New York State Court of Claims

New York State Court of Claims

VAZQUEZ v. THE STATE OF NEW YORK, #2009-015-122, Claim No. 115574, Motion Nos. M-75464, CM-75557


Synopsis


Claim alleging cause of action for wrongful confinement based upon period of imprisonment for violations of an improperly imposed term of postrelease supervision by DOCS was dismissed as untimely. Cross-motion for late claim relief was denied, inter alia, because the claim lacked merit.

Case Information

UID:
2009-015-122
Claimant(s):
JUAN E. VAZQUEZ
Claimant short name:
VAZQUEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115574
Motion number(s):
M-75464
Cross-motion number(s):
CM-75557
Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Lipsitz Green Scime Cambria, LLPBy: Gregory P. Krull, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 10, 2009
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves for dismissal of the instant claim pursuant to CPLR 3211 [a] [2] and [8] on the grounds that this Court lacks both subject matter jurisdiction and personal jurisdiction over the defendant. In support of the motion, defendant argues that the claim was untimely served and that this Court lacks jurisdiction with respect to the causes of action under the Federal and State Constitutions. Claimant opposes the motion and cross-moves for late claim relief pursuant to Court of Claims Act § 10 (6).

The claim filed and served on July 24, 2008 alleges the claimant was unlawfully imprisoned on two separate occasions for violating the conditions of a term of postrelease supervision improperly imposed by the Department of Correctional Services (DOCS). The claim also asserts causes of action premised upon violations of his civil rights and due process guarantees.

On March 23, 2001 claimant was sentenced to a determinate sentence of three and one-half years, concurrent, for the crimes of attempted burglary in the first degree and attempted robbery in the first degree. Although the sentencing court failed to impose the statutorily mandated five-year period of postrelease supervision on the record at the time sentence was imposed (see Penal Law § 70.00 [6] and § 70.45 [1]), a period of postrelease supervision was administratively imposed by DOCS upon the claimant's release from prison on September 15, 2003. Thereafter, claimant was declared in violation of the terms of his postrelease supervision on two occasions and imprisoned from May 21, 2004 through July 21, 2004 and again from September 25, 2007 through March 13, 2008 (defendant's Exhibit 1, Claim, ¶ 4). By Memorandum Decision and Order of the Hon. M. William Boller, A.J.S.C., dated March 12, 2008, claimant's petition for a writ of habeas corpus was granted and it was ordered that the five-year term of postrelease supervision be vacated and the claimant released from custody. In doing so, the Court relied, in part, on the Second Circuit Court of Appeals decision in Earley v Murray (451 F3d 71 [2d Cir 2006]), which held that the imposition of postrelease supervision by DOCS was a nullity as "[t]he imposition of a sentence is a judicial act; only a judge can do it" (Id. at 76). In addition, Judge Boller noted that all four departments of the Appellate Division are now in agreement that "a court's failure to impose a period of post release supervision at the time of sentence will not require post release supervision as a component of the sentence" (claimant's Exhibit A).[1]

A claim for false imprisonment accrues when the confinement terminates (Charnis v Shohet, 2 AD3d 663 [2003]; Jones v Town of Johnstown, 41 AD2d 866 [1973]; Ramirez v State of New York, 171 Misc 2d 677 [Ct Cl 1997]). Court of Claims Act § 10 (3-b) requires that a claim or notice of intention to file a claim must be filed and served within 90 days after accrual. [2] It is well established that "the Court of Claims does not obtain subject matter jurisdiction unless a claim, or a notice of intention to file a claim, is timely filed" (Matter of Best v State of New York, 42 AD3d 699, 700 [2007]; see also Matter of Magee v State of New York, 54 AD3d 1117 [2008]). Here, the claim filed and served on July 24, 2008 was untimely with respect to both periods of the alleged wrongful confinement requiring dismissal of the claim.

Claimant's argument that the date of accrual of his false imprisonment cause of action should be the date of the Court of Appeals decision in Matter of Garner v New York State Dept. of Correctional Servs. (10 NY3d 358 [2008]) lacks merit. Claimant's contrary argument notwithstanding, Judge Boller's decision in the article 70 proceeding was not dependant on a prospective determination by the Court of Appeals in Garner. Rather, it was a final determination which resulted in the claimant's immediate release from prison.[3] Claimant’s reliance on the Court of Appeals decision in Britt v Legal Aid Socy. (95 NY2d 443 [2000]) is not to the contrary. That case involved allegations of legal malpractice resulting in a lengthy confinement pending the dismissal of a criminal indictment. There, the Court held that a cause of action for legal malpractice in a criminal case accrues on the date the indictment is dismissed because it is not until that date that all elements of the tort, including the innocence of the plaintiff of the crimes for which he was charged, could be truthfully asserted (Id. at 447). The Court reasoned that because a plaintiff in such cases must allege his or her innocence or a colorable claim of innocence of the underlying offense to state a cause of action, it is not until the indictment is dismissed that all elements of the tort, including the innocence of the plaintiff of the crimes for which he was charged, could be truthfully asserted (Id. at 447; see also Carmel v Lunney, 70 NY2d 169 [1987]).[4] Britt is in complete accord with the rule that a cause of action accrues on the date damages are reasonably ascertainable (see e.g. Bullard v State of New York, 307 AD2d 676 [2003]). Nothing in either Matter of Garner or Britt v Legal Aid Socy. requires a different result. As damages arising from false imprisonment are reasonably ascertainable upon the release from confinement, it is on this date that a cause of action for false imprisonment accrues (see Charnis v Shohet, supra; Jones v Town of Johnstown, supra; Ramirez v State of New York, supra). The claim served and filed on July 24, 2008 was therefore untimely as to both periods of alleged false imprisonment, which ended on July 21, 2004 and March 13, 2008, respectively.[5]

Defendant additionally argues in support of its dismissal motion that the Court of Claims lacks jurisdiction over the claim to the extent it alleges violations of the Federal and State Constitutions. It is well-settled that no claim for a violation of the claimant’s federal constitutional rights is cognizable against the State in the Court of Claims (Brown v State of New York, 89 NY2d 172, 184-185 [1996]; see also Monell v Department of Social Services of the City of New York, 436 US 658 [1978]; Matter of Gable Transp., Inc. v State of New York, 29 AD3d 1125 [2006]; Welch v State of New York, 286 AD2d 496 [2001]). Likewise, a cause of action for a violation of the State Constitution may give rise to a tort cause of action only where it is necessary to ensure the full realization of the claimant’s constitutional rights (Brown v State of New York, supra; Martinez v City of Schenectady, 97 NY2d 78, 83 [2001]). Here, invocation of a constitutional tort cause of action is unnecessary as the claimant clearly has alternative avenues of redress available (Waxter v State of New York, 33 AD3d 1180 [2006]; Bullard v State of New York, supra). Thus, to the extent the claim asserts causes of action under the Federal or New York State Constitutions, they too must be dismissed.

The Court will next address claimant's motion for late claim relief. Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable statute of limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following 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."

The first issue for determination upon a late claim motion is whether the application is timely. Subdivision 6 of Section 10 requires that a motion to file a late claim be made "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." The applicable statute of limitations in a claim for false imprisonment is one year (CPLR 215 [3]). As a result, the late claim motion is untimely with respect to the first period of alleged false imprisonment and timely with respect to the second.

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965 [1994]). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117 [1991]). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254 [1993]).

Claimant asserts no excuse, reasonable or otherwise, for the delay in filing the claim and this factor therefore weighs against the claimant in determining this motion.

The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. Claimant asserts that the defendant had notice of the essential facts constituting the claim because defense counsel was involved in opposing the claimant's habeas corpus petition and litigating the postrelease supervision issue in Garner. He contends therefore that defendant had ample opportunity to investigate the claim and will suffer no prejudice should late claim relief be granted. As the defendant does not contest that it had notice of the facts, an opportunity to investigate, and will suffer no prejudice, these factors weigh in favor of the claimant on his motion for late claim relief.

With respect to the required showing of merit, the claim is sufficiently established if the claimant demonstrates that the proposed claim is not patently groundless, frivolous, or legally defective and there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977]; Fowx v State of New York, 12 Misc 3d 1184 (A) [2006]).
To establish a cause of action for false imprisonment 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]). While the first three factors are not disputed, it is the fourth which poses the most difficulty in this case.

In Matter of Garner (supra), the Court of Appeals held that a term of postrelease supervision "is not automatically included in the pronouncement of a determinate sentence, and thus a defendant has a statutory right to have that punishment imposed by the sentencing judge" (Id. at 363). Importantly, the Court noted that its holding was "without prejudice to any ability that either the People or DOCS may have to seek the appropriate resentencing of a defendant in the proper forum" (Id. at 363, n 4). Decided that same day was People v Sparber (supra) in which the Court rejected the argument that expungement is the proper remedy for a term of postrelease supervision improperly imposed by DOCS. Rather, the Court stated that “[t]he sole remedy for a procedural error such as this is to vacate the sentence and remit for a resentencing hearing so that the trial judge can make the required pronouncement . . .” (Id. at 471). The Court specifically noted that “there exists no procedural bar to allowing the sentencing court to correct its PRS error . . . [T]he failure to pronounce the required sentence amounts only to a procedural error, akin to a misstatement or clerical error, which the sentencing court could easily remedy . . ." (Id. at 472). The orders in each of the five cases reviewed on appeal in Sparber were therefore modified to the extent of remitting the cases to the Supreme Court for resentencing (see also People v Collado, 11 NY3d 888 [2008]).

In response to Garner and Sparber, the Legislature adopted Correction Law § 601-d, effective June 30, 2008 (L 2008, ch 141). As noted by the court in People v Peer (22 Misc 3d 620 [2008]), "[t]he legislative history of this statute reveals a clear legislative intent to provide 'a framework for a prompt, fair and careful response to recent decisions in which the Court of Appeals struck down longstanding practices for determining the supervision terms of violent felons' " (Id. at 622 quoting Senate Introducer's Mem in Support, Bill Jacket, L 2008, ch 141). The statute sets forth the appropriate procedure for identifying and correcting the sentences of those individuals for whom the order of commitment does not indicate a term of postrelease supervision (Correction Law § 601-d [1]), but does not foreclose any other proceedings pursuant to CPL § 440 or articles 70 or 78 of the CPLR (see Correction Law § 601-d [8]). Simultaneously with the enactment of Correction Law § 601-d , the Legislature enacted Penal Law § 70.85, which permits the Court, upon the consent of the district attorney, to re-impose the originally imposed determinate sentence without any term of postrelease supervision. Thus, notwithstanding the "combined command" of Penal Law § 70.00 [6] and § 70.45 [1] that a period of postrelease supervision be included in certain determinate sentences (Sparber, 10 NY3d at 469), it is clear that the imposition of postrelease supervision is not necessarily occurring in all cases (see People v Faulkner, 55 AD3d 924 [2008]; People ex rel. Foote v Piscotti, 51 AD3d 1407 [2008]; People ex rel. Pamblanco v Warden, Rikers Island Correctional Facility, ___Misc 3d ___, 2008 NY Slip Op 28478 [2008]; People v Washington, 21 Misc 3d 349 [2008]; Matter of Capron v Virts, 2008 NY Slip Op 32517 [U] [2008]; compare People v Aguirre, 55 AD3d 846 [2008]; People v Craig, 51 AD3d 559 [2008]; People v Edwards, 51 AD3d 540 [2008], lv denied 11 NY3d 787 [2008]; People ex rel. Lewis v Warden, Otis Baum Correctional Ctr., 51 AD3d 512 [2008]).

The Appellate Division, Third Department, recently stated in Matter of State of New York v Randy M. (57 AD3d 1157 [2008]) that even where a defendant is resentenced so as to impose the statutorily mandated period of postrelease supervision, "[t]he court's later resentencing of respondent did not operate retroactively to cure the illegal imposition of postrelease supervision . . . meaning respondent could not validly be punished for violating the terms of postrelease supervision until after it was imposed by a court" (Id. at 1159, citing People ex rel. Benton v Warden, Adolescent Receiving Detention Ctr., 20 Misc 3d 516, 521 [2008]; see also Matter of Jackson v Cuomo, 20 Misc 3d 1115 [A][2008]). Benton (supra), which was cited with approval by the Court in Matter of State of New York v Randy M. (supra), specifically held that where a term of postrelease supervision is a nullity because it was administratively imposed by DOCS rather than the sentencing court, resentencing the defendant nunc pro tunc to add the term of postrelease supervision cannot "cure the infirmity of a petitioner being violated for a PRS that was imposed by DOCS . . ." (Id. at 521). Nevertheless, for the reasons which follow, the Court holds that absent either an allegation or inference that the parole warrant or order directing the claimant's confinement for parole violations was invalid on its face or that the court lacked jurisdiction to issue the order, the confinement for the violation was privileged and "sufficient to protect officials who carried out its mandates" from liability for false imprisonment (Nuernberger v State of New York, 41 NY2d 111, 116 [1976]). Even if such conduct could form the basis for liability, however, the Court holds that the defendant is immune from liability under the circumstances of this case.

It is well settled that "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 [2002] (citation omitted), lv denied 98 NY2d 604 [2002]); see also Nuernberger v State of New York, supra; Nastasi v State of New York, 275 App Div 524 [1949], affd 300 NY 473 [1949]). Likewise, an arrest and imprisonment are privileged where the arrest is "made pursuant to a warrant valid on its face and issued by a court having jurisdiction of the crime and person . . . and this is so even though the process may have been erroneously or improvidently issued" (Boose v City of Rochester, 71 AD2d 59, 66 [1979]; Middleton v State of New York, 54 AD2d 450 [1976], affd 43 NY2d 678 [1977]). Absent an allegation in the claim, "express or inferable", that the parole warrant or order of commitment was invalid on its face or that the issuing entity lacked jurisdiction to issue the warrant or order, a claim for false imprisonment lacks merit as a matter of law (Ferrucci v State of New York, 42 AD2d 359, 361 [1973], affd 34 NY2d 881 [1974]; Boose v City of Rochester, supra; Mullen v State of New York, 122 AD2d 300 [1986], lv denied 68 NY2d 609 [1986], cert denied 480 US 938 [1987]).

Importantly, the confinement is no less privileged where a defendant has been successful in procuring his release from prison in a habeas corpus proceeding. Thus, the fact that the detainer has been determined to be illegal in a habeas corpus proceeding does not render the State liable in a subsequent claim for false imprisonment (Nuernberger v State of New York, supra; Harty v State of New York, 29 AD2d 243 [1968], affd 27 NY2d 698 [1970]). There is simply "no remedy against the State for an illegal confinement if it is made pursuant to an order valid on its face when issued" (Jones v State of New York, 31 AD2d 992, 993 [1969]; see also Corcoran v State of New York, 30 AD2d 991 [1968], affd 24 NY2d 922 [1969]).

The facts in Holmberg v County of Albany (supra) and Nastasi v State of New York (supra) are analogous to those in the case at bar and illustrate the point well. In Holmberg, the plaintiff argued that the County mistakenly added three days of additional confinement in calculating the length of his jail term as reflected in his sentencing minutes and the certificate of conviction. Plaintiff alleged that had he been released on his correct release date, he would not have violated the conditions of his work release program when he failed to appear for work following his arrest for driving while intoxicated and would not have spent additional time in jail. The Court found the order valid on its face and " 'sufficient to protect officials who carried out its mandates' from liability for false imprisonment" (Holmberg v County of Albany, 291 AD2d at 613, quoting Nuernberger v State of New York, 41 NY2d at 116).

Similarly in Nastasi v State of New York (supra) the claimant was declared delinquent while on parole and a warrant was issued for his arrest. Claimant was released to parole authorities and returned to prison in New York five years later after serving a sentence of imprisonment in another state. He thereafter secured his release in a habeas corpus proceeding upon a finding that his maximum sentence had expired prior to his return to prison in New York. Notwithstanding the finding in the habeas corpus proceeding that the confinement was illegal, the Court stated the following (275 App Div at 525 - 526):
"[I]t does not necessarily follow . . . that a determination of illegality of imprisonment gives rise ipso facto to a claim for damages for false arrest and imprisonment. Since parole was not permissible under the circumstances presented, the declaration of delinquency for parole violation and the acts of the authorities in retaking claimant . . . and in detaining him . . . were improper. There is nothing in the record, however, to indicate that the declaration of delinquency and the warrant for claimant's arrest were not entirely valid on their face when issued. . . The arresting officers and the confining authorities were under a duty to comply with this declaration and warrant, the invalidity of which was not determined until the decision in the habeas corpus proceeding had been handed down. They were not obliged to institute an inquiry in order to satisfy themselves that no error had been committed. They were confronted with what appeared to be a valid directive for the arrest and incarceration of the claimant, and in yielding obedience to it they did not subject themselves or the State to an action for false arrest and imprisonment."
The above-cited cases illustrate the point that even where confinement is determined to be illegal, as it was here, liability for false imprisonment may not follow where the warrant authorizing confinement or commitment papers were valid on their face when issued. As there is no allegation or inference that the warrant or order of commitment relating to the claimant's parole violations were invalid on their face, no claim for false imprisonment may lie.

Similarly, to the extent claimant's confinement appears to have been the result of a warrant issued by the parole board pursuant to Executive Law § 259-i (3) (a) (i), there is neither an allegation nor argument made that the warrant was invalid on its face. While the precise nature of the claimant's parole violations is unknown, a party seeking to file a late claim bears the burden of establishing that the proposed claim has at least the appearance of merit (see Court of Claims Act § 10 [6]; Nyberg v State of New York, 154 Misc 2d 199, 202 [1992]). While this threshold is low, the claimant has failed to meet it.

Moreover, inasmuch as it appears the determination to revoke the claimant's parole was made by the Parole Board, such determinations are judicial in nature and protected by the cloak of absolute immunity (see Executive Law § 259-i (5); cf. Tarter v State of New York, 68 NY2d 511 [1986]). Immunity applies notwithstanding the fact that "the decision of the Parole Board revoking claimant's parole was eventually determined to have been in error, since the action of the Parole Board was not thereby deprived of its quasi-judicial character" (Semkus v State of New York, 272 AD2d 74, 75 [2000], lv denied 95 NY2d 761 [2000]).

To the extent the conduct complained of is that of DOCS in improperly imposing the term of postrelease supervision the result is the same. The law is settled that when official conduct involves the exercise of discretion, a government officer is not liable for the injurious consequences of his or her actions even if resulting from tortious conduct or malice (Tango v Tulevech, 61 NY2d 34, 40 [1983]; see also Lauer v City of New York, 95 NY2d 95, 115 [2000]). Immunity attaches "for those governmental actions requiring expert judgment or the exercise of discretion” (Arteaga v State of New York,72 NY2d 212, 216 [1988]; see also Mosher-Simons v County of Allegany, 99 NY2d 214 [2002]; Swain v State of New York, 294 AD2d 956 [2002], lv denied 99 NY2d 501 [2002]). As stated by the Arteaga Court:
"Whether an action receives only qualified immunity, shielding the government except when there is bad faith or the action is taken without a reasonable basis . . . or absolute immunity, where reasonableness or bad faith is irrelevant . . . requires an analysis of the functions and duties of the particular governmental official or employee whose conduct is in issue . . . The question depends not so much on the importance of the actor's position or its title as on the scope of the delegated discretion and whether the position entails making decisions of a judicial nature – i.e., decisions requiring the application of governing rules to particular facts, an 'exercise of reasoned judgment which could typically produce different acceptable results' " (Id. at 216, quoting Tango v Tulevech, 61 NY2d at 41).
It has long been recognized that public officials regardless of their job title are entitled to absolute immunity for discretionary or quasi-judicial determinations involving the construction and application of governing law in the performance of their official functions (see Rottkamp v Young, 21 AD2d 373 [1964], affd for reasons stated below 15 NY2d 831 [1965]; Santangelo v State of New York, 101 AD2d 20 [1984]). In Rottkamp, for example, the Court held that a building inspector was immune from suit for his determination that the plaintiff was not entitled to a building permit. Although the denial of the permit was later determined in an article 78 proceeding to have been erroneous, the conduct of the inspector in denying the permit was discretionary and quasi-judicial in nature because it “involved the construction of the zoning ordinance and a consideration of the facts before him - - an act which a building inspector must perform as part of his responsibilities” (Rottkamp v Young, 21 AD2d at 376; see also Arteaga v State of New York, supra; Miller v State of New York, 125 AD2d 853 [1986], lv denied 69 NY2d 608 [1987]).

Here, claimant's confinement for parole violations occurred prior to the Court of Appeals decisions in Garner and Sparber in April 2008 and pursuant to what had been a longstanding practice by DOCS of implementing the statutorily mandated terms of postrelease supervision. Importantly, at the time of the administrative application of postrelease supervision in this case, the courts generally viewed postrelease supervision as an “automatic” consequence of a conviction resulting in a determinate sentence (see e.g. Matter of Deal v Goord, 8 AD3d 769, 769 [2004]; People v Hollenbach, 307 AD2d 776 [2003], lv denied 100 NY2d 642 [2003] ; People v Crump, 302 AD2d 901 [2003], lv denied 100 NY2d 537 [2003]; People v Thweatt, 300 AD2d 1100 [2002]; People v Bloom, 269 AD2d 838 [2000], lv denied 94 NY2d 945 [2000]). This conclusion was based upon the then-existing statutory direction contained in Penal Law § 70.45 (1) that "[e]ach determinate sentence also includes, as a part thereof, an additional period of post-release supervision" (emphasis added).[6] It was not until Matter of Dreher v Goord (46 AD3d 1261) in December 2007 that the Appellate Division, Third Department, abrogated its prior holdings in Matter of Deal v Goord (supra) and Matter of Garner v New York State Dept. of Correctional Servs. (39 AD3d 1019 [2007], revd 10 NY3d 358 [2008]) which had determined that post-release supervision was automatically included as part of a determinate sentence. In Matter of Deal v Goord, the Court had held " ‛a period of post-release supervision [was] automatically included' in [petitioner's] sentence by statute" and that in subjecting the petitioners in that case to postrelease supervision DOCS was merely "enforcing a statutorily required part of petitioner's sentence" (Matter of Deal v Goord, 8 AD3d at 769-770). In Garner the Third Department found that in imposing postrelease supervision upon a petitioner, who had not been advised by the Court at sentencing that he would be subject to postrelease supervision, DOCS was "only enforcing, not imposing, a part of petitioner's sentence which was automatically included by statute" (Matter of Garner, 39 AD3d at 1019). Thus, at the time of the conduct complained of by the claimant, both the plain language of the statute and the then prevailing decisional law addressed postrelease supervision as an integral part of a determinate sentence arising by operation of law. Consistent with this premise, DOCS construed Penal Law § 70.45 (1) to apply to all individuals sentenced to a determinate sentence of imprisonment and designated such persons as subject to postrelease supervision upon their release from confinement. In interpreting the statute and determining the actions required to be taken thereunder, DOCS was acting within “the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based" (Santangelo v State of New York, 101 AD2d at 26 [internal quotation marks and citations omitted]). That hindsight proved this discretionary determination erroneous provides no basis for defeating the privilege. As made clear by the Court of Appeals in Tango v Tulevech (supra), where a probation officer's refusal to relinquish custody of two children to the plaintiff was later determined to be erroneous, absolute immunity shielded the municipal actor from liability because "even if [the probation officer's] ultimate determination was incorrect . . . she acted within the scope of her discretionary authority . . ." (61 NY2d at 41-42). The Court went on to state that because "she was exercising her judgment in determining the proper conduct of her office and given the discretionary nature of her acts, the question of bad faith or malice becomes irrelevant under the rule stated in Rottkamp" (61 NY2d at 42). While DOCS obviously has no discretion to alter a sentence, its administrative application of the statutory postrelease supervision requirements, though incorrect in hindsight, was a discretionary quasi-judicial function for which DOCS is entitled to absolute immunity. Thus, DOCS is immune from liability for its determination to impose the statutorily mandated period of postrelease supervision administratively.

This determination is amply supported by public policy considerations underlying application of the immunity doctrine. "A public officer, haunted by the specter of a lawsuit, may well be subject to the twin tendencies of procrastination and compromise to the detriment of the proper performance of his duties" (Rottkamp v Young, 21 AD2d at 376). Balancing an individual’s interest in procedural regularity (see Sparber at 10 NY3d at 471) against the public interest in fostering official conduct unhampered by the fear of retaliatory lawsuits, public policy supports application of absolute immunity in the circumstances of this case.

Moreover, even if the immunity afforded DOCS is qualified rather than absolute, the State is shielded from liability in the absence of any allegation or inference that the conduct was undertaken in bad faith or without a reasonable basis (see Arteaga v State of New York, 72 NY2d at 216; Friedman v State of New York, 67 NY2d 271 [1986]; Weiss v Fote, 7 NY2d 579 [1960]). As related above, at the time DOCS administratively imposed a period of postrelease supervision upon the claimant it acted against the background of a statute which directed that "[e]ach determinate sentence also includes, as a part thereof, an additional period of post-release supervision" (Penal Law § 70.45 [1]). Given the declaratory nature of the statutory language at the time the allegedly tortious action occurred, the statute's lack of clarity with regard to the mechanisms by which postrelease supervision was to be applied and the apparent illegality of a determinate sentence not including a period of postrelease supervision (see People ex rel. Lewis v Warden, Otis Baum Correctional Ctr., 51 AD3d 512 [2008]), DOCS applied its judgment and exercised its discretion in determining what actions were required to be taken in carrying out both the requirements of the statute and its own official duties. Under such circumstances, the type of discretionary, governmental decision-making involved in this case and the actions taken in furtherance thereof are immune from liability in a civil action for money damages. Lastly, even if the conduct of DOCS was exclusively ministerial, no liability may be imposed because, for the reasons set forth above, the conduct was not tortious (Tango v Tulevech, 61 NY2d at 40; see also Lauer v City of New York, supra). As this Court indicated in Collins v State of New York (UID # 2007-015-252 [Ct Cl, December 31, 2007] Collins, J.)[7], had the sentencing Court informed the claimant of the period of postrelease supervision there would be no cause of action as the period of postrelease supervision prescribed in Penal Law § 70.45 is mandatory for individuals subject to a determinate sentence. Neither this claimant nor the movant in Collins alleged that the sentence imposed was not one subject to postrelease supervision pursuant to the Penal Law. Here, as in Collins, all that is alleged is that the claimant was made subject to postrelease supervision, which the facts indicate was consistent with the statutory requirement applicable to determinate sentencing. Under these circumstances it cannot be said that the conduct complained of was tortious or the cause in fact of the claimant's injuries. As made clear by the Court in Sparber (10 NY3d at 469) the error was that of the sentencing judge who failed to advise the defendant of the statutorily mandated term of postrelease supervision. As a result, the alleged malfeasance of DOCS was not the cause in fact of the claimant's alleged injuries as a matter of law.

In summary, a claim for false imprisonment relating to a period of confinement for violating the conditions of an improperly imposed term of postrelease supervision is meritless where, as here, there is no allegation or inference that the commitment papers were invalid on their face. In addition, DOCS is immune from liability for its discretionary application of the sentencing criteria set forth in Penal Law § 70.45. Furthermore, the Court finds that the conduct complained of was not otherwise tortious or the cause in fact of the claimant's injuries. Accordingly, the Court finds that the claimant has failed to establish the potential merit of his claim in support of his motion for late claim relief.

As to the final factor to be considered, claimant had available an alternative remedy in the form of a proceeding pursuant to CPLR article70, which he successfully pursued.

As the totality factors weigh against granting claimant’s cross-motion for late claim relief, including the all important requirement of the merit of the claim, claimant’s cross-motion is denied. Based on the foregoing, the defendant's motion to dismiss the claim is granted and the claimant's cross-motion for late claim relief is denied.



February 10, 2009
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated August 25, 2008;
  2. Affirmation of Michael T. Krenrich dated August 25, 2008;
  3. Notice of cross-motion dated September 18, 2008;
  4. Affirmation of Gregory P. Krull, Esquire affirmed September 18, 2008 with exhibits;
  5. Affirmation of Michael T. Krenrich dated October 10, 2008 with exhibits.

[1]. Judge Boller's decision predated the Court of Appeals decisions in Matter of Garner v New York State Dept. of Correctional Servs. (10 NY3d 358 [2008]) and People v Sparber (10 NY3d 457 [2008]), both of which reaffirmed the principle that postrelease supervision is a significant component of a sentence and must be imposed by the sentencing judge pursuant to CPL 380.20 and 380.40. While the Court in Garner did not foreclose the possibility of resentencing to correct the error (Matter of Garner, 10 NY3d at 363, n 4), the Court in Sparber, specifically held that "[t]he sole remedy for a procedural error such as this is to vacate the sentence and remit for a resentencing hearing so that the trial judge can make the required pronouncement" (People v Sparber,10 NY3d at 471).
[2]. While a claim for wrongful confinement can be the result of negligence thereby triggering the limitations period set forth in Court of Claims Act § 10 (3) (see Ramirez v State of New York, 171 Misc 2d 677 [1997]), the confinement here allegedly occurred as the result of the intentional imposition of a statutorily mandated period of postrelease supervision thereby triggering the period of limitations set forth in Court of Claims Act § 10 (3-b).
[3]. Claimant’s counsel has indicated that although the respondent filed a notice of appeal from Judge Boller's decision, the appeal is no longer being pursued.
[4]. Conversely, as a matter of public policy, an undisturbed criminal conviction stands as a conclusive bar to the assertion of innocence in a legal malpractice claim (Carmel v Lunney, 70 NY2d at 173).
[5]. The claim does not allege that the improperly imposed period of postrelease supervision was a continuing tort nor has any argument in this regard been made. Rather, the claim alleges two separate and distinct periods of wrongful confinement and the Court has therefore treated them accordingly.
[6].The quoted language from Penal Law § 70.45 was deleted by Chapter 141, Laws of 2008 and replaced by the following: "When a court imposes a determinate sentence it shall in each case state not only the term of imprisonment, but also an additional period of post-release supervision as determined pursuant to this article."
[7].Unreported decisions from the Court of Claims are available via the internet at www.nyscourtofclaims.state.ny.us.