New York State Court of Claims

New York State Court of Claims

FORMAN v. THE STATE OF NEW YORK, #2004-015-396, Claim No. 107937, Motion No. M-67828


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Eugene Ely Forman, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Saul Aronson, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 8, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion for an order pursuant to CPLR 3212 striking the defendant's answer and directing summary judgment in favor of claimant for the relief demanded in the claim is denied except as noted below. The instant claim seeks damages for excessive wrongful confinement. Claimant alleges that following his conviction for murder in the second degree he was sentenced on November 6, 1991 to a term of 25 years to life and thereafter improperly sent for processing to the Department of Correctional Services (DOCS) Downstate Correctional Facility, instead of to the more age appropriate Elmira Reception Center. The claim alleges further that while serving that life sentence claimant was charged with attempted assault in the second degree within a correctional facility (Penal Law § 120.05 [7]). It is alleged that he was initially sentenced to a determinate term of three years upon a plea of guilty to that charge but the sentencing court, after being notified by DOCS that claimant was not eligible for a determinate term of imprisonment (Exhibit D [d]), re-sentenced claimant to an indeterminate term of 1 ½ to 3 years (Exhibit D [e]). Claimant alleges that the re-sentencing related above nullified the murder sentence for which he was then institutionalized and warranted his transfer to the Downstate Correctional Facility Reception Center for reclassification and the assignment of a new prisoner identification number. He asserts that after re-sentencing he was instead improperly returned to Upstate Correctional Facility's Special Housing Unit (SHU) on June 27, 2002 and held there until October 19, 2003 on 23 hour per day lock down. Claimant argues that he was subjected to two separate and distinct periods of excessive wrongful confinement from November 15, 1991 to the present and from June 27, 2002 to the present.

He now moves to strike defendant's answer and for summary judgment awarding him $100 per day from November 15, 1991 to the present on the first cause of action and from June 27, 2002 to the present on the second cause of action.

The defendant opposed the motion by the affirmations of defense counsel and Richard deSimone, an attorney employed by DOCS since 1986 and DOCS' Associate Counsel in charge of the Office of Sentencing Review since 1995.

Mr. deSimone alleges in his affirmation that claimant's 1991 transfer to Downstate Correctional Facility for processing was appropriate for two reasons. First, claimant's rap sheet lists two dates of birth; May 14, 1970 and May 14, 1971. Under the former date claimant would have been more than 21 years of age when he was sentenced on November 6, 1991. Secondly, Downstate Correctional Facility has been designated as a "reception center for males who are between 16 and 21 years of age at the time of sentencing" as well as "a reception center for males 21 years of age or older" since October 31, 1990 pursuant to 7 NYCRR § 100.88.

Mr. deSimone also asserts that DOCS Directive 4007 currently provides, and provided at the time of claimant's November 15, 1991 delivery into DOCS custody, that an inmate shall retain the inmate identification number (DIN #) initially assigned him or her until the maximum expiration of the inmate's sentence. As a result, Mr. deSimone argues that the imposition of an additional sentence for attempted assault in the second degree did not necessitate either reprocessing or the assignment of a new DIN #.

The affiant further maintains that by operation of law (Penal Law § § 70.30 [1], Criminal Procedure Law § 430.10) claimant's sentences for murder in the second degree and possession of a weapon in the second degree commenced upon his delivery to DOCS in 1991 and have run uninterrupted since that time. Absent a vacatur or modification of claimant's murder sentence, according to deSimone, New York law does not provide for reduction or discharge from a maximum term of life imprisonment imposed for murder in the second degree.

Mr. deSimone further alleges that claimant's confinement in the SHU from June 29, 2001 (sic) to October 19, 2003 was related to claimant's violation of unspecified disciplinary rules which resulted in the imposition of a period of restricted confinement and was not affected by either his sentencing or re-sentencing on the attempted assault charge.

Finally, Mr. deSimone argues that since claimant was already a DOCS' inmate at the time of the June 27, 2002 re-sentencing it was unnecessary for claimant to repeat the reception process at Downstate Correctional Facility as claimant alleges.

Claimant filed a reply affidavit in which he objects to the deSimone affirmation as hearsay.

Claimant's motion seeks an order striking the defendant's First, Fifth, Sixth, Ninth, Eleventh, Thirteenth, Fourteenth, Fifteenth and Sixteenth defenses as without merit. It is well established that upon a motion to strike defenses the movant bears the burden of coming forward with sufficient proof to demonstrate that the defense cannot be maintained (Arquette v State of New York, 190 Misc 2d 676) and the defendant is entitled to every reasonable construction of the pleading and every favorable inference to be drawn therefrom (see, Nahrebeski v Molnar, 286 AD2d 891; Warwick v Cruz, 270 AD2d 255). A motion to dismiss a defense should not be granted where there exists any doubt as to its potential viability (see, Abney v Lunsford, 254 AD2d 318; Krantz v Garmise, 13 AD2d 426; Abdullah v State of New York, Ct Cl, December 7, 2001 [Claim No. 104525; Motion No. M-64269] Bell, J., UID # 2001-007-141, unreported).

Viewing each of the named defenses in this light it is obvious that the First, Eleventh, Fourteenth, Fifteenth and Sixteenth defenses set forth in the answer[1] have no application to the causes of action alleged in the claim. Those five defenses are therefore stricken as lacking in merit. The remaining defenses are found by the Court to be potentially viable and, accordingly, claimant's motion to strike the answer in its entirety must be denied.

The rules applicable to the determination of a motion for summary judgment were clearly stated by the Court of Appeals in Alvarez v Prospect Hosp., 68 NY2d 320, 324:
As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra, at p 853). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, supra, at p 562).
The proponent of a summary judgment motion may only meet its initial burden through the submission of evidentiary proof in admissible form (Rifenburgh v Wilczek, 2002 WL 826797 [NY AD 3d Dept.).

To properly consider claimant's motion for summary judgment the Court must first examine the elements of a cause of action for excessive wrongful confinement.

In order to establish a prima facie case of wrongful confinement which is a species of the tort of false imprisonment ( see, Gittens v State of New York, 132 Misc 2d 399, at 407) a claimant must show "... (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). Neither claimant's affidavit nor the exhibits attached thereto demonstrate claimant's prima facie entitlement to judgment as a matter of law. Claimant has not cited the Court to any rule, regulation, directive, statute or controlling case law[2] which support his contention that as a 20 year old inmate he was improperly sent to Downstate Correctional Facility for processing in November of 1991 or that DOCS was required to return him to Downstate for additional processing upon his re-sentencing on an attempted assault charge in June 2002. Nor has he demonstrated that his confinement in the SHU at Upstate Correctional from June 27, 2002 until October 19, 2003 was not privileged. Since claimant has not established his entitlement to judgment as a matter of law the motion must be denied. Even if claimant were found to have sustained his burden, the opposition presented was sufficient to raise material issues of fact requiring denial of the motion.

Claimant's motion to strike the answer and to award summary judgment is therefore denied except as specifically noted above.

April 8, 2004
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated December 25, 2003;
  2. Affidavit of Eugene Ely Forman sworn to December 11, 2003 with exhibits;
  3. Affirmation of Saul Aronson dated January 28, 2004;
  4. "Affidavit" of Richard deSimone dated January 27, 2004;
  5. Affidavit of Eugene Ely Forman sworn to February 3, 2004.

[1]These defenses respectively allege (1) claimant's culpable conduct, (11) failure to state the date of the claim's accrual, (14) late notice of intention, (15) collateral source recovery and (16) article 16 apportionment.
[2]Ramirez v State of New York, 171 Misc 2d 677 and Anderson, Matter of v Kirk, 72 NY2d 995 are inapposite to the instant motion.