New York State Court of Claims

New York State Court of Claims

SANCHEZ v. THE STATE OF NEW YORK, #2007-030-581, Claim No. NONE, Motion No. M-74058


Late claim motion alleging wrongful confinement denied, no appearance of merit. Disposition entered after timely commenced and concluded hearing shielded by immunity; no showing inmate kept confined beyond the administrative reversal of disciplinary determination.

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:
December 11, 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:

1,2 Notice of Motion; Affidavit in Support of Motion to Late File a Claim by Jorge Sanchez, claimant and attached papers

  1. Affirmation in Opposition Motion to File Late Claim by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibits
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 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).

A copy of the proposed Claim[2], 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 State.

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 accrual).

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. [Id.].

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, supra.

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.

December 11, 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).”]
[2]. Court of Claims Act § 10(6) states in pertinent part: “. . . The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application . . . ”