In his proposed claim Jorge Sanchez alleges that defendant’s agents at
Green Haven Correctional Facility wrongfully confined him in and about March
through early July 2007 pursuant to a disciplinary proceeding.
More specifically, he seeks compensation for the entire period of his alleged
confinement from March 30, 2007 to the release date of July 5, 2007, saying that
“. . . if the allegations of the alleged charges against him would have
been valid, and supported by sufficient evidence, there would not have been a
favorable review and reversal of all charges.” [Proposed claim, ¶14].
He states that due to his “mental conditions”, he was unable to
provide a urine sample when directed to do so by correctional personnel as he
finds it “difficult to perform the task in the presence of other
people.” [Ibid. ¶ 6]. He alleges that he was confined to his
cell on March 30, 2007, and served with the misbehavior report pertinent to such
confinement on April 1, 2007. A superintendent’s hearing on the issue was
commenced on April 5, 2007, continued on April 13, 2007, and concluded on April
18, 2007. [Affirmation in Opposition Motion to File Late Claim by Jeane L.
Strickland Smith, Exhibit 2]. At the hearing, claimant testified as
stated above, and also provided the results of a blood test showing claimant was
negative for the presence of drugs. He was found guilty on April 18, 2007 of
violating a direct order [106.10] and facility directive 180.14, and thereafter
sentenced to “90 days Special Housing Unit, 90 days loss of commissary, 90
days loss of packages, and 90 days loss of telephone.” [Proposed Claim,
¶9]. He claims violation of his due process rights and violation of
defendant’s own regulations concerning disciplinary proceedings, codified
at 7 NYCRR Parts 250 - 254.
The disposition was appealed on May 10, 2007, and on July 5, 2007, the “.
. . disposition was reviewed and reversed by Acting Director, Special
Housing/Inmate Disciplinary Program Keith Dubray. Claimant was released after
serving 98 days of false imprisonment/wrongful punitive confinement.”
[Ibid. ¶ 11].
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
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
A copy of the proposed Claim
, must accompany
the motion, allowing the Court to ascertain the particulars of the claim,
including the date of accrual, specific location of the alleged incident, and
what injuries are alleged. See
Court of Claims Act §11-b.
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 one (1) year, thus the
motion is timely. Civil Practice Law and Rules § 215.
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 argues that he was not aware of the filing period set forth in the
Court of Claims Act, and that his incarceration, inability to afford or consult
with counsel, and his inability to read, speak or understand English all
operated to impede his ability to timely pursue this claim. He states that the
State of New York has notice of the essential facts of the claim because its own
officers were involved in the underlying acts and participated in the hearing
process. He asserts that his claim is meritorious, saying in part
“[t]he documented and oral testimony given at my Superintendent’s
hearing was sufficient and favorable enough for the employees of the State to
exercise its discretion and dismiss the charges against claimant. However, a
determination of guilt was rendered and a penalty of 90 days Special Housing
Unit and 90 days loss of other privileges was imposed. On July 5, 2007, the
Department Review Board reversed the Superintendent’s determination and I
was released from SHU after serving a total of 98 days of the 90 day penalty, 78
of which were spent in SHU.” [Affidavit in Support of Motion to Late File
a Claim by Jorge Sanchez, ¶4].
He also indicates he has no other remedy and there is no prejudice to the
Incarceration, and movement within the system, and any asserted difficulty in
obtaining representation by counsel or otherwise conferring with counsel, does
not constitute a reasonable excuse in the nature of a disability, or otherwise.
See Plate v State of New York, 92 Misc 2d 1033, 1037-1039 (Ct Cl
1978). There must be some showing that the circumstances of an inmate’s
incarceration prevented him from taking effective steps to perfect his claim, or
contact an attorney. Bommarito v State of New York, 35 AD2d 458, 459
(4th Dept 1971). Although he indicates difficulties with the English language,
translations of all documents served on him and utilized during the hearing
appear to have been made readily available. Claimant has not made an adequate
showing of reasonable excuse, 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, weigh toward granting Claimant’s
motion. Any documentation of incidents having to do with disciplinary
proceedings would presumably be maintained by Defendant’s agents in the
disciplinary file, and the passage of time has not been so great that the
State’s ability to investigate is impeded to its prejudice, in that any
witnesses would be hard to locate or have difficulty recalling the allegations
of the proposed claim. Edens v State of New York, 259 AD2d 729 (2d Dept
1999) (Two years and two and one-half months from date of
As noted, Claimant need not establish his claim prima facie, but must
show the appearance of merit. Indeed, an application for permission to serve and
file a late claim may be denied if it fails to show the appearance of merit on
that ground alone. See Savino v State of New York, 199 AD2d 254
(2d Dept 1993).
To establish a case of wrongful confinement, a claimant must show (1) the
defendant intended to confine him, (2) that claimant was conscious of the
confinement, (3) that 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); Gittens v State of New York, 132 Misc 2d 399,
407 (Ct Cl 1986). A claim of wrongful confinement accrues when the confinement
ends. Ramirez v State of New York, 171 Misc 2d 677 (Ct Cl 1997).
More significantly, the quasi-judicial acts of correction employees taken in
furtherance of authorized disciplinary measures are entitled to absolute
immunity. Arteaga v State of New York, 72 NY2d 212, 219-220 (1988). If
officers act inconsistently with their own rules and regulations, or otherwise
act outside the sphere of privileged actions, liability may attach. The fact
that charges are ultimately dismissed does not give rise to a cognizable cause
of action when there is no evidence defendant acted inconsistently with its own
rules and regulations. Arteaga v State of New York, supra;
Holloway v State of New York, 285 AD2d 765 (3d Dept 2001); cf.
Gittens v State of New York, supra.
The arguments claimant makes here, are largely the type of arguments made
before a court conducting judicial review of a disciplinary hearing pursuant to
an Article 78 proceeding. See generally Civil Practice Law and Rules
§7801 et seq. Such a court has concerns that are different than
those justiciable in the Court of Claims. Inquiries there include whether
substantial evidence supports the finding [see e.g. Matter of Foster v
Coughlin, 76 NY2d 964 (1990); Matter of Rodriguez v Ward, 64 AD2d 792
(3d Dept 1978)], and whether due process requirements were met [see e.g.
Matter of Allison v LeFevre, 134 Misc 2d 729 (Clinton Co Sup Ct
1987)] or determinations were arbitrary or capricious.
In the Court of Claims, as noted, the concerns are different. See e.g.
Holloway v State of New York, supra; Varela v State of New
York, 283 AD2d 841 (3d Dept 2001); cf. Craft v State of New
York, 189 Misc 2d 661 (Ct Cl 2001). Immunity for discretionary
determinations along the process is set aside when correction personnel fail to
comply with New York State Department of Correctional Services [DOCS] rules and
regulations and such failure causes actual injury to the inmate. This is often
manifested by a failure to timely release the inmate after the disposition is
reversed, for example, or failing to timely commence a hearing when the inmate
is in pre-hearing confinement.
The court has reviewed the exhibits attached to the Affirmation in Opposition
filed by the Assistant Attorney General, which include the disciplinary hearing
record and computer printouts of the inmate’s movement within the facility
[see Affirmation in Opposition Motion to File Late Claim by Jeane L.
Strickland Smith, Exhibits 2 and 3]. According to the records of the hearing,
the inmate was not confined when the incident occurred on March 30, 2007, was
served with the misbehavior report as attested to by claimant on April 1, 2007,
and the Tier III hearing began on April 5, 2007, was continued to April 13, 2007
and then concluded on April 18, 2007. [Ibid. Exhibit 2]. Because
claimant was not English speaking, an interpreter was secured - part of the
reason for continuing the hearing on a different date - the inmate’s
request for the testimony of the correction officer involved was granted and all
documents were in both Spanish and English, including notice of appeal to the
State Commissioner. Clearly, claimant understood this, because he appealed.
The hearing disposition sheet, setting forth the penalty, provides that
confinement would begin on April 18, 2007 and end on July 16, 2007.
[Id.]. None of the documentation provides that there was any pre-hearing
confinement, which would require that a hearing be commenced within seven (7)
days of confinement unless authorized by the commissioner or his designee.
[See 7 NYCRR §251-5.1 (a)]. If there had been pre-hearing
confinement, it would seem proceedings commenced in a timely fashion in any
event, and were continued with good reason.
The hearing officer was duly appointed by the superintendent [7 NYCRR
§254.1], an interpreter was provided and documents were translated. [7
NYCRR §254.2]. Claimant’s request for an assistant, selection of
same, [7 NYCRR §254.4; 251-4.1], and for a witness [7 NYCRR §254.5],
was granted. There is no indication that the hearing was not commenced or
concluded in a timely fashion [7 NYCRR §251-5.1]. The hearing was reversed
by the State commissioner’s designee on July 5, 2007 [Affirmation in
Opposition Motion to File Late Claim by Jeane L. Strickland Smith,
Exhibit 2], and the claimant was released from SHU the same day [see
ibid. Exhibit 3], indeed claimant does not claim otherwise.
From the facts presented it would appear that correction officers acted within
the bounds of DOCS’ rules and regulations. The misbehavior report served
upon Claimant, alleging facility rule violations, triggered the requirements of
a Tier III disciplinary hearing, in accordance with 7 NYCRR §§ 254.1
et seq; 270.2 as well as the “timeliness” provisions
of 7 NYCRR §251-5.1. Here, it appears that a plea was entered, the
witness claimant sought and the required translator and assistant obtained, the
hearing was timely concluded except for authorized delays.
In claimant’s papers, he indicates both that he spent 78 days and 98 days
confined pursuant to the 90 day SHU sentence. The only allegation of any
pre-hearing confinement - if that is what claimant is alleging by alleging 98
days confinement - is in paragraph 3 of the proposed claim, but is not borne
out anywhere else in the papers submitted, and is not discussed in
claimant’s motion. Indeed, all the documentation, including that portion
of the inmate misbehavior report where the notation as to pre-hearing
confinement would be indicated on the form establishes that any confinement
followed the disposition. [See ibid. Exhibit 2]. As to any issue
of the weight of the evidence at the hearing - claimant’s primary concern
in his papers - same is more properly the subject of judicial review in an
Article 78 proceeding that is not justiciable in this court. [See Civil
Practice Law and Rules §7801 et seq; Matter of Price v
Phillips, 4 AD3d 364 (2d Dept 2004)].
The disposition entered after a timely concluded hearing on April 18, 2007 is
just the type of quasi-judicial determination shielded by the immunity
principles of Arteaga v State of New York, supra. Because of the
appeal process, the determination was reversed. There has been no showing that
Claimant was kept confined beyond the reversal of the final disposition, or that
he lost any privileges beyond the initial period imposed. Thus his confinement
was “otherwise privileged” within the meaning of the elements for
establishing a claim for wrongful confinement in a prison setting.
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,
Accordingly, and after careful consideration and balancing of all pertinent
factors, claimant’s motion for permission to serve and file a late claim
[M-74058] is in all respects denied.