125 A.D.2d 936 | N.Y. App. Div. | 1986
Lead Opinion
— Judgment modified, on the law, and, as modified, affirmed, without costs, and matter remitted to Court of Claims for further proceedings, in accordance with the follow
On appeal, the State argues, inter alia, that reversal is mandated because: there is no theory of liability to support recovery; the State is immune from suit; and damages are speculative as a matter of law. Claimants cross-appealed, seeking to increase damages and obtain prejudgment interest. We affirm in all respects except to remit for the fixing of prejudgment interest.
Although the claim does not refer to a specific tort theory, this is no bar to recovery under modern rules of pleading (Diemer v Diemer, 8 NY2d 206, 212; see also, Underpinning & Found. Constructors v Chase Manhattan Bank, 46 NY2d 459, 464, n 1). At the commencement of the trial, claimants’ attorney stated that he intended to establish liability under several theories. Without addressing them all, we agree that claimants have spelled out liability under theories of conversion and tortious interference with business.
"Conversion is any unauthorized exercise of dominion or control over property by one who is not the owner of the property, which interferes with and is in defiance of a superior
We also reject the State’s claim of immunity. Tango v Tulevech (61 NY2d 34) does not apply to the facts of this case, since Task Force officials were not exercising their discretion in conducting an unlawful search. Nor does the qualified immunity applicable to the prosecutorial function apply where officials act in an investigatory manner and in doing so step outside the scope of their authority (Teddy’s Drive In v Cohen, 47 NY2d 79, 82).
Finally, we find the damages supported by the record. The court was free to reject the statistical projections of increased future profit suggested by the expert (Lloyd v Town of Wheat-field, 67 NY2d 809; Kenford Co. v County of Erie, 67 NY2d 257), and to disregard the half million dollars in loans to claimants which were discharged in bankruptcy. Claimants’ creditors, not claimants, suffered those losses. We agree that claimants are entitled to prejudgment interest. Where the precise date from which to fix interest is ambiguous, "the date of commencement of the damage action” is an appropriate date to choose (Delulio v 320-57 Corp., 99 AD2d 253, 255; De Long Corp. v Morrison-Knudsen Co., 20 AD2d 104, afifd 14 NY2d 346). The matter is remitted to the Court of Claims and the clerk is directed to calculate interest on the recovery from August 11, 1978, the date the claim was filed, to December 2, 1985, the date of the judgment.
Dissenting Opinion
(dissenting). The claimants, by a joint notice of claim filed on August 11, 1978, seek to recover damages against the State flowing from the New York State Organized Crime Task Force’s obtaining and executing a search warrant against the claimants’ properties on or about August 11, 1976. Claimants allege that the material seized was retained by the Task Force until April 10, 1978. Claimants allege further that by reason of this seizure and retention, claimant B-T Productions, Inc.’s dinner theater suffered loss of business, forcing the claimants into bankruptcy. No specific theory of liability is set forth in the notice of claim. The Court of Claims, in finding liability, did not identify the nature of the action, choosing instead to rely upon language of the Court of Appeals and of this court in opinions in a previous cause of action brought by the claimant, B-T Productions, Inc., against Judge Barr for a writ of prohibition (see, Matter of B.T. Prods, v Barr, 54 AD2d 315, affd 44 NY2d 226). The majority now affirms giving the claim the identity of the torts of conversion and tortious interference with claimants’ business.
There has been no finding that the search warrant which is the subject of this action was issued based upon insufficient affidavits or that it was issued by a court lacking jurisdiction. Trial Term and the majority herein base defendant’s liability solely on its failure to obtain prior approval from the Governor and the appropriate District Attorney before obtaining the search warrant for claimants’ premises. In Matter of B.T. Prods. v Barr (supra), the Court of Appeals voided this search warrant, finding such preapproval a jurisdictional prerequisite pursuant to Executive Law § 70-a (7). The majority views that the respondent’s failure to comply with Executive Law § 70-a (7) creates liability per se. I disagree. In doing so I believe that the majority is creating a new cause of action not previously recognized at law (see, Restatement [Second] of Torts § 266). Claimants’ proper cause of action was pursuant to 42 USC § 1983, which they duly brought, tried and lost in Federal court.
This holding further violates both the absolute and qualified immunities afforded to prosecutors in the performance of their duties. Absolute immunity is accorded to prosecutors in the performance of their functions as an advocate in the criminal process (Imbler v Pachtman, 424 US 409). Pursuant to Executive Law § 70-a, the Task Force was seen by the Court of Appeals in Matter of B.T. Prods. v Barr (supra) to possess the
Even assuming the Task Force’s action is not entitled to absolute immunity, nevertheless, the claim must be dismissed because of their good-faith qualified immunity. The Task Force members, when acting in good faith, are entitled to dismissal of claims arising from their conduct unless their actions violate "clearly established law” (Mitchell v Forsyth, 472 US 511, 530). Herein, the Task Force officials believed that, based upon their investigative powers, in accordance with their prior practice, and with the cooperation of the State Police, they could obtain this search warrant. The Court of Appeals in Matter of B.T. Prods. v Barr (supra, pp 233-234) held that despite the State trooper’s authority to seek a warrant without prior approval, he could not do so when acting solely as an agent of the Task Force. In hindsight, the Task Force erred in its interpretation of the Executive Law. This, though, does not result in civil liability as a matter of law. The members of the Task Force in obtaining the search warrant were performing their basic discretionary function of "commencing and maintaining a concerted and concentrated investigative and prosecutive effort to break the structure and power of organized crime” (L 1970, ch 1003, § 1 [4]). Being discretionary acts they were not subject to suit if their actions were only later held to be improper (see, Harlow v Fitzgerald, 457 US 800). Herein, the Task Force’s authority to obtain this warrant was an open question at the time of application and the court’s subsequent determination does not alter this fact. I find this case indistinguishable from Mitchell v Forsyth (472 US, at 535, supra), wherein the court denied liability based on qualified immunity despite a domestic security wiretap having been determined subsequent to placement to be statutorily unauthorized and constitutionally impermissible, stating: "The le
No clearly established law existing, the Task Force’s action in obtaining in good faith this search warrant is cloaked with a qualified immunity requiring dismissal of this claim (see, Mitchell v Forsyth, supra; Harlow v Fitzgerald, supra; Wood v Strickland, 420 US 308, reh denied 421 US 921).
Finally, the Court of Claims made an award of damages of $777,000 without any breakdown or rationale as to how this amount was arrived at as required by CPLR 4213 (b) (see, Treadway Inns Corp. v Robe of New Hartford, 91 AD2d 828). Further, the trial court did not attempt to break down its award as between the three claimants. What share of the award is each individual claimant entitled to recover and how much is to go to the bankrupt corporation? These failures render appellate review nearly impossible and require remittal for additional findings of fact (Treadway Inns Corp. v Robe of New Hartford, supra; Ramirez v Goldberg, 77 AD2d 589). (Appeals from judgment of Court of Claims, Quigley, J. — negligence.) Present — Callahan, J. P., Doerr, Green, Lawton and Schnepp, JJ.