New York State Court of Claims

New York State Court of Claims

MERTENS v. THE STATE OF NEW YORK, #2008-040-032, Claim No. 113052, Motion No. M-74668


State’s motion to dismiss Claim as untimely served denied.

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:
Mark Mertens, Pro Se
Defendant’s attorney:
Attorney General of the State of New YorkBy: Michael T. Krenrich, Esq., AAG
Third-party defendant’s attorney:

Signature date:
May 21, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


For the reasons set forth below, Defendant’s Motion to dismiss as untimely served that portion of Claimant’s Claim alleging wrongful confinement is denied.

The Amended Claim, which was filed with the Clerk of the Court on January 4, 2007, alleges malicious prosecution, wrongful confinement and negligence on the part of the State. A Claim was filed with the Clerk of the Court on November 29, 2006. Based upon a reading of the Claim, Amended Claim and exhibits attached thereto, it appears that Claimant was convicted of a crime for which he was serving a prison term of 8 1/3 to 25 years. He was re-paroled on September 8, 1997 with a maximum expiration date of his prison term of December 24, 2008. On September 8, 1997, Claimant was verbally directed by his parole officer not to be in the vicinity of the residence of his cousin, Glen Baker, nor to try to contact Mr. Baker. On September 25, 1997, Claimant was arrested on a parole violation after he was discovered sitting in a vehicle directly in front of the Baker residence.

The Amended Claim further alleges that an Administrative Law Judge (“ALJ”) issued a Parole Revocation Decision dated December 2, 1997 and that Division of Parole Commissioner Finnerty “without probable cause, and without any rational belief that [C]laimant was guilty of these charges, nevertheless sustained these violations of parole by ... modifying the ALJ’s time assessment imposed from 12 months to an eleven year, 2 month and 29 day sentence” (Amended Claim, ¶ 6). The Commissioner’s reason for imposing this sentence was that Claimant allegedly previously violated parole by sitting in a parked vehicle near his victim’s residence and did so again, despite a condition of his parole being to not go near the victim’s residence.

The Amended Claim asserts that Claimant was not arrested in September 1997 for having been near his victim’s house and that he did not previously violate his parole conditions by being near his victim’s home. Claimant asserts that Commissioner Finnerty’s actions in increasing his sentence to the maximum expiration date of his original sentence, when he was not arrested or charged with the violation Commissioner Finnerty found he committed, was an act of negligence (Amended Claim, ¶ 5). Claimant further alleges that, in response to an action he filed in Supreme Court, counsel for the Division of Parole wrote him a letter, dated December 5, 2005, wherein counsel stated that he had reviewed the revocation documents contained in Claimant’s parole file and could not locate a prior revocation proceeding that sustained a charge wherein it was alleged Claimant was within the vicinity of the victim. Counsel stated he was expunging that portion of the parole revocation decision drafted by Commissioner Finnerty (Amended Claim, ¶ 13).

Pursuant to Court of Claims Act provisions applicable to personal injury actions, Claimant was required to file and serve his Claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim (to the extent Claimant asserts injuries caused by negligence or unintentional torts) or within one year (to the extent he asserts intentional torts of State employees) (Court of Claims Act §§ 10[3], 10[3-b]). In either case, Claimant was required to initiate action within 90 days of the Claim’s accrual. Section 11(a) of the Court of Claims Act requires that the Attorney General be served either personally or by certified mail, return receipt requested, within the applicable limitations period (90 days in this instance).

In his affirmation submitted in support of the State’s motion, Defense counsel asserts that the Claim accrued on March 21, 2005 when Claimant was released from Bare Hill Correctional Facility in Malone, New York. He further asserts that the Attorney General’s office received a verified Notice of Intention to File a Claim on February 27, 2006 (see Ex. A attached to Motion) and a verified Claim on November 29, 2006 (see Ex. B attached to Motion). He asserts that, since the Notice of Intention was not timely served, the Claim is untimely.

In opposition to the motion, Claimant asserts that the “action is primarily for malicious prosecution and the resulting wrongful incarceration ...” (Opposition to Defendant’s Motion to Dismiss). He asserts that the Claim accrued on December 5, 2005 when Counsel for the Division of Parole expunged the finding of Commissioner Finnerty and, thus, terminated the underlying action in his favor (Affirmation in Support: Opposition to Defendant’s Motion to Dismiss, ¶ 9).

A cause of action for wrongful confinement is really one for false imprisonment (see Gittens v State of New York, 132 Misc 2d 399, 401-402 [Ct Cl 1986]). A false imprisonment cause of action accrues when the person is released from custody (Nunez v City of New York, 307 AD2d 218, 219 [1st Dept 2003]). A cause of action for malicious prosecution accrues when the underlying proceeding was terminated in a claimant’s favor (id.; Campo v Wolosin, 211 AD2d 660 [2d Dept 1995]). “[A] malicious prosecution claim can be maintained based upon a prior administrative proceeding” (Perryman v Village of Saranac Lake, 41 AD3d 1080, 1081 [3d Dept 2007]; see Groat v Town Bd. of Town of Glenville, 73 AD2d 426, 429-430 [3d Dept 1980], appeal dismissed 50 NY2d 928 [1980]).

The Court of Appeals stated, in Goldman v Metropolitan Life Ins. Co. (5 NY3d 561, 570-571 [2005]):
When determining a motion to dismiss, the court must “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” (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303 [2001]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]). A CPLR 3211 dismissal “may be granted where documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (Held v Kaufman, 91 NY2d 425, 430-431 [1998] [citation and internal quotation marks omitted]).
Here, Defense counsel asserts in his Affirmation in Support of the State’s Motion, that Claimant was released from custody on March 21, 2005; however, he has not produced any documentary evidence to establish that fact. Therefore, the Court finds that Defendant has failed to establish by documentary evidence that the cause of action for false imprisonment (or wrongful confinement) is untimely. Further, as the Court accepts the facts alleged in the Claim as true and accords Claimant the benefit of every possible favorable inference (see Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, supra at 570-571), the Court finds that the Claim also states causes of action for malicious prosecution and negligence, and the State has not established that either of those causes of action are untimely.

Based upon the foregoing, the State’s motion to dismiss is denied.

May 21, 2008
Albany, New York

Judge of the Court of Claims

The following papers were read and considered by the Court on the State’s Motion to dismiss:

Papers Numbered

Notice of Motion, Affirmation in Support
and Exhibits Attached 1

Opposition to Defendant’s Motion to Dismiss

and Affirmation in Support: Opposition to
Defendant’s Motion to Dismiss 2

Filed Papers: Claim, Answer, Amended Claim, Answer to Amended Claim