Thomas J. Hillgardner—Claimant v. The State of New York—Defendant1, 112978

Court of Claims

Torts

Cite as: Thomas J. Hillgardner v. State of New York, 112978, NYLJ 1202466558451, at *1 (Ct. of Clms., Decided July 12, 2010)

Judge Alan C. Marin

Decided: July 12, 2010

For Claimant: Thomas J. Hillgardner, Esq., Pro Se

For Defendant: Andrew M. Cuomo, Attorney General

By: Cheryl Rameau, Esq., AAG

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This is the decision following the trial of Thomas Hillgardner's claim for assault and false arrest. At about 8:30 a.m. on August 7, 2006, Mr. Hillgardner arrived at 25 Beaver Street, a building in lower Manhattan which houses, among other things, the State Division of Housing and Community Renewal (DHCR) and the headquarters of the Office of Court Administration.

Claimant, an attorney, intended to file a response to a request by DHCR for an adjournment in a case he was handling. Hillgardner also had a matter on in Bronx Supreme Court, which was calendared for 9:30, "So, I was in a rush to get there by nine thirty." He later realized that he had until the late afternoon to respond to the calendar.

The lobby of 25 Beaver Street is laid out so that as one enters, to the right are turnstiles for employees and to the left, a magnetometer and x-ray machine (to screen people and packages, respectively). Behind the two devices is a podium, which is in front of a desk for a security guard employed by a private security firm. The lobby also contains what was described as a candy store.

When he entered the building, Hillgardner was able to walk right over to the desk where security guard Gwendolyn Rosario was seated. Claimant testified that he said, "I'm here to serve papers on the Division of Housing and Community Renewal," and that Ms. Rosario responded that the building did not open to the public until 9 a.m. Hillgardner recalled his reaction:

I was concerned that I needed to be in the Bronx at nine thirty and while it was not the most desirable way… to effectuate service… I left the papers with the security guard… she protested that I left the papers there. But I just turned around and walked out. I had to go. I was in a rush. Time was of the essence for me that morning.

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Hillgardner walked out onto Beaver Street toward Broadway and the Bowling Green subway station. Near the corner of New Street, Court Officer Charles Hollon came up behind him and attempted to return the DHCR paperwork. How this was done is in dispute; Hillgardner contends that it serves as a basis for a cause of action for assault.

After this encounter, Hillgardner returned to 25 Beaver Street intending to get Hollon's name—"I'm going to write a letter. That was my intent." In the lobby, a confrontation ensued, claimant was detained, handcuffed, and issued a summons for disorderly conduct (cl exh 1), for which he was ultimately acquitted.

No witnesses took the stand other than Messrs. Hollon and Hillgardner, and their version of events differed markedly in a number of respects. As for what happened when Officer Hollon attempted to return the papers, Hillgardner testified that he heard footsteps and the jangling of keys behind him and then, "I didn't immediately turn around but the next thing I know, somebody's reaching around my body and hits me in the chest with the papers… Initially I didn't know but I looked when I turned around, I see these papers going in the street. The papers I [had] just left on the desk."

Hollon's recollection was quite different. As he was coming out of the candy store in the building's lobby, the security guard Rosario raised some papers and said, "He left them here." According to Officer Hollon, he said he would return them, and left the building. Hollon first saw Hillgardner about 10 to 15 feet away, and he testified as to what happened next: "I came up on the side of him. I called him several times. I said, Sir, sir?'… there was no response and I came up on the side of him and I said to him, These were yours, you left these here.'" Claimant never stopped walking, and Hollon testified that he put the papers in front of him.

When asked if at that point he made contact with Hillgardner, Hollon replied, "Yes. He flared his arms when I went to return the papers to him." The officer denied striking claimant anywhere in the torso, but added that the papers were at Hillgardner's mid-chest area just before he moved his arms upward, and the papers, helped by a gust of wind, scattered on the street. Hollon turned around, returned to 25 Beaver Street, and did not see claimant go back and reenter the building.

An incidental touching with a valid intent to return papers does not constitute assault.

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With that said, Hillgardner viewed his delivery of the DHCR papers as some form of service or legal process; he apparently did not want to risk having them returned to him. He does not challenge that he refused to take them from the security guard and left fairly quickly—"walking with a purpose," as Ms. Rosario was still protesting his ignoring her request to take the papers back.

The Court finds credible Hollon's testimony that he came up within earshot of claimant and said "Sir, sir… These were yours." This trier of fact finds that Hillgardner heard him and ignored him; claimant did not want to go anywhere near those papers, which accounts for his flaring his arms. Hillgardner viewed the slightest contact with the DHCR papers as an unwanted intrusion, even as an assault. It was not, and that cause of action cannot succeed. Moreover, Hillgardner's description of the contact in his pleadings is at variance with his trial testimony:his claim states that he was hit in the stomach with the officer's hand, and the claim does not mention the paperwork at all.

The two witnesses gave widely differing narratives of what happened when claimant returned to 25 Beaver Street. Although he had been in hurry to get to court in the Bronx, Hillgardner turned around and went back into the building, denying that he had been angry or upset. But consider this exchange:

Q. You were calm but offended, correct?

A. That's correct.

In the lobby, claimant recognized Hollon, more from his build than the fact that he was the only uniformed court officer on site. Hollon was standing next to the magnetometer station and came around the x- ray machine; Hillgardner walked up to him with a pen and paper in hand to get his ID, but did not get his name, only making a mental note of his shield number. Claimant recalled that Hollon then said, "Okay, you, I need your identification… I immediately tried to leave the building, but Officer Hollon was preventing me… " Then claimant described a jockeying for position with Hollon moving like a basketball player trying to keep his opponent from getting near the basket. "I ultimately get to the front doors," but, claimant testified, just when he was about to exit the building, Hollon had his hands on him or grabbed him and "decided he was going to arrest

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me… I didn't resist at that point once he made it clear that he was using his authority to arrest me. I stopped resisting." Claimant was cuffed, taken to an upstairs floor, remained there for between 40 minutes and an hour, was issued a disorderly conduct summons, escorted downstairs, and directed to leave the building. Hillgardner estimated that it was then about 9:30 a.m. or a little after.

Claimant stated that at no time did he raise his voice, become loud and boisterous, or curse; he denied that he had refused requests by Hollon to leave the building. Hillgardner said that Hollon asked him for his ID two or three times, which he said he would not give.

Hillgardner testified that when his exchange with Hollon began, "it was a little bit before nine… so there were probably some people… I didn't focus on any of them… I do believe that there were people coming and going through the doors… right before nine o'clock." That he focused on Officer Hollon implies his relative obliviousness to other people and the affect his actions could have on them.

At his deposition, Hillgardner had testified that following his arrest, "I know how to push people's buttons and I felt that there was no downside to pushing a button or two at that point, and I might have done that…" He was asked about this at trial:

Q. … So you were doing that as you went upstairs with the other Court Officers?

A. That's correct.

But he denied doing the same kind of thing before his arrest:

Q. Okay, did you also do that with Officer Hollon during your exchange in the lobby?

A. No.

Q. Okay, so you didn't push his buttons then but you pushed them with the Court Officers who were escorting you upstairs?

A. Once I had the handcuffs on me it didn't seem like there was much of a downside, just

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as I testified in my deposition.

Officer Hollon testified that Mr. Hillgardner had raised his voice, cursed at him and had refused to leave the building when asked—all of which directly contradicted claimant's testimony. The officer explained that his tour of duty began at 8:30 a.m. on the day in question and that he was intending, as he normally did, to spend the first 30 or 45 minutes of the tour stationed in the lobby. Hollon recalled that when he saw Hillgardner in the lobby, "he was irate and he was yelling and screaming and carrying on and being disorderly," and was standing in the archway of the magnetometer—through which screened persons would pass. However, there was no testimony that he was blocking anyone at the moment.

Hollon said that claimant wanted his name and proceeded to curse at him, "I believe his first words were, You're… - - ing… hole. And then he told me something that is biologically impossible to do." Also, when Hillgardner was asked for his ID by the officer, claimant responded, according to Hollon, "I don't have to show you my… - ing ID."

Hollon testified that, "I continually asked him for his ID and then I, at that point, I told him, you're gonna have to leave.' " The officer added that he had asked him to leave once or twice more, but claimant didn't respond, except "he just continued cursing…" In his six-page post-trial submission, Mr. Hillgardner did not raise the issue of being asked to leave the building or revisit his testimony that Hollon had tried to block him from leaving.

It may not have been 9 a.m. yet, but Hollon testified that employees had started to come into the building; Hollon conceded that while sometimes other persons may have business with agencies in the building before it officially opened at 9 a.m., that was not the case that morning The Unusual Occurrence Report had the time at 8:45 a.m. (cl exh 2). As noted above, claimant testified that it was "a little bit" or "right before" 9 a.m.

With respect to credibility in general, as indicated above, claimant's pleadings and testimony were notably different as to what happened in the street confrontation between the two protagonists. Hillgardner, for his part, primarily challenged Hollon's credibility on the issue of whether Hollon knew the difference between legal and non-legal papers, or between criminal and civil papers­­—such was insignificant. Because of the foregoing inconsistency and, among other things, the fact that claimant admitted he was in a hurry,

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ignored the desk security guard, "pushed buttons" and claimed to be "calm but offended," Hollon's version of events is more credible to this trier of fact than Hillgardner's.

This Court concludes that claimant raised his voice, cursed at the officer and refused to leave the premises when asked two or three times. He was standing in the archway of the magnetometer. While the building had not yet opened to members of the public who would have to pass through the screening device, it was only a few minutes before 9 a.m., and this was claimant's second time in the lobby that morning. Hillgardner had returned; who knew how long he intended to stay­—he had refused to leave when repeatedly asked.

Section 240.20 of the Penal Law provides, in part, that "a person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof," he or she, inter alia, "engages in fighting or in violent, tumultuous or threatening behavior"; or "makes unreasonable noise"; or in a public place, "uses abusive or obscene language…"; or "obstructs vehicular or pedestrian traffic."

Disorderly conduct is an offense that focuses on the public dimension and comprehends the potential, as well as, immediate effect: "The clear aim was to reserve the disorderly conduct statute for situations that carried beyond the concern of individual disputants to a point where they had become a potential or immediate public problem." People v Munafo, 50 NY2d 326, 331 (1980).

On the facts as the Court has found them, Officer Hollon had probable cause to arrest claimant for disorderly conduct and thus the second cause of action here, for false arrest, must also fail. See Norasteh v State of New York, 8 Misc 3d 1019 (A), (Ct Cl 2005), affirmed 44 AD3d 576 (1st Dept 2007).2 In view of the foregoing, the claim of Thomas J. Hillgardner (claim no. 112978) is dismissed; the Clerk of the Court is directed to enter judgment accordingly.

1. The caption was amended on the record at trial to reflect the proper defendant.

2. The confrontations at issue here are distinguishable from those that arise from a stop-and-identify statute or situation. See Hiibel v Sixth Judicial Dist.. Court of Nevada, Humboldt County, 542 U.S. 177 (2004).

 

 
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