New York State Court of Claims

New York State Court of Claims

ADAMS v. THE STATE OF NEW YORK, #2006-044-509, , Motion No. M-72127


Claimant’s motion to file a late notice of claim for wrongful confinement denied. Statutory factors of excuse for delay, merit of claim and availability of an alternate remedy weigh against claimant

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:
OMAR ADAMS, pro se
Defendant’s attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 24, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission to file a late claim for wrongful confinement in connection with a disciplinary proceeding conducted while he was an inmate at Southport Correctional Facility. Defendant State of New York (“defendant”) opposes the motion.

Claimant, who was confined in the Special Housing Unit (“SHU”), was issued a misbehavior report charging him with possessing contraband and refusing a direct order. After a disciplinary hearing, claimant was found guilty of both charges and a sentence of 30 days keeplock was imposed. The determination was affirmed on administrative appeal and claimant’s request for reconsideration was denied.[1] Claimant commenced a CPLR Article 78 proceeding and Supreme Court transferred the proceeding to the Appellate Division, Third Department for resolution of the substantial evidence issue. Thereafter, defendant administratively reversed the determination, vacated the penalty, and expunged all references to the disciplinary proceeding from claimant’s record, rendering the appeal moot. Claimant alleges that because of the penalty, he was removed from the G.E.D. program and wrongfully confined for 30 days, commencing on May 3, 2005. Claimant moves for permission to file a late claim to recover for his alleged wrongful confinement. Defendant opposes the motion and argues that given the 14-month delay, it will suffer substantial prejudice in defending this claim, and further argues that ultimately the claim has no merit.

Initially, a motion seeking permission to file a late claim must be filed within the statute of limitations period attributable to the underlying cause of action (see Court of Claims Act § 10 [6]). The statute of limitations for determining the timeliness of an application to file a late claim for wrongful confinement depends on whether such wrongful confinement is the result of ministerial negligence or intentional conduct (see Cancel v State of New York, Ct Cl, Dec. 18, 2002, Hard J., Claim No. 106521, Motion No. M-65864, [UID # 2002-032-019]). In the situation at issue in this case, the alleged wrongful confinement is based upon ministerial negligence in conducting the disciplinary hearing (rather than intentional conduct), and therefore the cause of action is subject to the two-year limitations period of Section 10 (3) of the Court of Claims Act (see Cancel, supra; Ramirez v State of New York, 171 Misc. 2d 677). Although it is unclear from the record when claimant was released from SHU status, the disciplinary hearing was held on May 2, 2005, so this motion filed July 10, 2006 is timely, being within two years of the hearing date.
The factors that the Court must consider in determining a motion to permit a late

filing of a claim are whether:
1) the delay in filing the claim was excusable;
2) defendant had notice of the essential facts constituting the claim;
3) defendant had an opportunity to investigate the circumstances of the underlying claim;
  1. the failure to file or serve upon the attorney general a timely claim or to serve timely upon the attorney general a notice of intention resulted in substantial prejudice to defendant;
  2. the claim appears to be meritorious; and
  3. claimant has any other available remedy.
Claimant asserts that the delay in filing his claim should be excused because when he realized that he needed to file and serve a claim within 90 days, that time period had almost expired. Claimant also asserts that he would not be able to obtain the services of a notary public until expiration of the 90-day period. Notwithstanding that he was confined in SHU, claimant was provided the services of a notary public twice a week (see 7 NYCRR 304.8) and it was his responsibility to leave sufficient time to process his papers (cf. Davidson v State of New York, Ct Cl, Apr. 5, 2006, Minarik, J., Claim No. 111164, Motion Nos. M-70642, M-70545, CM-70625 [UID # 2006-031-019]). Claimant’s lack of knowledge of the time limits prescribed by the Court of Claims Act (see Matter of E.K. v State of New York, 235 AD2d 540, lv denied 89 NY2d 815) and his status as an inmate are not acceptable excuses for the delay, without a showing that such circumstances prevented him from perfecting his claim (Lebron v State of New York, Ct Cl, June 20, 2003, Midey J., Claim No. None, Motion No. M-66168 [UID # 2003-009-25]). The Court finds that this factor weighs against claimant.

The next three factors: notice of the essential facts, opportunity to investigate and lack of substantial prejudice, are appropriately analyzed together since they involve similar considerations. Because a Tier II hearing and administrative appeal were conducted, defendant clearly had notice of the essential facts and an opportunity to investigate within the statutory 90-day period (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 8-9). Defendant’s argument that it will be prejudiced in its defense by the 14-month delay in commencing this action is purely speculative. The Court finds that notice of the essential facts surrounding the claim, defendant’s ability to investigate the claim, and the lack of any valid assertion of prejudice all weigh in claimant’s favor.

The issue of whether the proposed claim appears meritorious is the most crucial component in determining a motion under Court of Claims Act § 10 (6), since it would be futile to permit a meritless claim to proceed (id. at 10). In order to establish a meritorious claim, a claimant must demonstrate that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (id. at 11). A cause of action for wrongful confinement requires the claimant to show that (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). In a prison setting, a claimant may establish a cause of action for wrongful confinement when he or she shows that the disciplinary disposition itself is flawed because of a failure to follow regulations (see Arteaga v State of New York, 72 NY2d 212; Davis v State of New York, 262 AD2d 887, lv denied 93 NY2d 819; see also Lattimore v State of New York, Ct Cl, Feb. 8, 2005, Scuccimarra, J., Claim No. None, Motion No. M-69341 [UID # 2005-030-509]).

Based upon the nature of the confinement, it is clear that defendant intended to confine claimant and that he was aware of, but had not consented to, such confinement. Establishing that the confinement was not privileged poses a larger problem for claimant. It is well-settled that defendant is entitled to absolute immunity from claims for monetary damages relating to disciplinary hearings so long as it complies with the rules and regulations that govern such hearings (Arteaga v State of New York, supra; Sims v State of New York, Ct Cl, Sept. 7, 2005, Lebous, J., Claim No. 101974 [UID # 2005-019-019]). Notwithstanding the subsequent reversal of the underlying disciplinary charges, whether administratively or via a successful CPLR article 78 proceeding, the immunity is retained as long as the disciplinary proceedings were conducted consistent with the procedures provided in the relevant rules of the Department of Correctional Services (Arteaga, supra; Sims, supra; Davis v State of New York, supra). However, immunity may be lost if defendant violated its own rules and regulations in conducting the hearing, or otherwise acted outside the sphere of privileged actions (Arteaga, supra).

Initially, claimant’s unsupported and conclusory allegation of bias is insufficient to establish that the Hearing Officer was not impartial (see Matter of Lanham v Coombe, 233 AD2d 629, 630). Claimant also asserts that defendant was in violation of Directive 4910 (V) (B) (4) because “C.O. J. Alderhold had the authority to and should have taken claimant out of his cell and conducted a pat frisk and search of claimant’s living quarters”.[2] Accepting claimant’s characterization of this directive as true, the Court finds that the directive was not mandatory in nature, and thus Alderhold was “exercising a discretionary authority for which [defendant] has absolute immunity” (Holloway v State of New York, 285 AD2d 765, 766). Given the lack of evidence that the Hearing Officer was biased or that defendant violated its regulations, the Court finds that the claim is without merit, which substantially weighs against claimant.

The last factor to be considered is the availability of an alternate remedy for claimant’s alleged wrongful confinement. Claimant has pursued both an administrative appeal and a CPLR article 78 proceeding and was successful in having the disciplinary determination annulled and expunged from his records. The Court finds that the availability of this alternate remedy also weighs against claimant.

The Court has reviewed and balanced all of the factors enumerated in Court of Claims Act § 10 (6) and finds that three of the six factors, including the all-important factor of merit, weigh against claimant. Based on the foregoing, claimant’s motion to serve a late notice of claim is denied.

October 24, 2006
Binghamton , New York

Judge of the Court of Claims

The following papers were read on claimant’s motion to file a late claim:

(1) Claimant’s Notice of Motion filed July 10, 2006; Affidavit of Omar Adams sworn to July 1, 2006 with annexed Exhibits.

(2) Affirmation in Opposition of Joseph F. Romani, AAG dated August 14, 2006.

[1]. Claimant also filed an inmate grievance; however, issuance of a misbehavior report is not subject to the grievance procedure.
[2]. The Court has not been provided with a copy of Directive 4910.