New York State Court of Claims

New York State Court of Claims

JONES v. THE STATE OF NEW YORK, #2009-038-556, , Motion No. M-76574


Synopsis

Motion for late claim relief on post-release supervision (PRS) claim granted. Claim has appearance of merit within meaning of Court of Claims Act § 10(6), because the viability of the defenses of immunity and privilege are currently subject to appeals to the Appellate Division

Case Information

UID:
2009-038-556
Claimant(s):
MAURICE JONES
1 1.The caption has been amended sua sponte to reflect the State of New York as the only proper defendant.
Claimant short name:
JONES
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
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):
M-76574
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
E. STEWART JONES, PLLCBy: George E. LaMarche III, Esq.
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:
July 14, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Claimant seeks permission pursuant to Court of Claims Act § 10(6) to file and serve a late claim. The proposed claim asserts that claimant was unlawfully placed on post-release supervision (PRS) following a period of incarceration even though the sentencing judge did not include such a period of supervision in his sentence, and that claimant was subsequently re-incarcerated for a period in excess of 500 days upon a violation of the conditions of his allegedly unlawful PRS. The proposed claim sounds in wrongful confinement, and asserts various legal theories for defendant’s liability. Defendant opposes the motion. A motion for permission to file and serve a late claim may be granted “at any time 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” (Court of Claims Act § 10[6]). A claim for wrongful confinement accrues when the claimant is released from that confinement (see Collins v McMillan, 102 AD2d 860, 861 [2d Dept 1984]; Ramirez v State of New York, 171 Misc 2d 677, 680 [Ct Cl 1997]; Dorsey v State of New York, UID # 2004-015-426, Claim No. 106831, Motion Nos. M-68747 and CM-68865, Collins, J. [Sept. 10, 2004]), here, on July 29, 2008 (see Proposed Claim, ¶ 18). Claimant asserts, and defendant does not dispute, that this motion is timely even if the claim is construed as sounding in the intentional tort of false imprisonment, which is subject to a one-year statute of limitations (see CPLR 215[3]). As one year from the accrual of the proposed claim has yet to elapse, this motion meets the timeliness threshold.

In deciding the merits of a motion for permission to file and serve a late claim, Court of Claims Act §10(6) requires the Court to consider, among other 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 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.

Counsel asserts that the failure to timely file and serve the proposed claim is excusable because when claimant was released from confinement “he had nothing ... and was simply trying to survive day to day,” and did not contact a lawyer until his life was settled (see LaMarche Affidavit, ¶ 18). This is not a particularly compelling excuse, particularly in the absence of an affidavit from claimant setting forth why, despite these difficulties, he was unable to contact a lawyer during this time. Thus, this factor weighs against granting claimant’s application.

Whether the State had notice of the essential facts constituting the claim and had an opportunity to investigate the circumstances underlying the claim, and 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 are closely related, and may be considered 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]). Here, the facts of the claim may be found in documentary records that are either within defendant’s possession or easily accessible to it, thus, defendant’s ability to investigate the claim appears to be unhampered. Defendant concedes that it had notice of the facts and an opportunity to investigate the claim (see Krenrich Affirmation, ¶12). The period of delay between the expiration of the 90 day period for service of the claim and the filing of this motion was approximately six months, and defendant does not present any argument that the delay was extensive or substantially prejudicial. Accordingly, these factors weigh in favor of claimant’s application.

The appearance of merit to a proposed claim 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]). In general, a party seeking to establish the merit of a proposed late claim need not demonstrate a likelihood that he will prevail on his 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., 92 Misc 2d 1, 11 [Ct Cl 1977]).

Claimant seeks recovery for periods of time during which, it is alleged, his liberty was substantially limited by defendant’s actions which, it has been held, were unauthorized under law (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]). Thus, on its face, the claim has the appearance of merit within the meaning of Court of Claims Act § 10(6). Defendant opposes the motion on the grounds that decisions of this Court have held that the State is entitled to absolute immunity for this unauthorized action (citing Nazario v State of New York, UID # 2009-015-139, Claim No. 114318, Motion Nos. M-75708, CM-75896, Collins, J. [Feb. 27, 2009]), and that the State cannot be liable on the claim because its actions were privileged (citing Vazquez v State of New York, UID #2009-015-122, Claim No. 115574, Motion Nos. M-75464, CM-75557, Collins, J. [Feb. 10, 2009]; Collins v State of New York, UID # 2008-015-050, Motion No. M-74674, Collins, J. [June 16, 2008]). Defense counsel fails to acknowledge, however, decisions in this Court have also rejected the State’s defenses of privilege or immunity (see Donald v State of New York, UID # 2009-041-002, Claim No. 115414, Motion Nos. M-75777, CM-75836, Milano, J. [Feb. 5, 2009]; see also Mickens v State of New York, UID # 2009-032-114, Claim No. 114719, Motion Nos. M-75311, CM-75564, Hard, J. [May 18, 2009]). Thus, there is not consistent authority for defendant’s contention that the claim lacks merit as a matter of law. Moreover, the decisions in Nazario, Collins and Donald are presently subject to notices of appeal to the Appellate Division and thus, the viability of the defenses of immunity and privilege to this proposed claim cannot be described as conclusively settled issues of law. Here, the proposed claim is not patently groundless, frivolous or legally defective and, while the defenses of immunity or privilege may eventually and ultimately be found by the appellate courts to defeat this claim, at the time this motion is made, a cause of action in the nature of wrongful confinement has the appearance of merit within the meaning of Court of Claims Act § 10(6).

Defendant correctly contends, however, that causes of action for damages flowing from alleged violations of the Federal and State constitutions are not meritorious. This Court lacks subject matter jurisdiction over claims alleging violations of claimant’s rights under the United States Constitution, because such a claim must be brought pursuant to 42 USC § 1983 and may not be maintained in the Court of Claims (see Brown v State of New York, 89 NY2d 172, 185 [1996]; Zagarella v State of New York, 149 AD2d 503, 504 [2d Dept 1989]; Ferrari v State of New York, UID #2002-028-011, Claim No. 104107, Motion No. M-64278, Sise, J. [Mar. 1, 2002]; Campolito v State of New York, UID # 2000-015-507, Claim No. 94670, Collins, J. [Apr. 27, 2000]). To the extent the proposed claim sets forth a cause of action for an implied constitutional tort under the New York State Constitution, such a remedy is available only when it is the sole remedy available to enforce the claimed constitutional right (see Brown v State of New York, supra at 189, 192; Martinez v City of Schenectady, 97 NY2d 78, 83-84 [2001]; Waxter v State of New York, 33 AD3d 1180 [3d Dept 2006]; Bullard v State of New York, 307 AD2d 676, 678 [3d Dept 2003]). Here, because claimant has a remedy in the nature of a common-law cause of action for unlawful confinement, an implied State constitutional tort cause of action is not viable. In sum, the Court concludes that the proposed claim has the appearance of merit within the meaning of Court of Claims Act § 10(6), except for the constitutional allegations set forth in ¶ 27 and ¶ 28 of the proposed claim.

Finally, claimant asserts that there is no other venue in which claimant may seek redress against the State of New York, a contention that the State does not dispute.

Having considered and weighed all of the factors set forth in Court of Claims Act § 10(6), the Court concludes that claimant’s motion should be granted as set forth in this decison. Accordingly, it is

ORDERED, that Motion No. M-76574 is GRANTED IN PART, and it is further

ORDERED, that claimant is directed to serve and file the proposed claim, omitting ¶¶ 27 and 28 thereof, 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-76574 is DENIED in all other respects.


July 14, 2009
Albany, New York

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


Papers considered
:


(1) Notice of Motion, dated April 22, 2009;

(2) Affidavit of George E. LaMarche III, Esq., sworn to April 22, 2009, with Exhibit A;

(3) Affirmation in Opposition of Michael T. Krenrich, AAG, dated May 27, 2009.