New York State Court of Claims

New York State Court of Claims

CLEVELAND v. THE STATE OF NEW YORK, #2007-041-038, Claim No. 109429, Motion No. M-73797


Summary judgment is granted dismissing claim for false imprisonment where claimant was imprisoned pursuant to criminal conviction and commitment order, neither of which have been vacated.

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:
New York State Attorney GeneralBy: Stephen J. Maher, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 22, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves for summary judgment dismissing a false imprisonment claim in which claimant alleges that his conviction of attempted reckless endangerment in the first degree was unlawful since no such crime exists under New York law. On September 24, 2002, claimant pled not guilty to an indictment in Greene County Court charging him with criminal mischief in the second degree (class D felony), reckless endangerment in the first degree (class D felony) and resisting arrest (class A misdemeanor).

According to a letter to claimant from his criminal defense attorney, dated May 28, 2003, claimant initially rejected a plea offer by which he would plead guilty to attempted reckless endangerment in the first degree, as a class E felony, with a sentence of 1½ to 3 years, in full satisfaction of the indictment. The May 28, 2003 letter from his attorney advised claimant that as a possible “persistent felony offender” he could face as much as 25 years to life if convicted of a felony after trial of the indictment. Claimant’s attorney noted that trial was scheduled for June 4, 2003.

The May 28, 2003 letter from his attorney apparently caused claimant to reconsider the wisdom of his rejection of the plea offer since claimant pled guilty to the offered charge of attempted reckless endangerment in the first degree, just 2 days later, on May 30, 2003.

On July 28, 2003, claimant moved in Greene County Court to vacate his guilty plea, arguing that he could not have been guilty of a “non-existent crime.” Claimant argued that it was legally impossible to attempt to commit a crime which involves a mental state of recklessness, rather than specific intent to perform a criminal act. The motion was denied on August 12, 2003 and on that same date claimant was sentenced to 19 to 38 months in prison, pursuant to the plea agreement.

According to claimant, he has unsuccessfully challenged his conviction in a CPLR Article 78 proceeding, unsuccessfully appealed the trial court’s denial of his motion to vacate his plea, filed five unsuccessful motions in the appellate division challenging his conviction and had three separate writs of habeas corpus denied in federal court.

“A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law. . . . If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment” (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]; see Svoboda v Our Lady of Lourdes Memorial Hospital, Inc., 31 AD3d 877 [3d Dept 2006]).

“In opposition to a motion for summary judgment a party must assemble and lay bare affirmative proof to establish that genuine material issues of fact exist. Only the existence of a bona fide issue raised by evidentiary fact rather than one based on conclusory or irrelevant allegations, will be sufficient to defeat a motion for summary judgment where the movant has made out a prima facie basis for the granting of the motion” (Archambault v Martinez, 120 AD2d 632, 632-633 [2d Dept 1986]). Further, “mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” to defeat a motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

The defendant satisfied its initial burden on the motion. Next, even assuming that claimant is correct in asserting that the charge to which he pled guilty, attempted reckless endangerment in the first degree, is a legal impossibility, the motion for summary judgment must be granted.

To establish that he was falsely imprisoned, claimant must prove “(1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff 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], cert denied sub nom Schanbarger v Kellogg, 423 US 929 [1975]).

Claimant does not satisfy element (4) of the Broughton test. The imprisonment of claimant by the Department of Correctional Services (DOCS) was privileged since it was mandated pursuant to a conviction which, although challenged many times by claimant, remains valid. The criminal conviction was the basis for the commitment order requiring that DOCS imprison claimant and it is beyond dispute that “prison officials are conclusively bound by the contents of commitment papers accompanying a prisoner” (Middleton v State of New York, 54 AD2d 450, 452 [3d Dept 1976], affd 43 NY2d 678 [1977] on op below; see Murray v Goord, 1 NY3d 29, 32 [2003]; People ex rel. McLeod v New York State Div. of Parole, 193 AD2d 942, 944 [3d Dept 1993], lv denied 82 NY2d 655 [1993]; Woodard v Coughlin, 165 AD2d 968, 969 [3d Dept 1990] lv denied 76 NY2d 715 [1990]; Mullen v State of New York, 122 AD2d 300, 302 [3d Dept 1986], lv denied 68 NY2d 609 [1986], certiorari denied 480 US 938 [1987]; Abney v State of New York, 135 Misc 2d 409, 411 [Ct Cl 1987]; Criminal Procedure Law § 430.20; Correction Law § 72).

To the extent the claim is based upon the trial court’s acceptance of the allegedly unlawful plea, it must be dismissed based upon the doctrine of absolute judicial immunity. The doctrine is so broad that even acts “performed in excess of jurisdiction are still subject to the privilege and it is only those acts performed in the clear absence of any jurisdiction over the subject matter that fail to come under the umbrella of immunity” Harley v State of New York, 186 AD2d 324, 325 [3d Dept 1992] appeal dismissed 81 NY2d 781 [1993]). Greene County Court had subject matter jurisdiction over the criminal proceeding.

Nor may the claim be sustained on the basis of prosecutorial misconduct since “the State is not subject to liability in the Court of Claims for the consequences of official acts of a district attorney, under a theory of respondeat superior, because he is not an officer or employee of the State” (Fuller v State of New York, 11 AD3d 365, 366 [1st Dept 2004]).

Similarly, the defendant cannot be charged with any alleged wrongful conduct of the Greene County Public Defender, who represented claimant in the underlying criminal proceeding, since “[a]ssigned counsel was not an officer or employee of defendant and thus defendant cannot be held liable for his alleged malpractice” (Swain v State of New York, 294 AD2d 956, 957 [3d Dept 2002], lv denied 99 NY2d 501 [2002]; see Ferri v Ackerman, 444 US 193, 204 [1979]; Murph v State of New York, 105 Misc 2d 684, 686 [Ct Cl 1980]; Swain v State of New York [Ct Cl, Collins, J., UID # 2000-015-090])[0]

With respect to claimant’s allegation that his federal constitutional rights were violated, it is well-settled that no cause of action for damages against the State of New York exists for an alleged violation of an individual’s rights under the United States Constitution since the State is not a “person” amenable to suit pursuant to 42 USC § 1983 (see Gable Transport, Inc. v State of New York, 29 AD3d 1125 [3d Dept 2006]; Welch v State of New York, 286 AD2d 496, 498 [2d Dept 2001]; Zagarella v State of New York, 149 AD2d 503 [2d Dept 1989]; Davis v State of New York, 124 AD2d 420, 423 [3d Dept 1986)]).

The defendant’s motion for summary judgment is granted and the claim is dismissed.

August 22, 2007
Albany, New York

Judge of the Court of Claims

Papers Considered:
  1. Defendant’s Notice of Motion, filed July 30, 2007;
  2. Affirmation of Stephen J. Maher, dated July 27, 2007, and annexed exhibits.
  3. Claimant’s Answer to Summary Judgment, verified/sworn July 31, 2007, and annexed exhibits.

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