New York State Court of Claims

New York State Court of Claims

SUDLER v. THE STATE OF NEW YORK, #2009-038-546, , Motion No. M-76072


Synopsis


Motion to file and serve late claim for miscalculation of claimant’s sentence granted in part and denied in part. First cause of action alleging negligence by State’s employees has the appearance of merit within the meaning of Court of Claims Act § 10(6), but second cause of action alleging negligent hiring, etc. is unsupported by factual allegations supporting the necessary element that the employees were acting outside the scope of their employment.

Case Information

UID:
2009-038-546
Claimant(s):
TERENCE SUDLER
Claimant short name:
SUDLER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-76072
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
JEFFREY A. ROTHMAN, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Gwendolyn Hatcher, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 3, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves pursuant to Court of Claims Act § 10(6) for permission to file and serve a late claim. The proposed claim asserts that claimant was sentenced by Supreme Court to periods of incarceration to run concurrently, resulting in a maximum expiration date in mid-January of 2006, but that defendant erroneously or negligently calculated his sentences to run consecutively, resulting in his incarceration until July 10, 2006. Claimant seeks compensation for the deprivation of his liberty for nearly six months. The proposed claim asserts two causes of action: the first sounds in negligence resulting in the wrongful confinement of claimant; the second sounds in negligent hiring, screening, retention, supervision and training of employees. Defendant opposes the motion. In deciding a motion to file a late claim, the Court must consider the following six factors under Court of Claims Act § 10 (6): “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 presence or absence of any particular factor is not controlling (see Bay Terrace Coop. Section IV, Inc. v New York State Employees Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979, 981 [1982]), and the weight accorded the various factors is a matter within the discretion of the Court.

Claimant proffers that the delay in filing the claim was excusable as he “filed” a timely notice of intention to file a claim, but failed to file a timely claim within two years after the accrual of the claim as required by Court of Claims Act § 10 (3) because his “counsel did not recall that the Court of Claims act [sic] required filing of negligence claims in this court within 2 years of accrual” and counsel “only recently was reminded of the 2 year statute of limitations” and the motion was “brought at the first available opportunity thereafter” (Rothman Affirmation in Support, at ¶ 33). Claimant’s excuse for the late filing and service of the claim effectively amounts to ignorance of the law, which is not an acceptable excuse (see Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]; Matter of Thomas v State of New York, 272 AD2d 650, 651 [3d Dept 2000]). Thus, this factor weighs against granting the motion.

Whether the State had notice of the essential facts underlying the proposed claim, whether it had an opportunity to investigate, and whether commencement of the claim beyond the allowable time period has resulted in substantial prejudice to the State are related factors that may be addressed together (see Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]; Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). The State had notice of the essential facts and it had an opportunity to investigate the circumstances underlying the claim, as claimant timely served a notice of intention to file a claim with the Attorney General (Rothman Affirmation in Support, at ¶¶ 33 and 35 and Exhibit D). Further, it does not appear that the State will suffer substantial prejudice as a result of the late filing, and the Attorney General makes no argument to the contrary. Accordingly, these three factors weigh in claimant’s favor.

Whether a claim has the appearance of merit is perhaps the most significant factor for the Court to consider because Court of Claims Act § 10 (6) reflects a legislative determination that the Court of Claims should permit a potential litigant to have his or her day in court (see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]), yet a potential litigant should not be subjected to the futility of pursuing a meritless claim (see Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In general, a party seeking to establish the merit of a proposed late claim need not demonstrate a likelihood that he or she will prevail on his or her claim. Rather, a proposed claim has an appearance of merit within the meaning of Court of Claims Act § 10 (6) if: (1) the proposed claim is not patently groundless, frivolous or legally defective; and (2) all of the evidence submitted on the motion establishes reasonable cause to believe that a valid cause of action exists (see Matter of Santana v New York State Thruway Auth., supra at 11).

In support of his contention that the first cause of action has the appearance of merit, claimant argues that he was deprived of his liberty due to the ministerial negligence of State employees in miscalculating claimant’s sentence (Rothman Affirmation in Support, at ¶ 37). Several decisions of the Court of Claims have recognized that a “wrongful excessive confinement” cause of action sounding in negligence exists in those instances where an individual has not been timely released from confinement due to the ministerial negligence of State employees (see Gittens v State of New York, 132 Misc 2d 399 [Ct Cl 1986]; Ramirez v State of New York, 171 Misc 2d 677 [Ct Cl 1997]; Bethea v State of New York, UID # 2004-019-542, Motion No. M-68256, Lebous, J. [May 10, 2004]; O’Neal v State of New York, UID # 2007-015-145, Claim No. 112354, Motion Nos. M-72277, M-72300, Collins, J. [Jan. 9, 2007]). The proposed claim pleads facts to support such a cause of action, and the evidence submitted in support of the motion establishes reasonable cause to believe such a “wrongful excessive confinement” cause of action exists. Therefore, the Court finds that the proposed first cause of action has the appearance of merit within the meaning of Court of Claims Act § 10 (6).[1]

Claimant’s proposed second cause of action alleges that through the “negligent hiring, screening, retention, supervision, and training of its employees, and through its failure to have in place an appropriate and responsible procedure for checking and obeying the terms of concurrent sentences, the State of New York proximately caused the illegal and wrongful, excessive detention of Claimant” (Rothman Affirmation in Support, Exhibit E, at ¶ 40). The proposed second cause of action also alleges that the State is “liable for the negligent or grossly negligent acts of its employees and agents through the doctrine of respondeat superior” (id., at ¶ 41 [emphasis added]). Claimant makes no discernible argument as to the appearance of merit of this second cause of action, asserting only that the conclusory statement that the claim as a whole “appears to be clearly meritorious, and straightforward” (Rothman Affirmation in Support, at ¶ 37). The Court finds that this second cause of action is internally inconsistent, and therefore, it lacks the appearance of merit within the meaning of Court of Claims Act § 10 (6).

Under the doctrine of respondeat superior, the State may be liable for the torts of its employees when its employees are acting within the scope of their employment (see Lundberg v State of New York, 25 NY2d 467, 470 [1969]). However, an employer generally is not liable for the torts of its employees that have been committed outside of the scope of the employee’s duties (id.). When such conduct is alleged, an employer may be found liable under theories of negligent hiring and negligent supervision, if it is proven that the employer knew or should have known of the employee’s propensity for the conduct that caused claimant’s injury (see State Farm Ins. Co. v Central Parking Sys., Inc., 18 AD3d 859, 860 [2d Dept 2005]). However, when the employee was acting within the scope of his or her employment, the employer will be liable under a theory of respondeat superior and a claimant cannot proceed under a theory of negligent hiring and retention (see Rossetti v Board of Educ. of Schalmont Cent. School Dist., 277 AD2d 668, 670 [3d Dept 2000]; see also Ashley v City of New York, 7 AD3d 742, 743 [2d Dept 2004]).

As noted above, the proposed second cause of action alleges the negligence of defendant’s employees, and the claim appears to concede that the actions of State employees in calculating claimant’s sentences were done in the course of their duties and that the State should be liable under the theory of respondeat superior (see Rothman Affirmation in Support, Exhibit E, at ¶¶ 5, 41). The assertion of the theory of negligent hiring, screening, retention, supervision and training is unsupported by factual allegations in the proposed claim, and no evidence was submitted in support of the motion to demonstrate that defendant’s employees were acting outside of their scope of employment in calculating claimant’s concurrent sentences. Thus, claimant has failed to establish the appearance of merit on a theory of negligent hiring, screening, retention, supervision, and training, and the remainder of the proposed second cause of action is duplicative of the allegations set forth in the first cause of action. Accordingly, claimant will not be granted permission to file and serve a claim that alleges negligent hiring, etc.

Claimant acknowledges that he is pursuing a federal civil rights claim under 42 USC § 1983, but argues that the standard to prevail under such a claim is the standard of deliberate indifference or intentional wrongdoing, and that he may only be able to prevail under a negligence theory. Be that as it may, the fact remains that claimant has an alternative remedy available to him, and thus the final factor weighs against claimant’s motion (see Duberry v State of New York, UID # 2008-030-584, Motion No. M-75662, Scuccimarra, J. [Dec. 15, 2008]).

Therefore, the Court finds that four of the six statutory factors, including the crucial factor of the appearance of merit to the proposed claim, weigh in claimant’s favor with regard to the proposed first cause of action. The Court finds that only three of the six factors weigh in favor of the proposed second cause of action, with notably the factor of the appearance of merit weighing against claimant’s favor. Accordingly, it is

ORDERED, that Motion No. M-76072 is GRANTED IN PART, and claimant is granted permission to file a late claim asserting the first cause of action sounding in excessive wrongful confinement, and it is further

ORDERED, that claimant is directed to file and serve the proposed claim alleging the first cause of action in accordance with the requirements of sections 11 (a) (i) and 11-a of the Court of Claims Act, not later than thirty (30) days after the date of filing of this Decision and Order, and it is further

ORDERED, that Motion No. M-76072 is DENIED in all other respects.


June 3, 2009
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered
:


(1) Notice of Motion, dated December 31, 2008;

(2) Affirmation in Support of Jeffrey A. Rothman, Esq., dated December 31, 2008,

with Exhibits A-E;

(3) Affidavit in Support of Terence Sudler, sworn to December 31, 2008;

(4) Affirmation in Opposition of Gwendolyn Hatcher, AAG, dated February 25, 2009;

(5) Reply Affirmation in Support of Jeffrey A. Rothman, Esq., dated March 3, 2009.


[1].The Court rejects defendant’s argument that the proposed claim has “boilerplate allegations” (Hatcher Affirmation in Opposition, at ¶ 5), as the proposed claim contains specific allegations that provide the basis for the claim of wrongful excessive confinement. Further, defendant’s argument that claimant’s confinement was “under color of law” and was privileged (id., at ¶ 6) is of no moment on this motion because claimant need not overcome the assertion of a defense to demonstrate the appearance of merit under Court of Claims Act § 10 (6) (see Matter of Santana, supra, at 12).