New York State Court of Claims

New York State Court of Claims

HINTON v. THE STATE OF NEW YORK, #2000-004-522, Claim No. None, Motion No. M-61587


Synopsis


Claimant's motion for permission to late file, denied.

Case Information

UID:
2000-004-522
Claimant(s):
LEONARD HINTON
Claimant short name:
HINTON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-61587
Cross-motion number(s):

Judge:
JEROME F. HANIFIN
Claimant's attorney:
LEONARD HINTON, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
ATTORNEY GENERAL
BY: Earl F. Gialanella, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
August 1, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Movant seeks permission to late file pursuant to Court of Claims Act § 10 (6).



The Papers considered by the Court:

Notice of Motion, filed April 19, 2000 1


Affidavit of Leonard Hinton, in support of motion,
sworn to March 27, 2000 2

Proposed Claim, with attached exhibits, verified March 27, 2000 3


Affirmation of Earl F. Gialanella, AAG, in opposition

to motion, dated May 5, 2000, filed May 10, 2000,
with attached exhibits 4



The Proposed Claim recites in pertinent part:

2. This claim arises from the acts or omissions of the defendant. Details of the said acts or omissions are as follows ( be specific ): WHILE AT ELMIRA CORR. FACILITY ON 10/2/99 AT APPROX. 2:20 PM, I WAS ACCUSED OF VIOLATING RULES 101.20 & 181.10, WRITTEN BY C.O. CARDINALE. A TIER III SUPT.'S HEARING WAS CONCLUDED ON 10/20/99 BY HEARING OFFICER DOANE.

I WAS FOUND GUILTY AND GIVEN 90 DAYS OF [sic] ALL PRIVILEGES AND 365 DAYS LOSS OF VISITING PRIVILEGES WITH "ALL VISITORS". THIS WAS MODIFIED ON ADMINISTRATIVE APPEAL TO 180 DAYS LOSS OF VISITING PRIVILEGES WITH MY "WIFE ONLY". HOWEVER, SUPT. BENNETT DISREGARDED THIS FINDING AND CONTINUED TO DENY VISITATION WITH ALL VISITORS WITHOUT LAWFUL AUTHORITY TO DO SO, AND ACTED OUTSIDE THE SCOPE OF HIS AUTHORITY. FAMILY MEMBERS ATTEMPTED TO VISIT CLAIMANT AND WAS [sic] DENIED. THE SUPT.'S UNLAWFUL ACTIONS IMPOSED UNDUE FINANCIAL HARDSHIPS UPON MY FAMILY AND CAUSED UNDUE AND UNNECESSARY STRESS AND ANXIETY UPON CLAIMANT AND HIS FAMILY. THE ACTIONS BY THE SUPT. WAS UNLAWFUL ON ITS FACE AND WAS KNOWN BY RESPONDENT OR SHOULD HAVE BEEN KNOWN TO BE UNLAWFUL AND WITHOUT LEGAL AUTHORITY....

3. The place where the act(s) took place is ( be specific): ELMIRA C.F. IN THE NON-CONTACT VISITING ROOM AND SUBSEQUENT HEARING AND APPEALS TO THE SUPT. AND CENTRAL OFFICE FOR REDRESS.

4. This claim accrued on the 10TH day of DECEMBER 1999.

(Paper No. 3)



Since Movant did not comply with the service and filing requirements, he seeks permission to file and serve a late claim pursuant to Court of Claims Act § 10 (6). Section 10 (6) empowers the Court to grant permission to late file a claim when a potential claimant has failed to comply with the filing and service requirements.[1]


State's counsel affirms:
3. ...On October 20, 1999, after a superintendent's hearing at the Elmira Correctional Facility, the claimant was found guilty of lewd exposure. The misbehavior report charged the claimant, during a non-contact visit with a female, with standing up and masturbating his exposed penis while the female was exposing her breast. A copy of the hearing packet for the incident is attached as Exhibit A. The hearing officer imposed several penalties on the claimant including a loss of all visitation for one year beginning on November 5, 1999, and ending November 4, 2000. The hearing officer in justifying the claimant's penalty stated the violation was the claimant's fourth visiting room related misconduct since May 25, 1999. See the Hearing Disposition Form in Exhibit A.

4. As is his right the claimant administratively appealed the determination to the Department of Correctional Services' Director of Special Housing, and the determination was affirmed in all respects except the penalty imposing the loss of visitation. That was modified to restrict the claimant's visitation privileges for only 180 days, and only with the person involved in the visit related misconduct which in this case was apparently the claimant's wife. See the administrative appeal materials attached as Exhibit B; 7 NYCRR § 254.7(a)(1)(ii).

5. When the superintendent discovered the modification of the claimant's visiting privileges, in a memo to the claimant dated December 15, 1999, the claimant was informed the superintendent was using his permissible authority under Department Directive 4403 to revoke the claimant's visiting privileges entirely for 180 days beginning October 2, 1999. A copy of the superintendent's memo is attached as Exhibit C. The claimant is not contesting the decision to suspend his visitation for six months with his wife following his superintendent's hearing was improper. Upon information and belief, it was the decision by the superintendent denying the claimant visitation entirely for the December 15, 1999 to April 2, 2000 time period that the claimant is now attempting to seek compensation for.

(Paper No. 4 [footnote omitted])


Section 10 (6) of the Court of Claims Act sets forth six factors that the Court must consider:
In determining whether to permit the filing of a claim pursuant to this subdivision, the court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy.

(Court of Claims Act § 10 [6])



No one factor standing alone necessarily controls. (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981; cf., Marcus v State of New York, 172 AD2d 724, 725). The Court must look at each factor and then determine whether, on balance, they weigh in favor of allowing a Movant to file a late claim against the State.


The Court will first consider whether Movant has offered a sufficient excuse for the delay in filing the Claim. The reason given by Movant, basically that he was incarcerated and subject to the actions of prison officials, is not sufficient (Hall v State of New York, 85 AD2d 835) (Paper No.2, ¶ 2). Thus, this factor favors the State.


The next three factors, notice, opportunity to investigate, and prejudice, are best considered together. The State is not asserting that it did not have notice, an opportunity to investigate, or that it would be substantially prejudiced by the Court allowing the late filing of the claim. (Paper No. 4, ¶ 7). Thus, these factors favor the Movant.


In order for a Claim to have an appearance of merit, the Movant must establish that the Claim is not patently groundless, frivolous or legally defective, and the Court must find, upon consideration of the entire record, including the proposed Claim, that there is reasonable cause to believe a valid cause of action exists. (Rosenhack v State of New York, 112 Misc 2d 967; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).


In opposition to the motion, State's counsel argues (1) that the superintendent had the regulatory authority to revoke Claimant's visitation privileges entirely if there is "reasonable cause to believe that such action is necessary to maintain the safety, security, and good order of the facility" (Paper No. 4, ¶ 8) (2); that the incident that gives rise to this application was the Movant's fourth visiting misconduct act in less than six months; (3) that the superintendent has broad discretion with regard to the regulation of visitation rights, citing Matter of Vasquez v Coombe, 238 AD2d 631 and Matter of Victory v Coughlin, 165 AD2d 402 and (4) that the superintendent's actions were "entitled to absolute immunity" since they were in compliance with applicable regulations citing Arteaga v State of New York, 72 NY2d 212 (Paper No. 4, ¶ 10)


Attached to the proposed Claim is a document entitled "SUPERINTENDENT'S HEARING DISPOSITION RENDERED" which recites that a corrections employee named Doane found the Claimant guilty of lewd exposure and as one of the penalties recorded "loss of all" visitors. Also attached to the proposed Claim is a document entitled "REVIEW OF SUPERINTENDENT'S HEARING" with regard to the Claimant which recites in part "On behalf of the commissioner and in response to your recent letter of appeal, please be advised that your superintendent's hearing of OCTOBER 20, 1999, has been reviewed and MODIFIED on DECEMBER 10, 1999". This document then recites a series of "PENALTIES" one of which is "LOSS OF CONTACT VISIT WITH WIFE". This document was apparently signed by Donald Selsky described therein as "DIRECTOR, SPECIAL HOUSING/INMATE DISCIPLINARY PROGRAM" and it recites that the review and modification contained therein was made "on behalf of the commissioner". Finally, attached to the proposed Claim is a memorandum to the Claimant from the superintendent of the Elmira Correctional Facility dated December 15, 1999 which recites, in part,
My official interpretation is this. At your hearing, Dep. Doane revoked visitation with everyone for 365 days. Mr. Selsky modified that disposition to loss of visitation for 180 days and indicated that Dep. Doane only had authority through the disciplinary process to revoke visits with specific visitors, in this case your wife.

I, however, in accordance with Directive 4403, have the authority to revoke your visiting privileges totally. Therefore, with Mr. Selsky's modification in mind, I will modify your loss of visitation with all visitors to 180 days beginning 10/2/99.

(Paper No. 4, Ex. C)


Directive 4403 is not before the Court, but we find the following in Paper No. 4, footnote 1, "Directive 4403, part VIII states in pertinent part, ‘A Superintendent may deny, limit, suspend, or revoke the visitation privileges of any inmate or visitor to visit each other if the Superintendent has reasonable cause to believe that such action is necessary to maintain the safety, security, and good order of the facility'".


The Court finds that the proposed Claim has an appearance of merit. Other than the above quotation, the Court is not privy to the entire contents of Directive 4403. In the Court's view, the quoted segment of the directive hardly leads to the inexorable conclusion that the superintendent was empowered to modify the aforedescribed modification of the superintendent's hearing reached by an appellate review performed on behalf of the Commissioner of the Department of Correctional Services. It seems to this Court that the review process is quasi-judicial in nature and that the modification by the superintendent of the appeals decision would be somewhat analogous to a modification of a New York State Court of Appeals Decision by a lower Court. Further, the Court can find nothing in the pertinent regulations addressing the subject of "VISITATION" (see, 7 NYCRR Chapters IV, V) that would so empower a superintendent. Nonetheless, this application for permission to late file must be denied because "among other factors" (Court of Claims Act § 10 [6]) that this Court has considered is the fact that Movant failed to take any action to attempt to reverse or modify the decision by the superintendent which he regarded as "UNLAWFUL AND WITHOUT LEGAL AUTHORITY". (see supra, p 2) Just as it is unclear to this Court where the source of the authority of the Superintendent to modify the decision of the commissioner can be found, it is also unclear whether there was in place an administrative procedure whereby the Claimant could have appealed the superintendent's modification. If there was such a procedure, then Claimant was bound to pursue it and exhaust his administrative remedies. Once those remedies were exhausted, or if there were no such remedies in this situation, there was a clear and established legal procedure where a remedy could have been pursued, a CPLR Article 78 proceeding. (see, Matter of Vasquez v Coombe, 238 AD2d 631; Matter of Victory v Coughlin, 165 AD2d 402) Thus, an Article 78 proceeding leading to a successful result, from Movant's point of view, that is nullification of the superintendent's modification, was a precondition to an action for damages in this Court, which is powerless to nullify or modify that modification. In short, Movant's failure to take an available legal route to reverse or modify the superintendent's ruling, thereby mitigating his alleged damages, bars a Claim for money damages in this Court, as a matter of law. (cf., Matter of Nelson v Coughlin, 188 AD2d 1071, appeal dismissed 81 NY2d 834) Thus, this Court has no discretion in the matter and this application must be denied.


Having failed to pursue an administrative appeal and/or an Article 78 remedy, it appears that Claimant now has no alternative remedy.


In light of the foregoing it is


ORDERED that Motion No. M-61587 is denied.



August 1, 2000
Binghamton, New York

HON. JEROME F. HANIFIN
Judge of the Court of Claims




  1. Section 10(6) of the Court of Claims Act states in pertinent part:
A claimant who fails to file or serve upon the attorney general a claim or to serve upon the attorney general a notice of intention, as provided in the foregoing subdivisions, within the time limited therein for filing or serving upon the attorney general the claim or notice of intention, may, nevertheless, in the discretion of the court, be permitted to file such claim at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules. . . . The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application.