New York State Court of Claims

New York State Court of Claims

HYNES v. THE STATE OF NEW YORK, #2006-030-539, , Motion No. M-71135


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:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
May 8, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 3 were read and considered on Claimant’s motion

for permission to serve and file a late claim:

1,2 Notice of Motion; Affidavit in Support of Motion for Permission to File Late Claim by Chris Hynes, Claimant, and attachments

  1. Affirmation in Opposition to Cross-Motion (sic) for Permission to File a Late Claim by Barry Kaufman, Assistant Attorney General, and attached exhibits[1]
After carefully considering the papers submitted the motion is disposed of as follows:

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[2], 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 against him.

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 accrual).

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.

May 8, 2006
White Plains, New York

Judge of the Court of Claims

[1]. A document entitled Affidavit in Reply to Defendant’s Affirmation was filed-stamped by the Clerk on March 27, 2006, more than one (1) month after the motion was marked for submission. Accordingly, the document was not reviewed by the Court.
[2]. Court of Claims Act § 10(6) states in pertinent part: “. . . The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application . . . ”