Although the alleged theft of funds by the NYS Police during the course of executing a search warrant could be the basis for a conversion claim, it could not be concluded that the officers were acting within the scope of their employment. Moreover, the cause of action for negligent hiring and training was untimely thereby requiring dismissal.
|Claimant(s):||FRANCISCO J. PION, also known as FRANCISCO J. PION-POUERIET and FRANCISCO JAVIER PION|
|Claimant short name:||PION|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||David G. Goldbas, Esq.|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Christopher J. Kalil, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 3, 2021|
|See also (multicaptioned case)|
Claimant seeks damages for money allegedly taken from his home by New York State Police (State Police) during the course of executing a search warrant on March 9, 2018. At bar is defendant's motion for dismissal of the claim pursuant to CPLR 3211 (a) (2) and (7) on the following grounds: (1) this court lacks jurisdiction over the claim because a proceeding pursuant to CPLR article 78 is the appropriate procedural vehicle to secure the release of seized property; (2) the claim fails to state a cause of action for conversion because money is not specifically identifiable property and the officers who searched the premises acted pursuant to legal authority; (3) the State may not be held vicariously liable for the intentional theft of money by one of its employees; (4) the cause of action for negligent hiring, retention, training and supervision fails to state a cause of action because claimant alleges the investigators who searched his home were acting within the scope of their employment, and (5) the claim is untimely under both Court of Claims Act § 10 (3) and § 10 (3-b).
The claim, filed on April 10, 2019 and served on April 25, 2019 alleges, in pertinent part, that the claimant's apartment was searched by two State Police officers on March 9, 2018 (claim, ¶ 5). No illegal substances, contraband or evidence of a crime was found (claim,¶ 6) and claimant was never charged with a crime (claim, ¶ 7). During the search, which was conducted pursuant to a search warrant (claimant's Exhibit 7),(1) officers seized a total of approximately $7,450.00 of U.S. currency that belonged to the claimant (claim, ¶ 8). A receipt was provided for the seizure of "U.S. Currency" with no indication of the amount (claim, ¶ 9; claimant's Exhibit 4). Claimant reported the seizure of $7,450.00 to other officers of the State Police and by letter dated March 19, 2018 claimant's counsel notified the State Police of his claim for damages and his intention to seek judicial intervention if the claim was not paid (claim, ¶¶ 10, 11). Although the letter was unverified and sent to the State Police rather than the Office of the Attorney General, claimant alleges (and contends in opposition to the defendant's motion) that the letter meets all of the requirements of a notice of intention to file a claim (claim, ¶ 12). In response to the letter, the State Police, Internal Affairs Division, conducted an investigation which concluded in May 2018 and recommended criminal action against the officers who conducted the search (claim, ¶¶ 14, 15). Thereafter, from May 2018 through November 2018, the State Police conducted a criminal investigation into the seizure of claimant's money, which failed to result in criminal charges against the searching officers (claim, ¶¶ 16, 17). To date, claimant's cash has not been returned or refunded (claim, ¶ 18). Claimant alleges causes of action for conversion and negligent hiring, retention, training and supervision.
Defendant first contends that this Court lacks jurisdiction to review a determination of the State Police denying claimant's request for the return of the money seized from his apartment. In determining whether this Court has jurisdiction over a claim seeking monetary damages, the Court must determine, as a threshold matter, whether review of an administrative agency's determination is required (Davis v State of New York, 129 AD3d 1353, 1353 [3d Dept 2015], appeal dismissed 26 NY3d 949 ; Green v State of New York, 90 AD3d 1577, 1578 [4th Dept 2011], lv dismissed and denied 18 NY3d 901). Where monetary relief is incidental to the primary claim, the appropriate relief is annulment of the administrative determination in a proceeding pursuant to CPLR article 78 (Hoffman v State of New York, 42 AD3d 641 [3d Dept 2007]).
Some background with respect to the usual procedure for the confiscation of property by the police and for securing its return to the owner is necessary. A police officer conducting a search pursuant to a search warrant is required to provide a receipt containing the name of the Court from which the warrant was issued and an itemization of the property taken (CPL 690.50 ). The officer is thereafter required to return the property to the Court, together with the warrant, and file therewith an inventory of the seized property (CPL § 690.50 ). As pertinent here, Criminal Procedure Law § 690.55 (1) requires that a court either retain the seized property or direct that it be held by the person or entity which applied for or executed the warrant. If the property is directed to be held by the person or entity that applied for or executed the warrant, upon order of the Court the property must be returned thereto (id.). This statutory scheme reflects the well established principle that "property seized pursuant to a court order is held 'in the custody of the law, and [it] cannot be taken away until that custody is ended by a conviction or acquittal, or by an order of the magistrate permitting its surrender to the owner' " (LM Bus. Assoc., Inc. v State of New York, 124 AD3d 1215, 1217 [4th Dept 2015], lv denied 25 NY3d 905 ; quoting Simpson v St. John, 93 NY 363, 366 ).
During the pendency of a criminal proceeding, the defendant may seek the return of property not subject to lawful retention by motion to the court that issued the search warrant (see Peter Preiser, Practice Commentaries, McKinney's CPL § 690.55). Where property is seized and held for an unreasonable length of time without commencement of a criminal proceeding, the owner may regain possession through either a common law action for replevin or a proceeding pursuant to CPLR article 78 mandating its return (Moreno v City of New York, 69 NY2d 432 ; Boyle v Kelley, 42 NY2d 88 ; Matter of Camacho v Kelly, 57 AD3d 297 [1st Dept 2008]; Matter of Moss v Spitzer, 19 AD3d 599 [2d Dept 2005], lv denied 5 NY3d 714 ; Smith v Scott, 294 AD2d 11, 18 [2d Dept 2002]; Matter of Caggiano v Frank, 44 AD2d 828 [2d Dept 1974]). In this case, however, the amount of money seized was not reflected in the receipt provided to the claimant, an inventory of the confiscated property at issue was not filed with the Court, and claimant was never charged with a crime. Instead, claimant alleges the money was stolen by one of the searching officers. Since the money claimant seeks was never under the custody or control of the court, relief pursuant to CPLR article 78 mandating its return would prove futile. Given these facts, this is clearly not a case in which monetary relief is incidental to the primary claim (see Matter of Parkinson v Leahy, 277 AD2d 810 [3d Dept 2000]; Matter of Harrison v Carpenter, 201 AD2d 848 [3d Dept 1994]). As a result, a plenary action in the Court of Claims for common law conversion is appropriate (id.).
Defendant's contention that the claim fails to state a cause of action for conversion rests on the premise that money is fungible and therefore cannot be the subject of a conversion claim. The law is well established, however, that "[m]oney may be the subject of a cause of action for conversion only if 'it can be identified and segregated as a chattel can be' (Heckle v Walsh, 122 AD3d 1252, 1254-1255 [4th Dept 2014], quoting Payne v White, 101 AD2d 975, 976 [3d Dept 1984]) i.e., 'where there is a specific, identifiable fund' " (id., quoting Manufacturers Hanover Trust Co. v Chemical Bank, 160 AD2d 113, 124 [1st Dept 1990], lv denied 77 NY2d 803 ). Here, a receipt was given for money taken from the claimant's home (albeit in an unspecified amount), all of which should have been inventoried and deposited with the court together with the warrant. Inasmuch as the money taken from the claimant's home is a specific identifiable fund, subject only to possible dispute as to its amount, a cause of action for conversion is appropriate.
Notwithstanding this determination, defendant correctly contends the State may not be held vicariously liable for the conversion of claimant's money by members of the State Police. The doctrine of respondeat superior renders employers vicariously liable for the torts of their employees committed within the scope of their employment. "Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment" (Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 ). The test is not whether or not the employee was acting in an authorized manner but "whether the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions" (Riviello v Waldron, 47 NY2d 297, 302  [inner quotation marks and citation omitted]; see also McMindes v Jones, 41 AD3d 1196 [4th Dept 2007]; Cepeda v Coughlin, 128 AD2d 995 [3d Dept 1987], appeal denied 70 NY2d 602 ). The employer need not foresee the precise manner in which an injury occurs "so long as 'the general type of conduct may have been reasonably expected' " (Stewart v Westchester Inst. for Human Dev., 136 AD3d 1014, 1018 [2d Dept 2016], quoting Riviello [47 NY2d at 304]).
Conversely, where an employee's actions are taken for wholly personal reasons unrelated to his or her job, they fall outside the scope of employment (see Rivera v State of New York, 34 NY3d 383 ; N.X. v Cabrini Med. Ctr., 97 NY2d 247 ; Judith M., 93 NY2d 932; Galloway v State of New York, 194 AD3d 1151 [3d Dept 2021]; Salomon v Citigroup, Inc. 123 AD3d 517 [1st Dept 2014]; Stevens v Kellar, 112 AD3d 1206 [3d Dept 2013]; Burlarley v Wal-Mart Stores, Inc., 75 AD3d 955 [3d Dept 2010]; Curtis v City of Utica, 209 AD2d 1024 [4th Dept 1994]). The factors to be considered in reaching a determination include "the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated" (Riviello, 47 NY2d at 303).
Here, although the alleged theft of claimant's money occurred during the course of a search executed pursuant to a warrant, thereby meeting the time and place factors, the remaining factors are unsatisfied. Claimant has pointed to nothing in the history of the employer-employee relationship that warranted the confiscation of seized property without performing an inventory and returning both the property and the warrant to the Court as required by CPL § 690.50 (5). Nor has it been suggested that the disappearance or theft of funds during the course of executing a search warrant is common. Rather, the commission of a crime such as this, if true, constitutes a gross departure from the normal methods of performance which could not have been reasonably anticipated (see Salomon, 123 AD3d 517). Since the alleged theft was committed for wholly personal motives unrelated to the performance of a police officer's duties, it must be concluded that the offending officer's conduct was outside the scope of his employment. Consequently, to the extent the claim seeks to hold the State vicariously liable for the conversion allegedly committed by its employees, dismissal is required.
Turning to claimant's cause of action for negligent hiring, training, supervision and retention, an employer may be liable under these theories of liability when an employee acts outside the scope of his or her employment (Rivera v State of New York, 34 NY3d at 392; Sandoval v Leake & Watts Servs., Inc., 192 AD3d 91 [1st Dept 2020]; Walden Bailey Chiropractic, P.C. v Geico Cas. Co., 173 AD3d 1806 [4th Dept 2019]; cf. Quiroz v Zottola, 96 AD3d 1035, 1036 [2d Dept 2012]; Karoon v New York City Tr. Auth., 241 AD2d 323, 324 [1st Dept 1997] [where an employee is acting within the scope of his or her employment, no claim may proceed against the employer for negligent hiring or retention]).(2) "Under this theory, an employer may be held liable only if the employer was aware of, or reasonably should have foreseen, the employee's propensity to commit such an act" (Medical Care of W.N.Y. v Allstate Ins. Co., 175 AD3d 878, 880 [4th Dept 2019]). In pleading this cause of action, therefore, one must allege that "the employer knew or should have known of the employee's propensity for the conduct which caused the injury" (106 N. Broadway, LLC v Lawrence, 189 AD3d 733, 737 [2d Dept 2020], quoting Shu Yuan Huang v St. John's Evangelical Lutheran Church, 129 AD3d 1053, 1054 [2nd Dept 2015]; see also Kerzhner v G4S Govt. Solutions, Inc., 138 AD3d 564, 565 [1st Dept 2016] [inclusion of such language was sufficient at the pleading stage]; Jackson v State of New York, 69 Misc 3d 1223 (A) [Ct Cl, 2020] [claim failed to state a cause of action because claimant did not allege that defendant knew or should have known of the propensity for the conduct that caused the injury]). Affording the instant claim a liberal construction and accepting the facts alleged therein as true (see Leon v Martinez, 84 NY2d 83 ), the claim fails to state a cause of action for negligent hiring, training, retention and supervision as it does not allege that the employer knew or should have known of the police officers' propensity for dishonesty.
Lastly, even if the claim did allege sufficient facts from which a cause of action for negligent hiring, training, supervision and retention could be inferred, the claim is time-barred.
Court of Claims Act § 10 (3) requires that an unintentional tort claim be filed and served upon the Attorney General within ninety days following acccrual of the claim unless a notice of intention to file a claim is served within that same time period "in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim." Court of Claims Act § 11 (a) (i) requires that a notice of intention be served upon the Attorney General either personally or by certified mail, return receipt requested, within the times provided in Court of Clams Act § 10. "Inasmuch 'as suits against defendant are permitted only by virtue of its waiver of sovereign immunity and are in derogation of the common law, the failure to strictly comply with the filing or service provisions of the Court of Claims Act divests the court of subject matter jurisdiction and compels dismissal of the claim' " (Baysah v State of New York, 134 AD3d 1304, 1305 [3d Dept 2015], quoting Caci v State of New York, 107 AD3d 1121, 1122 [3d Dept 2013]; see also Lepkowski v State of New York, 1 NY3d 201 ; Scott v State of New York, 194 AD3d 1216 [3d Dept 2021]; Flowers v State of New York, 175 AD3d 1724, 1725 [3d Dept 2019]; Young v State of New York, 138 AD3d 1357, 1358 [3d Dept 2016]).
Here, claimant alleges the letter dated March 19, 2018 notifying the State Police of his claim for damages and his intention to seek judicial intervention fulfilled the purposes of a notice of intention to file a claim so as to extend the period to serve and file the claim to within two years of accrual. Firstly, the letter was not served by one of the methods prescribed by Court of Claims Act § 11 (a) (i) and therefore was ineffective to extend the period within which to file and serve a claim (see Suburban Restoration Co. Inc. v State of New York, 194 AD3d 1204 [3d Dept 2021]; Negron v State of New York, 257 AD2d 652 [2d Dept 1999]). Nor was the letter served on the Office of the Attorney General as required by Court of Claims Act § 11 (a) (i). Because the letter dated March 19, 2018 was not served in the manner required by Court of Claims Act § 11 (a) (i) and was served on the State Police rather than the Attorney General as required, it is ineffective to extend the limitations period set forth in Court of Claims Act § 10 (3). (3) " '[A] claim accrues for purposes of the Court of Claims Act when damages are reasonably ascertainable' " (Scott v State of New York, 194 AD3d 1216, 1217 [3d Dept 2021], quoting Augat v State of New York, 244 AD2d 835, 836 [3d Dept 1997], lv denied 91 NY2d 814 ). The accrual date here was no later than November 2018 when the State Police concluded its criminal investigation. The claim filed on April 10, 2019 and served on April 25, 2019 was, therefore, untimely. Inasmuch as the defendant preserved its defense with respect to the timeliness of the claim by raising it as the second affirmative defense in its answer (see Court of Claims Act § 11 [c]), the claim must be dismissed.
Accordingly, defendant's motion is granted, and the claim is dismissed.
August 3, 2021
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. Notice of Motion dated April 19, 2021;
2. Affirmation in Support dated April 19, 2021, with Exhibits A-E;
3. Affirmation in Opposition dated June 8, 2021, with Exhibits 1-9.
1. The search warrant authorized a search for currency, among other things, that may be the proceeds of illegal drug sales.
2. Defendant's contrary contention notwithstanding, "allegations of vicarious liability, though incompatible with a claim of negligent hiring and supervision, do not require dismissal because a [claimant] may plead inconsistent theories in the alternative" (McCarthy v Mario Enters., Inc., 163 AD3d 1135, 1137 [3d Dept 2018]).
3. This conclusion is the same for claimant's conversion cause of action, which is governed by Court of Claims Act § 10 (3-b) (see Esposito v State of New York, 35 Misc 3d 1216 [A] [Ct Cl, 2011], affd 112 AD3d 1006 [3d Dept 2013]), dismissed on other grounds as hereinbefore set forth.