New York State Court of Claims

New York State Court of Claims

NICHOLSON v. THE STATE OF NEW YORK, #2009-032-137, Claim No. 116347, Motion Nos. M-76423, CM-76457


Synopsis



Case Information

UID:
2009-032-137
Claimant(s):
KEITH NICHOLSON
1 1.The Court sua sponte amends the caption to reflect the only properly named defendant.
Claimant short name:
NICHOLSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court sua sponte amends the caption to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116347
Motion number(s):
M-76423
Cross-motion number(s):
CM-76457
Judge:
JUDITH A. HARD
Claimant’s attorney:
Law Offices of Scott G. Cerbin, PLLCBy: Scott G. Cerbin, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Michael T. Krenrich, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
August 31, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The underlying claim is based upon allegations of unlawful confinement arising from an administratively imposed term of post-release supervision (PRS). Claimant moves this Court for partial summary judgment on the issue of liability. Defendant opposes Claimant’s motion and cross-moves for summary judgment in its favor. For the reasons set forth herein, the Court denies both motions.
FACTS
Claimant alleges that he was sentenced to five years in prison on June 15, 2000 and August 17, 2000, for two crimes and the sentences were to run concurrently. He further alleges that he was released on April 21, 2004, and that upon his release, the Department of Correctional Services unlawfully added a five year term of post-release supervision to Claimant’s sentence. Claimant was allegedly resentenced on both indictments on September 23, 2008 and December 5, 2008, without a term of PRS, and was discharged from the Division of Parole on January 14, 2009.

Claimant argues that there are no material facts in dispute. He further maintains that because he was sentenced to and served an unlawful term of PRS, he is entitled to summary judgment against the defendant as to liability. Defendant argues that there can be no cause of action for unlawful imprisonment because although the administrative imposition of PRS was improper, PRS was a mandatory component of the determinate sentence issued to Claimant, making Claimant’s confinement privileged. [2]
LAW
Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The Court’s function in a motion for summary judgment is not to resolve issues of fact, but to determine whether issues of fact exist (Barr v County of Albany, 50 NY2d 247 [1980]). The proponent of a motion for summary judgment must make a prima facie entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Once this showing has been made, the burden shifts to the opponent of the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., supra; Winegrad v New York University Med. Center, 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The evidence must be viewed in the light most favorable to the opponent of the motion, and that party should be given every favorable inference (see McKinnon v Bell Sec., 268 AD2d 220 [1st Dept 2000]).

The original version of Penal Law § 70.45, which was in effect at the time Claimant was sentenced, provided that each determinate sentence also include as a part of that sentence, an additional period of post-release supervision. Initially, there was significant confusion and inconsistency regarding how, when and by whom the PRS was to be imposed, and for several years, it was added administratively after sentencing. However, after hearing a series of cases regarding the lawfulness of said administrative imposition of PRS, the Court of Appeals found that only a sentencing judge could impose the mandatory PRS upon a Defendant and that DOCS’ imposition of the same was unlawful (see Matter of Garner v New York State Department of Correctional Services, 10 NY3d 358 [2008]; People v Sparber, 10 NY3d 457 [2008]).

As this Court indicated in Mickens v State of New York (Ct Cl, Claim No. 114719, Motion No. M-75311 and CM-75564, May 18, 2009, Hard, J. [UID #2009-032-114]), and in contrast to defendant’s argument, the Court cannot view DOCS’ actions, in imposing PRS, as being privileged or immune from liability, because DOCS did not have legal jurisdiction or lawful authority to impose any component of sentences on convicted criminals. There were existing statutes that authorized and required the Courts, and only the Courts, to carry out that function and to do so in the presence of Defendant (CPL §§ 380.20, 380.40; see Matter of Garner v New York State Department of Correctional Services, 10 NY3d 358 [2008], supra; People v Sparber, 10 NY3d 457 [2008], supra).

Notwithstanding the foregoing, liability does not automatically attach to Defendant simply because DOCS’ imposition of PRS was unlawful. For liability to attach, there must also be an allegation and ultimately proof that DOCS’ actions caused injury to Claimant, caused confinement that was not otherwise privileged, before the elements of false imprisonment can be established (see Mickens v State of New York, Ct Cl, Claim No. 114719, Motion No. M-75311 and CM-75564, May 18, 2009, Hard, J. [UID #2009-032-114], supra). To establish whether such injury existed, the Court must look to see what would have happened if DOCS had not acted improperly or beyond its authority.

In the present case, the Court is unable to determine what would have happened if DOCS had not acted improperly or beyond its authority. The moving papers do not indicate the basis of Claimant’s convictions. Accordingly, the Court cannot determine what, if any, term of PRS would have been required by Penal Law § 70.45 and whether the term of PRS actually imposed by DOCS and served by Claimant exceeded that amount. Without such information, this Court cannot determine whether DOCS’ actions caused injury to Claimant, an essential element in establishing false imprisonment.

Based upon the lack of information before the Court, the Court finds that neither party has set forth a prima facie entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.

Accordingly, Claimant’s motion for summary judgment (M-76423) and Defendant’s cross-motion for summary judgment (CM-76457) are denied.

August 31, 2009
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


Papers Considered:


1. Notice of Claimant’s Motion for Summary Judgment, dated March 17, 2009, and Affirmation of Scott G. Cerbin, Esq., dated March 17, 2009 with Exhibits;

2. Notice of Cross-Motion, dated March 27, 2009, and Affirmation in Opposition and in Support of Michael T. Krenrich, AAG, dated March 27, 2009, with Exhibits;

3. Affirmation of Scott G. Cerbin, Esq., in Opposition to Defendant’s Cross Motion, dated

April 29, 2009.

4. Reply Affirmation of Michael T. Krenrich, AAG, in support of Defendant’s Cross-Motion for Summary Judgment, dated May 5, 2009.

Filed Papers: Claim, filed January 27, 2009; Verified Answer, filed March 6, 2009.


[2]. Defendant also argues that Penal Law § 70.45 does not create a private right of action on behalf of individuals who would be subject to the mandatory PRS. However, as this Court set forth in Mickens v State of New York (Ct Cl, Claim No. 114719, Motion No. M-75311 and CM-75564, May 18, 2009, Hard, J. [UID #2009-032-114]), the presence or absence of a statutory private right of action has no bearing on whether a litigant continues to have a traditional, common law cause of action (such as an action for false imprisonment) arising from the same factual situation, unless the statute specifically abrogates the common law remedy (see generally Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 331 [1983]; Llanos v Shell Oil Co., 55 AD3d 796, 798-799 [2d Dept 2008]).