OWEN v. STATE 123416

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Supreme Court, Appellate Division, Fourth Department, New York.

Douglas W. OWEN, Claimant–Appellant, v. STATE of New York, Defendant–Respondent. (Claim No. 123416.) (Appeal No. 2.)

337

Decided: April 27, 2018

PRESENT:  CENTRA, J.P., NEMOYER, CURRAN, AND WINSLOW, JJ. DAVID A. LONGERETTA, UTICA, FOR CLAIMANT–APPELLANT. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR DEFENDANT–RESPONDENT.

MEMORANDUM AND ORDER

On August 18, 2013, at approximately 12:40 a.m., claimant was arrested by a New York State Trooper (Trooper) at a sobriety checkpoint for several minor violations of the Vehicle and Traffic Law and on suspicion of driving while intoxicated (DWI).  A hospital blood draw taken two hours later revealed that claimant had a blood alcohol content of 0.00%. Claimant commenced this action alleging, inter alia, false imprisonment/arrest, malicious prosecution, and negligent supervision and training.  Following a trial, the Court of Claims dismissed the claim.  We affirm.

Contrary to claimant's contention, the court properly dismissed his claims for false imprisonment/arrest and malicious prosecution.  Those claims required claimant to establish as a necessary element that the Trooper did not have probable cause to arrest him for DWI (see De Lourdes Torres v. Jones, 26 N.Y.3d 742, 761, 27 N.Y.S.3d 468, 47 N.E.3d 747 [2016]; Mahoney v. State of New York, 147 A.D.3d 1289, 1291, 47 N.Y.S.3d 798 [3d Dept. 2017] ), and claimant failed to establish that element.  Here, the Trooper testified that he initially asked claimant to pull over to allow other cars to pass because he needed time to write a ticket for the traffic violation of a missing registration sticker and to test claimant's window tint.  The Trooper observed that claimant had bloodshot eyes, slurred speech, and a flushed face.  The Trooper's supervising officer also testified that he observed claimant with watery eyes and smelled alcohol.  He further testified that claimant deliberately paused three to four seconds after each question he was asked and refused to make eye contact.  Viewing the above evidence in the light most favorable to sustain the judgment and giving due deference to the court's determinations in this nonjury trial regarding witness credibility (see A & M Global Mgmt. Corp. v. Northtown Urology Assocs., P.C., 115 A.D.3d 1283, 1286, 983 N.Y.S.2d 368 [4th Dept. 2014] ), we conclude that the court properly determined that claimant's arrest for DWI was supported by probable cause.

Contrary to claimant's further contention, the court did not err in dismissing his claim for negligent supervision and training.  A claim that defendant, as an employer, was “negligent in failing ‘to properly interview, hire, train, supervise, and monitor’ its employees ․ ‘does not lie where, as here, the employee is acting within the scope of his or her employment, thereby rendering the employer liable for damages caused by the employee's negligence under the [alternative] theory of respondeat superior’ ” (Drisdom v. Niagara Falls Mem. Med. Ctr., 53 A.D.3d 1142, 1143, 861 N.Y.S.2d 919 [4th Dept. 2008] ).  Inasmuch as the Trooper and his supervising officer were acting within the scope of their employment, which claimant does not dispute, the claim of negligent training and supervision must fail (see Ruiz v. Cope, 119 A.D.3d 1333, 1335, 989 N.Y.S.2d 211 [4th Dept. 2014];  Leftenant v. City of New York, 70 A.D.3d 596, 597, 895 N.Y.S.2d 88 [1st Dept. 2010] ).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: