New York State Court of Claims

New York State Court of Claims



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:
Anthony Carnell, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Michael T. Krenrich, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
July 14, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Movant Anthony Carnell (movant) filed this application pro se, for permission to file a late claim pursuant to Court of Claims Act § 10 (6) on February 22, 2008. The gravamen of movant’s proposed action is premised upon his allegation that defendant State of New York (defendant) unlawfully imprisoned him past his maximum release date for a term of incarceration he was serving for the crime of Burglary in the Second Degree, a class C violent felony (see Penal Law § 70.02; Penal Law § 140.25). This term, a result of a plea, was imposed by a judge in January 2000 and consisted of a determinate term of 3 ½ years.

Movant’s proposed cause of action appears to be related to a five year term of post release supervision he alleges the Department of Correctional Services (DOCS) wrongfully added to his term of imprisonment when he was initially released to parole in January 2001. As best as the Court can discern from movant’s affidavit, he claims he was unlawfully imprisoned after a number of parole violations subsequent to his original release whereby he, after a writ of habeas corpus, was re-sentenced before a criminal court judge to a term of 3 ½ years and a period of 2 ½ years of post-release supervision. It is movant’s position that instead of being resentenced after his writ of habeas corpus, he should have been released. According to movant, his maximum release date should have been February 15, 2005 and he was not released until April 6, 2006, one year, one month and ten days longer than he should have been.

Defendant State of New York argues primarily that the period of post-release supervision, even though it was not initially imposed by the sentencing judge, is nevertheless automatically included pursuant to Penal Law § 70.45 which sets forth that “[e]ach determinate sentence also includes, as part thereof, an additional period of post release supervision” (Penal Law § 70.45 [1]). Consequently, defendant would have been in violation of the law if it had not enforced the statute mandating post release supervision for violent felony offenders. Therefore, defendant concludes, the claim is without merit and the motion should be denied.

This Court in its discretion may authorize the filing of a late claim “at any time 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” (Court of Claims Act § 10 [6]). In order to determine whether to grant an application for permission to file a late claim, the Court must consider, among any other relevant factors, the six statutory factors set forth in Court of Claims Act § 10 (6): (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the claimant has another available remedy. The Court, in the exercise of its discretion, balances these factors (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979 [1982]).

In reviewing these factors, the most decisive factor is whether the proposed action appears to be meritorious. It would be futile to permit the movant to proceed if his claim is likely to be deemed meritless (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [1977]). While the necessity to show that the claim evidences an appearance of merit is a “low threshold” (Bernard v State of New York, Motion No. M-61948, UID # 2000-007-043, Bell, J.), its absence generally requires a denial of the application (see Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]; Plate v State of New York, 92 Misc 2d 1033 [1978]).

The threshold inquiry in every application for late claim relief is whether such application is timely under Article 2 of the CPLR. While this Court has recognized false imprisonment or excessive confinement claims within a prison setting that sound in negligence (see Gittens v State of New York, 132 Misc 2d 399 [1986]), and thus are subject to a longer statute of limitations than the traditional intentional tort of false imprisonment (see Ramirez v State of New York, 171 Misc 2d 677 [1997]), this proposed claim does not plead a type of action premised on ministerial neglect as set forth in Gittens and Ramirez. Instead, it appears to center upon what can only be seen as intentional confinement related to movant’s term of post-release supervision. This unlawful confinement would be subject to the one year statute of limitations of CPLR 215 (3) (see e.g. Collins v State of New York, Motion No. M-73799, UID # 2007-015-252, Collins, J.; Cancel v State of New York, Claim No. 106521, Motion No. M-65864, UID # 2002-032-019, Hard, J.).

Movant states that he was released from his alleged unlawful imprisonment on April 6, 2006. In order for his application for late claim to be timely under Court of Claims Act § 10 (6), it should have been filed on or before April 6, 2007. Since it was not filed until February 2008, the application is untimely and must be denied. Even if the application were deemed timely, the moving papers failure to demonstrate the requisite degree of merit would require the Court to deny the application in any event.

Subsequent to defendant submitting its response papers, the Court of Appeals decided two cases (People v Sparber, 10 NY3d 457 [April 29, 2008]; Matter of Garner v New York State Dept. of Correctional Services, 10 NY3d 358 [April 29, 2008]) holding that only a sentencing judge, and not DOCS, can properly pronounce a sentence including the required term of post-release supervision mandated by Penal Law § 70.45. Significantly, as it pertains to the motion presently before the Court, the Court of Appeals declined to accept defendants’ argument that the “procedural error” of DOCS, rather than the sentencing judge imposing post-release supervision, required expungement of this portion of their sentences. The Court of Appeals stated that the “sole remedy for a procedural error such as this is to vacate the sentence and remit for a re-sentencing hearing so that the trial judge can make the required pronouncement” (People v Sparber, at 471). Thus, in this Court’s view, the failure of the original sentencing court to pronounce the legislatively required period of movant’s post-release supervision under Penal Law § 70.45 would not rise to the level of supporting a claim for unlawful imprisonment. In any event, movant was re-sentenced after his habeas corpus proceeding in this instance.

Finally, the Court notes that another weakness of movant’s application is that there is simply not enough information in his application for the Court to make a meaningful examination of what events actually transpired in order to weigh the proposed claim’s potential merit. Although movant lists potential exhibits such as the commitment orders and sentencing minutes, they are not included in his motion. What remains are general allegations with no supporting facts to substantiate them or to allow the Court to reach any legitimate conclusions without speculating. This is not enough to establish that a meritorious claim exists (see generally Sandlin v State of New York, 294 AD2d 723; Witco v State of New York, 212 AD2d 889, 891; Calco v State of New York, 165 AD2d 117, 119, lv denied 78 NY2d 852; Sevillia v State of New York, 91 AD2d 792).

Based on the foregoing reasons, the Court finds that movant’s application for late claim relief is untimely and that movant has failed to make the requisite threshold showing of merit. Accordingly, the motion for permission to file a late claim is denied.

July 14, 2008
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion, filed February 22, 2008;

2. Affidavit in Support of Anthony Carnell, pro se, with annexed Statement of Claim;

3. Affirmation in Opposition of Michael T. Krenrich, Esq., AAG, dated March 10, 2008;

4. Response of Anthony Carnell, pro se, dated March 14, 2008.