New York State Court of Claims

New York State Court of Claims

COLLINS v. THE STATE OF NEW YORK, #2007-015-252, Claim No. NONE, Motion No. M-73799


Late claim relief was denied where proposed claim arose out of defendant's (DOCS) imposition of a period of post-release supervision. Period of post-release supervision was statutorily required.

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:
Louis Rosado, Esquire and AssociatesBy: Louis Rosado, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 31, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movants, Evan Collins and Felicia Collins, seek permission to late file a claim for damages alleging the New York State Division of Parole imposed an unlawful period of postrelease supervision upon Evan Collins (movant) following his release from prison. The proposed claim alleges: "[r]espondent NYS Division of Parole, absent legal authority and/or in excess of all jurisdiction, administratively, imposed upon movant, Evan Collins, a five (5) year period of post-release supervision, which term of post release supervision commenced on October 18, 2004 with a tentative expiration date of October 18, 2009" (see proposed claim, Exhibit A, ¶ 7). According to the proposed claim, the movant's original four-year sentence of imprisonment was satisfied "on or about, but no later than May 29, 2003" and that on August 12, 2003 a violation of parole warrant was filed which resulted in a "delinquent time assessment" of 12 months (see proposed claim, Exhibit A, ¶ 10 and 11 [i]). The movants allege that this delinquent time assessment was completed on October 18, 2004 and that it was on this date that the movant was released to postrelease supervision (see proposed claim, Exhibit A, ¶ 7, 11 [ii]). The proposed claim alleges in this regard:
"9. The underlying five (5) year period of post-release supervision administratively imposed upon Claimant, Evan Collins, by respondent NYS Division of Parole and its attended consequences (i.e., restrictions on liberty and imprisonment ) is what forms the basis of the instant claim.

10. Upon information and belief, Claimant Evan Collins' four (4) year sentence of imprisonment imposed by Erie County Supreme Court (Rossetti, J.) was satisfied in its entirety on or about, but no later than May 29, 2003. Nevertheless, Claimant Evan Collins, was unlawfully placed on post-release supervision until the November 8, 2006 grant of writ of habeas corpus in his (Claimant , Evan Collins) favor."
The habeas corpus proceeding was commenced by movants' former attorney, Richard Baumgarten, Esq., in the Supreme Court, Erie County pursuant to Article 70 of the CPLR. The petition for habeas corpus relief was granted by decision of the Honorable M. William Boller, A.J.S.C., on November 6, 2006 with the direction to submit an order consistent with the Court's decision[1].

From the foregoing it appears that the period of the alleged unlawful postrelease supervision was from October 18, 2004 through November 8, 2006. Movants allege that during this period they "frequently experienced parole officers repeatedly invading the privacy of their home, continuous interference with their right to privacy, searching, willful and malicious misconduct, subjected to threats of imprisonment and/or violation of parole" (see proposed claim, Exhibit A, ¶ 12). The proposed claim alleges causes of action for unlawful imprisonment, invasion of privacy, abuse of process, intentional infliction of emotional distress and a derivative claim for loss of consortium resulting in unspecified damages for "mental anguish and suffering, loss of liberty, humiliation, economic and all other losses and damages to be proved upon a trial. " (see proposed claim, Exhibit A, ¶ 27).

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" (Court of Claims Act § 10 [6]).

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." Since the proposed claim asserts causes of action for unlawful imprisonment, invasion of privacy, abuse of process, and intentional infliction of emotional distress, all intentional torts, the one year statute of limitations set forth in CPLR § 215 [3] applies (see also Dobies v Brefka, 263 AD2d 721 [1999]; Beninati v Nicotra, 239 AD2d 242 [1997]). Movants' application having been made within this time frame is 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 [1994]). 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]).

Movants assert that the delay in filing the claim was due to the fact that their former attorney, Richard L. Baumgarten, Esq., died on April 27, 2007, prior to serving and filing the claim. In support of their application, the movants submitted their agreement with Mr. Baumgarten, dated December 11, 2006, in which they retained him to handle this claim and an affidavit from Roger Hicks, Mr. Baumgarten's former paralegal. Mr. Hicks indicates in his affidavit the following:
4. Throughout the period of time that Mr. Baumgarten represented claimants, he (Mr. Baumgarten) experienced failing health to the extent he was unable to function at the high level of competence that he previously functioned. In particular, Mr. Baumgarten worked less hours, would often fall asleep several times during work hours, communicated less with clients and experienced other health issues which necessitated increased appointments with his doctors.
While Mr. Baumgarten's failing heath may arguably excuse the failure to file a timely claim during his lifetime, movants failed to set forth the date they learned of their attorney's death or otherwise explain the additional two-month delay in moving to file the claim late (cf. Davis v State of New York, 28 AD2d 609 [1967]). The lack of a reasonable excuse weighs against movants in determining this motion.

The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. Movants assert that the State had notice of the essential facts constituting the claim in that the Attorney General appeared in the habeas corpus proceeding in Supreme Court. The transcript of the oral argument submitted as movants' Exhibit B sufficiently establishes that the State had prompt notice of the essential facts constituting the claim and an opportunity to investigate those facts. The State makes no contrary argument nor does it identify in what manner it might be prejudiced in the event the instant application is granted. These factors weigh in movants' favor.

With respect to the required showing of merit, the claim is sufficiently established if the movant 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 , 1,11 [1977]).

The proposed claim alleges that on May 29, 1999 the movant, Evan Collins, was sentenced in Supreme Court, Erie County (Hon. Mario J. Rosetti) to an indeterminate two to four year non-violent Class D felony (Attempted Criminal Possession of a Controlled Substance in the Fourth Degree) and a determinate two-year sentence on a violent Class E felony (Attempted Criminal Possession of a Weapon in the Third Degree) (proposed claim, paragraph 6). Movant satisfied the non-violent felony sentence "in its entirety on or about, but no later than May 29, 2003" (proposed claim, paragraph 10). A parole violation warrant was filed against the movant on August 12, 2003 and, as a result thereof, he served a "12 month delinquent time assessment" until October 18, 2004 (proposed claim, paragraph 11). Upon his release the movant was made subject to a five year period of postrelease supervision (proposed claim, paragraph 7). Movant was thereafter taken into custody on criminal charges in the City of Buffalo which were dismissed on September 27, 2006. The movant was not released at that time but remained in custody pursuant to a parole detainer filed on or about the same date (September 27, 2006) (see Exhibit E, Petition). Movant by his former attorney, Richard L. Baumgarten, Esquire, filed a Petition for a Writ of Habeas Corpus which was granted on November 8, 2006 on the basis that the sentencing court failed to advise movant that a plea to a determinate sentence on the Class E violent felony of Attempted Criminal Possession of a weapon included a mandatory five year period of postrelease supervision pursuant to Penal Law § 70.45 (see Earley v Murray, 451 F3d 71 [2d Cir 2006], reh denied 462 F3d 147 [2006], cert denied 127 S Ct 3014 [2007]).

The Proposed claim states the following in paragraph 9 thereof:
"9. The underlying five (5) year period of post-release supervision administratively imposed upon Claimant, Evan Collins, by respondent NYS Division of Parole and its attended consequences (i.e., restrictions on liberty and imprisonment) is what forms the basis of the instant claim."
Upon a review of the proposed claim and other documentation submitted on the motion, it is clear the movants assert that the defendant is liable in damages for the administrative imposition of a five year period of postrelease supervision, beginning on October 18, 2004, which they argue was wrongful in light of the November 8, 2006 decision granting the petition seeking a writ of habeas corpus.

Penal Law § 70.45 (1) provides that every determinate sentence includes "as a part thereof, an additional period of postrelease supervision," generally five years subject to certain exceptions. In People v Catu, 4 NY3d 242 (2005) the Court of Appeals recognized the mandatory nature of the statute stating:
"Postrelease supervision is a direct consequence of a criminal conviction. In eliminating parole for all violent felony offenders in 1998, the Legislature enacted a scheme of determinate sentencing to be followed by periods of mandatory postrelease supervision (see L 1998, ch 1 [Jenna's Law]), and defined each determinate sentence to 'also include[ ], as a part thereof, an additional period of post-release supervision' (Penal Law § 70.45 [1]; see also Senate Mem in Support, 1998 McKinney's Session Laws of NY at 1489 [describing postrelease supervision as 'a distinct but integral part of the determinate sentence']). Whereas the term of supervision to be imposed may vary depending on the degree of the crime and the defendant's criminal record (see Penal Law§70.45 [2]), imposition of supervision is mandatory and thus 'has a definite, immediate and largely automatic effect on defendant's punishment' " (id. at 244).
Movants do not deny that Mr. Collins was incarcerated upon a determinate sentence for a violent Class E felony. Further, the movants do not allege the postrelease supervision imposed upon Mr. Collins was wrongful other than the sentencing court failed to advise him that the two year determinate felony sentence included a five year period of postrelease supervision. Had the Court so advised the movant there would be no cause of action as, under such circumstances, the period of postrelease supervision prescribed in Penal Law § 70.45 automatically applies to individuals subject to a determinate sentence (see People v Catu, supra; People v Hollenbach, 307 AD2d 776 [2003], lv denied 100 NY2d 642 [2003]; Matter of Deal v Goord, 8 AD3d 769 [2004], appeal dismissed 3 NY3d 737 [2004]; People ex rel. Johnson v Warden, Rikers Is. Correctional Facility, 4 Misc 3d 535 [2004] affd 16 AD3d 183 [2005]; Doninno Prac.Comm. PL § 70.45). The Parole Board, which imposed the five-year postrelease supervision requirement, is alleged to have done nothing more than that which it was required to do under law. There is no allegation that it was aware of the failure to properly advise the movant at sentencing of the additional period of postrelease supervision required by Penal Law § 70.45. All that is alleged is that the movant was made subject to postrelease supervision, which the facts indicate was consistent with the statutory requirement applicable to determinate sentencing. In the instant matter, the motion papers do not allege that imposition of the five-year period of postrelease supervision was discretionary in nature (Tarter v State of New York, 68 NY2d 511 [1986]; Semkus v State of New York, 272 AD2d 74 [2000], lv denied 95 NY2d 761 [2000]) and there can be no viable cause of action for ministerial neglect where there is no allegation that the subject ministerial action was performed negligently. Thus, the movants have failed to establish any basis upon which liability may be imposed on the defendant in that the act alleged to be wrongful was legal, and in fact required, at the time it was performed. As a result, the Court finds that the movants have failed to establish the potential merit of the claim.

As to the final factor to be considered, it appears that no current alternative remedy exists.

Consideration of the factors related above, particularly the inadequacy of the movants' excuse for failure to timely file and serve a claim and the lack of apparent merit, leads to the conclusion that the application for late claim relief should be denied (Matter of P.A. v State of New York, 277 AD2d 671 [2000]; Matter of Thomas v State of New York, 272 AD2d 650 [2000]).

The motion for late claim relief pursuant to Court of Claims Act § 10 (6) is denied.

December 31, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated June 20, 2007;
  2. Affirmation of Louis Rosado dated June 20, 2007 with exhibits;
  3. Affirmation of Michael T. Krenrich dated August 29, 2007;
  4. Reply affirmation of Louis Rosado dated September 12, 2007.

[1]. The decision was based on the Second Circuit decision in Earley v Murray (451 F3d 71 [2d Cir 2006], reh denied 462 F3d 147 [2006], cert denied 127 S Ct 3014 [2007]), which held that "[o]nly the judgment of a court, as expressed through the sentence imposed by a judge, has the power to constrain a person's liberty" (id. at 75). As a result, the Court in Earley held that New York's Department of Correctional Services had no power to impose a statutorily mandated period of post-release supervision that was not part of the judgment of the sentencing Court.