New York State Court of Claims

New York State Court of Claims
FERRETTI v. THE STATE OF NEW YORK, # 2009-015-228, Claim No. None, Motion No. M-77103


Late claim relief for proposed wrongful confinement claim stemming from an improperly imposed term of PRS was denied.

Case information

UID: 2009-015-228
Claimant short name: FERRETTI
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): None
Motion number(s): M-77103
Cross-motion number(s):
Claimant's attorney: Law Office of Tom Terrizzi
By: Tom Terrizzi, Esquire
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 21, 2009
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Movant, Phillip Ferretti, seeks late claim relief pursuant to Court of Claims Act 10 (6). The proposed claim alleges that the movant was unlawfully imprisoned from February 19, 2004 through August 19, 2005 and from January 17, 2008 through August 22, 2008 for violating conditions of postrelease supervision ("PRS") improperly imposed by the Department of Correctional Services ("DOCS"). Movant also alleges that although he was resentenced on August 15, 2008 pursuant to Correction Law 601-d and Penal Law 70.85, he was not released from custody until August 22, 2008.

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]) and it is well-settled that such a cause of action 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 [1997]). 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.(1)

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]).

The excuse advanced by movant for his failure to timely serve and file a claim is that he was unaware of the legal requirements for pursuing a claim against the State of New York. In addition, movant states that after his release from prison he left the State to be with his parents in Virginia. While in Virginia he sent documents relating to his alleged wrongful confinement to several attorneys, none of whom provided a response. Thereafter, upon his return to New York, he was immediately incarcerated because he was one day late in reporting his address change. He states that while he was in jail he contacted several agencies in an effort to secure legal assistance. Prisoners' Legal Services eventually referred him to his current attorney.

Ignorance of the law is not a reasonable excuse for failing to timely file and serve a claim (see Matter of Robinson v State of New York, 35 AD3d 948 [2006]). As to movant's alleged attempts to secure legal representation, the motion papers fail to provide any specific information regarding which attorneys were contacted and when. Instead, the movant has provided only his own general statements to support his claim that he was unable to retain legal counsel despite repeated attempts. Movant's failure to establish the reasonableness of his delay weighs against granting the instant motion.

The State concedes it had notice of the essential facts contained in the proposed claim and an opportunity to investigate. As the State will suffer no prejudice in the event late claim relief is granted, these factors weigh in favor of the movant.

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]).

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]). Here, movant is unable to establish the fourth element of his claim - that the confinement was not privileged.

The Court of Appeals held in both Matter of Garner v New York State Dept. of Correctional Servs. (10 NY3d 358 [2008]) and People v Sparber (10 NY3d 457 [2008]) that only a sentencing judge may impose the PRS component of a sentence, thereby invalidating DOCS' practice of administratively imposing statutorily required periods of PRS. Following the decisions in Garner and Sparber, Correction Law 601-d and Penal Law 70.85 were enacted to set forth a procedure for identifying and correcting the sentences of those individuals for whom the order of commitment did not indicate a period of PRS and provide a mechanism by which those individuals may be returned to court for resentencing. Movant, like many others, was resentenced pursuant to Correction Law 601-d and Penal Law 70.85 without any term of PRS. However, even where the defendant is resentenced so as to impose the statutorily mandated term of PRS it has been held that "[t]he court's later resentencing . . . [does] 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]). In the wake of these decisions, numerous claims for false imprisonment arising from periods of confinement imposed for violations of an administrative term of PRS have been commenced in this Court with varying results (see e.g. Nazario v State of New York, 24 Misc 3d 443 [2009]; Mickens v State of New York, 25 Misc 3d 191 [2009]; Donald v State of New York, 24 Misc 3d 329 [2009]). In Collins v State of New York (___AD3d ___, 2009 NY Slip Op. 07295 [2009]) the Appellate Division, Fourth Department, recently addressed the merit of such a claim in an appeal from the denial of an application for late claim relief. There, the Court held that the confinement was privileged because the Division of Parole was acting in excess of its jurisdiction, not in the complete absence of jurisdiction, citing, inter alia, Matter of Garner, (supra). The Court noted that DOCS and the Division of Parole are not always precluded from "clarifying" sentences and cited as a recent example People ex rel. Gill v Greene (12 NY3d 1[2009]). In Gill, the Court of Appeals held that it was proper for DOCS to calculate sentences to run consecutively, as required by statute, where the sentencing court failed to specify whether the sentence was to run concurrently or consecutively with the undischarged sentence. Thus, the Collins Court held that the Division of Parole, like DOCS, was not "wholly without jurisdiction or without 'some competence over the cause' " (Collins v State of New York, ___AD3d at ___, quoting Nuernberger v State of New York, 41 NY2d 111, 113 [1976]). Inasmuch as the legal process by which the claimant was confined was valid on its face, the Court in Collins held that claimant's confinement for a violation of an administratively imposed term of PRS was privileged (citing, inter alia, Davis v City of Syracuse, 66 NY2d 840 [1985] and Holmberg v County of Albany, 291 AD2d 610, 612, lv denied 98 NY2d 604 [2002]). "[The Division] simply acted in excess of the jurisdiction it did have, and we thus conclude that its actions were privileged and that claimants are unable to establish a claim for unlawful imprisonment" (Collins v State of New York, ___AD3d at ___).

The facts here similarly lead to the conclusion that while DOCS exceeded its jurisdiction in imposing a term of PRS, it was not acting wholly without jurisdiction. Accordingly, movant is unable to establish that his confinement for violating the conditions of his administratively imposed term of PRS was not privileged.

Lastly, to the extent the PRS term imposed by DOCS was statutorily mandated (see generally Penal Law 70.45), the movant will be unable to establish that he suffered injury as the result of DOCS' conduct. As stated by the Court in Collins:

"At the time claimant was sentenced as a second felony offender based on his conviction of a class E violent felony, a five-year period of PRS was mandated (see Penal Law 70.45 [former (2)] ). Thus, if the sentencing court had been alerted to the fact that it failed to impose a period of PRS, the court would have imposed the same five-year period of PRS at the resentencing hearing that the Division itself imposed. While the procedure by which the period of PRS was imposed was improper, the actual imposition thereof was not. We therefore conclude that claimants cannot establish that they were injured by the Division's imposition of a period of PRS" (Collins v State of New York, AD3d at ____, citing Mickens v State of New York, 25 Misc 3d 191 [2009]).

Accordingly, the proposed claim premised upon movant's confinement for violations of a term of administratively imposed PRS lacks merit.

To the extent movant alleges that his seven-day confinement following resentencing was unlawful, the Court disagrees. Where a person is illegally detained and succeeds in securing his release in a proceeding pursuant to CPLR article 70, 7010 (a) requires that the "final judgment shall be directed discharging him forthwith." Although the Court of Appeals has interpreted the term "forthwith" to mean "without delay, at once, promptly ", it also concluded that an order requiring state-ready inmates to be transferred to state custody within ten days comports with statutory requirement that commitment to state custody occur "forthwith" (see Matter of Ayers v Coughlin, 72 NY2d 346, 353 [1988]). Courts in analogous contexts have reached similar conclusions (see State of New York ex rel. Ryniec v Willard Drug Treatment Campus, 11 Misc 3d 1088 [A] [2006]; People ex rel. Davis v Superintendent of Willard Drug Treatment Campus, 11 Misc 3d 1072 [A] [2006]). While movant was resentenced and released from custody in accordance with the provisions of Correction Law 601-d and Penal Law 70.85, not pursuant to a proceeding under CPLR article 70, the Court sees no apparent reason to require a more expeditious release of one resentenced pursuant to those statutes rather than released pursuant to a judgment under CPLR 7010 (a).

Based on the foregoing, the Court finds that the movant has failed to establish the apparent merit of his proposed claim.

As to the final factor to be considered, it has not been suggested that an alternative remedy exists.

As the totality of factors weigh against granting the movant's application for late claim relief, including the all-important finding of potential merit, the motion is denied.

December 21, 2009

Saratoga Springs, New York


Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated August 17, 2009;
  2. Affidavit of Phillip Ferretti sworn to August 11, 2009 with attachment;
  3. Affidavit of Tom Terrizzi dated August 17, 2009;
  4. Affirmation of Michael T. Krenrich dated September 11, 2009.

1. The motion was filed on August 19, 2009, just prior to the expiration of the one year statute of limitations on the claim relating to the second period of confinement (see Thompson v State of New York, 258 App Div 758 [1939]).