New York State Court of Claims

New York State Court of Claims

McLAURIN v. THE STATE OF NEW YORK, #2004-030-608, Claim No. NONE, Motion No. M-69073


Synopsis



Case Information

UID:
2004-030-608
Claimant(s):
CHARLES McLAURIN The caption has been amended to reflect the only proper defendant.
Claimant short name:
McLAURIN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-69073
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
CHARLES McLAURIN
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: ELYSE J. ANGELICO, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
December 22, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 3 were read and considered on Claimant's motion for permission to serve and file a late claim brought pursuant to Court of Claims Act §10(6):
1,2 Notice of Motion; Affidavit in Support by Charles McLaurin, Claimant and attached exhibits
  1. Affirmation in Opposition by Elyse J. Angelico, Assistant Attorney General and

attached exhibits After carefully considering the papers submitted[1] and the applicable law the motion is disposed of as follows:

In order to determine an application for permission to serve and file a late claim, the Court must consider, "among other factors," the six factors set forth in Court of Claims Act §10(6). The factors stated therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. See e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

Additionally, the motion must be timely brought in order to allow that a late claim be filed ". . . 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 . . . " Court of Claims Act § 10(6). Here, the applicable statute of limitations is three (3) years, thus the motion is timely. Civil Practice Law and Rules §214.

Claimant does not address any of the factors set forth in Court of Claims Act §10(6), except to say that the State had notice because he had written to the Executive Director of the New York State Division of Parole seeking assistance in being transferred from Westchester County Jail to DOCS custody, and because of his attempt to mail a Notice of Intention to the Attorney General's Office in August, 2003. Although he does not indicate whether any Notice of Intention was actually mailed, by whatever means, nor whether it was received, the Assistant Attorney General has appended a copy of a Notice of Intention file stamped by that office on September 5, 2003. He does not indicate what has prevented him from pursuing any claim against the State of New York since his release from State custody on September 12, 2003. Thus, although no excuse is offered, it does appear that the State had notice and an opportunity to investigate, and would not be particularly prejudiced by the delay.

A claim appears to be "meritorious" within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that there is reasonable cause to believe that a valid cause of action exists. Matter of Santana v New York State Thruway Auth, 92 Misc 2d 1 (Ct Cl 1977). Claimant need not establish a prima facie case at this point, but rather the appearance of merit. See e.g. Jackson v State of New York, Claim No. NONE, Motion No. M-64481 (Midey, J., February 28, 2002). Although the appearance of merit is not as high a standard as a prima facie case, it nonetheless must be shown affirmatively, since it would be pointless to permit the service and filing of a late claim which is patently defective or to which there is a complete defense. Prusack v State of New York, 117 AD2d 729 (2d Dept 1986); Jolley v State of New York, 106 Misc 2d 550 (Ct Cl 1980).

In his proposed claim, Charles McLaurin alleges that the New York State Division of Parole unlawfully caused Claimant to be held beyond his conditional release date of August 7, 2003[2] at Westchester County Jail (hereafter Westchester), by refusing to lift a parole warrant dated October 8, 2002, and timely declare Claimant "state ready." Although the proposed claim itself does not so indicate, it seems he was transferred to Downstate Correctional Facility and the custody of the New York State Department of Correctional Services (hereafter DOCS) on September 3, 2003, [Affidavit in Support, ¶ 9], and was released to parole supervision on September 12, 2003. [ibid. ¶11]. He alleges he was unlawfully imprisoned for thirty-five days from August 7, 2003 to September 12, 2003 and seeks damages in the amount of $200.00 per day, as well as damages for pain and suffering in the amount of $25,000.00.

Although a "state-ready" inmate confined in a local facility after the period within which interpretive case law has suggested as the reasonable time within which to effectuate a transfer to a State facility [See e.g. Matter of Ayers v Coughlin, 72 NY2d 346 (1988)(10 days); People ex rel. Perdue v Jablonsky, 174 Misc 2d 604 (Sup Ct, Nassau County 1997)(14 days)], may have a cause of action for wrongful confinement [See Ban v State of New York, 187 Misc 2d 905 (Ct Cl 2001)] here the gravamen of the claim addresses privileged actions by the Division of Parole concerning the issuance or withdrawal of a warrant. Notably, during the period Claimant alleges his confinement was "wrongful", he was apparently held in local jail with respect to pending contempt charges.

In the normal course, to establish a prima facie case of wrongful confinement, a "species" of the tort of false imprisonment, [Gittens v State of New York, 132 Misc 2d 399, 407 (Ct Cl 1986)], 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 (1975), cert denied sub nom. Schanbarger v Kellogg, 423 US 929 (1975). The only aspect that would be litigated here would be whether the confinement was privileged.

On its face the proposed Claim does not state a cause of action over which the Court of Claims would have jurisdiction. Underlying any claim for money damages for Mr. McLaurin's alleged wrongful confinement - at least as expressed in the proposed claim Mr. McLaurin has drafted[3] - is the discretionary determination by the Division of Parole to continue an outstanding

warrant.[4] Decisions surrounding parole are privileged discretionary ones, for which the State has not waived immunity. See Tarter v State of New York, 68 NY2d 511 (1986); Holloman v State of New York, 151 AD2d 1030 (4th Dept 1989); Lublin v State of New York, 135 Misc 2d 419 (Ct Cl 1987) affd 135 AD2d 1155 (1st Dept 1987) app denied 71 NY2d 802 (1988).

Accordingly, Motion Number M-69073 for permission to serve and file a late claim is in all respects denied.




December 22, 2004
White Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1] An additional document entitled Answer to State's Response to Claimant's motion was received from Claimant after the return date of the motion of October 20, 2004 and has not been considered.
[2] Elsewhere Claimant indicates that the conditional release date was August 12, 2003 [Affidavit in Support, ¶ 2], and also August 7, 2003 [Affidavit in Support,¶10; Exhibit G].
[3] Perhaps if the proposed claim had been drafted differently, i.e., if the allegations were that the New York State Department of Correctional Services failed to release Claimant from State custody on the conditional release date versus the allegations in the proposed claim as drafted to the effect that it is the actions of the local correctional facilities as well as the discretionary determinations by the parole board that are at issue, Claimant might have shown the appearance of merit to his claim for late claim purposes. See Robinson v State of New York, UID#2003-015-584, Claim No. 105597 (Collins, J., January 6, 2004); Frank v State of New York, UID#2003-032-122, Claim No. 107172, Motion No. M-67314 (Hard, J., December 22, 2003); cf Bethea v State of New York, UID#2004-019-542, Claim No. NONE, Motion No. M-68256 (Lebous, J., May 10, 2004).
[4] There is no indication as to whether Claimant initiated an Article 78 proceeding or sought the issuance of a writ of habeas corpus while still incarcerated to address the parole board determinations. See Maccio v Goord, 4 AD3d 688 (3d Dept 2004), lv app denied, 3 NY2d 607 (2004); Cruz v New York State Department of Correctional Svces., 288 AD2d 572 (3d Dept 2001), app dismissed, 97 NY2d 725 (2002).