Claim alleging causes of action for false imprisonment, intentional infliction of emotional distress and constitutional violations was dismissed. Confinement for violations of an improperly imposed term of PRS was privileged and not the cause of the alleged injuries. Conduct did not rise to level necessary to support claim for intentional infliction and constitutional causes of action were meritless.
|Claimant short name:||RODRIGUEZ|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Elovich & Adell
By: Mitchel Sommer, 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:||January 4, 2010|
|See also (multicaptioned case)|
Defendant moves for summary judgment dismissing the claim pursuant CPLR 3212. For the reasons which follow, the motion is granted and the claim is dismissed.
Claimant alleges in an amended claim that he was unlawfully imprisoned from February 20, 2007 through November 30, 2007 for violating the conditions of a period of postrelease supervision ("PRS") improperly imposed by the New York State Division of Parole.(1) In addition to a claim for false imprisonment, he alleges claims for intentional infliction of emotional distress and for violations of New York State and Federal Constitutions.
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 ), cert denied sub nom., Schanbarger v Kellogg, 423 US 929 ). Here, claimant 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 ) and People v Sparber (10 NY3d 457 ) that only the sentencing judge may pronounce the PRS component of a sentence, thereby invalidating the administrative imposition of statutorily required periods of PRS. Prior to the decisions in Garner and Sparber, the claimant in this case succeeded in securing his release from prison by order of the Honorable Jeffrey S. Brown, J.C.C., A.J. S.C., dated November 20, 2007. Quoting from the decision in Earley v Murray (451 F3d 71, 75 [2d Cir. 2006]) the Court held that " '[t]he only cognizable sentence is the one imposed by the Judge. Any alteration to that sentence, unless made by a Judge in a subsequent proceeding, is of no effect' " (claimant's Exhibit 2). Following the decisions in Earley, Garner, and Sparber, numerous claims for false imprisonment arising from periods of confinement for violations of an administratively imposed 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 ; Mickens v State of New York, 25 Misc 3d 191 ; Donald v State of New York, 24 Misc 3d 329 ). In Collins v State of New York (___AD3d ___, 2009 NY Slip Op. 07295 ) the Appellate Division, Fourth Department, recently addressed the merit of such a claim in the context of an appeal from the denial of an application for late claim relief. There, the Court noted that the Department of Correctional Services ("DOCS") and the Division of Parole are not always precluded from "clarifying" sentences without direction from a sentencing court and cited as a recent example People ex rel. Gill v Greene (12 NY3d 1). 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. The Court in Collins held that claimant's confinement for violating an administratively imposed term of PRS was privileged (citing, inter alia, Davis v City of Syracuse, 66 NY2d 840  and Holmberg v County of Albany, 291 AD2d 610, 612, lv denied 98 NY2d 604 ) stating "[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 the Division of Parole exceeded its jurisdiction in imposing a term of PRS, it was not acting wholly without jurisdiction. Accordingly, claimant failed to establish that his confinement for violating the conditions of his administratively imposed term of PRS was not privileged.
Moreover, inasmuch as the PRS term imposed by the Division of Parole was statutorily mandated (see Penal Law 70.45 (former ), the movant will be unable to establish that he suffered injury as the result of the Division's 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 p. ____, citing Mickens v State of New York, 25 Misc 3d 191 ).
Claimant's cause of action for false imprisonment must be dismissed for the reasons set forth above.
Claimant's cause of action for intentional infliction of emotional distress is similarly deficient. As stated by the Court of Appeals in Howell v New York Post Co. (81 NY2d 115, 121 ) "[t]he tort has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress" (id. at 121; see also Kunz v New Netherlands Routes, Inc., 64 AD3d 956, 958 ). Here, the alleged conduct of the Division of Parole under the circumstances of this case did not rise to the level of extreme and outrageous conduct, the requisite intent to cause severe emotional distress was absent and no causal connection between the conduct and injury can be established given the clear statutory mandate requiring the imposition of a five-year term of PRS.
As for the alleged cause of action premised upon violations of 42 USC § 1983, it is well settled that the State of New York is not a "person" amenable to suit under the statute (Brown v State of New York, 89 NY2d 172 ; Welch v State of New York, 286 AD2d 496 ). To the extent the claim alleges violations of the New York State Constitution, the presence of an alternative remedy, i.e., the successful challenge to the PRS term in the County Court, precludes such a claim (Brown v State of New York, 89 NY2d at 189; Martinez v City of Schenectady, 97 NY2d 78, 83 ).
Accordingly, the defendant's motion for summary judgment dismissing the claim is granted, and the claim is dismissed.
January 4, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. Claimant also alleges in the amended claim that he was unlawfully imprisoned from April 19, 2005 through March 1, 2006, however, his motion for late claim relief with respect to this period of confinement was denied by Decision and Order of this Court filed August 19, 2008.