Defendant moves for summary judgment dismissing this claim which alleges that
defendant wrongfully detained claimant in a correctional facility for
“three (3) months and eighteen (18) days longer in custody than he was
required by law to serve.” Claimant was ultimately released, on November
6, 2006, after defendant recalculated claimant’s “parole jail time
credit.” In support of the motion, defendant presents the affidavit of the
Associate Counsel in Charge of Sentencing Review for the New York State
Department of Correctional Services (DOCS). This affidavit sets forth in detail
that defendant recalculated (i.e. increased) claimant’s “parole jail
time credit,” leading to claimant’s release from detention, in
direct response to amendment of claimant’s sentencing order by the
Tonawanda City Court (City Court) on November 1, 2006. The original sentencing
order of the City Court, issued on February 24, 2004, had not specified whether
the sentence then being imposed was to run concurrent or consecutive with a 2001
two year determinate sentence and three year period of post-release supervision
imposed on defendant by Erie County Supreme Court (Supreme Court). By operation
of law (see Penal Law § 70.25  [b]) the City Court sentence was thus
required to run consecutive to the Supreme Court sentence.
Defendant also offers the affidavit of an Associate Counsel at the New York
State Division of Parole who concurs with the sentencing/incarceration analysis
detailed by the Associate Counsel in Charge of Sentencing Review for the New
York State Department of Correctional Services. It further details why claimant,
for the same reasons, when another sentence imposed upon him for Disorderly
Conduct by another local criminal court was not designated as consecutive or
concurrent, did not receive 15 days of parole jail time credit, the sentence
which he received upon the Disorderly Conduct conviction.
“A [claimant] asserting a common-law claim for false imprisonment must
establish that the defendant intended to confine the [claimant], that the
[claimant] was conscious of the confinement and did not consent to the
confinement, and that the confinement was not otherwise privileged”
(Martinez v City of Schenectady, 97 NY2d 78, 85 ).
“Generally, where a facially valid order issued by a court with proper
jurisdiction directs confinement, that confinement is privileged . . . and
everyone connected with the matter is protected from liability for false
imprisonment” (Holmberg v County of Albany, 291 AD2d 610, 612 [3d
Dept 2002]; see Harty v State of New York, 29 AD2d 243 [3d Dept
1968], affd 27 NY2d 698 ).
“A motion for summary judgment should be entertained only after the
moving party has established, by competent admissible evidence, that it is
entitled to judgment as a matter of law . . . If the movant meets this initial
burden, the opposing party is required to submit evidence which raises a
material issue of fact to preclude an award of summary judgment” (Ware
v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]; see
Svoboda v Our Lady of Lourdes Memorial Hospital, Inc., 31 AD3d 877 [3d
Defendant has satisfied its initial burden by demonstrating that the allegedly
excessive detention of claimant by defendant was privileged pursuant to the
original City Court order of February 24, 2004.
“In opposition to a motion for summary judgment a party must assemble and
lay bare affirmative proof to establish that genuine material issues of fact
exist. Only the existence of a bona fide issue raised by evidentiary fact rather
than one based on conclusory or irrelevant allegations, will be sufficient to
defeat a motion for summary judgment where the movant has made out a prima facie
basis for the granting of the motion” (Archambault v Martinez, 120
AD2d 632, 632-633 [2d Dept 1986]). Further, “mere conclusions, expressions
of hope or unsubstantiated allegations or assertions are insufficient” to
defeat a motion for summary judgment (Zuckerman v City of New York, 49
NY2d 557, 562 ).
Claimant has failed to raise a triable issue of fact in response to the
defendant’s prima facie showing of entitlement to summary judgment relief.
Claimant does not allege that the excessive confinement was procured by fraud,
that the original sentencing order was facially deficient or that the City Court
lacked jurisdiction to issue the order.
Claimant offers little more than conclusory assertions that the facts are
“confusing” and “difficult to ascertain.” The only
alleged issue of fact expressly identified by claimant is whether defendant
“should have noticed” that it was “odd” that the City
Court sentence of time served amounted to a specific 196 day sentence under the
The claimant’s unsubstantiated allegation that DOCS’ interpretation
of the City Court sentence was “odd” does not raise a factual issue.
Citing People ex rel. Crawford v. Smith (96 AD2d 757 [4th Dept 1983],
affd 60 NY2d 695 , rearg denied 61 NY2d 670 ),
defendant demonstrates that a sentence of “time served” legally
amounts to a court-imposed sentence equivalent to the exact length of time a
defendant has been incarcerated. In this case the time served was 196
Claimant suggests an alternative interpretation of the sentencing/incarceration
analysis detailed by the Associate Counsel in Charge of Sentencing Review for
the New York State Department of Correctional Services. Claimant argues that he
should not have been released from incarceration by DOCS on August 12, 2005 if
defendant was adhering to the City Court order. The record shows, however, that
claimant was declared delinquent by the Division of Parole on that same
Interestingly, the attachments to Exhibit C of the defendant’s motion
papers include a response to a July 10, 2006 inquiry from claimant to the City
Court as to whether the City Court sentence was to run concurrent or consecutive
to his parole violation with respect to the Supreme Court sentence. This inquiry
apparently led to the amendment of the City Court sentence to reflect that it
run concurrent with the Supreme Court sentence. It thus appears that claimant
was aware that the reason he was detained for “three (3) months and
eighteen (18) days longer in custody than he was required by law to serve”
was the initial City Court sentence.
Simply stated, that claimant spent more time in custody than he believes he
should have is not in any way due to any defendant negligence, but directly due
to lawfully issued sentencing orders of non-defendants, local criminal courts,
which, at least in one instance, was subsequently made more specific. Once that
action was taken, defendant acted appropriately and properly recalculated
claimant’s parole jail time credits.
The defendant’s motion for summary judgment dismissing the claim is
granted and the claim is dismissed.