New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. THE STATE OF NEW YORK, #2008-015-053, Claim No. 114838, Motion No. M-74755


Synopsis


Claimant's motion to file a late claim was denied and his motion to amend the filed claim to correct the dates of the alleged wrongful confinement and to delete the ad damnum was granted. A claim for wrongful confinement seeks damages for personal injuries for which the total sum claim need not be stated (Court of Claims Act § 11[b]).

Case Information

UID:
2008-015-053
Claimant(s):
PEDRO RODRIGUEZ
Claimant short name:
RODRIGUEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114838
Motion number(s):
M-74755
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Elovich & AdellBy: Glenn L. Sabele, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Kimberly A. Kinirons, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 21, 2008
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


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 [3]; Charnis v Shohet, 2 AD3d 663 [2003]; Englehart v State of New York, 278 AD2d 361 [2000]). A cause of action for false imprisonment accrues on the date the wrongful confinement ends (Charnis v Shohet, supra; Ramirez v State of New York, 171 Misc 2d 677 [1997]). 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 relief[1] (see Court of Claims Act § 10 [6] and § 12 [2]; 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 [2003]) .

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 [1981]:
“Effective September 10, 1973, subdivision 2 of section 79 of the Civil Rights Law was amended to provide that '[a] sentence of imprisonment in a state correctional institution * * * shall not be deemed to suspend the right or capacity of any person so sentenced to commence and prosecute an action or proceeding in any court within this state '. CPLR 208 was also amended to eliminate imprisonment as a ground for tolling the Statute of Limitations (citation omitted).”
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 [1994]). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117 [1991]). 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 [1993]).

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 [2008]).

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 [1977]). 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 [1996]; Welch v State of New York, 286 AD2d 496 [2001]). 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 [2001]). 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 [1983], 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 [1997]). “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 [1994]; see also Chiapperini v Grossinger’s Hotel, 176 AD2d 1048 [1991]; Smith v Industrial Leasing Corp., 124 AD2d 413 [1986]).

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, granted.

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.



July 21, 2008
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Order to show cause filed April 3, 2008;
  2. Affirmation of Glenn L. Sabele dated February 11, 2008 with exhibits A - G;
  3. Affirmation of Kimberly A. Kinirons dated April 28, 2008 with exhibits A - C.

[1].Although the claimant limited his request for late claim relief to the assertion of a single cause of action for false imprisonment, inasmuch as the defendant addressed the two additional causes of action asserted in the filed claim, the causes of action for intentional infliction of emotional distress and violations of the claimant's civil rights under 42 USC §1983, the Court will address them as well.