Della Pietra v. State, 526 N.E.2d 1 (N.Y. 1988). · Go Syfert
Della Pietra v. State, 526 N.E.2d 1 (N.Y. 1988). Cases Citing This Book View Copy Cite
94 citation events (51 in the last 25 years) across 11 distinct courts.
Strongest positive: Lore v. City of Syracuse (ca2, 2012-02-02)
Treatment trajectory · 1988 → 2026 · click a year to view as-of
1988 2007 2026
Top citers, strongest first. 28 distinct citers. How cited ↗
examined Cited as authority (quoted) Lore v. City of Syracuse (3×)
2d Cir. · 2012 · quote attribution · 3 verbatim quotes · confidence low
della pietra
discussed Cited as authority (rule) Matter of Makhani v. Kiesel (2×)
N.Y. App. Div. · 2022 · confidence medium
The legislature has delegated the primary responsibility for prosecuting persons accused of crimes to district attorneys, the public officers entrusted with the general prosecutorial authority for the crimes occurring within their respective counties ( Della Pietra v State of New York , 71 NY2d 792, 796 [1988]).
discussed Cited as authority (rule) Matter of Makhani v. Kiesel (2×)
N.Y. App. Div. · 2022 · confidence medium
The legislature has delegated the primary responsibility for prosecuting persons accused of crimes to district attorneys, the public officers entrusted with the general prosecutorial authority for the crimes occurring within their respective counties ( Della Pietra v State of New York , 71 NY2d 792, 796 [1988]).
cited Cited as authority (rule) Ismael v. Comacho
S.D.N.Y. · 2020 · confidence medium
“The subjective component makes qualified immunity entirely unavailable if there are ‘undisturbed findings of bad faith.’” Id. (quoting Della Pietra v. New York, 71 N.Y.2d 792, 795 (1988)).
discussed Cited as authority (rule) People v. Wassell
N.Y. App. Div. · 2019 · confidence medium
It is well settled that the Attorney General lacks general prosecutorial authority and has the power to prosecute only where specifically permitted by statute ( see Della Pietra v State of New York , 71 NY2d 792, 796-797 [1988]).
discussed Cited as authority (rule) Matter of Tina X. v. John X.
N.Y. App. Div. · 2016 · confidence medium
District Attorneys prosecute crimes and offenses occurring in the county where elected and, even in that capacity, act not on behalf of any particular person, but on behalf of the State of New York (see County Law §§ 700, 927; Della Pietra v State of New York, 71 NY2d 792, 796 [1988]; Matter of Matthew FF., 179 AD2d 928, 928-929 [1992]).
examined Cited as authority (rule) Moulton v. State (3×) also: Cited "see"
N.Y. App. Div. · 2013 · confidence medium
“Where, however, the official has stepped outside the scope of his [or her] authority and acted in the clear absence of all jurisdiction or without a colorable claim of authority, there is plainly no entitlement to absolute immunity, even if the underlying acts are . . . quasi-judicial in nature” (Della Pietra v State of New York, 71 NY2d 792, 796 [1988] [internal quotation marks and citations omitted]).
examined Cited as authority (rule) Moulton v. State (3×) also: Cited "see"
N.Y. App. Div. · 2013 · confidence medium
“Where, however, the official has stepped outside the scope of his [or her] authority and acted in the clear absence of all jurisdiction or without a colorable claim of authority, there is plainly no entitlement to absolute immunity, even if the underlying acts are . . . quasi-judicial in nature” (Della Pietra v State of New York, 71 NY2d 792, 796 [1988] [internal quotation marks and citations omitted]).
discussed Cited as authority (rule) Esposito v. State
N.Y. App. Div. · 2013 · confidence medium
To the extent that claimants argue that defendant is not cloaked with qualified immunity on the premise that the Commissioner acted in bad faith or without a reasonable basis (see Arteaga v State of New York, 72 NY2d at 216; Della Pietra v State of New York, 71 NY2d 792, 798 [1988]), the claim and record are devoid of any proof to support either conclusion.
discussed Cited as authority (rule) Esposito v. State
N.Y. App. Div. · 2013 · confidence medium
To the extent that claimants argue that defendant is not cloaked with qualified immunity on the premise that the Commissioner acted in bad faith or without a reasonable basis (see Arteaga v State of New York, 72 NY2d at 216; Della Pietra v State of New York, 71 NY2d 792, 798 [1988]), the claim and record are devoid of any proof to support either conclusion.
discussed Cited as authority (rule) Signature Health Center, LLC v. State
nyclaimsct · 2010 · confidence medium
School Dist., 93 NY2d 664, 673 [1999] [county not entitled to qualified immunity where it failed to conduct any study or take any remedial action despite knowledge of danger to children leaving its school]; Arteaga v State of New York, 72 NY2d 212, 216 [1988] [qualified immunity shields the government “except when there is bad faith or the action taken is without a reasonable basis”]; Della Pietra v State of New York, 71 NY2d 792, 798 [1988] [liability imposed despite qualified immunity where state investigators were grossly negligent, reckless, and acting without authority]; Weiss v Fote,…
discussed Cited as authority (rule) Mickens v. State
nyclaimsct · 2009 · confidence medium
Where a public officer acts “in the clear absence of all jurisdiction or without a colorable claim of authority, there is plainly no entitlement to absolute immunity, even if the underlying acts are prosecutorial or quasi-judicial in nature” (Della Pietra v State of New York, 71 NY2d 792, 796 [1988]; see also Arteaga v State of New York, 72 NY2d at 216 ; Falkoff v Donovan, 245 AD2d 541 [2d Dept 1997]).
discussed Cited as authority (rule) People v. Quadrozzi
N.Y. App. Div. · 2008 · confidence medium
As the Court of Appeals has explained, “the District Attorneys have plenary prosecutorial power in the counties where they are elected, [and in contrast] the Attorney-General has no such general authority and is without any prosecutorial power except when specifically authorized by statute” (People v Romero, 91 NY2d 750, 754 [1998] [internal quotation marks omitted]; see County Law §§ 700, 927; Executive Law § 63 [3]; People v Gilmour, 98 NY2d 126, 131-132 [2002]; Della Pietra v State of New York, 71 NY2d 792, 796-797 [1988]).
discussed Cited as authority (rule) Kinberg v. Kinberg
N.Y. App. Div. · 2008 · confidence medium
Plaintiff wife’s first cause of action, in which she sought defendant husband’s imprisonment and a fine for his alleged perjury, failed to state a cause of action, since it is the district attorney who generally retains sole authority to prosecute such criminal activity (see County Law § 700; Della Pietra v State of New York, 71 NY2d 792, 796 [1988]; People v Rodgers, 205 Misc 1106 [1954]).
discussed Cited as authority (rule) People v. Cuttita
NY · 2006 · confidence medium
As a result, the Attorney General now has no power to prosecute crimes unless specifically permitted by law (see Della Pietra v State of New York, 71 NY2d 792, 796-797 [1988]; see also People v Gilmour, 98 NY2d at 131 ; People v Romero, 91 NY2d 750, 754 [1998]).
discussed Cited as authority (rule) People v. Gilmour
NY · 2002 · confidence medium
We note at the outset that since 1796 the Legislature has never accorded general prosecutorial power to the Attorney General (see People v Di Falco, 44 NY2d 482 , 486 [1978] [per curiam]). 6 Indeed, this Court has pointed out that “the Attorney-General has no * * * general authority [to conduct prosecutions] and is ‘without any prosecutorial power except when specifically authorized by statute’ ” (People v Romero, 91 NY2d 750, 754 [1998], quoting Della Pietra v State of New York, 71 NY2d 792, 797 [1988] [emphasis in original]). 7 In 1892, the Legislature first crafted a statute authori…
discussed Cited as authority (rule) People v. Romero
NY · 1998 · confidence medium
Such a conclusion would be contrary to the fundamental principle that the power to prosecute crimes is traditionally a power of the State as sovereign (see, Della Pietra v State of New York, supra, 71 NY2d, at 796-797).
cited Cited as authority (rule) Bernstein v. Antar
E.D.N.Y · 1996 · confidence medium
Id. at 11; Declaration of Victor H.
discussed Cited as authority (rule) People v. Abajian
nyjustct · 1989 · confidence medium
(Penal Law § 10.00 [2]; CPL 1.20 [39].) Della Pietra v State of New York ( 71 NY2d 792, 796 [1988]) observes: "With few exceptions, the Legislature has delegated the responsibility for prosecuting persons accused of crime solely to the District Attorney.” We take the foregoing to mean at least that the dictum of Van Sickle (supra) remains undiluted; we shall not assume that any further restrictions on Van Sickle (supra) were intended by the language of these two recent cases.
cited Cited "see" People v. Adams
nycountyct · 2003 · signal: see · confidence high
See footnote in Della Pietra v State of New York ( 71 NY2d 792 , 797 n [1988]), which reads: “Executive Law § 70-a was amended after the execution of the warrant and our decision in Matter of B.
discussed Cited "see" S.A.B. Enterprisses, Inc. v. Village of Athens
N.Y. App. Div. · 1991 · signal: see · confidence high
We have concluded that the better and prevailing weight of authority supports recovery of prejudgment interest for a tortious injury to plaintiff’s business, as "an act or omission depriving or otherwise interfering with title to, or possession or enjoyment of, property” (CPLR 5001 [a]; see, Della Pietra v State of New York, 125 AD2d 936, 938 , affd 71 NY2d 792 ; Phelps v A. R.
examined Cited "see, e.g." ESTATE OF ROSENBAUM BY PLOTKIN v. City of New York (3×)
E.D.N.Y · 1997 · signal: see also · confidence low
See Teddy’s Drive In, Inc. v. Cohen, 47 N.Y.2d 79, 82 , 390 N.E.2d 290, 291 , 416 N.Y.S.2d 782, 783 (1979); see also Della Pietra v. State of New York, 71 N.Y.2d 792, 796 , 526 N.E.2d 1, 2-3 , 530 N.Y.S.2d 510, 511-512 (1988).
examined Cited "see, e.g." Union Carbide Corp. v. Montell N.V. (3×)
S.D.N.Y. · 1996 · signal: see also · confidence low
Under New York law, a plaintiff must allege the defendant’s interference with prospective business relations “either with the sole purpose of harming the plaintiff or by means that are ‘dishonest, unfair or in any other way improper.’ ” PPX Enters., Inc. v. Audiofidelity Enter., 818 F.2d 266, 269 (2d Cir.1987) (quoting Martin Ice Cream Co. v. Chipwich, Inc., 554 F.Supp. 933, 945 (S.D.N.Y.1983)); see also Della Pietra v. State, 125 A.D.2d 936 , 510 N.Y.S.2d 334, 336 (4th Dep’t), aff'd, 71 N.Y.2d 792 , 530 N.Y.S.2d 510 , 526 N.E.2d 1 (1988).
discussed Cited "see, e.g." 1090 Jericho Corp. v. Elias
N.Y. App. Div. · 1990 · signal: see also · confidence low
Given the posture of the motion as made and because we must take the allegations of the complaint to be true (see, Pace v Perk, 81 AD2d 444, 449 ), each of the theories is sufficiently supported to mandate denial of the motion as made (see, Pace v Perk, 81 AD2d 444, 449 , supra; see also, Della Pietra v State of New York, 125 AD2d 936 , affd 71 NY2d 792 ; Board of Educ. v Farmingdale Classroom Teachers Assn., 38 NY2d 397 ; Roberts v Pollack, 92 AD2d 440, 441 ; Williams v Williams, 27 AD2d 550 ; see generally, Fischer v Langbein, 103 NY 84, 89 ; Day v Bach, 87 NY 56, 60 ; cf., Siegel v Northern…
discussed Cited "see, e.g." LAL Leasing Corp. v. Williams
N.Y. App. Div. · 1989 · signal: see also · confidence low
The State was not the real party in interest in this action even though the State might be secondarily liable under respondeat superior and even though the plaintiff had a companion action against the State in the Court of Claims arising out of the same facts (see, Morell v Balasubramanian, 70 NY2d 297, 302-303 ; Teddy’s Drive In v Cohen, 47 NY2d 79, 82 ; see also, Della Pietra v State of New York, 71 NY2d 792, 796 ).
discussed Cited "see, e.g." People v. Vespucci
N.Y. App. Div. · 1988 · signal: see also · confidence low
In order to effectuate this intent the Legislature "established a task force, within the Office of the Attorney-General, whose sole purpose would be to investigate and prosecute those involved in organized criminal activity” (Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227, 235 [Jasen, J., dissenting]; see also, Della Pietra v State of New York, 71 NY2d 792, 797 ; People v Rallo, 39 NY2d 217 ), to be headed by a single prosecuting attorney — selected jointly by the Governor and the Attorney-General — upon whom State-wide investigatory powers were conferred dire…
cited Cited "see, e.g." People v. Leahy
NY · 1988 · signal: see also · confidence low
Prods. v Barr, 44 NY2d 226 ; Matter of Dondi v Jones, 40 NY2d 8 ; see also, Della Pietra v State of New York, 71 NY2d 792, 796-797 ).
discussed Cited "see, e.g." Arteaga v. State of New York (2×)
NY · 1988 · signal: see also · confidence low
These same considerations do not exist for police officers who ordinarily have neither the duty nor the authority to exert control or discipline over the people in society at large, where the right of the individual to be free from unwarranted police regulation and interference is fundamental. 2 There is no basis for the contention that giving full immunity to the conduct of correction employees in taking authorized disciplinary measures will deprive inmates of all rights to recover damages against the State in the Court of Claims (Correction Law § 24 [2]) for unlawful actions of employees ta…
Retrieving the full opinion text from the archive…
Anthony Della Pietra
v.
State of New York
New York Court of Appeals.
Jun 9, 1988.
526 N.E.2d 1
1988 N.Y. LEXIS 1145
POINTS OF COUNSEL, Robert Abrams, Attorney-General (Michael S. Buskus, O. Peter Sherwood and Peter H. Schiff of counsel), for appellant., James M. Hartman and Philip G. Spellane for respondents.
Hancock.
Cited by 62 opinions  |  Published
1 passages pin-cited by 1 case
Pinpoint authority: bottom 63%
Citer courts: Second Circuit (3)

OPINION OF THE COURT

Hancock, Jr., J.

Claimants have recovered a judgment against the State for damages to their business resulting from actions of the New York State Organized Crime Task Force in illegally entering and searching their premises; seizing books, records and other property; and retaining them for a prolonged period of time. The conduct of the State agents in invading these[*795] claimants’ rights, we have previously held, was without any statutory or other authority (see, Matter of B. T. Prods. v Barr, 44 NY2d 226, 236). The principal issue presented by the State in its appeal is whether, notwithstanding this lack of authority, it may assert absolute prosecutorial or quasi-judicial immunity for the acts of its agents. For the reasons which follow, we hold that it may not. Moreover, in view of the undisturbed findings of bad faith, we also conclude that the State’s assertion of qualified immunity here is unavailing.

I

Barry Tuttle and claimant Anthony Della Pietra were co-owners of claimant B. T. Productions, Inc., which operated a dinner theater in East Rochester, New York. Although the business was doing well, the partners had a falling out over how it should be run. When Della Pietra took over sole operation of the business and tried to make Tuttle sell him his interest, Tuttle, apparently out of spite, went to the Task Force and reported that the business was engaged in organized crime.

Based in part on an affidavit signed by Tuttle, the Task Force obtained a search warrant and seized the bulk of the theater’s books and records. After trying repeatedly to recover them, Della Pietra and B. T. Productions commenced a CPLR article 78 proceeding seeking a writ of prohibition vacating the search warrant and compelling return of the items seized. The Appellate Division granted the petition and issued the writ (Matter of B. T. Prods. v Barr, 54 AD2d 315). We affirmed, holding that due to "the absence of any statutory authority to obtain a search warrant, it is clear that the Task Force lacked the power to make such an application, and thus the court exceeded its jurisdiction in issuing the warrant” (44 NY2d 226, 236, supra). Nearly two years after the seizure of claimants’ property, it was returned to them. They were never indicted or prosecuted. No evidence against them was ever presented to a Grand Jury or other accusatory authority.

In the Court of Claims, claimants presented proof that the illegal search and seizure and the surrounding adverse publicity caused their customers to stay away and ultimately forced B. T. Productions into bankruptcy. The court found the State responsible and assessed damages in the amount of $777,000. The Appellate Division modified, adding interest from the date the claim was filed, and otherwise affirmed. We now affirm.

[*796] II

The State contends that no recovery should have been allowed because, contrary to the holdings of the lower courts, the Task Force’s conduct in obtaining and executing the search warrant was either prosecutorial or quasi-judicial in nature and, therefore, entitled to absolute immunity (see, Imbler v Pachtman, 424 US 409; Tarter v State of New York, 68 NY2d 511; Tango v Tulevech, 61 NY2d 34; Schanbarger v Kellogg, 35 AD2d 902, appeal dismissed 29 NY2d 649, cert denied 405 US 919). We disagree.

In the usual case where the government professes entitlement to absolute sovereign immunity, no question arises concerning the authority of its officials to act (see, e.g., Arteaga v State of New York, 72 NY2d 212, 218; Tango v Tulevech, supra, at 41-42). The sole question, ordinarily, is whether the official actions constitute discretionary conduct which sufficiently manifests the attributes of judicial decision-making to merit full immunity (Arteaga v State of New York, supra, at 217; Tarter v State of New York, supra, at 518-519; Santangelo v State of New York, 101 AD2d 20, 28-29). Where, however, the official "has stepped outside the scope of his authority” (Teddy’s Drive In v Cohen, 47 NY2d 79, 82) and acted in the clear absence of all jurisdiction or without a colorable claim of authority, there is plainly no entitlement to absolute immunity, even if the underlying acts are prosecutorial or quasi-judicial in nature (see, Rudow v City of New York, 822 F2d 324, 327-328 [2d Cir]; Ybarra v Reno Thunderbird Mobile Home Vil., 723 F2d 675,678 [9th Cir]; Prosser and Keeton, Torts § 132, at 1058-1059 [5th ed]). Thus, if, as claimants contend, the Task Force acted without any colorable claim of authority, the State would not be entitled to absolute immunity, even if its acts would otherwise have been considered quasi-judicial in nature and for that reason deserving of full protection.

With few exceptions, the Legislature has delegated the responsibility for prosecuting persons accused of crime solely to the District Attorney, the public officer entrusted with the general prosecutorial authority for all crimes occurring in the county where elected (see, County Law §§ 700, 927; Matter of Darvin M. v Jacobs, 69 NY2d 957, 959; see also, Matter of Turecamo Contr. Co., 260 App Div 253, 257). The Attorney-General, by contrast, is given no general prosecutorial authority and, except where specifically- permitted by statute (see, [*797] e.g., General Business Law §§ 358, 692; Executive Law § 70-a), has no power to prosecute criminal actions (see, Matter of B. T. Prods. v Barr, 44 NY2d 226, 236, supra; People v Di Falco, 44 NY2d 482, 485-486; People v Rallo, 39 NY2d 217, 221-223). Similarly, the Task Force, as an arm of the Attorney-General and a creature of the State, "has no power other than that given it by the Legislature” (Matter of B. T. Prods. v Barr, supra, at 236; see, People v Di Falco, supra, at 486; Governor’s Mem in support of Executive Law § 70-a, reprinted in 1970 McKinney’s Session Laws of NY, at 3142).

The Legislature enacted Executive Law § 70-a for the specific purpose of creating an agency capable of investigating and prosecuting multicounty organized criminal activity, a duty which local prosecutors were unable to perform satisfactorily "because of their limited resources and restricted geographical jurisdiction” (see, Legislative Findings, L 1970, ch 1003, §1 [3]). This exceptional grant of prosecutorial authority to the Task Force was not self-executing and it was subject to specific limitations and conditions* (see, Executive Law § 70-a [7]; cf., Matter of Additional Jan. 1979 Grand Jury v Doe, 50 NY2d 14, 18 [evaluating Attorney-General’s power under similar provision in Executive Law § 63 (2)]). Thus, in Matter of B. T. Prods. v Barr (supra) we held that, without prior authorization by the Governor and approval by the local District Attorney, "it is clear that the Task Force lacked the power” to apply for and execute the search warrant here in question (Matter of B. T. Prods. v Barr, supra, at 236; see, Governor’s Mem in support of legislation, op. cit., at 3143; but see, n below).

Notwithstanding the import of our decision in Matter of B. T. Prods. v Barr (supra), the State maintains that its Task Force agents, as representatives of the Attorney-General’s office, were acting under some colorable authority in obtaining the search warrant; that they were merely operating under a mistaken assumption as to the scope of their jurisdiction. The argument, however, simply overlooks the essential point that the Attorney-General is without any prosecutorial power except when specifically authorized by statute. Here, the agents and the Attorney-General were not prosecutors acting illegally or in excess of their authority; they were not prosecutors at[*798] all (cf., Rudow v City of New York, supra, at 329 [Human Rights Commission staff attorney acting without "the bureaucratic boundaries of her position” but, nevertheless, within the general jurisdiction of the agency]; Lerwill v Joslin, 712 F2d 435, 439-440 [10th Cir] [city attorney having prosecutorial authority for misdemeanors mistakenly presenting complaint involving felony charge]; see also, Barr v Abrams, 810 F2d 358, 361-362 [2d Cir]). We conclude, then, that because the Task Force agents had no colorable claim of authority, the State has no basis for asserting absolute immunity.

Ill

Defendant argues, nevertheless, that even if the actions of its Task Force agents were performed in the clear absence of jurisdiction or authority, it would be entitled to qualified immunity. On these facts, however, any claim of qualified immunity would not shield the State from liability.

Qualified immunity does not shield the State from liability where its officials acted in bad faith or without a reasonable basis (see, Arteaga v State of New York, supra, at 216; Matter of Friedman v State of New York, 67 NY2d 271, 283-285; cf., Tango v Tulevech, supra, at 42). The undisturbed findings support the Court of Claim’s conclusions that "the Task Force was careless, was grossly negligent and recklessly exercised a power over claimant which it did not rightly have”, and that its conduct in procuring and executing the search warrant "was unconscionable, to phrase it in the most charitable light” (emphasis added). These factual findings, which are fully dispositive of the legal issue concerning qualified immunity under established New York law, have support in the record and, therefore, are beyond our review.

We have considered the State’s other contentions and find them to be either unpreserved or without merit.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa concur.

Order affirmed, with costs.

Executive Law § 70-a was amended after the execution of the warrant and our decision in Matter of B. T. Prods. v Barr (44 NY2d 226). The law as it existed at the time the action arose applies to this case.