Claimant seeks permission to file a late claim pursuant to Court of Claims Act
§ 10 (6) alleging a single cause of action for false imprisonment arising
from an unlawful period of postrelease supervision (PRS). Although no proposed
claim is submitted, on February 15, 2008 a claim was filed alleging causes of
action for false imprisonment, intentional infliction of emotional distress and
violations of 42 USC § 1983 arising from two periods of imprisonment for
parole violations allegedly due to the unlawful imposition of PRS, the first
from December 9, 2004 through March 1, 2006 for which late claim relief is now
sought and the second from October 24, 2006 through November 30, 2007. The
claim was personally served on February 27, 2008. The total sum claimed as
damages is $ 2 million on each of the three causes of action stated.
In addition to the request to file a late claim with respect to the period of
confinement from December 9, 2004 through March 1, 2006, claimant requests that
the Court determine whether an action for false imprisonment is one for
"personal injury" within the meaning of Court of Claims Act § 11 (b) so as
to obviate the need for the ad damnum and, if so, to allow him to amend the
claim to substitute therefor "an amount in excess of the jurisdictional limit of
all lower courts which would otherwise have jurisdiction". Additionally,
because the defendant allegedly failed to respond to a request under the
Freedom of Information Law (see claimant's Exhibit F), claimant requests
that the defendant be ordered to produce the exact dates of his confinement and,
in the event they differ from those alleged in his claim, that he be permitted
to amend the claim accordingly. In response to the instant motion the
defendant has now indicated that the claimant was returned to State custody and
confined from April 19, 2005 through March 1, 2006 and again from February 20,
2007 through November 30, 2007.
The first issue for determination upon a late claim motion is whether the
application is timely. Subdivision 6 of section 10 requires that a motion to
file a late claim be made "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." The statute of limitations on the proposed
cause of action for false imprisonment is one year from the date of accrual
(CPLR 215 ; Charnis v Shohet
, 2 AD3d 663 ; Englehart v State
of New York
, 278 AD2d 361 ). A cause of action for false
imprisonment accrues on the date the wrongful confinement ends (Charnis v
; Ramirez v State of New York
, 171 Misc 2d 677
). With regard to the period of confinement which is the subject of this
motion, the confinement ended on March 1, 2006. Thus, the instant application
is untimely with respect to the cause of action for false imprisonment and the
Court is without discretionary authority to grant late claim
Court of Claims Act §
10  and § 12 ; NY Const, art III, § 19).
Claimant's cause of action for intentional infliction of emotional distress is
barred by the applicable one-year statute of limitations and consideration of
his application for late claim relief with respect to this cause of action is,
therefore, precluded (CPLR 215; Kwarren v American Airlines, 303 AD2d 722
Claimant's argument that imprisonment provides a basis for tolling the statute
of limitations is incorrect. As made clear by the Court in Hall v State of
New York, 85 AD2d 835, 836 :
As the statute of limitations to recover damages for civil rights violations
under 42 USC § 1983 is three years, the instant application is timely with
respect to this cause of action.
Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if
the applicable Statute of Limitations set forth in article 2 of the CPLR has not
expired, to allow the filing of a late claim upon consideration of the following
factors: "whether the delay in filing the claim was excusable; whether the
state had notice of the essential facts constituting the claim; whether the
state had an opportunity to investigate the circumstances underlying the claim;
whether the claim appears to be meritorious; whether the failure to file or
serve upon the attorney general a timely claim or to serve upon the attorney
general a notice of intention resulted in substantial prejudice to the state;
and whether the claimant has any other available remedy."
Turning to the statutory factors, this Court has broad discretion in deciding a
motion to permit the late filing of a claim (Ledet v State of New York,
207 AD2d 965 ). The statutory factors are not exhaustive nor is any one
factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117
). The most important factor is whether the potential claim has merit, as
it would be a futile exercise to permit litigation of a clearly baseless lawsuit
(Savino v State of New York, 199 AD2d 254 ).
Movant completely failed to address the statutory factors for consideration on
a late claim application. Decisive here is the fact that no excuse for the
delay in filing and serving the claim was offered and, most importantly, the
cause of action for the alleged violation of claimant's civil rights pursuant to
42 USC § 1983 is meritless (Brown v State of New York, 52 AD3d 1136
With respect to the required showing of merit, the claim is sufficiently
established if the movant demonstrates that the proposed claim is not "patently
groundless, frivolous, or legally defective" and 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, 11 ). It is well settled that
the State of New York is not a "person" amenable to suit under 42 USC §
1983 (Brown v State of New York, 89 NY2d 172 ; Welch v State of
New York, 286 AD2d 496 ). As a result, this cause of action is
patently lacking in merit.
To the extent the filed claim makes passing mention of a violation of the New
York State Constitution, this cause of action is patently meritless as well.
Although a violation of the New York State Constitution may give rise to a cause
of action in tort, such a cause of action will be permitted only when necessary
to ensure the full realization of an individual's rights and where there is no
alternative avenue of redress (Brown v State of New York, 89 NY2d at
189; Martinez v City of Schenectady, 97 NY2d 78, 83 ). Here,
claimant exercised the alternative avenues of redress available to him when he
successfully challenged imposition of the term of PRS in the Supreme Court
(see claimant's Exhibit B).
Based on the foregoing, the Court finds those causes of action predicated on a
violation of the Federal and New York State constitutions to be meritless. As
the claimant established none of the factors necessary to warrant late claim
relief, this branch of the motion is denied.
The Court next turns its attention to the claimant's request to amend the
claim. Section 206.7(b) of the Uniform Rules for the Court of Claims ( 22
NYCRR § 206.7[b]) permits a pleading to be amended in the manner provided
by CPLR 3025, "except that a party may amend a pleading once without leave of
court within 40 days after its service, or at any time before the period for
responding to it expires, or within 40 days after service of a pleading
responding to it." CPLR 3025(b) provides that "[a] party may amend his
pleading . . . at any time by leave of court or by stipulation of all parties.
. ." It is well settled that leave to amend a pleading “ 'shall be
freely given' absent prejudice or surprise resulting directly from the delay'
” (McCaskey, Davies & Assoc. v New York City Health & Hosps.
Corp., 59 NY2d 755,757 , quoting CPLR 3025[b]). To defeat a
motion to amend, the opponent of the motion must show that it would be
“significantly prejudiced” by the amendment (Garrison v Clark
Mun. Equip. 239 AD2d 742, 742 ). “Prejudice in this context
means that the party opposing the amendment has been hindered in the preparation
of its case or has been prevented from taking some measure in support of its
position” (Garrison v Clark Mun. Equip., supra, 239 AD2d
742-743, quoting Pritzakis v Sbarra, 201 AD2d 797, 799 ; see
also Chiapperini v Grossinger’s Hotel, 176 AD2d 1048 ;
Smith v Industrial Leasing Corp., 124 AD2d 413 ).
The defendant failed to oppose that branch of the claimant's motion requesting
permission to amend the claim to reflect the correct dates of confinement. The
dates which the claimant seeks to correct do not affect accrual of his cause of
action for false imprisonment because the end dates of the two periods of
confinement were correct in the filed claim. Under these circumstances no
prejudice to the defendant is apparent and the motion to amend is, therefore,
To the extent the claimant requests an order determining whether or not a cause
of action for false imprisonment constitutes a cause of action for "personal
injury" and, if so, granting leave to amend the claim to delete the reference to
the total sum claimed, the motion is granted. The term "personal injury" is
defined in General Construction Law Article 2 (Meaning of Terms), Section 37-a
to include "an assault, battery, false imprisonment, or other actionable injury
to the person either of the plaintiff, or of another".
Based on the foregoing, that branch of the claimant's motion requesting leave
to file a late claim pursuant to Court of Claims Act § 10 (6) is denied.
That branch of the claimant's motion requesting leave to amend the claim is
granted in accordance with this decision and the claimant may file and serve the
amended claim within thirty days of the date the Decision and Order is filed in
the office of the Clerk of the Court of Claims.