New York State Court of Claims

New York State Court of Claims

PETERSON v. THE STATE OF NEW YORK, #2007-015-161, Claim No. 112700, Motion Nos. M-72344, CM-72519


Defendant's motion to dismiss claim as untimely filed and served was granted. Claimant's cross-motion for late claim relief was denied without prejudice to resubmit upon proper proof establishing a meritorious cause of action. Claimant failed to establish any act of neglect on the part of the State which resulted in his wrongful confinement claim.

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:
Sylvain R. Jakabovics, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Ellen Matowik Russell, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 20, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves for an order pursuant to CPLR 3211 dismissing the claim herein on the ground that it was not timely filed and served. Claimant cross-moves for an order deeming the claim filed nunc pro tunc or, in the alternative, permitting claimant to file and serve a late claim pursuant to Court of Claims Act § 10(6). The defendant's motion is granted. The claimant's cross-motion for late claim relief is denied.

The claim alleges in substance the following:
2. The claimant was arrested on January 8, 2006 for driving with a suspended license. In checking on his license it was discovered that claimant was wanted by the New York State Division of Parole for failure to report. Based on this information the claimant was incarcerated and brought before the Administrative Law Judge Grace Bernstein who sentenced the claimant to four months for violating his parole.

The violation of parole was baed (sic) on a 1994 conviction which was unconstitutionally obtained and which the United States District Court for the Southern District had overturned in the case entitled Peterson v. New York 00-cv-4777(RPP/KNF)

This information was given to the Court which nonetheless was disregarded and the claimant was sentenced for violating parole on an overturned felony conviction.

Claimant then brought a writ of habeas Corpus petition and by order of Hon. Denis Boyle dated May 3, 2006 the Writ was sustained and the parole violation was vacated and dismissed with prejudice and the claimant was released on May 11, 2006.

3. The claimant was unlawfully arrested, and unlawfully detained at Rikers Island at 18-18 Hazen Street, East Elmhurst, New York from the time of his arrest on January 8, 2006 until his release on May 11, 2006.

4. The claim occurred on January 8, 2006.

The claim was personally served upon the Attorney General on August 28, 2006 and filed with the Clerk of the Court of Claims on August 30, 2006. In support of dismissal, the defendant contends that the claim was not filed and served within 90 days after the claim accrued as required by Court of Claims Act § 10(3). The claim accrued when the claimant's damages were reasonably ascertainable (see Conner v State of New York, 268 AD2d 706 [2000]). In this case, the latest date at which claimant's claim could have accrued was the date of his release on May 11, 2006. Accordingly, the claim filed on August 30, 2006 was untimely. Claimant does not contest this assertion but requests late claim relief pursuant to Court of Claims Act § 10(6).

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy".

The first issue for determination upon a late claim motion is whether the application is timely. Subdivision 6 of section 10 requires that a motion to file a late claim be made "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." As will be discussed below, to the extent the claim[1] can be read as asserting a negligence cause of action, the three year Statute of Limitations set forth in CPLR § 214 applies. Claimant's motion is therefore timely.

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117 [1991]). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254 [1993]).

The excuse advanced by the claimant for the failure to timely serve and file his claim is that the documents and data necessary to support the underlying facts of his case had been lost. He explains in an affidavit that upon his release from jail in May of 2006, he was homeless and stayed at various shelters. At that time he had all of his personal documents and belongings with him but was thereafter hospitalized for a heart condition. Upon his discharge from the hospital he returned to the shelter and discovered that most of his personal documents and papers had vanished. The claimant was forced to re-acquire the lost documents and claimant's attorney indicates in his affirmation that the claim was filed one day after the claimant came into his office. Under these circumstances, the Court finds the excuse for the delay in serving and filing the claim to be reasonable.

The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. Claimant asserts that the defendant cannot establish prejudice since from the very inception he claimed he was wrongfully charged and imprisoned. The claimant argues that notwithstanding the late filing and service of the claim no prejudice will result from the delay because, unlike a transitory cause of action where conditions may have changed or important evidence is lost, here, all of the facts and conditions will remain subject to full review and investigation. The Court finds that although the defendant may not have had notice of the facts of this claim within 90 days following the claimant's release from prison, the delay in serving and filing the claim was brief and the defendant failed to establish how it will be prejudiced in the event the motion for late claim relief is granted. The fact that the defendant may still investigate the underlying facts of this claim negates the defendant's conclusory claim of prejudice and these factors weigh in favor of the claimant.

With respect to the required showing of merit, the claim is sufficiently established if the claimant demonstrates that the proposed claim is not patently groundless, frivolous, or legally defective and 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 [1977]; Fowx v State of New York, 12 Misc 3d 1184(A) [2006] ).
Evaluation of the merit of the claim requires consideration of whether the facts of this case may give rise to a cause of action for wrongful confinement or negligence. To establish a cause of action for wrongful confinement, a "species" of the tort of false imprisonment (see Gittens v State of New York, 132 Misc 2d 399 [Ct Cl 1986]), a claimant must 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 [1975]), cert denied, 423 US 929 [1975]). "[W]here a facially valid order issued by a court with proper jurisdiction directs confinement, that confinement is privileged and everyone connected with the matter is protected from liability for false imprisonment" (Holmberg v County of Albany, 291 AD2d 610, 612 [2002], lv denied 98 NY2d 604 [2002]) (citation omitted); Nuernberger v State of New York, 41 NY2d 111 [1976]). Prison officials are "conclusively bound" by the commitment papers and cannot add or detract therefrom ( Matter of Murray v Goord, 1 NY3d 29, 32 [2003]; Middleton v State of New York, 54 AD2d 450 [1976], affd 43 NY2d 678 [1977]). Absent an allegation in the claim, "express or inferable", that the orders of commitment were invalid on their face or that the courts lacked jurisdiction to issue the order, a claim for wrongful confinement lacks merit (Ferrucci v State of New York, 42 AD2d 359, 361 [1973], affd 34 NY2d 881 [1974]; see also, Harty v State of New York, 29 AD2d 243 [1968], affd 27 NY2d 698 [1970]; Mullen v State of New York, 122 AD2d 300, lv denied 68 NY2d 609 [1986], cert denied 480 US 938 [1986]). Such is the case here as the claim (proposed claim) does not expressly or implicitly assert that an order of commitment was invalid on its face so as to defeat the claim of privilege. Any claim for wrongful confinement therefore lacks merit.

Nor does the claim state with any reasonable level of clarity in what manner the State was negligent. Liability may flow from "actions or omissions of nonjudicial employees in negligently performing their everyday, ministerial duties" (Marx v State of New York, 169 AD2d 642, 642 [1991]). Even where the act is governmental in nature, liability may be imposed for ministerial acts under traditional tort principles (Lauer v City of New York, 95 NY2d 95, 99 [2000]; Ford Motor Credit Co. v State of New York, 133 AD2d 980 [1987]). " '[D]iscretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result' " (Haddock v City of New York, 75 NY2d 478, 484 [1990] quoting Tango v Tulevech, 61 NY2d 34, 41 [1983]).

In particular, the negligent failure of State employees to retire an outstanding warrant after the underlying charge had been dismissed may give rise to liability upon a proper showing that such failure caused or contributed to the claimant's damages (see Shaw v Town of Camillus, 288 AD2d 902 [2001]; Glowinski v Braun, 105 AD2d 1153 [1984], appeal dismissed 65 NY2d 637 [1985]), see also Hunt v State of New York , 36 AD3d 511 [2007][State liable for failure to transmit court directive that claimant should be placed in protective custody] ; Marx v State of New York, supra, 169 AD2d 642 [1991][State liable for Housing Court Clerk's loss of file and failure to alert marshal who held a warrant of eviction that dispossess petition had been dismissed]; Schwandt v State of New York, 4 Misc 3d 405 (Ct Cl 2004) [State liable for city police court clerk's negligence in their failure to transmit cancellation of arrest warrant]; Ostrowski v State of New York, 186 Misc 2d 890 (Ct Cl 2001)[State liable for court clerk's failure to record payment of traffic fine resulting in arrest]). Such an analysis has also been applied to the negligent failure of the Department of Motor Vehicle employees to perform a ministerial act (Ford Motor Credit Co. v State of New York, supra; Lobel Financial Corp. v State of New York, 8 Misc 3d 662 [2005]; Osho v State of New York, Ct Cl, March 8, 2004 [Claim No. None, Motion No. M-67743, UID # 2004-028-509] Sise, J., unreported[2]; Davis v State of New York, Ct Cl, February 3, 2004 [Claim No. 104493, Motion Nos. M-66095, M-66099, UID # 2004-028-504] Sise, J., unreported). In the instant matter, however, the claim fails to allege any specific negligent act which might give rise to liability for ministerial neglect and is, therefore, insufficient to establish the potential merit of the claim.

As to the final factor to be considered, it has not been suggested that an alternative remedy exists.

Accordingly, the defendant's motion to dismiss the claim as untimely filed and served is granted. The cross-motion for late claim relief is denied without prejudice to a further motion upon proper proof establishing a meritorious cause of action.

March 20, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated September 27, 2006;
  2. Affirmation of Ellen Matowik Russell dated September 27, 2006 with exhibit;
  3. Notice of cross-motion dated November 8, 2006;
  4. Affirmation of Sylvain R. Jakabovics dated November 8, 2006;
  5. Affidavit of Alvin Peterson sworn to November 8, 2006;
  6. Affirmation of Ellen Matowik Russell dated November 30, 2006.

[1].Although the claimant did not submit a proposed claim in support of his cross-motion, the Court will consider the previously filed and served claim as the proposed claim for the purposes of the instant motion.
[2].Unreported decisions from the Court of Claims are available via the internet at .