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.
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 ). 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.
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,
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
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
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