After carefully considering the papers submitted the motion is disposed of as
In the proposed claim Mr. Hynes alleges, among other things, that he was
wrongfully confined as the result of a defective Tier III Disciplinary hearing
held at Green Haven Correctional Facility on July 29, 2004. [Proposed Claim,
¶ 3]. Claimant had been charged with violation of a facility rule
concerning drug use, and served with a misbehavior report leveling the charge.
[ibid. ¶4]. During the hearing, and at Claimant’s request,
the testimony of a representative from the company that manufactured the
urinalysis testing apparatus - named “Beth” - was heard by the
hearing officer over the telephone. [ibid. ¶¶ 6, 7]. Claimant
asserts that Beth’s testimony was not completely “electronically
recorded” as required by the New York State Department of Correctional
Services (DOCS) regulations. 7 NYCRR §254.6(a)(2).
After the hearing was concluded on August 5, 2004, Claimant was found guilty of
the charge, and penalties of 12 months in the Special Housing Unit [SHU], six
(6) months loss of package, commissary and phone privileges were imposed; and a
recommendation was made for a six (6) month loss of good time. [ibid.
¶¶4, 8]. Additionally, the Hearing Officer reinstated a prior
suspended penalty of 22 days keeplock. [ibid. ¶8].
Claimant appealed the hearing determination. [ibid. ¶9]. The
determination was upheld on September 24, 2004, except that Claimant’s SHU
time was reduced to three (3) months. [ibid. ¶ 10]. Claimant was
released from SHU on November 22, 2004. [ibid. ¶15].
In January 2005, Claimant commenced an Article 78 proceeding in Dutchess County
Supreme Court challenging the disciplinary finding. [ibid. ¶11].
See Civil Practice Law and Rules §7801 et seq. Issue was joined
in that proceeding on or about June 28, 2005. [Affidavit in Support of Motion by
Chris Hynes, ¶¶ 2, 3]. When Claimant reviewed the transcript of the
hearing he received in connection with the special proceeding, he saw that
“defendant failed to record the full testimony of ‘Beth’. . .
Claimant immediately put defendant and the court on notice to this additional
violation of my due process rights, by filing a reply affidavit dated July 13,
2005 . . .” in the Supreme Court proceeding. [ibid. ¶¶ 4,
5]. It does not appear that a final determination has been rendered by the
hearing court with regard to the Article 78 proceeding.
Claimant asserts a date of accrual of July 5, 2005: when he “realized
that Beth’s testimony was not fully recorded, and that the majority of her
testimony had not been recorded.” [Proposed Claim ¶¶13, 19].
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 §10(6) of the Court of Claims Act. 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).
A copy of the proposed Claim
, must accompany
the motion, allowing the Court to ascertain the particulars of the claim,
including the date of accrual, the location of the alleged incident, and what
injuries are alleged. See
Court of Claims Act §11(b).
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.
Incarceration, and movement within the system, and any asserted difficulty in
obtaining representation by counsel or otherwise conferring with counsel, does
not constitute a reasonable excuse in the nature of a disability, or otherwise.
See Plate v State of New York, 92 Misc 2d 1033, 1037-1039 (Ct Cl
1978). There must be some showing that the circumstances of an inmate’s
incarceration prevented him from taking effective steps to perfect his claim, or
contact an attorney. Bommarito v State of New York, 35 AD2d 458, 459
(4th Dept 1971). Claimant has made no such showing, thus this factor weighs
The absence of an excuse, however, is but one of the factors to be considered
and does not necessarily preclude relief. Bay Terrace Coop. Section IV, Inc.
v New York State Employees’ Retirement System Policemen’s &
Firemen’s Retirement System, supra.
The closely related factors of notice, opportunity to investigate and prejudice
to the State, considered together, weigh toward granting Claimant’s
motion. Any documentation of incidents having to do with disciplinary
proceedings would presumably be maintained by Defendant’s agents in the
disciplinary file, the passage of time has not been so great that the
State’s ability to investigate is impeded to its prejudice, in that any
witnesses would be hard to locate or have difficulty recalling the allegations
of the proposed claim. Edens v State of New York, 259 AD2d 729 (2d Dept
1999) (Two years and two and one-half months from date of
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, M-64481 (Midey, J.,
February 28, 2002). Significantly, an application for permission to serve and
file a late claim may be denied if it fails to show the appearance of merit on
that ground alone. See Savino v State of New York, 199 AD2d 254
(2d Dept 1993).
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). A claim of
wrongful confinement accrues when the confinement ends. Ramirez v State of
New York, 171 Misc 2d 677 (Ct Cl 1997).
The quasi-judicial acts of correctional employees taken in furtherance of
authorized disciplinary measures are entitled to absolute immunity. Arteaga v
State of New York, 72 NY2d 212, 219-220 (1988). If officers act
inconsistently with their own rules and regulations, or otherwise act outside
the sphere of privileged actions, liability may attach. The fact that charges
are ultimately dismissed does not give rise to a cognizable cause of action when
there is no evidence defendant acted inconsistently with its own rules and
regulations. Arteaga v State of New York, supra; Holloway v
State of New York, 285 AD2d 765 (3d Dept 2001); cf.: Gittens v
State of New York, supra.
A court conducting judicial review of a disciplinary hearing through an Article
78 proceeding has concerns that are different than those justiciable in the
Court of Claims. See generally Civil Practice Law and Rules §7801
et seq. Such inquiries include whether substantial evidence supports the
finding [See e.g. Foster v Coughlin, 76 NY2d 964 (1990);
Rodriguez v Ward, 64 AD2d 792 (3d Dept 1978)] and whether due process
requirements were met [See e.g. Allison v LeFevre, 134 Misc 2d 729
( Sup Ct, Clinton County 1987)].
In the Court of Claims, as noted, the concerns are different. See e.g.
Holloway v State of New York, supra; Varela v State of New
York, 283 AD2d 841 (3d Dept 2001); cf. Craft v State of New
York, 189 Misc 2d 661 (Ct Cl 2001).
As pointed out by the Assistant Attorney General, although a transcript of the
disciplinary proceeding produced by a professional stenographic service retained
by DOCS to transcribe Superintendent’s Hearing tapes - and provided to
Claimant in the Article 78 proceeding [See Affidavit in Support of
Motion, Exhibit A] - was apparently inaccurate, the tapes themselves reflect
that the entire hearing was electronically recorded as required by DOCS
regulations [See 7 NYCRR §254.6(a)(2)]. [Affirmation in Opposition,
¶¶ 6, 7].
Moreover, it appears that Claimant himself received a copy of the tape
recording for review pursuant to a Freedom of Information Law [FOIL] request
made in August 2004. [ibid. ¶6, Exhibit 1]. The Court has reviewed
the hearing tapes attached to Defendant’s submission [ibid. Exhibit
3], and finds them to be a complete recording as attested to by Counsel, and as
earlier utilized by Mr. Hynes in making his presentation in Supreme Court.
[ibid. Exhibit 2].
From the facts presented it would appear that correction officers acted within
the bounds of DOCS rules and regulations. There is no indication that the
hearing was not commenced or concluded in a timely fashion, the hearing officer
presiding was authorized to do so by regulations, and despite Mr. Hynes’
contention that the entire proceeding was not electronically recorded, this is
simply not the case.
Accordingly, having considered the relevant statutory factors, the Court finds
that the balance of factors weigh against Claimant and, accordingly, his motion
to serve and file a late claim is in all respects DENIED.