New York State Court of Claims

New York State Court of Claims

D.J. v. THE STATE OF NEW YORK, #2008-044-583, Claim No. 114113, Motion No. M-74829


Court granted State’s motion to dismiss for wrongful civil confinement, as claimant’s retention in facility was privileged pursuant to Mental Hygiene Law.

Case Information

1 1. A fictitious name for claimant to protect the confidentiality afforded under Mental Hygiene Law article 15.
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:
GOLDSTEIN & METZGER, LLPBY: Mark J. Metzger, Esq., of counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 30, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant filed this claim to recover for wrongful civil confinement.[2] Defendant answered. Defendant now moves for summary judgment. Claimant opposes the motion.

On June 5, 2003, claimant was involuntarily admitted to Valley Ridge Center for Intensive Treatment (VRCIT), a facility operated by the New York State Office of Mental Retardation and Developmental Disabilities, pursuant to Mental Hygiene Law § 15.27. By order dated August 11, 2004, claimant was retained at VRCIT for a period which expired on February 2, 2006 (Defendant’s Motion for Summary Judgment, Exhibit C).[3] On January 26, 2006, prior to the expiration of that retention order, VRCIT’s director filed an application with Supreme Court for further retention of claimant (Defendant’s Motion for Summary Judgment, Exhibit E). Claimant requested a hearing, which was held on February 16, 2006. Supreme Court thereafter issued a Memorandum Decision and Order dated May 23, 2006 which ordered claimant’s release (Defendant’s Motion for Summary Judgment, Exhibit F). That Decision and Order was filed in the Chenango County Clerk’s Office on May 25, 2006, and served on defendant on May 26, 2006. Claimant seeks to recover for damages for his alleged wrongful confinement from February 3, 2006 through May 26, 2006.[4]

Defendant argues that Director of VRCIT exercised her discretion in filing an application for the further retention of claimant prior to expiration of the retention order on February 2, 2006, and because that conduct was quasi-judicial in nature, defendant is entitled to absolute immunity. Defendant further contends that claimant’s retention pending Supreme Court’s determination on the application was authorized by statute, and thus is privileged.

Conversely, claimant argues that the defendant was required to adhere to Mental Hygiene Law § 15.33 when submitting its application, and therefore its action was ministerial in nature and it is not entitled to immunity. Claimant further contends that because the documentation submitted with defendant’s application for his retention did not met the clear and convincing standard that he suffered from a developmental disability, his involuntary retention at Valley Ridge was not privileged.

Defendant, as the movant on this motion for summary judgment, is required to set forth evidentiary facts in admissible form which establish its entitlement to dismissal of the claim as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, absent such a prima facie showing by the movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., supra).

In order to establish a prima facie case of wrongful confinement – a “species” of the tort of false imprisonment (Gittens v State of New York, 132 Misc 2d 399, 407 [1986]) – a claimant must show that “(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]). It is undisputed in this case that defendant both intended to and did confine claimant, who was aware of and did not consent to the confinement, thereby establishing the first three elements.

Defendant, as the moving party on this motion, must establish that its confinement of claimant from February 3, 2006 through May 26, 2006 was privileged. It is well settled that “[c]ommitment pursuant to [the] Mental Hygiene Law . . . is privileged in the absence of . . . malpractice” (Ferretti v Town of Greenburgh, 191 AD2d 608, 610 [1993], appeal dismissed 82 NY2d 748 [1993], lv denied 82 NY2d 662 [1993]; see also Morgan v City of New York, 32 AD3d 912, 914 [2006]; see Tewksbury v State of New York, 273 AD2d 376 [2000], lv denied 95 NY2d 766 [2000]; Matter of E.K. v State of New York, 235 AD2d 540 [1997], lv denied 89 NY2d 815 [1997]).

In this case, claimant was retained pursuant to Mental Hygiene Law § 15.33 (a) by order dated August 11, 2004. Prior to expiration of that order on February 2, 2006, and in compliance with Mental Hygiene Law § 15.33 (d), defendant submitted an application to further retain claimant. A hearing was held at claimant’s request pursuant to Mental Hygiene Law §§ 15.31 (a); 15.33 (a). His further retention was authorized, by statute, until Supreme Court’s Decision and Order was issued and served upon defendant (Mental Hygiene Law §§ 15.31 [d]; 15.33 [a], [d]). Accordingly, claimant’s retention for the period February 3, 2006 through May 26, 2006 was in compliance with Mental Hygiene Law article 15.

Because the claim is completely devoid of any factual allegations which would support an inference that the psychologist, Alfred C. Barnes III, was negligent in his assessment of claimant’s condition and in his preparation of a Certificate of Examination - i.e, that he may have committed malpractice,[5] that being the only exception to the rule that such commitments are privileged - defendant has clearly met its burden of establishing its entitlement to judgment as a matter of law (see generally Alvarez v Prospect Hosp., supra; Ferretti v Town of Greenburgh, supra).

The burden now shifts to claimant to submit admissible evidence sufficient to create material issues of fact or credibility requiring a trial. In opposition to defendant’s motion, claimant argues both that defendant’s application and Barnes’ Certificate of Examination were insufficient to constitute clear and convincing evidence that claimant was suffering from mental retardation or a developmental disability such that his involuntary retention was necessary, and that no reasonable director would have relied on the Certificate. However, claimant has not provided an expert affidavit establishing that Barnes violated any applicable standard of care in the psychological community with his assessment of claimant’s condition.[6] Absent such admissible evidence of malpractice, claimant has failed to create any questions of fact as to whether defendant’s conduct was privileged.

Defendant’s motion for summary judgment is granted. Accordingly, Claim No. 114113 is hereby dismissed.

September 30, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on defendant’s motion:

1) Notice of Motion filed on April 15, 2008; Affirmation of James E. Shoemaker, Assistant Attorney General, dated April 10, 2008, and attached Exhibits A through H.
2) Affirmation in Opposition of Mark J. Metzger, Esq., dated July 11, 2008; Affidavit in Opposition of D.J. (see FN1).

Filed papers: Claim filed on August 20, 2007; Verified Answer filed on September 27, 2007.

[2]. Claimant previously moved for permission to file a late claim concerning the same cause of action (Motion No. M-73147). The Court found that while claimant was involuntarily confined to an institution for developmentally disabled and mentally retarded individuals, he was under a legal disability and thus had two years from the date of discharge in which to file and serve a claim (D.J. v State of New York, Ct Cl, July 24, 2007, Claim No. None, Motion No. M-73147 [#2007-044-548]). Because that time had not yet elapsed, the Court denied Motion No. M-73147 as moot (id.).
[3]. Mental Hygiene Law § 15.31 (f) provides that “[t]he papers in any proceeding under [article 15] which are filed with the county clerk shall be sealed and shall be exhibited only to the parties to the proceeding or someone properly interested, upon order of the court.” In support of its motion, defendant has submitted copies of documents from claimant’s involuntary admission proceedings, which are under seal in the Chenango County Clerk’s Office. In the Court's view, claimant’s right to the confidentiality of those documents should be preserved in this action as well. Accordingly, the Clerk of the Court is directed to seal Exhibits C-F which are annexed to defendant’s motion papers. For similar reasons of privacy, the Clerk is further directed to seal claimant’s Affidavit, submitted with his attorney’s affirmation in opposition to this motion.
[4]. Apparently claimant wanted to be transported from Norwich, New York to Poughkeepsie, New York, but the next available bus did not depart until the morning of May 27, 2006. After consultation with his counsel, claimant agreed to remain at VRCIT overnight and to be transported to the bus station early the following morning.
[5]. Claimant states that he suffered personal injuries – as a result of the involuntary detention – which “were caused solely and entirely by reason of the negligence of [defendant]” (Verified Claim, ¶ 6). This conclusory statement is woefully inadequate to constitute an allegation of either negligence or malpractice which would be sufficient to overcome defendant’s privilege (cf. Morgan v City of New York, supra [where the plaintiff’s allegation that defendant deviated from the appropriate standard of care in exercising medical judgment under Mental Hygiene Law §§ 9.37, 9.39 was sufficient to withstand dismissal of the claim]).
[6]. Further, no certificate of merit was filed with the claim, as would be necessary for a malpractice claim pursuant to CPLR 3012-a.