New York State Court of Claims

New York State Court of Claims

DiROSE v. THE STATE OF NEW YORK, #2001-019-510, Claim No. NONE, Motion No. M-62717


Synopsis


Claimant's motion for permission to late file claim for wrongful confinement is granted, but denied as to proposed constitutional torts and bailment causes of actions.


Case Information

UID:
2001-019-510
Claimant(s):
RICARDO A. DiROSE The court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
DiROSE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-62717
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
RICARDO A. DiROSE, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Saul Aronson, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 7, 2001
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6).


The Court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-62717, dated October 24, 2000 and filed November 13, 2000.
  2. Affidavit of Ricardo A. DiRose, in support of motion, sworn to November 2, 2000.
  3. Proposed Claim, dated October 30, 2000.
  4. Affirmation of Saul Aronson, AAG, in opposition to motion, dated November 22, 2000 and filed December 1, 2000.
  5. Reply Affidavit of Ricardo A. DiRose, in support of motion, sworn to November 28, 2000 and filed December 1, 2000, with attachment.
I. Facts

This proposed claim arises from Claimant's confinement in the special housing unit (hereinafter "SHU") for over two years between August 22, 1996 through March 29, 1999 at Shawangunk Correctional Facility (hereinafter "Facility").[1] Claimant avers he was originally handcuffed and escorted to SHU without explanation on August 22, 1996. Soon thereafter, on October 29, 1996, an "Administrative Segregation Recommendation" was issued finding Claimant to be a threat to Facility security which, according to Claimant, was a belated attempt to justify his confinement. Claimant, however, did not receive a misbehavior report (hereinafter "Report") until June 3, 1998, almost two years after his initial confinement. A disciplinary hearing on said Report commenced on June 3, 1998. Claimant was found guilty of violating numerous Facility rules and regulations. Claimant filed two administrative appeals objecting to the Report and his guilty finding on numerous grounds including, but not limited to, the fact that the Report was issued two years after the alleged incident. Claimant's sentence of an additional 12 months of SHU confinement was reduced to nine months after the second appeal, together with a loss of privileges. Claimant also filed an Article 78 proceeding culminating in a Memorandum and Judgment in which the Third Department found, inter alia, "[m]erit to petitioner's contention that his due process rights were violated because the misbehavior report was not prepared until nearly two years following the charged conduct". (Di Rose v New York State Department of Correctional Services, 276 AD2d 842, 843).


Claimant seeks permission to file a late claim to recover damages based upon the following: (1) due process violations at his June 3, 1998 Tier III hearing, as well as for violations of the search and seizure, cruel and unusual punishment, and equal protection clauses of the New York State Constitution; (2) wrongful confinement between August 22, 1996 through March 29, 1999; (3) loss of personal property confiscated from him on August 22, 1996 and in February 1997; and (4) punitive damages.


II. Jurisdiction

As a threshold issue, the Court must review whether it has jurisdiction to hear and determine this motion. It is well-settled that a motion for leave to file a late claim must be filed

"[b]efore 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." (CCA 10 [6]). As discussed above, this proposed claim alleges wrongful confinement, constitutional torts, and a bailment claim which need to be reviewed separately on this threshold issue. Initially, the Court notes that it does not have jurisdiction to consider punitive damages as they are not permissible in the Court of Claims. (Sharapata v Town of Islip, 56 NY2d 332).




A. Constitutional Torts

A constitutional tort cause of action is subject to the three year limitations period provided in CPLR 214 (5). (Brown v State of New York, 89 NY2d 172). Here, Claimant alleges this proposed cause of action accrued at his hearing which started on June 3, 1998 and ended on July 1, 1998. This motion was filed on November 13, 2000 which is within the applicable three year time period. As such, this Court has jurisdiction to consider this motion relative to the proposed constitutional tort cause of action.


B. Wrongful confinement

A cause of action for wrongful confinement must be filed within two years from the date the claim accrued which is the date the confinement ends. (Ramirez v State of New York, 171 Misc 2d 677). Here, this proposed cause of action for wrongful confinement accrued when Claimant's confinement ended on March 29, 1999.[2] This motion is timely relative to the proposed wrongful confinement cause of action since it was filed on November 13, 2000.


C. Bailment

A bailment claim is subject to a three-year statute of limitations which commences when the bailee refuses to deliver the property when demanded by the bailor. The only dates provided relative to the proposed bailment claims are August 22, 1996 and February 1997 when the property was allegedly confiscated. Since this motion was filed on November 13, 2000, which is more than three years from either of the aforesaid dates, this motion is untimely relative to the proposed bailment causes of action.


As such, the Court will consider the merits of this motion relative only to the proposed constitutional tort and wrongful confinement causes of action, but not with respect to the proposed bailment cause of action.


III. CCA 10 (6) Factors

The Court will jointly review the relevant factors set forth below, except with respect to the issue of merit which warrants a separate examination for each proposed cause of action. The factors that the Court must consider in determining a properly framed CCA 10 (6) motion are whether:


1. the delay in filing the claim was excusable,

2. the State had notice of the essential facts constituting the claim,
3. the State had an opportunity to investigate the circumstances underlying the claim,

4. the claim appears to be meritorious,
5. 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

6. there is any other available remedy.


A. Whether the proposed claim appears to be meritorious

Whether the proposed claim appears meritorious has been characterized as the most decisive component in determining a motion under CCA 10 (6), since it would be futile to permit a meritless claim to proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10). In order to establish a meritorious claim, Claimant must show that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe a valid claim exists. (Matter of Santana v New York State Thruway Auth., supra, at 11). Moreover, for the purposes of this motion "[f]acts stated in a motion for leave to file a late claim against the State are deemed true for purpose of motion, when not denied or contradicted in opposing affidavits." (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976).


(1). Appearance of merit of proposed constitutional tort causes of action

Claimant's proposed claim asserts violations of Article 1, § 5 [cruel and unusual punishment], § 6 [due process], § 11 [equal protection], and § 12 [unreasonable search and seizure] of the New York State Constitution as a result of his alleged two year segregation without proper disciplinary reports and hearings. In Brown v State of New York, 89 NY2d 172, the Court of Appeals "[r]ecognized a civil damage remedy for a violation of a State constitutional provision in circumstances where the alleged violation did not fit within the definition of any common law tort remedy...." (Remley v State of New York, 174 Misc 2d 523, 526). Thus, the issue presented here is whether there exists an available common law remedy which will provide sufficient protection of the cited constitutional provisions Claimant alleges were violated. Here, a common law remedy exists by way of an action for wrongful confinement, which arises when an inmate is allegedly segregated from the general prison population in a manner inconsistent with the State's own rules and regulations. (McMillan v State of New York, 72 NY2d 871; Arteaga v State of New York, 72 NY2d 212, 221). If established, a claim for wrongful confinement awards money damages for the time an inmate is inappropriately confined to either keeplock or SHU.


So, the next inquiry is whether this common law remedy available for wrongful confinement is adequate to insure the protection of the constitutional provisions cited by Claimant herein. (Remley v State of New York, supra, 174 Misc 2d at 526). By way of analogy, this Court finds the cases dealing with alleged violations of the New York State Constitution within the context of the common law causes of action for false arrest and malicious prosecution to be instructive on the issues at hand. (Remley v State of New York, 174 Misc 2d 523; Chmielewsky v State of New York, Ct Cl., November 17, 1998, King, J., Claim No. 91639). A cause of action for wrongful confinement is similar to a cause of action for false arrest and/or malicious prosecution in the sense that all seek to recover money damages for time spent incarcerated. While with wrongful confinement a properly incarcerated inmate seeks money damages for inappropriate special segregation from the general prison population, with false arrest and/or malicious prosecution a person otherwise at liberty seeks damages for their incarceration in the first instance. Our courts have found that the common law tort remedies of false arrest and malicious prosecution provide sufficient protection of the constitutional provisions inherent in cases involving alleged unlawful arrests. (Remley v State of New York, supra, 174 Misc 2d, at 526; Chmielewsky v State of New York, supra). As stated in Remley:

[a] comparison of the injuries alleged in the common-law causes of action with the injuries alleged in the claims grounded on the Constitution shows that the common-law and constitutional remedies seek to redress the same ills. Consequently, no useful purpose would be served by implying a remedy under the Constitution and, therefore, the causes of action alleging violation of Article I, § § 6, 11 and 12 of the New York State Constitution lack an appearance of merit.


(Remley v State of New York, supra, 174 Misc 2d, at 527). In this Court's view, if the common law remedies for false arrest and/or malicious prosecution insure the protection of the cited constitutional provisions for the arguably more egregious act of incarcerating an otherwise unincarcerated person, then it must follow that the common law remedy for wrongful confinement available to an already incarcerated inmate provides sufficient redress to Claimant's concerns as would any proposed constitutional tort cause of action. Consequently, there is no need to imply a remedy under the constitution in light of the available and adequate common law remedy of wrongful confinement. As such, Claimant's proposed causes of action alleging violations of Article 1, §§ 6, 11 & 12 of the New York State Constitution lack an appearance of merit.[3]


(2). Appearance of merit of proposed wrongful confinement cause of action

In order to succeed at trial on the proposed wrongful confinement cause of action, Claimant would need to establish that: "(1) the defendant intended to confine him, (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement; and (4) the confinement was not otherwise privileged...." (Broughton v State of New York, 37 NY2d 451, 456, cert denied Schanbarger v Kellogg, 423 US 929). Here, the only disputed issue is whether the State's actions were privileged. It is well-settled that immunity will not shield the imposition of disciplinary measures if those actions were taken in violation of governing rules and regulations. (Arteaga v State of New York, 72 NY2d 212, 220-221). The State argues that the mere fact that a disciplinary proceeding is subsequently reversed does not necessarily mean that it was conducted in violation of the rules and regulations. While true, the State does not contradict any of the underlying factual allegations outlined in Claimant's moving papers, namely the State's violation of its own rules and regulations relative to his confinement and hearing. Accordingly, based upon Claimant's uncontested allegations, there is sufficient reason to believe a cause of action for wrongful confinement exists. This factor weighs in Claimant's favor with respect to wrongful confinement.


B. Remaining factors

Claimant offers numerous excuses for his delay in filing the claim, including his incarceration, medical conditions, unfamiliarity with the law, and poor advice received from an inmate clerk. None of these excuses are valid. Neither Claimant's incarceration nor ignorance of the law suffice as an excusable delay. (Hall v State of New York, 85 AD2d 835; Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654). Additionally, Claimant did not submit a physician's affidavit in order to substantiate his claim of medical incapacity through the statutory period. (Cabral v State of New York, 149 AD2d 453). This factor weighs against Claimant.


Notice of the essential facts, opportunity to investigate and lack of substantial prejudice comprise the next three factors. In opposition the State does not specifically address these factors nor attempt to demonstrate any substantial prejudice from the delay by arguing that it cannot now prepare and proceed to trial, nor does it argue that the delay in filing has generated an unfair advantage to the Claimant. As such, the Court finds these three factors weigh in Claimant's favor. Nor does the State address the factor of the presence of alternative remedies. Based on this omission, the Court will weigh this final factor in Claimant's favor.


Accordingly, upon reviewing and balancing all of the factors enumerated in CCA 10 (6), and in view of the foregoing, the Court finds that five of the six factors, including the all important issue of merit, favor granting Claimant permission to late file a claim based upon wrongful confinement; while two of the six factors, including the all important issue of merit, weigh against Claimant's motion relative to alleged violations of the New York State Constitution.


Accordingly, for the reasons stated above, IT IS ORDERED, that Claimant's Motion No. M-62717 seeking permission to permit the late filing and service of a claim is GRANTED IN PART and DENIED IN PART in accordance with the foregoing. The new claim should include only the cause of action for wrongful confinement. Claimant shall file a claim and serve a copy of the claim upon the attorney general within sixty (60) days from the date of filing of this Decision & Order in the Office of the Clerk. The service and filing of the claim shall be in conformity with all applicable statutes and rules of the Court.



March 7, 2001
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]Although not mentioned in Claimant's moving papers, it appears from later Court decisions that Claimant was charged with violating several prison disciplinary rules due to his alleged participation in a fraudulent check-cashing scheme from June 1996 through August 1996. (Di Rose v New York State Department of Correctional Services, 276 AD2d 842).
[2]Claimant's motion papers also reference two other unrelated hearings which resulted in additional confinement between February 5, 1999 to May 8, 1999 and August 20, 1999 to September 1, 1999. To the extent the date of February 5, 1999 conflicts with the alleged release date relative to the accrual date for the proposed wrongful confinement cause of action, the Court notes that the use of the February 5th, 1999, date would not alter the timeliness of this motion relative to this cause of action.
[3]Furthermore, the proposed claim lacks an appearance of merit to the extent Claimant alleges a violation of Article 1, § 5 of the New York State Constitution, since it has been stated that mere confinement in a cell is insufficient to support a claim of cruel and unusual punishment. (Wilkinson v Skinner, 34 NY2d 53).