New York State Court of Claims

New York State Court of Claims

DOZIER v. STATE OF NEW YORK, #2009-038-532, Claim No. 115587, Motion No. M-75700


Defendant’s motion for summary judgment in claim for wrongful confinement due to DOCS’s unauthorized imposition of post-release supervision denied for failure of proof on defense of privilege.

Case Information

1 1.The caption has been amended sua sponte to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael T. Krenrich, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 30, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


The instant claim seeks damages for injuries allegedly sustained as a result of defendant’s unauthorized addition of a period of post-release supervision (PRS) to claimant’s sentence of incarceration. Defendant moves pursuant to CPLR 3212 for summary judgment dismissing the claim. Claimant opposes the motion.[2] The facts relating to claimant’s sentencing, the imposition of a period of PRS, and his re-incarceration upon a violation of that PRS are concededly undisputed (see Krenrich Affirmation, ¶ 3). On May 22, 2000, claimant was sentenced to a determinate term of six years of incarceration, and was released from incarceration on August 10, 2004 (see Verified Claim, ¶ 2). Upon claimant’s release, an unstated period of PRS was imposed on claimant by the Department of Correctional Services (DOCS) (id.). Claimant subsequently violated the conditions of his PRS, and was re-incarcerated from November 20, 2007 through June 3, 2008 (id.). The verified claim seeks compensatory damages for injuries sustained during the alleged “[e]xcessive detention [and] false imprisonment” (id., ¶ 5).

This claim is one of many that has arisen from DOCS’ administrative imposition of PRS that is authorized by the provisions of “Jenna’s Law” (L 1998, ch 1).[3] Jenna’s Law, among other things, mandates that all violent felony offenders be subject to a period of PRS after completion of a determinate sentence of incarceration in the custody of DOCS. In many cases, including this one, sentencing courts did not expressly impose a period of PRS when sentencing individuals upon convictions that were subject to periods of PRS. After years of litigation in untold numbers of cases arising from the omissions of sentencing courts to pronounce PRS as part of sentences, the Court of Appeals last year held that, as a matter of State statutory law, DOCS lacked the authority to impose a period of PRS because such authority is reposed exclusively in the sentencing judge (see Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358, 362 [2008]; see also People v Sparber, 10 NY3d 457, 469-470 [2008] [holding that sentencing court must pronounce PRS as part of the sentence]).

The claim is characterized by the parties as asserting a cause of action for false or illegal imprisonment (see Krenrich Affirmation, Point I; Cerbin Affirmation, ¶ 4). Defendant moves to dismiss the claim on the ground that claimant’s confinement was privileged. Defendant argues that it is entitled to judgment as a matter of law because claimant cannot satisfy all of the elements of a cause of action for unlawful confinement, which are that: “(1) the defendant intended to confine [claimant], (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]; see Gittens v State of New York, 132 Misc 2d 399, 402 and 407 [wrongful confinement is a “species” of false imprisonment]).[4] Specifically, defendant contends that DOCS’ action in discharging claimant to a five-year period of PRS was privileged because DOCS’ conduct in doing so “was under color of law” (Gittens v State of New York, supra at 402), and therefore, claimant cannot prevail on the fourth element of his cause of action. The gravamen of defendant’s argument is that because claimant was required by Jenna’s Law to be subject to a period of PRS, DOCS was merely following the law by imposing a period of PRS when the sentencing court had not done so, and its imposition of a period of PRS was therefore privileged. Defendant’s motion cannot be granted, for the reasons that follow.

First and foremost, defendant has noticed and argued its motion as one for summary judgment pursuant to CPLR 3212, yet the motion is unsupported by an affidavit by a person having knowledge of the facts, as required by CPLR 3212(b). Manifestly, counsel’s affirmation – to the extent that it asserts facts relevant to the legal theory posited in the motion – is insufficient to support the motion (see Salas v Town of Lake Luzerne, 265 AD2d 770, 770-771 [3d Dept 1999]). To the extent that a verified pleading may be used as an affidavit setting forth the proof in support of a motion (see CPLR 105 [u]), the verified answer in this claim is insufficient because while privilege and immunity are asserted as defenses (see Verified Answer, ¶ Fifth), the verified answer contains no facts in support thereof. Moreover, even if the verified answer provided sufficient facts in support of the motion, counsel has not submitted the affidavit of a person with personal knowledge of the relevant facts “to attest that ... the attacked claim ... has no merit, a pro forma recitation exacted of all summary judgment movants under CPLR 3212(b)” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:15, at 26).

Secondly, even if the failure to submit supporting proof in admissible form may be overlooked, the Court is of the view that defendant has misapprehended the question of privilege in this motion. In arguing the motion, counsel has blended the related, but distinct, theories of immunity and privilege (see Krenrich Affirmation, ¶ 10). Immunity – whether absolute or qualified – insulates the defendant from liability, and derives from the nature of the governmental actor’s responsibility and the public policies to be protected by affording an actor immunity (see Arteaga v State of New York, 72 NY2d 212, 216 [1988]; Tarter v State of New York, 68 NY2d 511, 518-519 [1986]). In contrast, “privilege” is a defense in the nature of justification, i.e., that the actor’s decision, though later proven to be wrong, was nevertheless reasonable and justified when made (see Restatement [Second] of Torts: Immunities § 895D, Comment e). In the instant motion, defendant’s invocation of the defense of privilege – as opposed to claiming immunity – requires defendant to demonstrate that DOCS was acting in an objectively reasonable manner when it administratively imposed a period of PRS or determined that a period of PRS was automatically included in a determinate sentence (see Arteaga v State of New York, supra at 226 [Simons, J., dissenting] [the “defense of privilege shield[s] the officer from liability for objectively reasonable but mistaken exercises of judgment”]; cf. Pierson v Ray, 386 US 547, 555 [1967] [officers should not be held liable for “acting under a statute that [was] reasonably believed to be valid but that was later held unconstitutional”]).

In asserting the defense of privilege and arguing that defendant was acting under color of law, defendant mischaracterizes the issue to be resolved. The issue is not whether DOCS was acting lawfully because Jenna’s Law mandated that claimant serve a period of PRS, as the Court of Appeals has already decided that DOCS did not have the authority to administratively impose a period of PRS (see Matter of Garner, supra). Rather, the existence of privilege turns on whether DOCS was acting in an objectively reasonable manner when it determined that it could lawfully add the PRS term that was required by statute, or that the PRS term was automatically included in claimant’s sentence. In support of its motion, defendant cites no express statutory or regulatory authority allowing DOCS to impose PRS (compare Gittens, supra, at 402 [DOCS’ determination “was privileged to the extent that it was under color of law or regulation, specifically in accordance with regulations [7 NYCRR 251-1.6 (a)]” [emphasis supplied]), nor does it expressly claim any inherent power to step in and fill the gap that was created between the PRS mandate of Jenna’s Law and the sentencing court’s omission to pronounce the period of PRS and include it in claimant’s sentence and commitment document. Thus, to establish that it was acting under color of law, this Court is of the view that defendant must demonstrate that DOCS was acting in an objectively reasonable manner when it concluded that it could administratively add the period of PRS to claimant’s sentence or that the PRS term was automatically included therein. On this motion for summary judgment as a matter of law, defendant has not made such a demonstration, and thus, the motion to dismiss the claim on the ground of privilege cannot be granted.

Defendant’s contention that the claim must be dismissed because claimant has no private right of action under Penal Law § 70.45 (see Krenrich Affirmation, Point II) is based upon a misapprehension of the legal foundation of the claim. Defendant correctly recognizes that the claim seeks damages for the tort of unlawful confinement which arose from defendant’s violations of statutory law that require the courts to impose sentence and do not authorize DOCS to do so (see Krenrich Affirmation, Point I). Simply stated, the claim is not capable of being construed as asserting a private right of action under Jenna’s Law. Further, the Court is unpersuaded by defendant’s contention that resentencing is claimant’s exclusive remedy for the unauthorized imposition of PRS by DOCS (see Krenrich Affirmation, ¶¶ 16-18). While resentencing may be the sole procedural remedy available to correct the sentencing court’s omission, nothing in People v Sparber (supra) or Penal Law § 70.45 expressly suggests that a tort claim for damages in the nature of unlawful confinement is unavailable to claimant.

Accordingly, it is

ORDERED, that defendant’s Motion No. M-75700 is DENIED, without prejudice.

March 30, 2009
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Verified Claim, filed July 28, 2008;

(2) Verified Answer, filed September 10, 2008;

(3) Notice of Motion, dated October 20, 2008;

(4) Affirmation of Michael T. Krenrich, AAG, dated October 20, 2008, with Exhibits A-C;

(5) Affirmation in Opposition of Scott G. Cerbin, Esq., dated October 23, 2008.

[2]. Claimant has filed a motion for partial summary judgment on the issue of liability, returnable May 6, 2009 (M-76425). Because defendant’s pending motion must be denied for a failure of proof, as discussed infra, the Court declines to adjourn defendant’s motion and treat claimant’s motion as a cross motion.
[3]. The instant claim is one of more than twenty claims seeking compensation for unlawful PRS that have been assigned to date to the undersigned alone. The arguments presented by defendant in the instant motion are identical to numerous motions by defendant pursuant to CPLR 3212 that are pending before the undersigned in other PRS claims.
[4]. To the extent defendant argues that claimant must demonstrate that his confinement was not privileged (see Krenrich Affirmation, ¶ 7), defendant misapprehends the burden of proof on that issue. As the party charged with the tort of wrongful confinement, defendant bears the burden of setting forth the defense that the confinement was privileged (see Hollender v Trump Vil. Coop., 58 NY2d 420, 425 [1983]; Gonzalez v State of New York, 110 AD2d 810, 812 [1985], appeal dismissed 67 NY2d 647 [1986]; Fernandez v State of New York, 2002 NY Slip Op 50510[U], *9 [Ct Cl 2002]).