HUDSON v. THE STATE OF NEW YORK, #2008-040-020, Claim No. 114628, Motion No.
State’s motion to dismiss pursuant to CPLR 3211(a)(2)(5)(7) and CCA §
8 denied. Alleged negligence of DOCS in calculating Claimant’s release
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
CHRISTOPHER J. McCARTHY
Joel B. Rudin, Esq.
ANDREW M. CUOMO
Attorney General of the State of
New YorkBy: J. Gardner Ryan, Esq., AAG
April 17, 2008
See also (multicaptioned
For the reasons set forth below, Defendant’s motion for an order
dismissing the Claim pursuant to CPLR 3211 (a)(2), (5) and (7) and Court of
Claims Act § 8 is denied.
This Claim, which was filed with the Clerk of the Court on December 20, 2007,
asserts that Claimant was falsely imprisoned by Defendant as a result of the
negligence of the Department of Correctional Services (hereinafter DOCS).
The Claim asserts that on February 26, 1993, Claimant pleaded guilty to robbery
in the first degree. On March 24, 1993, he was sentenced to an indeterminate
term of imprisonment of between 10 and 20 years by Supreme Court Justice Harold
Rothwax. At the time of the sentence, Claimant was on parole, having been
convicted previously of a felony. His prior undischarged indeterminate sentence
for that felony was to end June 27, 1998. Despite the prior felony conviction,
Judge Rothwax did not sentence Claimant as a prior felony offender, nor did he
specify that the sentence for the robbery was to run consecutively to
Claimant’s prior undischarged sentence. Thus, Claimant contends that, by
operation of Penal Law § 70.25(1)(a), Claimant’s robbery sentence was
required to be served concurrently with the prison time he owed on his prior
felony sentence (Claim, ¶ 17). He began serving the robbery sentence on
April 30, 1993. On May 3, 1993, DOCS produced a “legal date
computation” sheet for Claimant’s robbery sentence indicating
Claimant’s release date was set for September 1, 2005. In a subsequent
legal date computation, DOCS set Claimant’s release date at March 3, 2009.
The Claim asserts that DOCS “evidently assumed” that
Claimant’s second sentence was to be served consecutively to the first
sentence (Claim, ¶ 21). In May 2006, Claimant brought “this
error” to the attention of DOCS Deputy Commissioner and Counsel Anthony J.
Annucci and requested that he correct the sentencing calculation and release him
(Claim, ¶¶ 22-23). This was not done. On September 8, 2006, Claimant
brought the matter to the attention of Joan M. Pauley, Inmate Records
Coordinator at Otisville Correctional Facility in Otisville, New York,
requesting that the sentencing calculations be corrected and he be released.
Again, nothing was done (Claim, ¶¶ 25-27). Claimant contacted Prisoner
Legal Services, which contacted Mr. Annucci and, on March 20, 2007, “Mr.
Annucci acknowledged in writing that DOCS had erred” (Claim, ¶ 29).
Claimant’s sentence was recalculated and the release date of September 1,
2005 was restored and Claimant was directed to be released immediately. He was
released on March 22, 2007, almost 19 months late (Claim, ¶ 31). It is
asserted that the Claim for false imprisonment accrued on that date and that
Claimant, acting pro se, served two notices of intention upon the
Attorney General by certified mail, return receipt requested. One was received
on April 25, 2007 and the second on June 1, 2007 (Claim, ¶ 6).
Defendant now makes a pre-answer motion to dismiss on several grounds. The
first is failure to state a valid cause of action (CPLR 3211[a]). The State
asserts that Claimant’s confinement is privileged as a confinement
sentence was issued by a court. In his affirmation submitted in support of the
motion, defense counsel asserts:
The gravamen of the claim pleaded here is not intentional confinement without
privilege, but overlong privileged confinement. It is essentially a claim of
negligence by the Department of Correctional Services in the performance of its
duty to execute the lawful sentence of the court. It asserts that defendant
miscalculated when claimant was eligible for discretionary release, not that
defendant erred in holding claimant beyond the date when he was entitled to
12. The waiver of sovereign immunity in Section 8 of the Court of Claims Act
creates no new liability for the State. By it, the State merely assumes
liability for the acts of its officers and employees on par with that of any
corporation or individual.
13. The State has not waived its immunity for acts of its agencies and
employees exclusively performed as part of its essential governmental functions.
The State is still immune from liability for legislative, executive and judicial
acts which are foreign to any activity that can be carried out by an individual
see, Abruzzo v State, 84 AD2d 876.
14. The calculation of custodial time attaching to a criminal sentence is such
an act. It is an exclusively governmental function carried out by the
Commissioner of the Department of Correctional Services, acting as an arm of the
court to implement the sentence. It requires the interpretation and application
of statutes, regulations, and judicial decrees.
Counsel further asserts that, to the extent Claimant seeks damages for
Defendant’s failure to comply with Penal Law § 70.25(1)(a), the
Court lacks jurisdiction. Defendant argues that Claimant’s primary claim
is that Defendant either “failed to perform a duty enjoined upon it by
law” (CPLR § 7803), or that the calculation was “affected by
an error of law” (CPLR § 7803). Defense counsel asserts that
determination of those issues is to be made pursuant to CPLR Article 78 in a
proceeding in Supreme Court.
Claimant’s counsel has submitted an Affirmation in Opposition to
Defendant’s motion wherein he sets forth his arguments asserting that: (1)
Claimant’s confinement was not privileged; (2) the State is not shielded
from liability by sovereign immunity; and (3) that this action is properly
before this Court and does not involve judicial review of a final determination
made by a State agency and is, therefore, not an Article 78 proceeding.
This is a pre-answer motion pursuant to CPLR 3211(a)(2), (5) and (7), not a
motion for summary judgment pursuant to CPLR 3212, following joinder on issue.
No notice has been given by this Court pursuant to CPLR 3211(c) that would
fairly advise the parties that the motion was being converted from a motion to
dismiss to a summary judgment motion, or the issues that would be deemed
dispositive of the action. Additionally, it cannot be said that the parties
have deliberately charted a summary judgment course (Henbest & Morrisey v
W.H. Ins. Agency, 259 AD2d 829 [3d Dept 1999]; Four Seasons Hotels v
Vinnik, 127 AD2d 310, 318, 320 [1st Dept 1987]).
The Appellate Division, Third Department, in Griffin v Anslow (17 AD3d
889, 891-892 [3d Dept 2005]) stated:
It is well established that “ ‘[o]n a motion to dismiss pursuant to
CPLR 3211, the pleading is to be afforded a liberal construction. We accept the
facts as alleged in the complaint as true, accord plaintiffs the benefit of
every possible favorable inference, and determine only whether the facts as
alleged fit within any cognizable legal theory ... [D]ismissal is warranted only
if the documentary evidence submitted conclusively establishes a defense to the
asserted claims as a matter of law’ ” (Arnav Indus. Retirement
Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303
, quoting Leon v Martinez, 84 NY2d 83, 87-88  [citations
omitted]; see Morgenthow & Latham v Bank of N.Y. Co., 305 AD2d 74, 78
, lv denied 100 NY2d 512 ; Unadilla Silo Co. v Ernst &
Young, 234 AD2d 754, 651 NYS2d 216 ). “However, ‘[i]n
those circumstances where the [plaintiffs’] legal conclusions and factual
allegations are flatly contradicted by documentary evidence, they are not
presumed to be true or accorded every favorable inference, and the criterion
becomes “whether the proponent of the pleading has a cause of action, not
whether he has stated one” ’ ” (Morgenthow & Latham v
Bank of N.Y. Co., supra at 78, quoting Ark Bryant Park Corp. v
Bryant Park Restoration Corp., 285 AD2d 143 , quoting Guggenheimer
v Ginzburg, 43 NY2d 268, 275  [citations omitted]; see also Biondi
v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 , affd on other
grounds 94 NY2d 659 ).
Here, Claimant’s allegations do not consist of base legal conclusions nor
are they flatly contradicted by documentary evidence. The result is that, in
determining this motion to dismiss, the Court must accept the allegations of the
Claim as true and ignore opposing affidavits (Henbest & Morrisey v W.H.
Ins. Agency, 259 AD2d 829, supra at 830; Matter of Morey v City of
Gloversville, 203 AD2d 625, 626 [3d Dept 1994]).
The Court finds that Claimant has stated a cause of action sounding in wrongful
confinement (Feliz v State of New York, Claim No. 108493, September 28,
2005, Collins, J., UID No. 2005-015-520 [Claimant allegedly incarcerated beyond
conditional release date. Claim dismissed after trial, as Court found proof
insufficient]; Robinson v State of New York, Claim No. 105597, January 6,
2004, Collins, J., UID No. 2003-015-584 [Claimant allegedly held beyond maximum
release date. Claim dismissed after trial based upon failure of proof]; see
Bethea v State of New York, Claim No. None, Motion No. M-68256, Lebous, J.,
UID No. 2004-019-542 [Movant sought permission to file a late claim pursuant to
Court of Claims Act § 10(6) for unlawful imprisonment based upon the
State’s alleged failure to properly calculate his maximum expiration date.
The Court denied the motion as premature as Movant had not yet been released
from State custody]). Therefore, the State’s motion to dismiss pursuant
to CPLR 3211(a)(7) is denied.
The Court finds that the Court of Claims has subject matter jurisdiction over
this matter as the Claim asserts that Defendant negligently computed
Claimant’s release date. While this is a governmental not a proprietary
function, this does not automatically immunize the State from liability. As
stated by the Court of Appeals in Haddock v City of New York (75 NY2d
478, 484 ):
Despite the sovereign’s own statutory surrender of common-law tort
immunity for the misfeasance of its employees, governmental entities somewhat
incongruously claim – and unquestionably continue to enjoy – a
significant measure of immunity fashioned for their protection by the courts.
Governmental immunity under the decisional law of this State does not attach to
every act, but when official action involves the exercise of discretion or
expert judgment in policy matters, and is not exclusively ministerial, a
municipal defendant generally is not answerable in damages for the injurious
consequences of that action (see, Tango v Tulevech, 61 NY2d 34,
40; Arteaga v State of New York, 72 NY2d 212, 216; Weiss v Fote, 7
NY2d 579). Whether absolute or qualified, this immunity reflects a value
judgment that – despite injury to a member of the public – the
broader interest in having government officers and employees free to exercise
judgment and discretion in their official functions, unhampered by fear of
second-guessing and retaliatory lawsuits, outweighs the benefits to be had from
imposing liability for that injury.
Claimant asserts that Defendant negligently calculated his release date, which
is a ministerial function (see Maguire v New York State Div. of Parole,
304 AD2d 1003 [3d Dept 2003]; Patterson v Goord, 299 AD2d 769 [3d Dept
2002]), and that, as a result, he was held beyond his statutorily mandated
conditional release date (see Eiseman v State of New York, 70 NY2d 175,
180, 184 ; Greenman v New York State Bd. of Parole, 120 Misc 2d
959, 961 [Sup Ct, Erie County 1983]). Therefore, the motion to dismiss on the
basis that the State is immune from liability is denied.
The Court further finds that Defendant’s argument that the Court lacks
subject matter jurisdiction over the Claim on the basis it should have been
brought in Supreme Court pursuant to CPLR Article 78 and is barred by Article
78's statute of limitations is misplaced. The Claim asserts that Claimant should
have been compensated because DOCS made an error in calculating his release
date. Claimant is not seeking to reverse or annul the decision made by DOCS.
Therefore, that portion of the motion to dismiss pursuant to CPLR 3211(a)(2) and
(5) is denied.
April 17, 2008
HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of
The following papers were read and considered
by the Court on Defendant’s motion for summary judgment:
Notice of Motion and Affirmation 1
Affirmation in Opposition 2
Filed Papers: Claim
.The State’s reply papers are dated
February 29, 2008 and were received by the Court on March 3, 2008. The return
date of the motion was February 27, 2008. Therefore, the reply papers are late
CPLR 2214[b]) and have not been considered by the Court.