, unlike a .357 Python which is a larger gun. No search warrant was obtained for the claimant's residence, according to Investigator Ahrberg, because no search of the property was conducted. However, the Investigator testified at a deposition that he did not know whether the property was searched because he was not "part of that process" (T197).

Investigator Ahrberg testified at an examination before trial that claimant did not appear to be intoxicated or psychotic, made no overt threats of suicide in his presence, and admitted to only "a drink" earlier, but nothing more (T200). Nevertheless, he testified that unless a report of a person posing a danger to himself is proven to be obviously false, "we have to bring them to be evaluated by a qualified individual, because we are not qualified to make that determination as to someone's mental health" (T198).

Defendant next called Bryan VanBramer who testified that he has been employed by the New York State Police for 10 years, and was promoted from the rank of Trooper to Investigator four months prior to trial. On January 28, 2014, Investigator VanBramer received a call to go to the claimant's residence to assist other members of the State Police already at the scene. Upon arrival he observed Investigator Ahrberg and claimant talking in the kitchen area through the glass to the right of the front door. When claimant and Investigator Ahrberg later exited the house, the witness asked the claimant if he had any weapons and explained to him that he had to perform a pat-down frisk for both their personal safety. Investigator VanBramer described the claimant as "defensive" and stated that when he grabbed his arm claimant pulled it back and said "you're not going to treat me like one of those animals", which the witness interpreted as referring to the inmates with whom claimant worked at the prison (T213). After the pat-down was completed Investigator VanBramer cuffed claimant's wrists behind his back with the assistance of an officer from the Coeymans Police Department and placed claimant in the front seat of his State Police vehicle. At no point did they "slam" claimant into the police car, according to this witness (T215).

On cross-examination, Investigator VanBramer testified that he had overheard dispatch reports earlier in the day regarding claimant's phone call to his employer and the suicide threats he had allegedly made. The witness acknowledged his prior deposition testimony to the effect that claimant did not appear agitated, only defensive. Investigator VanBramer transported claimant to the Catskill State Police barracks and, when they arrived, claimant was transferred to the custody of another trooper.

Joseph Caputo has been employed by the New York State Police for 30 years and has been an Investigator for more than 20 years. Investigator Caputo testified that the Catskill State Police barracks was contacted by employees at Greene CF with concerns regarding the claimant's welfare. In response to the report, State Police personnel attempted to locate the claimant, including making arrangements to perform an "exigent phone ping" to locate claimant's cell phone (T228). When claimant was finally located, the Investigator went to claimant's house where he found claimant, Investigator Ahrberg, claimant's wife and others. Claimant's wife identified where in the house guns were located and according to the witness, "was very happy with the fact that we were securing them at that point" (T231). The guns were found in various locations throughout the house - between a box spring and mattress, in several dresser drawers, and in the laundry room and basement. Mrs. Riordan also provided a key to a lockbox containing the combination to a locked gun cabinet in the basement. At no point did Mrs. Riordan object to the State Police taking the guns. Rather, she "seemed glad" the guns were being removed from the house according to Investigator Caputo (T234).

On cross-examination, the witness stated that he could not recall all of the individuals present at the house when he arrived. He testified that no search warrant was required because claimant's wife "wanted to turn the guns over to us and she had actually asked us to secure those weapons" (T242).

Investigator Caputo agreed that if claimant had a valid pistol license, claimant had legal authority to possess the pistols in his house (T242). However, it was his understanding that claimant's Sullivan County permit had been suspended. In addition, he stated "It's State Police policy whenever we're dealing with a mentally ill person or an allegation of being mentally ill that we secure any weapons that are in the residence" (T235).

Robin Riordan testified in rebuttal that when she arrived home that evening, her husband had already been removed from the premises and the police were still there. She testified that one officer had already "checked out the gun cabinet", and that she willingly assisted the police in locating the remaining guns (T249). On cross-examination, Mrs. Riordan agreed that she never denied officers' permission to secure weapons found in the home and, also, that she provided the combination to the lockbox that held the key to the gun safe.

To prevail on a cause of action for false arrest and wrongful confinement, a species of false imprisonment, it must be established that "(1) that the defendant intended to confine [claimant], (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State of New York, 37 NY2d 451, 456 [1975] ), cert denied sub nom. Schanbarger v Kellogg, 423 U.S. 929 [1975]; see also Gittens v State of New York, 132 Misc 2d 399, 406 [Ct Cl 1986]). Here, the first two factors are undisputed. Defendant intended to confine the claimant and claimant was conscious of the confinement. On the issue of consent, claimant testified that although he was persuaded to go with the State Police voluntarily, he was "grabbed" and handcuffed after he stepped outside of the house. Moreover, Investigator Ahrberg testified that once he and the claimant were inside the house, claimant was not free to leave and go about his business (T194).(3) Given these facts, the Court finds that claimant did not consent to the confinement. The last factor - whether or not the confinement was privileged - requires consideration of the circumstances warranting the involuntary detention of mentally ill individuals (see Higgins v City of Oneonta, 208 AD2d 1067 [3d Dept 1994], lv denied 85 NY2d 803 [1995]).

Mental Hygiene Law 9.41 provides that "[a]ny . . . police officer who is a member of the state police . . . may take into custody any person who appears to be mentally ill and is conducting himself or herself in a manner which is likely to result in serious harm to the person or others." Conduct which is "likely to result in serious harm" includes, inter alia, "a substantial risk of physical harm to the person as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that the person is dangerous to himself or herself" (Mental Hygiene Law 9.01). While Mental Hygiene Law 9.41 requires both the appearance of mental illness and conduct which is likely to result in serious harm to the person or others, the two inquires essentially become one where a threat of suicide is made (see Bayne v Provost, US Dist Ct, ND NY, 1:04 CV44, 2005 WL 1871182 at *7, McAvoy, J., 2005). If facts and circumstances exist that would warrant a reasonable police officer's belief that an individual had threatened suicide, then there would also exist a basis for the suspicion that the individual was mentally ill (see id.). Thus, "[t]o handcuff and detain, even briefly, a person for mental-health reasons, an officer must have 'probable cause to believe that the person presented a risk of harm to himself or others' " (Myers v Patterson, 819 F3d 625, 632 [2d Cir 2016] [citation omitted]). Consistent with the requirements of the Fourth Amendment, an objective reasonableness standard is applied to police discretion under Mental Hygiene Law 9.41 (Kerman v City of New York, 261 F3d 229, 240 n 8 [2d Cir 2001]). Whether the police acted reasonably "must be assessed in light of the particular circumstances confronting the officer at the time" (id. at 235, citing Graham v Connor, 490 US 386, 397 [1989]). "[F]or the purpose of determining whether an arresting officer had probable cause to arrest, 'where law enforcement authorities are cooperating in an investigation, . . . the knowledge of one is presumed shared by all' " (Savino v City of New York, 331 F3d 63, 74 [2d Cir 2003], quoting Illinois v Andreas, 463 US 765, 772 n 5, [1983]). Police officers may therefore rely upon information acquired from other officers in making their probable cause assessment. Once probable cause exists, a police officer need not explore "every theoretically plausible claim of innocence before making an arrest" (Ricciuti v N.Y.C. Transit Authority, 124 F3d 123, 128 [2d Cir 1997]). Where an arrest is accomplished without a warrant, the burden of establishing probable cause is on the defendant (Hollender v Trump Vil. Coop., 58 NY2d 420, 425 [1983]; Broughton, 37 NY2d at 456). The issue in this case therefore distills to whether defendant demonstrated that the facts and circumstances known to the police officers at the time they took the claimant into custody were sufficient to warrant a reasonable belief that claimant was "conducting himself or herself in a manner which is likely to result in serious harm to the person or others" (Mental Hygiene Law 9.41; see Higgins, supra; Wright v City of Buffalo, 137 AD3d 1739 [4th Dept 2016]; Smolian v Port Auth. of N.Y. & N.J., 128 AD3d 796 [2d Dept 2015]). In the Court's view, defendant met its burden.

The State Police acted on credible reports from two DOCCS' employees, Lieutenants Ritter and Trudell, that claimant had threatened suicide. Lieutenant Ritter reported that claimant said "he had a loaded .357 to his head, and I just consumed a bottle of liquor" (T119) and Lieutenant Trudell testified that claimant said he had a specific type of gun in his hand and "was thinking about shooting himself" (T138). Both officers testified that they were required to report threats of self-harm. Claimant's strained explanation for Lieutenant Trudell's report - that when claimant said he was looking at his gun on the "bed", Lieutenant Trudell thought he said he had a gun to his "head" - is not credible. Such a conclusion would require the Court to ignore Lieutenant Ritter's corroborating testimony that claimant said "he had a loaded .357 to his head" and that "he couldn't take it anymore" (T119). Moreover, given the gravity of the situation, even had Lieutenant Trudell misheard what claimant had said, his conduct in reporting the matter to the State Police was reasonable under the circumstances. As stated by the Court in Kerman (261 F3d at 241), police officers are often required to make judgments on the spot and "should be entitled to reasonable leeway in those situations."

The difficult choice confronting the officers upon locating the claimant was either to accept claimant's denial that he was suicidal and risk that he would harm himself after they left, or to detain the claimant involuntarily for a mental health evaluation. Consideration of the credible reports of claimant's threats of suicide from both Lieutenant Ritter and Lieutenant Trudell, together with claimant's peculiar and evasive behavior during the course of the day, leads the Court to conclude that the conduct of the State Police in detaining the claimant for a mental health evaluation was supported by probable cause and therefore privileged under Mental Hygiene Law 9.41.

A cause of action for assault and battery may be predicated upon contact made during the course of an unlawful arrest (Smolian, 128 AD3d at 800). As set forth previously, however, in the Court's view the facts and circumstances as elicited at trial provided the State Police probable cause to detain the claimant for a mental health examination pursuant to Mental Hygiene Law 9.41.

Moreover, the claimant testified that he was not injured by the police during the encounter. The Court finds, therefore, that what little force was used was objectively reasonable under the circumstances existing when claimant was taken into custody (see Jones v State of New York, 33 NY2d 275, 280 [1973]; Higgins, 208 AD2d at 1070-1071).

In an action to recover damages for libel or slander, CPLR 3016 (a) provides that "the particular words complained of shall be set forth in the complaint." A cause of action sounding in libel or slander which fails to comply with these special pleading requirements must be dismissed (Martin v Hayes, 105 AD3d 1291, 1293 [3d Dept 2013]). Here, the claim fails to set forth the particular words complained of, and dismissal of the claimant's cause of action for slander and/or libel is required on this basis alone. To the extent it could be inferred that the conveyance of claimant's suicide threat to the State Police was defamatory, the Court finds, as indicated above, that the claimant, in fact, made such threats. Since truth is an absolute defense, claimant's defamation claim must be dismissed (see Cusimano v United Health Servs. Hosps., Inc., 91 AD3d 1149, 1151 [3d Dept 2012], lv denied 19 NY3d 801 [2012]).

In Brown v State of New York (89 NY2d 172 [1996]), the Court of Appeals found recognition of a constitutional tort cause of action necessary to ensure the full realization of the claimant's constitutional rights under the Search and Seizure and Equal Protection Clauses of the State Constitution, notwithstanding the existence of a claim pending in federal court pursuant to 42 USC 1983. The Court subsequently clarified in Martinez v City of Schenectady (97 NY2d 78, 83 [2001]) that a cause of action for violation of the State Constitution is a narrow one which may not be invoked where the claimant has an alternate avenue of redress, such as common law tort causes of action (see e.g. Waxter v State of New York, 33 AD3d 1180 [3d Dept 2006]; Lyles v State of New York, 2 AD3d 694, 695-696 [2d Dept 2003], affd 3 NY3d 396 [2004]; Augat v State of New York, 244 AD2d 835 [3d Dept 1997]; Albright v State of New York, 32 Misc 3d 855 [Ct Cl, May 31, 2011, Marin, J.]). While there may be no alternative avenue of redress to assert his cause of action premised upon the allegedly unlawful search of his home, other than one under 42 USC 1983, the Court finds that the search of claimant's residence was conducted with the consent and assistance of claimant's wife.

"It is well established that the police need not procure a warrant in order to conduct a lawful search when they have obtained the voluntary consent of a party possessing the requisite authority or control over the premises or property to be inspected" (People v Reed, 151 AD3d 1821, 1824 [4th Dept 2017] [citation and internal quotation marks omitted]). "It is equally 'well settled that consent may be inferred from an individual's words, gestures, or conduct' " ( id., quoting U.S. v Buettner-Janusch, 646 F2d 759, 764 [1981], cert denied 454 US 830 [1981]). Here, the Court finds that Mrs. Riordan provided police the combination to the lockbox, which stored the key to the gun safe, and guided the police to the locations where guns were stored in the bedroom, laundry room and basement. Under these circumstances, the Court finds that no violation of the Search and Seizure clause of the State Constitution occurred.

To the extent the claim rests on alleged violations of the Federal Constitution, the claim must be dismissed as the State is not a "person" within the meaning of the enabling legislation (42 USC 1983; Brown v State of New York, 89 NY2d 172, 185 [1996], citing Monell v New York City Dept. of Social Servs., 436 US 658 [1978]; see also Flemming v State of New York, 120 AD3d 848 [3d Dept 2014]; Shelton v New York State Liq. Auth., 61 AD3d 1145 [3d Dept 2009]).

Lastly, claimant's cause of action for conversion must be dismissed as claimant testified that all of the firearms removed from the home have been returned (see e.g. Solomon v Meyer, 149 AD3d 1320 [3d Dept 2017]).

Based on the foregoing, the claim is dismissed.

Let judgment be entered accordingly.

November 15, 2017

Saratoga Springs, New York

FRANCIS T. COLLINS

Judge of the Court of Claims


1. Sergeant Ritter was later promoted to Lieutenant.

2. Numbers preceded by the letter "T" are taken from the trial transcript.

3. A person is seized under the Fourth Amendment when, "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." (Kia P. v McIntyre, 235 F3d 749, 762 (2d Cir 2000), cert denied 534 US 820 [2001]).