New York State Court of Claims

New York State Court of Claims

MARCANO v. THE STATE OF NEW YORK, #2004-031-152, Claim No. 105551, Motion No. M-69262


Synopsis


Defendant's burden of proof, that claim fails to state a valid cause of action for illegal confinement, is not met. Defendant's motion to dismiss denied

Case Information

UID:
2004-031-152
Claimant(s):
ISMAEL MARCANO
Claimant short name:
MARCANO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105551
Motion number(s):
M-69262
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
ISMAEL MARCANO, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 16, 2004
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers, numbered 1 to 6, were read on motion by Defendant for an order dismissing the claim:
1. Notice of Motion, filed October 20, 2004;
2. Affidavit of Wendy E. Morcio, Esq., sworn to October 19, 2004 with attached exhibits;
  1. Affidavit of Donald Selsky, sworn to October 19, 2004;
4. Claimant's correspondence, dated October 25, 2004;
5. Supplemental Affidavit of Donald Selsky, sworn to November 3, 2004;
6. Filed Papers: Claim. This is Defendant's motion seeking dismissal of the claim. The claim, filed on February 1, 2002, alleges that Claimant was illegally confined following a Tier III disciplinary hearing. According to Claimant, he should have been released from confinement after 120 days, but was released 90 days late. He does not specifically state the date that he was released.

In support of its motion, Defendant asserts that the claim is untimely because it was not served and filed within 90 days of accrual. It is true that the claim was served and filed more than 90 days after the date of accrual listed by Claimant, July 8, 2001. However, it is clear from the claim that July 8, 2001 was the date that Claimant believes he should have been released, but was not. The law is clear that, for statute of limitations purposes, a claim for wrongful confinement accrues when the inmate is released (Collins v McMillan, 102 AD2d 860; Boose v City of Rochester, 71 AD2d 59, 65). While neither Claimant nor Defendant specifically state when Claimant was released, it appears from Defendant's exhibits that the release occurred on November 16, 2001. Based upon this date, the claim in this matter is not untimely.

Defendant also argues that the State enjoys absolute immunity from claims for monetary damages relating to disciplinary hearings when the rules and regulations that govern such hearings are followed (Arteaga v State of New York, 72 NY2d 212). However, Claimant's allegations, that Defendant failed to release him at the appropriate time, appear to be more in the nature of ministerial neglect, rather than on a violation of the process itself. "[T]he calculation of an inmate's period of confinement is a ministerial act for which sovereign immunity has been waived" (Perez v State of New York, Ct Cl, February 14, 2001 [Claim No. 99839], Sise, J., UID #2001-028-0005). In this instance, it appears that the Claimant's original sentence of 18 months in the Special Housing Unit or keeplock confinement was reduced to four months. This four month period would have ended on August 8, 2001. For some reason that is not adequately addressed by Defendant, Claimant's sentence received an upward modification on his second appeal to nine months, and then after the nine-month period expired, was again reduced to four months. (Of course, at that point in time, Claimant had already served the entire nine months.) It is not altogether clear what happened, or why Claimant was not released after four months. I cannot rule out, however, Claimant's contention that the time he served in excess of four months was the result of a ministerial error in Defendant's paperwork.

Accordingly, Defendant's motion for dismissal of the claim is denied.

November 16, 2004
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims