Seizure of Claimant’s Computers Pursuant to a Warrant Did Not Give Rise to Conversion, Negligent Misrepresentation and Constitutional Tort Causes of Action—Elements of Those Causes of Action Explained

The Fourth Department reversed the Court of Claims and dismissed causes of action for conversion and negligent misrepresentation stemming from the seizure of claimant’s computers pursuant to a judicial warrant.  The court noted that the seizure pursuant to the authority of the warrant precluded the conversion cause of action and the absence of privity between the claimant and the investigators who said the computers would be promptly returned precluded the negligent representation cause of action. Alternate ways to seek return of the computers (an application to County Court and an Article 78 proceeding if the application were denied) precluded the constitutional tort cause of action:

An actionable “conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person’s right of possession” … . Here, a search warrant specifically authorized law enforcement to “search for and seize” six categories of items, including “[a]ll computers and computer storage media and related peripherals, electronic or computer data.” Claimants have never challenged the validity of the search warrant. Moreover, the unchallenged warrant placed no time limit on the retention of the items seized, and the authorization to “seize” the computers was not terminated until County Court ordered the property returned following Boerman’s guilty plea. We therefore conclude that defendant’s exercise of control over the computers did not constitute conversion inasmuch as it had the proper authority to exercise such control … .

The tort of “negligent misrepresentation requires [a claimant] to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information’ ” … . We agree with defendant that, as a matter of law, there can be no “privity-like relationship” between an investigator and the target of his or her investigation … . Indeed, the relationship between investigator and target is the opposite of a “special position of confidence and trust” in which one party might justifiably rely upon the ” unique or specialized expertise’ ” of the other party … . Thus, as defendant correctly contends, the negligent misrepresentation claim fails as a matter of law … .

Even assuming, arguendo, that the initial seizure or continued detention of claimants’ computers violated the Search and Seizure Clause of the State Constitution (art I, § 12), we conclude that “no . . . claim [for constitutional tort] will lie where the claimant has an adequate remedy in an alternate forum” … . Here, claimants could have raised their constitutional arguments in an application to County Court seeking the return of their computers … or, if such motion were denied, in a CPLR article 78 proceeding seeking relief in the nature of mandamus or prohibition … . LM Bis Assoc Inc v State of New York, 2015 NY Slip Op 00007, 4th Dept 1-2-15