New York State Court of Claims

New York State Court of Claims

HYNES v. THE STATE OF NEW YORK, #2007-040-039, , Motion No. M-73450


Synopsis


Prisoner 10(6) motion granted in part.

Case Information

UID:
2007-040-039
Claimant(s):
CHRIS HYNES #88A1221
Claimant short name:
HYNES
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-73450
Cross-motion number(s):

Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
Chris Hynes, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Belinda A. Wagner, Esq., AAG
Third-party defendant’s attorney:

Signature date:
July 30, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, the application of Movant, Chris Hynes, to serve and file a late claim pursuant to Court of Claims Act § 10(6) is granted in part and denied in part.

The proposed claim, attached to the motion papers, asserts four causes of action: (1) bailment; (2) improper search of Movant’s cell; (3) violation of rights at a disciplinary hearing; and (4) unlawful confinement. The proposed claim, and Exhibit D attached thereto, assert that on May 8, 2006, Movant was transferred from Upstate Correctional Facility in Malone (Upstate) to Downstate Correctional Facility in Fishkill (Downstate) en route to Auburn Correctional Facility in Auburn (Auburn); that when he arrived at Downstate he was advised that the transfer to Auburn was cancelled; that on or about May 9, 2006, Movant’s property and records were transferred to Auburn; on May 15, 2006, Movant was transferred to Wende Correctional Facility in Alden (Wende).

On May 29, 2006, he went to the Draft Area at Wende to pick up his property that had originally been shipped to Auburn. It is alleged that four bags of property and Movant’s typewriter were at Wende but there were no I-64 forms with the property. Movant asserts his typewriter, watch and cassette player were all damaged but that Correction Officer (C.O.) Lippert refused to document this information. On June 1, 2006, Movant filed a grievance with the Inmate Grievance Resolution Committee complaining about C.O. Lippert’s failure to document Movant’s damaged property and his failure to inquire about six bags of Movant’s property that appear to have been shipped to Auburn (Ex. D attached to proposed claim). On June 4, 2006, Movant was taken back to the Draft Area to receive additional property. On or about August 8, 2006, Mr. Hynes filed an inmate claim for damaged and lost property (Ex. F attached to proposed claim). That claim was disapproved by the correctional facility on or about February 2, 2007 (see Ex. L attached to proposed claim). Mr. Hynes’ proposed claim asserts that, subsequently, the inmate claim was approved, in part, on March 20, 2007 and that, on or about April 20, 2007, his administrative appeal of the partial approval was denied (see Ex. M attached to the proposed claim).

The proposed claim further alleges that, on December 22, 2006, C.O. Lippert conducted an unauthorized search of Movant’s cell. During the search, Movant alleges that C.O. Lippert confiscated Movant’s broken watch and cassette player, and C.O. Lippert alleged that he found two can lids and a can folded in half under the sink covered by clothes. On December 26, 2006, Movant received a misbehavior report regarding the December 22, 2006 cell search charging Movant with providing false information and possession of an authorized item that had been altered (Ex. G attached to the proposed claim). A Tier III Disciplinary Hearing was commenced on or about December 27, 2006. Movant asserted that, pursuant to Department of Correctional Services Directive 4910, C.O. Lippert had no authority to conduct the cell search because he had been named in the facility claim as a culpable party and, therefore, the search of his cell by C.O. Lippert was retaliatory. He also objected to the hearing being a Tier III Hearing since, he asserts, the Standards of Inmate Behavior Rule Book provides that an alleged violation of Rule 113.11, possession of an altered item, results in only a Tier I or Tier II hearing (Ex. H attached to proposed claim). Movant further asserts that he was found not guilty of the providing false information charge but was found guilty of the altered property charge. It is asserted that the penalty imposed was “one month” keeplock starting December 22, 2006 and ending January 22, 2007. Movant asserts he spent 31 days in keeplock, which was more than the maximum penalty he would have faced at a Tier II Hearing pursuant to 7 NYCRR § 251-2.2(b)(2). Movant appealed the determination of the hearing officer and that determination was affirmed on March 14, 2007 (Ex. K attached to the proposed claim).

In determining whether to grant a motion to file a late claim, § 10(6) of the Court of Claims Act sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036). The Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, 981). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

The first factor to be considered is whether the delay in filing the claim was excusable. Movant asserts he was awaiting a decision regarding the appeal of his facility claim before filing an action in this Court and that he did not have access to his legal papers for almost a month during the 90-day filing period because they were confiscated. While this may be true, Movant still could have served a Notice of Intention to File a Claim and, when he received his legal papers, filed and served a claim with more complete details of events. The Court finds these not to be reasonable excuses (Thomas v State of New York, 272 AD2d 650, 651; Matter of Sevilla v State of New York, 145 AD2d 865, lv denied 74 NY2d 601). However, the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., supra at 981).

The next three factors to be addressed – whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant – are interrelated and will be considered together. “Defendant does not argue that the late filing will cause substantial prejudice. Defendant did have notice of the essential facts and did have an opportunity to investigate” (Affirmation in Opposition to Motion to File a Late Claim of Assistant Attorney General Belinda A. Wagner, ¶ 5). These factors, therefore, weigh in Movant’s favor.

The fifth factor to be considered is whether Movant has another remedy available. It appears that Movant does not have any alternate remedy.

The sixth, final and perhaps most important factor to be considered is whether the proposed claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Savino v State of New York, 199 AD2d 254, 255; Prusack v State of New York, 117 AD2d 729, 730; Rosenhack v State of New York, 112 Misc 2d 967, 968; Flaherty Corp. v State of New York [New York State Parks & Recreation Div.], 102 Misc 2d 438, 440). It is Movant’s burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).

Movant’s proposed claim asserts four causes of action: bailment; improper search of his cell; violation of rights at a disciplinary hearing; and unlawful confinement.

Regarding the bailment claim, the parties agree and the Court concurs that Movant’s time to serve and file such a claim pursuant to Court of Claims Act § 10(9) has not yet expired. The Court notes that the 120-day period to serve and file a bailment claim pursuant to Court of Claims Act § 10(9) runs from the date Movant received notification that his final administrative appeal had been denied (see Blanche v State of New York, 17 AD3d 1069). The administrative appeal was decided April 20, 2007 (Ex. M attached to proposed claim), although Movant did not provide the Court with the date that he received a copy of the determination. Therefore, it appears that the 120-day period to timely serve and file the bailment claim expires on or about Monday, August 20, 2007[1]. Morever, Defendant does not object to Mr. Hynes proceeding with his bailment claim (Wagner Affirmation, ¶ 7.A.). This portion of Movant’s motion is, therefore, unnecessary. In any event, the Court lacks the discretionary authority under Court of Claims Act § 10(6) to grant permission of file a late claim with respect to inmate property claims (Blanche v State of New York, supra; Roberts v State of New York, 11 AD3d 1000). Thus, Movant’s motion for permission to file a claim late with regard to this cause of action is denied.

Turning to the cause of action alleging an improper search of Movant’s cell by C.O. Lippert, at this stage of the proceeding, it should be noted that the Court generally takes as true the factual allegations of a movant. Based upon the entire record, the Court finds that the cause of action has the appearance of merit. Movant need only establish the appearance of merit; he need not prove a prima facie case at this stage of the proceedings. Thus, the request to file a late claim as to this cause of action is granted.

With respect to the cause of action alleging a violation of Movant’s rights at the disciplinary hearing, based upon a review of the record, it is unclear to the Court what rights Movant believes were violated: State or Federal. It is long settled that no action may be maintained in this Court against the State for alleged Federal constitutional violations (Matter of Thomas v NY Temporary State Comm. on Regulation of Lobbying, 83 AD2d 723, affd 56 NY2d 656; Welch v State of New York, 286 AD2d 496; Davis v State of New York, 124 AD2d 420). With regard to any alleged State constitutional violation, in Brown v State of New York (89 NY2d 172), the Court of Appeals has recognized that, when certain requirements are met, a violation of the New York State Constitution may create a private cause of action (see Waxter v State of New York, 33 AD3d 1180). In Martinez v City of Schenectady (97 NY2d 78), however, the Court of Appeals made it clear that Brown establishes a narrow remedy, applicable in cases where no other remedy is feasible to provide citizens with an avenue of redress when their private interests have been harmed by constitutional violations (Martinez v City of Schenectady, supra at 83; Waxter v State of New York, supra). Where an adequate remedy could be provided, however, “a constitutional tort claim ... is [not] necessary to effectuate the purposes of the State constitutional protections ... [invoked], nor appropriate to ensure full realization of [claimant’s] rights” (Martinez v City of Schenectady, supra at 83; see Bullard v State of New York, 307 AD2d 676, 679). In this instance, Movant has failed to establish that no other cause of action is available as an avenue of redress. Thus, the motion to file a late claim with regard to this cause of action is denied.

The final asserted cause of action is for unlawful confinement in keeplock status for 31 days following the disciplinary hearing. The Court of Appeals decision in Arteaga v State of New York (72 NY2d 212) immunizes those disciplinary decisions and actions of correction personnel that constitute discretionary conduct of a quasi-judicial nature. The decision does not provide immunity, however, for actions that are without authority or in violation of governing rules and regulations (Gagne v State of New York, Ct Cl, Nov. 14, 2006, Schaewe, J., Claim No. 108815 [UID No. 2006-044-007]; Plair v State of New York, Ct Cl, Sept. 28, 2000, Mignano, J., Claim No. 95693 [UID No. 2000-029-023]). Movant asserts that the penalty imposed exceeded the maximum penalty that should have been imposed for the infraction of which he was found guilty. That allegation seems to be reenforced by Exhibit N attached to the proposed claim. Based upon the entire record, the Court finds that this cause of action has the appearance of merit. Movant need only establish the appearance of merit; he need not prove a prima facie case at this stage of the proceedings. Thus, the request to file a late claim as to this cause of action is granted.

In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movant’s favor for the causes of action alleging an improper cell search and unlawful confinement. The mix of circumstances presented by this case fall well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (Ch. 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicated a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988, 989; Plate v State of New York, 92 Misc 2d 1033, 1036). Movant has provided ample basis for a favorable exercise of this Court’s discretion to grant him leave to file a late claim against the State as set forth above. Therefore, within forty-five (45) days of the date of filing of this decision and order, Movant shall file with the Clerk of the Court his proposed claim against the State asserting the improper cell search and unlawful confinement causes of action only, and serve a copy of the proposed claim upon the Attorney General by certified mail, return receipt requested. The proposed claim may include the bailment cause of action as well, if Movant so chooses, and provided that it is timely filed pursuant to Court of Claims Act § 10(9) which, as discussed above, would appear to be by or about Monday, August 20, 2007. In serving and filing the proposed claim, Movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.


July 30, 2007
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read on Movant’s application for permission to file a late claim:

Papers Numbered


Notice of Motion, Affidavit in Support of Motion
and Proposed Claim and Exhibits attached 1

Affirmation in Opposition 2



[1].The Court notes that 120 days from April 20, 2007 is Saturday, August 18, 2007. Movant’s time is extended to Monday, August 20, 2007 by General Construction Law § 25-a.