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[*1]


Decided on September 30, 2004
Ct Cl

107316

APPEARANCES:
For Claimant:
Gucciardo Associates Law Offices
By: James T. Gucciardo, Esq.
For Defendant:
Eliot Spitzer, New York State Attorney General

By: Denis McElligott, Assistant Attorney General
James J. Lack, J.
This is a timely filed claim based on alleged injuries suffered by Sidney Lynn (hereinafter "claimant"), due to the intentional torts of defendant. On March 4, 2004, a bifurcated trial was held to determine liability.
The initial facts of this case are not, for the most part, in question. Claimant and defendant's employee, Department of Environmental Conservation Officer John Fitzpatrick (hereinafter "Fitzpatrick"), were each driving a vehicle northbound on Nicolls Road in the Town of Brookhaven. Fitzpatrick was following a fellow DEC officer to the Region 1 office in Stony Brook. The two became separated and Fitzpatrick did not know his way. At the intersection of Nicolls Road and the entrance to The Suffolk County Community College, a light controlling the intersection was red. Claimant was stopped at the light when Fitzpatrick pulled up alongside him. Nicolls Road is a north/south road with two lanes in each direction. Fitzpatrick pulled up to the red light in the left hand turn lane, momentarily stopped, activated front and rear police lights and then went through the light.
Thereafter, the details of what happened differ. The next intersection was Coleman Road, which also had a red light and, according to Fitzpatrick, was much busier. Fitzpatrick stopped his vehicle at this intersection. Claimant pulled up alongside Fitzpatrick and motioned for Fitzpatrick to roll down his window. According to claimant, he then asked, "[a]re you someone special that you can go through a red light?" (Tr. 14). Fitzpatrick, who was driving an unmarked police vehicle, [*2]responded that he was a police officer. Claimant answered that he, too, was a police officer and then testified that Fitzpatrick directed him to pull over or he would be arrested for criminal impersonation (Tr. 15).
According to claimant, he pulled over onto the grassy shoulder and Fitzpatrick pulled his car in behind claimant's vehicle. Each of the drivers exited his vehicles and Fitzpatrick asked claimant for his police ID. Initially, claimant says that he refused to show his police ID, but then complied. When he asked to see Fitzpatrick's ID, claimant says Fitzpatrick took it out and flashed it quickly. According to claimant, he returned to his vehicle, got a pencil and paper and asked to see Fitzpatrick's ID again, but was refused. Claimant then wrote down the license plate number of Fitzpatrick's car and began to walk to his car to leave. Claimant testified that before he got into his car, Fitzpatrick told him not to get into the vehicle, but claimant did anyway. Upon Fitzpatrick ordering him a second time not to get in the vehicle, claimant responded "F you" (Tr. 16). At this point, Fitzpatrick approached claimant's vehicle, reached in and removed claimant's hand from the keys on the ignition and told claimant he was under arrest.
Fitzpatrick's testimony is a variant of claimant's . He testified that claimant was not initially compliant in the directive to pull over. The witness stated he had ordered the claimant to pull over because he was not driving a police vehicle (marked or unmarked) and was not in uniform. He stated claimant was directed two or three times to pull over before complying. After pulling over, Fitzpatrick pulled behind claimant's vehicle, but before he was able to exit his vehicle or radio for back-up, claimant "stormed" towards his car (Tr. 63). Fitzpatrick described claimant as "angry" and "irate" (Tr. 63 - 64). According to the witness, claimant demanded to see his identification and Fitzpatrick produced his police ID and badge. At this point, the witness asked to see claimant's police identification. Claimant then refused, on several occasions, to produce his identification (Tr. 64). When told that he would be arrested for impersonating a police officer, claimant finally produced his police identification - - a photo ID from the Village of Ashroken Police Department.Fitzpatrick testified claimant, after showing his identification, became extremely angry. He demanded that Fitzpatrick arrest him and claimant came into physical contact with him as he was yelling to be arrested. Claimant next went to the rear door of Fitzpatrick's car and waited to be arrested. Fitzpatrick stated that he approached claimant and said that he was not planning on arresting him.
Claimant then began to walk toward his vehicle demanding to see Fitzpatrick's credentials again. Fitzpatrick stated that he had already shown his identification. Claimant now began to leave, but Fitzpatrick testified that he ordered claimant not to leave. When claimant refused and got into his vehicle, Fitzpatrick arrested the claimant. Fitzpatrick testified that the only identification
claimant showed him was a photo ID with no badge, which seemed strange to him.[FN1] The witness also stated that he was not familiar with the department listed on the photo ID (Tr. 84). In addition, claimant was not acting like a police officer. Fitzpatrick stated he felt the need to see claimant's driver's license to further prove his identity.
At this point, claimant got out of his vehicle, was frisked, handcuffed and placed in the rear of Fitzpatrick's vehicle. Fitzpatrick then notified his supervisor, Lt. Matera, who came to the scene. [*3]After making arrangements with the Suffolk County Police Department, claimant was transported to the Sixth Precinct for processing. Claimant was charged with Failure to Comply with a Lawful Order in violation of Vehicle and Traffic Law

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