New York State Court of Claims

New York State Court of Claims

HERNANDEZ v. THE STATE OF NEW YORK, #2006-030-555, Claim No. None, Motion No. M-71535


Synopsis



Case Information

UID:
2006-030-555
Claimant(s):
LARRY HERNANDEZ
Claimant short name:
HERNANDEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-71535
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
CAPRIANO, LICHTMAN & FLACH, LLPBY: ELEANOR N. FLACH, ESQ.
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: DEWEY LEE, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
July 6, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 4 were read and considered on Claimant’s motion to reargue a prior Decision and Order denying Claimant’s application to allow filing of a late claim brought pursuant to Civil Practice Law and Rules §2221(d):
1,2 Notice of Motion, Affirmation by Eleanor N. Flach, Attorney for Claimant and attachments

  1. Affirmation by Dewey Lee, Assistant Attorney General
  1. Filed Papers: Hernandez v State of New York, Claim Number None, Motion Number M-70974 (Scuccimarra, J., February 24, 2006) and underlying papers
In the underlying proposed claim, Larry Hernandez alleges that on or about May 22, 2004, while he was incarcerated at Green Haven Correctional Facility (hereafter Green Haven), and more specifically under the care of the Office of Mental Health at Green Haven because of his bi-polar disorder, Defendant’s agents “negligently” caused him injury in an attempt to subdue him. [See Exhibit 12, Affirmation in Support of Motion [M-70974] by Eleanor N. Flach, Attorney for Claimant]. Having been served with a copy of this Court’s Decision and Order denying his application for permission to serve and file a late claim with notice of entry on March 8, 2006, Claimant now seeks reargument of that determination.

“A motion for reargument, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided . . . (citations omitted). Nor does reargument serve to provide a party an opportunity to advance arguments different from those tendered on the original application.” Foley v Roche, 68 AD2d 558, 567-568 (1st Dept 1979); see Civil Practice Law and Rules §2221(d)(2). Additionally, such a motion should be brought within thirty (30) days after service of a copy of the order with notice of entry, or in any event prior to the entry of any judgment by the appellate court to which an appeal has been taken. Civil Practice Law and Rules §2221(d)(3); see Bray v Gluck, 235 AD2d 72 (3d Dept 1997), lv dismissed, 91 NY2d 1002 (1998).

Claimant’s attorney argues that the Court erred in characterizing the cause of action asserted as one in the nature of assault, rather than negligence[1], when determining the threshold issue of whether the late claim motion was timely - as the Court must do in every application for permission to serve and file a late claim. See Court of Claims Act §10(6). The motion for late claim relief was denied as untimely because the cause of action asserted in the proposed claim is an intentional tort, and the motion was brought well after the one (1) year statute of limitations period expired [Civil Practice Law and Rules §215(3)]. Had the Court viewed the proposed claim as one for negligence, the motion for late claim relief would have been timely, since the three (3) year statute of limitations period for measuring when such relief is sought would have applied. Civil Practice Law and Rules §214.

The Court notes again that in papers submitted in support of the underlying motion for late claim relief, particularly in Claimant’s own affidavit[2] and in the proposed claim[3] which, if accepted, would constitute the pleading from which all else would flow, what is alleged is a claim of excessive force by correction officers, however phrased. It goes without saying that in a prison setting - unlike in other arenas - physical force may be allowed against an inmate if it is not excessive within statutory, regulatory and attendant case law parameters. The statute provides in pertinent part “. . . [w]hen any inmate . . . shall offer violence to any person, . . . or resist or disobey any lawful direction, the officers and employees shall use all suitable means to defend themselves, to maintain order, to enforce observation of discipline,[and] to secure the persons of the offenders . . .” Correction Law § 137(5). As set forth at 7 NYCRR § 251-1.2 (a), an officer must use “. . . [t]he greatest caution and conservative judgment . . . in determining . . . whether physical force is necessary; and . . . the degree of such force that is necessary.” Once an officer determines that physical force must be used, “. . . only such degree of force as is reasonably required shall be used.” 7 NYCRR § 251-1.2(b). The state may be liable for the use of excessive force by its employee under the concept of respondeat superior. See Jones v State of New York, 33 NY2d 275, 280 (1973).

Most importantly in the context of the underlying motion for late claim relief, as well as this motion to reargue, the most analogous cause of action is an intentional tort measured by the statute of limitations provided in Civil Practice Law and Rules §215(3).

The papers submitted do not establish that the Court misapplied any controlling principle of law in denying the underlying motion for late claim relief on timeliness grounds; therefore the motion for reargument [M-71535] is in all respects denied.

July 6, 2006
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. Counsel cites Zgraggen v Wilsey, 200 AD2d 818 (3d Dept 1994), a determination affirming denial of defendant’s motion for summary judgment. The court said there was an issue of fact as to whether the contact made with plaintiff was “offensive” - an element of the battery cause of action - and the plaintiffs were allowed to proceed with their action on the theory that defendant negligently caused injury to plaintiff. Although few facts are recited, the factual scenario appears to have involved people pushing each other into plaintiff’s pool. Aside from the procedural context, to wit: determination of a motion for summary judgment; this case is not particularly pertinent to an alleged restraint in a prison setting.
[2]. He states among other things, “because of my psychiatric condition, I became agitated, at which point I was physically restrained by several correction officers.” [See ¶6, Affidavit of Merit [M-70974] by Larry Hernandez]. The only issue would be whether correction officers used unreasonable or excessive force to restrain Claimant. This is not negligence. Indeed, Counsel for Claimant’s Reply Affirmation submitted in further support of the underlying motion she insisted that there is no claim of psychiatric malpractice, but rather one for “negligence in restraining an individual who was in the psychiatric unit and in doing so, causing severe injuries to the claimant.” See ¶3, Reply Affirmation [M-70974] by Eleanor N. Flach, Attorney for Claimant.
[3]. As phrased in the proposed claim, the State’s “several correction officers, at the direction of a ‘Sgt. DeLuca,’ negligently caused injury to claimant in an attempt to subdue him.” See Exhibit 12, Affirmation in Support of Motion [M-70974] by Eleanor N. Flach, Attorney for Claimant.