New York State Court of Claims

New York State Court of Claims

NAZARUK v. THE STATE OF NEW YORK, #2009-015-170, Claim No. None, Motion No. M-76276


Motion to file late claim arising out of administratively imposed period of postrelease supervision was 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:
Muscato Bogulski Shatkin, LLPBy: Marc Shatkin, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 2, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's application for an order permitting the service and filing of a late claim pursuant to Court of Claims Act §10 (6) is denied. The proposed claim states the following:
"3. This claim is against the STATE OF NEW YORK and its DEPARTMENT OF CORRECTIONS and DIVISION OF PAROLE for damages sustained by reason of the wrongful confinement of Claimant through the improper imposition of a period of Post Release Supervision (PRS) wherein claimant was caused to abide by unlawful conditions and supervision and forced to have his State and Federal constitutional liberties limited, eliminated and or restricted, a de facto confinement.

4. On or about March 14, 2000 claimant was sentenced . . . to a determinate prison term with no period of post-release supervision imposed. Claimant's maximum expiration date was April 30, 2006.

5. Defendant New York State maliciously, recklessly, negligently and/or intentionally administratively, with absolutely no authority, sua sponte, imposed a five year period of post release supervision that was implemented and commenced at his maximum expiration date" (see Exhibit A annexed to movant's attorney's Responding Affirmation dated March 11, 2009).

Movant's counsel states that although the movant was "not 'confined' per se [he] was mandated to an unlawful period of post release supervision which was vacated due to its unlawfulness" (see movant's attorney's Responding Affirmation dated March 11, 2009, ¶ 7). In an order dated September 11, 2008 Hon. Sheila A. DiTullio, Erie County Court Judge, required that the Department of Correctional Services calculate the movant's term of imprisonment without postrelease supervision and "if the defendant is not subject to any other term of imprisonment, hold or detainer, then he shall be released and any period of post-release supervision previously imposed by DOCS is hereby rescinded" (see movant's Exhibit B annexed to movant's attorney's Affirmation dated February 11, 2009). The movant was discharged from parole supervision as of April 30, 2006 pursuant to a Final Discharge issued by the New York State Division of Parole (see Exhibit B annexed to movant's attorney's Responding Affirmation dated March 11, 2009).
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 timely.

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]).

Movant's excuse for failing to serve and file a timely claim is that the first lawyer he consulted advised him that he "did not have a case" (movant's affidavit, ¶ 2). His current attorney avers that his firm was not contacted until on or about January 30, 2009 and the instant motion was filed on February 19, 2009. Movant failed to establish when he first sought legal counsel or otherwise explain why legal representation could not have been obtained within the 90-day period provided for service of a notice of intention or service and filing of a claim pursuant to Court of Claims Act § 10 (3-b). Movant's failure to establish a reasonable excuse for his failure to timely serve and file a claim weighs against granting the motion.

The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. Movant asserts that the State had notice of the essential facts constituting the claim since the State created the situation through its affirmative acts (movant's counsel's Affirmation dated February 11, 2009, ¶ 5). The State does not argue lack of notice, lack of opportunity to investigate, or that it will be substantially prejudiced by a delay in filing a claim. These factors, therefore, weigh in movant's favor.

With respect to the required showing of merit, the claim is sufficiently established if the movant 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]).

As noted by the Court of Appeals in Broughton v State of New York (37 NY2d 451 [1975]), an action for false imprisonment "is derived from the ancient common-law action of trespass and protects the personal interest of freedom from restraint of movement. Whenever a person unlawfully obstructs or deprives another of his freedom to choose his own location, that person will be liable for that interference" (Broughton v State of New York, 37 NY2d at 456, citing Restatement, 2d, Torts , § 35). To establish a cause of action for wrongful confinement, a “species” of the tort of false imprisonment, (Gittens v State of New York, 132 Misc 2d 399, 407 [Ct Cl 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 at 456; Schanbarger v Kellogg, 423 US 929 [1975]).

Here, there is no allegation that the movant was imprisoned for a parole violation and the proposed claim fails to set forth in what manner the alleged improperly imposed period of PRS restrained his freedom of movement (cf. Bower v Weisman, 639 F Supp 532 [SD NY 1986]). Movant's complete failure to set forth any facts which would support the allegation that he was deprived of his ability to choose his own location renders his proposed cause of action for wrongful confinement meritless.

Nevertheless, assuming arguendo that the conditions of postrelease supervision restrained the movant's freedom of movement, the proposed claim lacks merit since, as recently concluded by this Court in Nazario v State of New York ( ___Misc 3d ___, 2009 WL 824392 [2009]) and Vazquez v State of New York, (23 Misc 3d 1101[A] [2009]), the State is immune from liability for the administrative imposition of postrelease supervision by DOCS. Moreover, since the term of postrelease supervision was statutorily mandated under Penal Law § 70.45 (1), the Court holds, as it did in both Nazario and Vazquez , that the conduct complained of was not tortious or the cause-in-fact of the movant's injury.

Movant's proposed claim is premised upon the Court of Appeals decision in Matter of Garner v New York State Dept. of Correctional Servs., (10 NY3d 358 [2008]), which held that notwithstanding the statutory mandate of Penal Law § 70.45 (1), 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). Decided the same day as Matter of Garner, People v Sparber (10 NY3d 457 [2008]) 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 . . .” (10 NY3d 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]).

Nevertheless, for one reason or another, the statutorily mandated period of PRS has not been included in the resentencing of many defendants, such as the movant in the instant matter, whose initial term of postrelease supervision was improperly imposed by DOCS rather than the sentencing court (see e.g. 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, 22 Misc 3d 776 [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]).[1] Notwithstanding this fact, however, the State is immune from liability for its alleged malfeasance in this case.

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 taken is 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]).
In the instant matter, the administratively imposed term of PRS occurred prior to the Court of Appeals' decisions in Garner and Sparber and pursuant to what had been a longstanding practice by DOCS of implementing the statutorily mandated terms of postrelease supervision. 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 at 769; 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). It was not until Matter of Dreher v Goord (46 AD3d 1261 [2007]) was decided 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]), both of which had determined that PRS was automatically included as part of a determinate sentence. In Matter of Deal, the Court had held " 'a period of post-release supervision [was] automatically included' in [petitioner's] sentence by statute" and that DOCS, in subjecting the petitioner in that case to PRS, 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 a term of PRS upon the petitioner, who had not been advised by the Court at sentencing that he would be subject to PRS, 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 movant, both the plain language of the statute and the then prevailing decisional law addressed PRS 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 PRS 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.

In Tango v Tulevech (supra), in which a probation officer's refusal to relinquish custody of two children to the plaintiff was later determined to be erroneous, the Court of Appeals found that 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 interpretation of the statute as mandating postrelease supervision for those individuals meeting the statutory criteria, and the subsequent determination to administratively apply a period of postrelease supervision to all such individuals, though incorrect in hindsight, was a discretionary quasi-judicial function for which DOCS is entitled to absolute immunity[2].

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 indication 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 movant 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 postrelease 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.

Additionally, even if the conduct of DOCS was exclusively ministerial, no liability may be imposed because the conduct was not tortious (Tango v Tulevech, 61 NY2d at 40; see also Lauer v City of New York, supra). Had the sentencing Court informed the movant of the period of postrelease supervision there would be no cause of action as the period of PRS prescribed in Penal Law § 70.45 was mandatory for individuals subject to a determinate sentence. The movant does not allege or contend that the sentence imposed was not one subject to PRS pursuant to the Penal Law. Here, all that is alleged is that the movant was made subject to PRS, 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 movant'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 movant of the statutorily mandated term of postrelease supervision. Had this error not occurred, the movant would have been properly subjected to PRS (cf. Vasquez v State of New York, 10 AD3d 825 [2004]; Rivera v State of New York, UID #2006-028-008, Claim No. 102781 [Ct Cl, Feb. 8, 2006], Sise, P.J.). As a result, the alleged malfeasance of DOCS was not the cause-in-fact of the movant's alleged injuries as a matter of law.

Moreover, to the extent the proposed claim alleges a negligence cause of action, it lacks merit for the additional reason that a claim for negligence may not supplant the traditional tort remedies of false arrest and imprisonment (Simon v State of New York, 12 AD3d 171 [2004]; Russ v State Empls. Fed. Credit Union [SEFCU], 298 AD2d 791, 793 [2002]; Boose v City of Rochester, 71 AD2d 59 [1979]). This fact aside, the administrative imposition of PRS by DOCS was based upon a reasonable interpretation of the law in existence at the time. Only with the benefit of extraordinary hindsight could the conduct of DOCS be considered negligent. As hindsight reasoning is an inappropriate basis for a determination of negligence, any such cause of action lacks merit (Caprara v Chrysler Corp., 52 NY2d 114, 122 [1981]; Brown v Bauman, 42 AD3d 390, 392 [2007]).

In summary, 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 neither negligent nor the cause-in-fact of the movant's injuries. Accordingly, the Court concludes that the movant has failed to establish the potential merit of his claim.

As to the final factor to be considered, movant had available an alternative remedy in the form of a proceeding pursuant to CPLR article 70 or 78.

Upon consideration of the totality of factors enumerated in Court of Claims Act § 10 (6), the Court finds that three of the six statutory factors, including the all-important issue of merit, weigh against granting the instant motion.

Accordingly, movant's motion is denied.

June 2, 2009
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated February 11, 2009;
  2. Affirmation of Marc Shatkin dated February 11, 2009 with exhibits;
  3. Affidavit of Joseph Nazaruk sworn to February 2, 2009;
  4. Affirmation of Michael T. Krenrich dated February 23, 2009;
  5. Responding affirmation of Marc Shatkin dated March 11, 2009 with exhibits

[1]. Even when a defendant is resentenced so as to impose the statutorily mandated term of PRS, the Appellate Division, Third Department, has recently made clear that "[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" (Matter of State of New York v Randy M., 57 AD3d 1157, 1159 [2008]).
[2].To the extent the claim is premised on the conduct of the Division of Parole in imposing PRS, the result is the same.