New York State Court of Claims

New York State Court of Claims

BELL v. THE STATE OF NEW YORK, #2009-038-569, , Motion No. M-76834


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:
2009-038-569
Claimant(s):
MATTHEW BELL
Claimant short name:
BELL
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-76834
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
LAW OFFICES OF ROBERT DEMBIA, PCBy: Robert Dembia, 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:
September 25, 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. The proposed claim further alleges that after his initial release to parole supervision on February 14, 2005, claimant was twice charged with violating conditions of his PRS, and as a result thereof, he served additional periods of incarceration aggregating to approximately 20 months. The proposed claim asserts seven causes of action based upon various legal theories including abuse of process, false arrest, false imprisonment, malicious prosecution, and violation of State constitutional rights. Defendant opposes the motion for late claim relief, primarily on the ground that the proposed claim lacks the appearance of merit. Preliminarily, 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]), which, in this case, appears to be July 29, 2008 (see Proposed Claim, ¶ 4[m]). Claimant asserts, and defendant does not dispute, that this motion is timely inasmuch as the shortest potentially applicable statute of limitations – for the cause of action sounding in the intentional tort of false imprisonment – is one year (see CPLR 215[3]). Inasmuch as one year from the accrual of the proposed claim had yet to elapse when this motion was made on June 18, 2009, 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.

Claimant asserts that his failure to timely file and serve the proposed claim is excusable because the several law firms that he contacted “[a]t or about the time of my release” were not interested in representing him on this claim (see Bell Affidavit, ¶ 4). This is not a particularly compelling excuse, particularly without an explanation of his efforts to retain counsel and why he was unsuccessful in finding willing counsel until March 2009, some seven months after his release. 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 – opposing the motion primarily on the ground that the proposed claim lacks merit – does not dispute that it had notice of the facts and an opportunity to investigate the claim. 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 seven and one half 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 defendant was acting reasonably in light of the statutory and judicial authority that were in effect at the time the PRS was imposed on claimant (see Krenrich Affirmation, ¶ 17), that decisions of this Court have held that the State is entitled to absolute immunity for this unauthorized action (see Krenrich Affirmation, ¶ 18, 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 (see Krenrich Affirmation, ¶ 21, citing inter alia, 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 persuasively dispel or distinguish other decisions in this Court that have 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, an appeal from the decision in Collins was scheduled to be heard in the Appellate Division, Fourth Department on September 14, 2009, and the decisions in Nazario and Donald are presently subject to notices of appeal to the Appellate Division. 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 being decided, this claim has the appearance of merit within the meaning of Court of Claims Act § 10 (6).

Defendant correctly contends, however, that claimant’s proposed causes of action for damages flowing from alleged violations of the State constitution are not meritorious.[1] To the extent the proposed claim sets forth a cause of action for implied constitutional torts under the New York State constitution, such a remedy is available only when a State constitutional tort 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 common-law causes of action as set forth in his proposed claim, an implied State constitutional tort cause of action is not viable. Claimant’s counsel’s unexplained citation to People v Boyd (12 NY3d 390 [2009]) for the proposition that the claim states a cause of action for denial of due process under the State constitution is unpersuasive. 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 State constitutional claims set forth in the seventh cause of action of the proposed claim.

Finally, claimant candidly acknowledges that he may be able to seek redress against the State of New York in a federal civil rights action (see Dembia Affirmation, ¶ 32), a factor that weighs against granting claimant’s motion.

In sum, having considered and weighed all of the factors set forth in Court of Claims Act § 10(6), and particularly in light of the appearance of merit of the claim at this time, the Court concludes that claimant’s motion should be granted as set forth in this decision. Accordingly, it is

ORDERED, that Motion No. M-76834 is GRANTED IN PART, and it is further

ORDERED, that claimant is directed to serve and file the proposed claim, omitting the seventh cause of action 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-76834 is DENIED in all other respects.

September 25, 2009
Albany, New York

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


Papers considered
:


(1) Notice of Motion, dated June 13, 2009;

(2) Affidavit of Matthew Bell, sworn to June 13, 2009, with exhibits 1-9;

(3) Affirmation of Robert Dembia, Esq., dated June 13, 2009, with exhibits 10-12;

(4) Affirmation in Opposition of Michael T. Krenrich, AAG, dated July 8, 2009;

(5) Reply Affirmation of Robert Dembia, Esq., dated July 14, 2009.


[1]. While defense counsel correctly contends that this Court lacks subject matter jurisdiction over claims alleging violations of claimant’s rights under the United States Constitution (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]), the proposed claim does not contain any discernable causes of action under the federal constitution.