Opinion
# 2014-044-535 Claim No. 120899 Motion No. M-84589 Cross-Motion No. CM-85069
08-20-2014
WILLIAM T. McMANUS v. THE STATE OF NEW YORK
THE LAW OFFICES OF PETER K. SKIVINGTON, PLLC BY: Peter K. Skivington, Esq., of counsel HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Joseph F. Romani, Assistant Attorney General
Synopsis
Court grants defendant's summary judgment motion in claim for defamation and false arrest, and denies claimant's motion to amend the claim. Claimant failed to set forth the precise words used in the alleged defamation. Moreover, claimant's detention and questioning was privileged as a matter of law, under the circumstances.
Case information
| UID: | 2014-044-535 |
| Claimant(s): | WILLIAM T. McMANUS |
| Claimant short name: | McMANUS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120899 |
| Motion number(s): | M-84589 |
| Cross-motion number(s): | CM-85069 |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | THE LAW OFFICES OF PETER K. SKIVINGTON, PLLC BY: Peter K. Skivington, Esq., of counsel |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Joseph F. Romani, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 20, 2014 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed this claim asserting causes of action for defamation and false arrest based upon allegations that the State Police disseminated his photograph to the news media, along with information indicating that he was a suspect in a series of fraudulent bank transactions, and then subsequently detained him for questioning. Defendant answered and asserted several affirmative defenses. Defendant now moves for summary judgment dismissing the claim. Claimant opposes the motion and cross-moves to amend the claim. Defendant opposes the cross motion.
The claim also contains a cause of action for intentional infliction of emotional distress. As defendant State of New York (defendant) aptly notes, public policy prohibits asserting this cause of action against the State of New York (see e.g. Brown v State of New York, 125 AD2d 750 [3d Dept 1986], lv dismissed 70 NY2d 747 [1987], and claimant has accordingly withdrawn it (Affirmation of Peter K. Skivington, Esq., dated May 6, 2014, in Opposition to Motion and in Support of Cross Motion, ¶ 47).
Defendant argues that the cause of action for defamation lacks sufficient particularity and should be dismissed because claimant has not set forth the specific words complained of or the media broadcasts in which they were published. Defendant similarly contends that the proposed amended claim suffers from the same deficiencies. Defendant further asserts that because claimant's confinement was supported by a reasonable suspicion that he was the individual who cashed a fraudulent check, it was privileged.
Conversely, claimant contends that the claim and assertions contained in the affirmation in opposition to the motion sufficiently identify State Police Investigator William Baumgartner as the speaker and set forth the date of the defamatory statements and the audience to which they were broadcast. In the alternative, claimant asserts that leave should be granted to amend the claim because the proposed amendment complies with the specificity requirements of CPLR 3016. Claimant also argues that because Baumgartner neither interviewed the bank teller who processed the fraudulent check nor subpoenaed the records of the named payee prior to detaining claimant, the State Police lacked probable cause to believe that claimant was the person who cashed a fraudulent check.
Claimant testified at an examination before trial that on November 15, 2010, he deposited a check into his bank account at a branch of M&T Bank located in Vestal, New York. During the deposition, he also identified himself as the individual pictured in a security camera photograph (the Photograph) which had apparently been taken at the time he deposited his check. On February 11, 2011, the Photograph - with information that the suspect in the picture cashed a bad check - was shown on a segment of a local news program called Crime Stoppers. Claimant stated that a friend advised him that the Photograph was on television and that claimant was wanted by the police. Claimant stated that although he thought his friend was joking, he nevertheless stopped at the Binghamton Police Station later that evening. He told the officers that he heard someone who looked like him had been shown on television and he wanted to clear his name. He said that the officers placed him in an isolated room, had him empty his pockets, frisked him and then had him wait for the State Police. At that time, a Binghamton Police Officer showed him a copy of the Photograph.
Claimant stated that when the State Police arrived, they frisked him again, put handcuffs on him and drove him to the State Police barracks in Kirkwood, New York. He said that while at the barracks, he was read his rights and shown photographs of three people. He stated that he repeatedly told the investigator that he did not know the other people. Claimant estimated that he was at the barracks for approximately an hour before he was allowed to leave. A Trooper then drove him back to the Binghamton Police Station so he could retrieve his car.
Claimant testified that the next day he received telephone calls from several people inquiring about what had happened, as they had seen the Photograph on television and/or in the newspaper. Claimant stated that he had been an Elder at First Presbyterian Church, but stopped going to church after the incident. He indicated that he began drinking alcoholic beverages again after having abstained for four years. He stated that the broadcasting of the Photograph also negatively affected his relationship with his girlfriend. He indicated that many acquaintances have stopped taking his calls, and one in particular has referred to him as "jailbird."
John Doyle, Manager of Security for M&T Bank, also testified at an examination before trial. Doyle stated that during the time period from 2008 through 2011, he had been investigating a check-cashing scheme in which individuals would steal checks from mailboxes located at business addresses and then make counterfeit checks. Doyle was contacted by State Police Investigator Baumgartner concerning a certain check (the Check) that had been cashed at an M&T Bank branch located in Vestal, New York. Doyle stated that there was information on the back of the Check from which he could determined the date, time and teller location where it was cashed. With that information, Doyle retrieved four photographs of a person standing in the teller line. Doyle sent an email to Investigator Baumgartner with the photographs attached. He also sent Baumgartner a CD with the same photographs. Doyle indicated that the Check (which was determined to be fraudulent) had been made payable to Douglas Eugene Donahue. When he sent the photographs to Baumgartner, Doyle did not know that one of them would be broadcasted on Crime Stoppers.
Although Doyle was the Manager of Security for the Syracuse Region, he was also managing security for the Binghamton Region at the relevant time.
State Police Investigator William Baumgartner also testified at an examination before trial. He stated that in November 2010, Silvia Mirvis from Triple Cities Metal Finishing (TCMF) reported that she believed TCMF checks were being altered and cashed by individuals who were not associated with the company. In January 2011, Mirvis brought Baumgartner a photocopy of a check in the amount of $3,875 which appeared to have been issued by TCMF to Donahue (the Check). Mirvis believed that the Check was fraudulently issued and then cashed at the Vestal branch of M&T Bank. Baumgartner stated that he placed Donahue's name into SJS (a database which maintains names of anybody who has had contact with the State Police) and obtained a birth date for him. He then placed Donahue's name and birth date into eJusticeny to create Donahue's criminal history. Baumgartner also entered a phone number used by other suspects involved in fraudulent check cashing cases into an ALI (presumably Automatic Location Information) database and determined that the number belonged to Donahue.
"eJusticeNY is a browser-based application designed to give users from qualified agencies a single point of access to computerized information within and beyond New York State," including both New York State and out of state criminal history information and State Department of Motor Vehicle (DMV) records for licensed drivers (http://www.criminaljustice.ny.gov/ojis/ejusticeinfo.htm).
On January 13, 2011, M&T Bank employee Patty Skinner advised Baumgartner that John Doyle would be forwarding certain information concerning the TCMF check. Doyle forwarded four pictures to Baumgartner in an e-mail dated January 14, 2011. The e-mail stated that Doyle believed the attached "[p]ictures . . . are the suspect in the . . . [C]heck case. Payee Douglas Eugene Donahue. The [C]heck was cashed at the Vestal Parkway Branch . . . on 11/15/09 at [approximately] 14:20 by Teller Karen Chilson [who] accepted a NYS driver[']s lic[ense] . . . ." Baumgartner indicated that at that time, he had not had any conversation with Doyle nor did he know how Doyle determined that the subject in the pictures cashed the Check. When he received the pictures, Baumgartner believed that Donahue had cashed the check and he (Baumgartner) thought that the person in the photographs was Donahue. As part of the investigation, Baumgartner had two troopers go to the last known address for Donahue (in the City of Binghamton). The Troopers determined that the individual at that location (later identified as Donahue) was not the subject in the photographs. Baumgartner also requested a DMV photograph of Donahue and determined that the subject in that photograph did not match the subject in the security camera photographs either. At that point, Baumgartner did not consider Donahue a prime suspect because he did not appear to be the person in the photographs. Baumgartner testified that on January 24, 2011, he forwarded the Photograph to both Detective Sullivan of the Vestal Police Department and Detective Diles of the Binghamton Police Department but neither of them could identify the subject. On January 27, 2011 and believing that his leads were exhausted, Baumgartner forwarded the Photograph to Crime Stoppers to broadcast for any information concerning the subject. Baumgartner indicated that he advised Crime Stoppers that he was trying to identify the "white male used to cash a forgulent [sic] check at the M&T in Vestal, New York."
Affirmation of Assistant Attorney General (AAG) Joseph F. Romani, dated Jan. 30, 2014, in Support of Motion, Exhibit F.
Affirmation of AAG Joseph F. Romani, dated Jan. 30, 2014, in Support of Motion, Exhibit E at 28.
As the investigation continued, Baumgartner learned that the individuals cashing the fraudulent checks had either been to the United Way and/or soup kitchens in the local area. He discovered that the individuals were being recruited by men from the southern United States who would give the individuals food, sometimes provide them with clothing, and then have them cash the forged checks. In return, the individuals would get a percentage of the checks they cashed. As a result, Baumgartner distributed a copy of the Photograph to employees at the United Way. However, no one there could identify the subject.
On February 10, 2011, the Photograph was broadcast on a segment of Crime Stoppers. Shortly thereafter, claimant turned himself into the Binghamton Police Department. Baumgartner testified that claimant was handcuffed and transported by the State Police to the Kirkwood barracks. He explained that it is State Police procedure for the safety of both the driver and the suspect to handcuff a suspect in a crime if he or she is to be transported in a motor vehicle. Baumgartner indicated that because claimant was being held in an ongoing investigation, he was not free to leave the barracks at that time. Baumgartner stated that claimant read his Miranda warnings out loud and indicated that he understood them by placing his initials next to each warning. Baumgartner then interviewed claimant. He showed claimant the four photographs provided by Doyle and claimant admitted that he was the subject in those photographs. He also stated that he regularly used the M&T Bank branch in Vestal. Claimant denied having cashed the Check provided by Silvia Mirvis. Baumgartner stated that at that time, he determined that he needed to investigate the matter further, including talking to Doyle about the photographs. He stated that he wanted to know for sure that the subject in the Photograph "was 100 [%] the person that cashed . . . [the] [C]heck." As a result, he did not arrest claimant, but instead had a Trooper drive him back to the Binghamton Police Station to obtain his car. Baumgartner stated that he still considered claimant to be a suspect. According to Baumgartner, he notified Crime Stoppers by telephone within a day or two that he had identified the person in the Photograph and it was no longer necessary to broadcast it anymore. Baumgartner did not rule out claimant as a prime suspect until he (Baumgartner) spoke with Doyle on February 15, 2011 and Doyle stated that he could not say that the subject in the Photograph was the man that cashed the Check.
Affirmation of AAG Joseph F. Romani, dated Jan. 30, 2014, in Support of Motion, Exhibit E at 55.
On February 27, 2011, Baumgartner received Donahue's DMV paperwork and determined that Donahue's signature was similar to the signature on the Check. On March 1, 2011, Baumgartner interviewed Karen Chilson, the teller who had processed the check. She described the individual who presented the Check, stated that he showed his identification and then deposited a portion of the Check into his account, and took the remaining amount in cash. Chilson said the individual had stated that the Check was his Christmas bonus. Baumgartner showed Chilson a photo array which included Donahue and she indicated that she recognized him, but did not know why or from where. Baumgartner stated that because he had an individual who identified Donahue, and Donahue's signature and client ID were similar to those on the Check, Baumgartner ruled out claimant as a suspect. At that point, Baumgartner obtained a subpoena for Donahue's bank records, confirmed that he made a deposit on the relevant date, and arrested him for criminal possession of a forged instrument in the second degree (Penal Law § 170.25).
Defendant has moved to dismiss claimant's cause of action for defamation arguing that because claimant has not set forth the specific time, words and media broadcasts complained of, the claim lacks sufficient particularity. Although claimant opposes the motion, in the alternative he also seeks leave to file and serve an amended claim to remedy any alleged pleading defect. Because the proposed amendment might resolve any pleading deficiency, the Court will initially address claimant's cross motion.
Leave to amend "should be freely given unless the proposed amendments plainly lack merit or would cause the nonmoving party to suffer prejudice or unfair surprise" (Bastian v State of New York, 8 AD3d 764, 765 [3d Dept 2004]). In addressing an application to amend, the Court should consider whether there would be any prejudice to the opposing party; the effect, if any, an amendment would have on the orderly prosecution of the action; whether there was undue delay in seeking the amendment; and whether the proposed amendment is palpably improper or insufficient as a matter of law (see e.g. Nunez v State of New York, UID No. 2002-030-525 [Ct Cl, Scuccimarra, J., June 26, 2002]). However, leave should be denied in situations where the proposed amendment lacks merit as a matter of law (see Bastian, 8 AD3d at 765).
In order to set forth a cause of action for defamation, claimant must allege: (1) that defendant published a false statement to a third party; (2) defendant published said statement without authorization or privilege; (3) fault, judged at a minimum by a negligence standard; and (4) special harm or defamation per se (see Salvatore v Kumar, 45 AD3d 560 [2d Dept 2007], lv denied 10 NY3d 703 [2008]; Dillon v City of New York, 261 AD2d 34, 38 [1st Dept 1999]). Where a statement charges a claimant with a serious crime, it is defamatory per se and the claimant is not required to plead and prove special damages (Liberman v Gelstein, 80 NY2d 429, 435 [1992]). However, a pleading in an action for defamation must set forth the particular words complained of, and the manner and persons to whom the publication was made (CPLR 3016 [a]; see Salvatore, 45 AD3d at 563; Dillon, 261 AD2d at 38). CPLR 3016 [a] has been interpreted to require "that the defamatory words be set forth in haec verba" (Conley v Gravitt, 133 AD2d 966, 968 [3d Dept 1987]; see Besicorp, Ltd. v Kahn, 290 AD2d 147, 150 [3d Dept 2002], lv denied 98 NY2d 601 [2002]), i.e. verbatim, and any qualification or paraphrasing of those words renders the complaint defective (Gardner v Alexander Rent-A-Car, 28 AD2d 667 [1st Dept 1967]).
In the proposed amended claim, claimant alleges that Investigator Baumgartner "sent photographs of claimant to Binghamton Crime Stoppers . . . [and] advised [it] that the individual pictured in the Photograph [sic] was a suspect in a felony." Claimant also asserts that Investigator Baumgartner "told the news outlet that he 'was attempting to identify the white male used to cash a forgulent [sic] check at the M&T in Vestal, New York.' " Claimant further indicates that Baumgartner did so without an objectively reasonable basis to believe that claimant was the individual who had cashed the Check. He states that he suffered damages, including physical pain and suffering, mental distress, and a tarnished reputation in the community.
Affirmation of Peter Skivington, dated May 6, 2014, in Support of Cross Motion, Exhibit 4 (Proposed Claim), ¶ 5.
Id.
Baumgartner admitted that he informed Crime Stoppers that there was an ongoing investigation and he was attempting to identify the subject in the Photograph. However, the quoted language in the proposed amended claim that Baumgartner "was attempting to identify the white male used to cash a forgulent [sic] check at the M&T in Vestal, New York," is actually Baumgartner's description of his interaction with Crime Stoppers as recited in his deposition testimony taken on September 19, 2013. There is no indication that those were the precise words Baumgartner used when dealing with Crime Stoppers. Moreover, Baumgartner unequivocally denied writing any portion of the narrative contained within the Crime Stoppers article. Because claimant has not set forth the defamatory words Baumgartner allegedly published to Crime Stoppers "in haec verba," the proposed amended claim is deficient and thus lacks merit as a matter of law (Besicorp, 290 AD2d at 150; Conley, 133 AD2d at 968). Accordingly, the cross motion to amend is denied (Bastian, 8 AD3d at 765).
The Court will now address defendant's motion for summary judgment. Defendant, as the movant on this motion for summary judgment, is required to set forth evidentiary facts in admissible form which establish a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, absent such a prima facie showing by the movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad, 64 NY2d at 853).
As set forth previously herein, a claimant must allege: (1) that defendant published a false statement to a third party; (2) defendant published said statement without authorization or privilege; (3) fault, judged at a minimum by a negligence standard; and (4) special harm or defamation per se in order to establish a cause of action for defamation (see Salvatore, 45 AD3d at 563; Dillon, 261 AD2d at 38). Moreover, the pleading must set forth the exact words complained of (CPLR 3016 [a]; see Salvatore, 45 AD3d at 563; Besicorp, 290 AD2d at 150; Conley, 133 AD2d at 968).
In the claim, claimant alleges that members of the State Police "disclosed incorrect, inaccurate, and improper information to the news media . . . which improperly identified claimant as the person who committed the fraudulent bank transactions" and caused him to sustain injury. As defendant correctly notes, the allegedly defamatory words are not specifically set forth in the claim. Accordingly, defendant has met its burden of establishing entitlement to judgment as a matter of law.
Verified Claim, ¶ 5.
The burden now shifts to claimant to set forth admissible evidence creating a question of fact requiring a trial of this matter. Claimant asserts that the information contained in counsel's affirmation, including the time and manner of the publications and quotation from Baumgartner's deposition, is sufficient to comply with CPLR 3016 (a). Contrary to claimant's contention, the failure to set forth in the claim the exact words alleged to be defamatory renders the claim defective (Gardner, 28 AD2d at 667; see also Besicorp, 290 AD2d at 150; Conley, 133 AD2d at 968). Accordingly, defendant's motion for summary judgment is granted to the extent that the existing cause of action for defamation is dismissed (Besicorp, 290 AD2d at 150; Conley, 133AD2d at 968; see also Meyer v Shearson Lehman Bros., 211 AD2d 541, 543 [1st Dept 1995]).
With respect to the cause of action for false imprisonment, claimant alleges that he surrendered himself at the Binghamton Police Department and was taken by the State Police to the Kirkwood barracks where he was detained for approximately one hour and questioned. To set forth a cause of action for wrongful confinement, a species of the tort of false imprisonment (Gittens v State of New York, 132 Misc 2d 399, 407 [Ct Cl 1986]), a claimant must show that "(1) the defendant intended to confine him, (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 US 929 [1975]). In this case, it is undisputed that defendant intended to confine claimant and that claimant was conscious of and did not consent to the confinement. Thus, the only issue is whether defendant's conduct in detaining claimant was privileged. Where "there is no real dispute as to the essential facts underlying the [detention of a claimant] or the proper inferences to be drawn from those facts" (Stratton v City of Albany, 204 AD2d 924, 926 [3d Dept 1994]), the Court may determine probable cause as a matter of law (Saunders v County of Washington, 255 AD2d 788, 789-790 [3d Dept 1998]).
In determining whether defendant's conduct was privileged, it is well settled that there are four levels of permissible police interaction with citizens, the least intrusive of which is an officer's approach of an individual for the purpose of requesting information without any indication of criminality (see generally People v De Bour, 40 NY2d 210 [1976]). In this situation, the officer need only have an objective and credible reason for doing so (id.). The second level is "the common-law right to inquire" where an individual may be stopped upon "a founded suspicion that criminal activity is afoot and [it] permits a somewhat greater intrusion in that a [police officer] is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure" (id. at 223). In the third level of interaction, the individual may be forcibly stopped, detained or pursued if a reasonable suspicion exists that a crime has been, is being, or is about to be committed (id.). Reasonable suspicion is defined as a "quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand" (People v Cantor, 36 NY2d 106, 112-113 [1975]; see also People v Martinez, 80 NY2d 444 [1992]). The final level of interaction is where the police may arrest an individual and take him or her into custody where there is probable cause to believe that an offense has been committed or is being committed in the presence of the police (De Bour, 40 NY2d at 223). It is well settled that "probable cause . . . may be supplied, in whole or in part, by hearsay information," provided it satisfies the two-prong Aguilar-Spinelli test. That test consists of the reliability of the informant, and whether the informant "has some basis of knowledge for the information transmitted to the police" (Brown, 256 AD2d at 415). Moreover, where "the proper standard is reasonable suspicion, a lesser showing with respect to the Aguilar-Spinelli test will suffice" (People v Porter, 101 AD3d 44, 47 [3d Dept 2012], lv denied 20 NY3d 1064 [2013]).
People v Brown, 256 AD2d 414, 415 (2d Dept 1998).
see Aguilar v Texas (378 US 108 [1964]) and Spinelli v United States (393 US 410 [1969]). Although the Aguilar-Spinelli test is no longer used in Federal cases (see Illinois v Gates, 462 US 213 [1983]), New York maintains the use of the Aguilar-Spinelli test (see People v Johnson, 66 NY2d 398 [1985]; see also Reese v State of New York, UID No. 2004-032-506 [Ct Cl, Hard, J., June 28, 2004]).
It is undisputed that claimant was not arrested. Rather, he was detained and questioned as part of Baumgartner's investigation. Accordingly, the third level of interaction applies and the appropriate standard is whether, based upon the circumstances confronting him at the time, Baumgartner had reasonable suspicion to believe that a crime had been committed.
"A person is guilty of criminal possession of a forged instrument in the second degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he . . . possesses any forged instrument of a kind specified in section 170.10" (Penal Law § 170.25). As is relevant in this case, Penal Law § 170.10 (1) specifically refers to a written instrument which may represent a commercial instrument, i.e. a check. A forged instrument is defined as "a written instrument which has been falsely . . . altered" (Penal Law § 170.00 [7]). In other words, the instrument had been changed by, among other things, "insertion of new matter . . . so that such instrument in its thus altered form appears or purports to be in all respects an authentic creation of or fully authorized by its ostensible maker or drawer" (Penal Law § 170.00 [6]).
Initially, TCMF employee Mirvis informed Baumgartner that the named payee on the Check (Donahue), was not associated with TCMF and that the company had not issued the check to him. At this point, the evidence supported an inference that the Check had been altered without authorization and thus was a forged instrument (see Penal Law § 170.00 [1], [6], [7]). Further, Doyle provided Baumgartner with four photographs of a subject who Doyle indicated had presented and cashed the Check. Both Mirvis and Doyle are identified individuals who are "presumed to be personally reliable" (People v Parris, 83 NY2d 342 [1994]; see also People v Bahr, 35 AD3d 909 [3d Dept 2006], lv denied 8 NY3d 919 [2007]) and clearly had some basis for knowledge about the information they each conveyed to the State Police. Thus, this hearsay evidence may be used to establish reasonable suspicion. Further, even though the Check was payable to Donahue, Baumgartner had confirmed that the subject in the four photographs was not Donahue. Based upon all the information known at that time, an ordinarily prudent and cautious person could have believed that the subject in the Photograph (claimant) who was not the named payee of the Check was in possession of a forged instrument. Further, that same ordinarily prudent person could also believe that by cashing the Check, the subject intended to defraud, deceive or injure TCMF and/or M&T Bank. Accordingly, Baumgartner's suspicion that claimant had committed the crime of criminal possession of a forged instrument in the second degree was reasonable, and thus claimant's detention was privileged. Accordingly, defendant has met its burden of establishing entitlement to judgment as a matter of law dismissing the cause of action for false arrest or false imprisonment.
In opposition, claimant argues that the information Baumgartner would have obtained if he had spoken directly with John Doyle, interviewed the bank teller who processed the Check, and subpoenaed Donahue's bank records all before detaining claimant, would have established that claimant was not the person who cashed the Check. Claimant is attempting to create questions of fact by asserting that Baumgartner was allegedly negligent in his investigation. As defendant correctly notes, a cause of action for negligent investigation is not actionable in this State (see Brown v State of New York, 45 AD3d 15, 26 [3d Dept 2007], lv denied 9 NY3d 815 [2007]; Russ v State Empls. Fed. Credit Union [SEFCU], 298 AD2d 791, 793 [3d Dept 2002]). The relevant inquiry is whether, based upon the information known to Baumgartner at the time, he had reasonable suspicion to believe that claimant had committed a crime (De Bour, 40 NY2d at 223). Claimant has failed to meet his burden of creating questions of fact necessitating a trial in this matter. Dismissal of the cause of action for false arrest and/or false imprisonment is accordingly warranted.
In conclusion, the proposed amended claim asserting a cause of action for defamation is defective because it fails to set forth the exact words alleged to be defamatory. Consequently, claimant's cross motion to amend is denied. Further, the cause of action for defamation in the claim as filed is also defective, as the defamatory words have not been set forth verbatim. Lastly, Investigator Baumgartner had a reasonable suspicion at the time he detained claimant that claimant was the person who cashed a fraudulent check, and claimant's detention for questioning was therefore privileged. Accordingly, defendant's motion for summary judgment is granted and Claim No. 120899 is dismissed in its entirety.
August 20, 2014
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on defendant's motion and claimant's cross motion:
1) Notice of Motion filed on February 3, 2014; Affirmation of Joseph F. Romani, AAG, dated January 30, 2014, and attached exhibits; Memorandum of Law dated January 30, 2014.
2) Notice of Cross Motion filed on May 9, 2014; Affirmation of Peter K. Skivington, Esq., dated May 6, 2014, and attached exhibits; Memorandum of Law dated May 6, 2014.
3) Affirmation Opposition of Joseph F. Romani, AAG, dated May 13, 2014.
Filed papers: Claim filed on February 7, 2012; Verified Answer filed on March 12, 2012.