New York State Court of Claims

New York State Court of Claims

BENNETT v. THE STATE OF NEW YORK, #2007-030-532, Claim No. NONE, Motion No. M-72889


Late claim motion based on alleged wrongful confinement denied, no appearance of merit. Claimant alleged he was allowed opportunity to withdraw plea once determined he was not eligible for incarceration at Willard Drug Treatment Campus, he withdrew his plea, and was given another sentence. Any sentencing error best addressed by appellate process.

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:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
May 23, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion for permission to

serve and file a late claim pursuant to Court of Claims Act §10(6):

1,2 Motion for Permission to File a Late Claim by Anthony Bennett, claimant; proposed Claim and attached papers

No opposition filed

Anthony Bennett alleges in his proposed claim that he was wrongfully held in New York State Department of Correctional Services [DOCS] custody at various correctional facilities from June 16, 2005 to July 20, 2005. He states that he withdrew a plea of guilty on May 10, 2005 in State Supreme Court, and does not understand why he was then sent back to the “Department of Corrections.” [Claim, ¶7]. He states that after withdrawing his plea, his case was rescheduled in front of a different Judge on May 25, 2005, at which time “. . . his lawyer did not argue for a bail hearing or R.O.R. . . .[and] Claimant . . . was held in Contempt of Court, and was given (30) days in jail, with a hearing date of July 21, 2005 . . . On June 16, 2005 . . . however, [claimant] was sent back to Downstate Correctional Facility, and then transferred to Auburn Correctional Facility, where he was kept in keep lock for a total of six (6) days with no showers or recreation, then finally sent to Willard Correctional Facility . . . Once the claimant was sent to the Department of Corrections on June 16, 2005, the claimant was held in their custody for a total of (34) days, without proper authorization, and proper sentence commitment.” [Ibid. ¶¶ 3-6]. Mr. Bennett further alleges that “after the plea was withdrawn the commitment order was as a matter of Law void, and he . . . should NOT have been sent to the Department of Corrections without proper authority, and proper process, violating his Constitution Right to Due Process.” [Ibid. ¶ 8]. Claimant seeks damages for the 34 day detention, but does not indicate a total sum claimed.

In a letter to claimant from the New York County Defender Services - presumably the attorneys representing claimant on his criminal charge - dated August 18, 2006 it is stated: “. . . Your original sentence (imposed on March 22, 2005 before Judge White) was illegal because the offense to which you plead guilty was not an offense for which a sentence of the Williard program could be imposed. When you were returned to Judge White you were given the option of being resentenced to 1 and ½ to 3 years without Williard OR taking back your plea. You chose to take back your plea and the case was sent back to Part 71 (Judge Berkman) for trial. Ultimately, in front of Judge Berkman, you again pled guilty and were sentenced to an indeterminate term of 1 and ½ to 3. That sentence was imposed on August 31, 2005 . . .” [Motion for Permission to File a Late Claim, Exhibit D].

Claimant has also appended what appears to be a partial transcript of proceedings in front of Judge Renee White, in New York County Supreme Court on May 10, 2005. [Ibid. Exhibits H, I]. In this partial transcript, the Court notes that the “plea is withdrawn” and a control date for the case is set for “May 25" at “part 71.” [Id.].

Claimant has also appended portions of what appears to be a grievance stamped as “received” at Midstate on September 28, 2006 [ibid. Exhibit A, B, C]; correspondence from Claimant to Judge White [ibid. Exhibit E]; to the Judiciary Complaint Board [ibid. Exhibit F]; to Deputy Commissioner and Counsel Anthony J. Annuci [ibid. Exhibit G]; and to Inmate Records [ibid. Exhibit K]; as well as correspondence to claimant from his defense attorneys as noted above, [ibid. Exhibit D], and from the New York County District Attorneys’ office [ibid. Exhibit J]; as well as a handwritten notation to claimant from Inmate Records [ibid. Exhibit K].

In order to determine an application for permission to serve and file a late claim, the Court must consider, “among other factors,” the six factors set forth in §10(6) of the Court of Claims Act. The factors stated therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available.[1] The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. See e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

Additionally, the motion must be timely brought in order to allow that a late claim be filed “. . . at any time 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 . . .” Court of Claims Act § 10(6). Here, the applicable statute of limitations is either one (1) year if the cause of action asserted is one for intentional tort, or three (3) years if a constitutional tort cause of action is what is alleged. Civil Practice Law and Rules §§214 and 215.

Claimant states that the delay in filing the claim is excusable because he has “. . . been gathering together all . . . [his] facts, and exhausting all . . . [his remedies] in order to properly file a just claim, and not a frivolous claim.” [Motion for Permission to File a Late Claim, ¶2]. He indicates that the State had notice because “. . . on August 7, 2006 . . . [he] wrote to Judge . . . White requesting information on who put in the motion to transfer claimant to the Department of Corrections, along with other information requesting explanation on the validity of the sentence

. . . ” [Ibid. ¶3].

A claim appears to be “ meritorious” within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that 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 (Ct Cl 1977). Claimant need not establish a prima facie case at this point, but rather the appearance of merit.

Claimant has not offered any excuse for the delay in serving and filing a claim other than the assertion that he was “gathering” his facts and “exhausting” his remedies. Thus this factor weighs against him.

The absence of an excuse, however, is but one of the factors to be considered, and does not necessarily preclude relief. Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, supra.

The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, also weigh against granting Claimant’s motion. It has been almost two (2) years since this alleged false imprisonment or wrongful confinement or other deprivation - it is not clear exactly what cause of action claimant is attempting to assert, and whether and if the State of New York is even involved - and thus the passage of time has been sufficient to impede the State’s ability to investigate to its prejudice. Accordingly, these factors weigh against granting the motion.

As noted, Claimant need not establish his claim prima facie, but must show the appearance of merit. Although claimant refers to sentencing issues and his attempts to discover why he was in State custody for thirty-four (34) days, it is unclear exactly what harm he is alleging, or how the use of the appellate process in the trial court and thereafter would not have addressed a sentencing mistake, if there was one. To establish a case of wrongful confinement, a claimant must show (1) the defendant intended to confine him, (2) that he was conscious of the confinement, (3) that claimant did not consent to the confinement and (4) the confinement was not otherwise privileged. If this is the cause of action asserted, it is not shown that any confinement was not otherwise privileged. As to other causes of action, the court is at a loss to determine exactly what redress claimant is seeking, that is not otherwise available through the appellate process. All that has been recited is that the sentencing court allowed Claimant an opportunity to withdraw his plea once it was determined he was not eligible for incarceration at the Willard Drug Treatment Campus, that he did so, and some other sentence was imposed.

Based on the foregoing, claimant has not established the appearance of merit, because he has failed to establish that his claim is not patently groundless, frivolous or legally defective, and consideration of the entire record presented indicates that there is no reasonable cause to believe that a valid cause of action exists. Matter of Santana v New York State Thruway Auth, supra.

Accordingly, and after careful consideration of all pertinent factors, claimant’s motion for permission to serve and file a late claim [M-72889] is in all respects denied.

May 23, 2007
White Plains, New York

Judge of the Court of Claims

[1]. The Defendant has not opposed the motion on the ground of availability of another remedy, therefore this factor is presumed to weigh in claimant’s favor. Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978)[“Although the State argues in this appeal that claimant's inference of notice to it is based on equivocal facts, it filed no affidavit with the court claiming either prejudice or lack of notice. When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true . . . (citations omitted).”]