Selvy v. Albany Police Dept.

LESLIE E. STEIN, J. Plaintiff commenced the instant small claims action seeking recovery in the amount of $3,000, representing damages to to searching the wrong address, the manner in which defendant conducted the search was unreasonable. If the police were not negligent in searching 376 First Street, then plaintiff must demonstrate that the search was conducted in an unreasonable manner in order to recover damages. If this were not a small claims proceeding, plaintiff's general assertions would probably be insufficient to defeat a motion to dismiss. However, given the strong public policy against even allowing such motions to be heard in small claims proceedings, it is the determination of this court that there are possible significant questions of fact. Therefore, although plaintiff has a difficult burden of proof, he should have the opportunity to subpoena appropriate witnesses and otherwise present whatever proof he may have to demonstrate that the search warrant did not describe the place to be searched with sufficient particularity, that the police did not intend to search 376 First Street, that the warrant was negligently executed and/or that the search was conducted in an unreasonable manner. In addition, there is clearly an issue of fact concerning the extent of plaintiff's damages. Therefore, a trial is also necessary to resolve that issue in the event plaintiff is successful in establishing defendant's liability. Based upon the foregoing, defendant's motion to dismiss is denied and both parties are directed to appear for trial as previously scheduled on December 13, 2000 at 10:30 A.M.