New York State Court of Claims

New York State Court of Claims

LEBRON v. THE STATE OF NEW YORK, #2008-041-003, Claim No. None, Motion No. M-74445


Synopsis

Application to file late claim asserting causes of action for wrongful confinement, together with other allegedly timely causes of action, is granted as allegations provide cause to believe valid causes of action for wrongful confinement may exist and the defendant has not been substantially prejudiced by delay in prosecuting the claim.

Case Information

UID:
2008-041-003
Claimant(s):
ELVIN LEBRON
Claimant short name:
LEBRON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-74445
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
ELVIN LEBRONPro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Michael T. Krenrich, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 3, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant moves for permission to file a late claim pursuant to Court of Claims Act § 10 (6). Claimant is an inmate at Clinton Correctional Facility (Clinton). The proposed claim contains five (5) causes of action. The papers considered on the motion, particularly the reply affirmation of claimant, make clear that the relief requested is limited to the second and third causes of action, which sound in wrongful confinement. Accordingly, the Court’s decision is limited to those two causes of action.

The second cause of action alleges that from July 17, 2007 to July 22, 2007, claimant was confined in keeplock at Clinton for six (6) days beyond the thirty (30) day period authorized by 7 NYCRR 253.7 (i), (ii) and (iii). Claimant further alleges that the wrongful confinement was imposed without due process and “was not privileged.” Claimant alleges that he contemporaneously protested the wrongful confinement to defendant to no avail.

The third cause of action alleges that from September 5, 2007 to September 14, 2007, claimant was wrongfully confined in keeplock at Wende Correctional Facility “without due process” and that the confinement “was not privileged.” Claimant again alleges that he protested the wrongful confinement to defendant to no avail.

Court of Claims Act § 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a 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.”

A claim for wrongful confinement accrues on “the date on which [claimant’s] confinement terminated” (Santiago v City of Rochester, 19 AD3d 1061, 1062 [4th Dept 2005], lv denied 5 NY3d 710 [2005]). The causes of action at issue arose on July 22, 2007 and September 14, 2007, respectively, when claimant was released from keeplock and the application is timely pursuant CPLR §§ 214 and 215. Claimant’s causes of action sounding in wrongful confinement are not time-barred by CPLR Article 2.

In determining the application, Court of Claims Act § 10 (6) provides that:
“[T]he court shall consider, among other 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.”
In reviewing a late claim application, “the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10 (6), no one factor being controlling” (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, “[n]othing in the statute makes the presence or absence of any one factor determinative” (Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981 [1982]).

Further, “it is well settled that the Court of Claims’ broad discretion in this area should be disturbed only in the face of clear abuse” (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 [1991]).

Claimant fails to offer a reasonable excuse for the delay in filing the late causes of action after their accrual in July and September of 2007, respectively. Claimant’s alleged ignorance of the law, lack of legal counsel and claimed lack of “daily access to the facilities law library,” do not constitute a reasonable excuse for his failure to timely file the claim (Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002] lv dismissed 99 NY2d 589).

Claimant alleges in his affidavit that defendant “had notice of the essential facts of these claims at the time of the incidents,” and, since defendant does not dispute this allegation, the Court finds that defendant had timely notice of the essential facts constituting the wrongful confinement causes of action (see Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]).

Similarly, defendant does not assert that it either lacked an opportunity to investigate the proposed causes of action or that it has suffered prejudice from the relatively short delay in filing. Both of these factors weigh in claimant’s favor.

Claimant has no available alternative remedy.

Section 10 (6) requires that the proposed claim not be “patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists” (Rizzo v State of New York, 2 Misc 3d 829, 833-834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]), the court noted that a proposed claim offered in a section 10 (6) application need only have “the appearance of merit.”

To establish that he was wrongfully confined, claimant must prove “(1) the defendant intended to confine him, (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged” (Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom Schanbarger v Kellogg, 423 US 929 [1975]).

Defendant has not offered an affidavit disputing the factual allegations of the proposed causes of action and the allegations are deemed true for purposes of this application (Schweichert v State of New York, 64 AD2d 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978], supra).

The Court finds that the causes of action alleging wrongful confinement are not patently without merit and that, accepting the claimant’s allegations as true, provide cause to believe that valid causes of action alleging wrongful confinement may exist.

Balancing the factors set forth in section 10 (6), the Court grants the motion and claimant is directed to file and serve his claim, pursuant to Court of Claims Act §§ 11 and 11-a, with respect to the second and third causes of action within sixty (60) days of the filing of this decision and order with the Clerk of the Court of Claims.


March 3, 2008
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Notice of Motion, filed January 9, 2008;
  2. Affidavit of Elvin Lebron, sworn to January 4, 2008, and annexed exhibit;
  3. Affirmation of Michael T. Krenrich, dated January 17, 2008;
  4. Reply Affirmation of Elvin Lebron, dated January 24, 2008.