New York State Court of Claims

New York State Court of Claims

RUSSELL v. THE STATE OF NEW YORK, #2009-038-577, , Motion No. M-77088


Motion for late claim relief on post-release supervision (PRS) claim denied (see Collins v State of New York, ___ AD3d ___, 887 NYS2d 400 [4th Dept 10/9/2009]).

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:
December 4, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves pursuant to Court of Claims Act § 10(6) for permission to serve and file a late claim.[2] The proposed claim (see Motion Exhibit 1) asserts that claimant was placed on post-release supervision (PRS) following a period of incarceration even though his judgment of conviction did not include such a period of PRS. The proposed claim further alleges that three months after his initial release to parole supervision on August 5, 2005, claimant was found to be in violation of his parole and was reincarcerated for a period of one year. Upon re-release, claimant remained on PRS until August 21, 2008, at which time he was resentenced to the originally imposed period of incarceration without a term of PRS (see Motion Exhibit 2). The proposed claim sounds in unlawful confinement. 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 August 21, 2008 (see Proposed Claim, ¶¶ 2, 4). For purposes of determining the applicable statute of limitations, claimant asserts, and defendant does not dispute, that his claim sounds in breach of contract and is therefore subject to a six year statute of limitations. The Court does not agree. The proposed claim is manifestly one for unlawful confinement, and is therefore subject to the one year statute of limitations applicable to the intentional tort of false imprisonment (see CPLR 215[3]). Inasmuch as one year from the alleged accrual of the claim on August 21, 2008 had yet to elapse when this motion was made on August 6, 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.

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 (see Krenrich Affirmation, ¶ 22, 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, ¶ 23, 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]).

During the pendency of this motion, however, the Appellate Division, Fourth Department affirmed the Collins decision which, on a motion to renew, adhered to the Court’s prior decision denying an application to file a late claim alleging unlawful confinement where a sentencing court failed to impose a period of PRS (see Collins v State of New York, ___ AD3d ___, 887 NYS2d 400 [4th Dept, Oct. 9, 2009]). The Fourth Department held that the movant could not establish a claim for unlawful confinement because the State’s administrative imposition of a period of PRS was privileged and, therefore, that the proposed late claim lacked merit (id.). Inasmuch as the Fourth Department’s decision in Collins is, to date, the sole appellate decision on this issue, this Court is constrained to follow that precedent and find that the instant proposed claim lacks merit (see Jones v State of New York, UID # 2009-040-087, Motion No. M-77108, McCarthy, J. [Nov. 10, 2009]; see also Mountain View Coach Lines, Inc. v Storms, 102 AD2d 663, 664 [2d Dept 1984]). As it would be futile to permit late filing of an unmeritorious claim even if all of the other factors set forth in Court of Claims Act § 10(6) tend to favor the granting of the motion, the instant motion should be denied. Mindful, however, that notices of appeal have been filed with respect to other Court of Claims decisions that have addressed the State’s defenses of privilege or immunity, and that those appeals may be heard in at least one other department of the Appellate Division, the Court will deny the motion without prejudice to a subsequent motion to renew in the event of an appellate decision that differs from the Fourth Department’s decision in Collins.

ORDERED, that Motion No. M-77088 is DENIED, without prejudice to a motion pursuant to CPLR 2221 (e).

December 4, 2009
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Russell v State of New York, UID # 2009-038-550, Claim No. 116089, Motion Nos. M-76272 and CM-76373, DeBow, J. [June 24, 2009];

(2) Claim No. 116089, filed November 17, 2008;

(3) Notice of Motion, dated August 5, 2009;

(4) Motion (Affirmation of Kristian B. Chestnut, Esq.) to Allow Late Service Upon the

New York State Attorney General, dated August 5, 2009, with exhibits 1-6;

(5) Affirmation in Opposition of Michael T. Krenrich, AAG, dated September 11, 2009.

[2]. Claimant filed a claim on November 17, 2008, which was within 90 days of the date of accrual. The claim was not served on the Attorney General until January 12, 2009, and the claim was dismissed on defendant’s motion on jurisdictional grounds (see Russell v State of New York, UID # 2009-038-550, Claim No. 116089, Motion No. M-76272, CM-76373, DeBow, J. [June 24, 2009]). In that same decision, claimant’s cross motion to file and serve a late claim was denied because claimant did not submit a proposed claim with the motion (id.).