New York State Court of Claims

New York State Court of Claims

DJ v. THE STATE OF NEW YORK, #2007-044-548, Claim No. None, Motion No. M-73147


Claimant’s motion for permission to file a late claim for wrongful civil confinement is denied as moot. Claimant was under a legal disability while involuntarily confined to an institution for developmentally disabled and mentally retarded individuals, and thus had 2 years from the date of discharge (which has not yet elapsed) within which to file a claim, pursuant to CCA 10 (5).

Case Information

1 1. The Court has, sua sponte, amended the caption to reflect a fictitious name for claimant to protect the confidentiality afforded under Mental Hygiene Law article 15.
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:
GOLDSTEIN & METZGER, LLPBY: Mark J. Metzger, Esq., of counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 24, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant now moves for permission to file a late claim for wrongful confinement pursuant to Court of Claims Act § 10 (6). Defendant State of New York (defendant) opposes the motion.

Claimant was involuntarily admitted to Valley Ridge Center for Intensive Treatment (VRCIT) in Norwich, New York on June 5, 2003, pursuant to Mental Hygiene Law § 15.27. VRCIT is a facility operated by the New York State Office of Mental Retardation and

Developmental Disabilities. By order dated August 11, 2004, claimant was retained at VRCIT for a period which expired on February 2, 2006 (Defendant's Exhibit A).[2] On January 26, 2006, prior to the expiration of the retention order, VRCIT's director filed another application for retention of claimant with Supreme Court. Claimant requested a hearing, which was held by the Court on February 16, 2006. The Court thereafter issued a memorandum decision and order ordering claimant's release (Defendant’s Exhibit C). Claimant seeks to recover from defendant for damages for wrongful confinement from February 2, 2006 through May 26, 2006, the date of his release.

Article 15 of the Mental Hygiene Law provides for admission to facilities and retention therein of mentally retarded or developmentally disabled persons under various circumstances, both voluntarily and involuntarily. Supreme Court's order dated August 11, 2004 ordering claimant's retention at VRCIT provided in pertinent part that claimant:
is mentally retarded, as defined in Mental Hygiene Law § 1.03 (21); that said [claimant] poses a substantial threat of physical harm to himself or others; that said [claimant] requires care and treatment in a school for the mentally retarded, such care and treatment being essential to his welfare; and that his judgment is so impaired that he is unable to understand his need for inpatient care and treatment in a school for the mentally retarded

(Defendant's Exhibit A).

VRCIT's lengthy application to Supreme Court requesting claimant's retention after February 2, 2006 describes numerous incidents of violence, aggression and property destruction by claimant beginning at an early age, ongoing medication for both seizures and behavior disorders, and a nearly constant history of being institutionalized. The application also lists assaults on personnel and residents at various institutions, as well as testing revealing substantial deficits in both judgment and cognitive functioning.

Supreme Court found that VRCIT did not sustain its burden by clear and convincing evidence that claimant suffered from a developmental disability warranting his involuntary retention (Defendant’s Exhibit C). In its decision, that Court questioned the lack of adaptive functioning retesting within the prior year, the training, certification and competence of the (unknown) person who previously administered claimant's adaptive functioning testing, and the failure to offer medical proof at the hearing of any developmental disorder.

There can be no question but that claimant was under a legal disability up to the date of Supreme Court's May 23, 2006 memorandum decision and order requiring claimant's release, as clearly set forth in the terms of the August 11, 2004 retention order (Defendant's Exhibit A). Court of Claims Act § 10 (5) provides: “[i]f the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed.” The Court of Appeals case of Boland v State of New York (30 NY2d 337 [1972]) is directly on point. In that case, the Court held that claimant was under a continuing legal disability the entire time she was confined to a state mental institution, and that she was entitled to file a claim as of right pursuant to Court of Claims Act § 10 (5) for wrongful confinement and negligent medical treatment within two years

of the date of her discharge (id.). The Court of Appeals specifically overturned the Appellate Division's determination that the claim was required to be filed within 90 days of release. The Court of Appeals reasoned that the claim accrued while claimant was in the hospital, at which time she was clearly under a disability.

Claimant was under a legal disability during the period of his confinement until the moment of his release on May 23, 2006, and thus his time within which to file and serve his claim as of right has not expired (Court of Claims Act § 10 [5]). He does not need permission to file a late claim (see Boland v State of New York, supra; Brown v State of New York, Ct Cl, May 8, 2006, Midey, Jr., J., Claim No. None, Motion No. M-71127 [UID # 2006-009-027]), as he may file and serve his claim within two years after the disability was removed, i.e. on or before May 23, 2008. Therefore, claimant's motion for permission to file and serve a late claim is denied as unnecessary and he may serve and file a claim in conformity with all applicable statutes and rules of the Court.

July 24, 2007
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion to file a late claim:

1) Notice of Motion filed on April 4, 2007; claimant’s Affidavit in Support sworn to on March 29, 2007; Affirmation in Support of Mark J. Metzger, Esq., dated March 29, 2007, and attached exhibits.

2) Affirmation in Opposition of Geoffrey B. Rossi, AAG, dated April 23, 2007, and attached Exhibits A through E.

3) Reply Affirmation in Support of Claimant’s Motion of Mark J. Metzger, Esq., dated April 25, 2007.

4) Reply Affirmation in Opposition to Movant’s Motion to File Late Claim of Geoffrey B. Rossi, AAG, dated May 1, 2007.

[2]. Mental Hygiene Law § 15.31 (f) provides that “[t]he papers in any proceeding under [article 15] which are filed with the county clerk shall be sealed and shall be exhibited only to the parties to the proceeding or someone properly interested, upon order of the court.” In support of their respective positions, the parties to this action have submitted copies of documents from claimant’s involuntary admission proceedings, which are under seal in the Chenango County Clerk’s Office. In the Court's view, claimant's right to the confidentiality of those documents should be preserved in this action as well. Accordingly, the Clerk of the Court is directed to seal the two copies of Supreme Court’s memorandum decision and order dated May 23, 2006 which are annexed to claimant’s motion papers, and to also seal Exhibits A-E which are annexed to defendant’s responding papers.