New York State Court of Claims

New York State Court of Claims

PETTIGREW v. THE STATE OF NEW YORK, #2009-040-058, Claim No. NONE, Motion No. M-76703


Motion to file a PRS Claim late, Court of Claims Act § 10(6), granted in part and denied in part.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New YorkBy: Michael T. Krenrich, Esq., AAG
Third-party defendant’s attorney:

Signature date:
July 10, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


For the reasons set forth below, the application of Movant, Avery Pettigrew, to serve and file a late Claim pursuant to Court of Claims Act § 10(6) is denied in part and granted in part.

The proposed Claim, attached to the affirmation of Bryan J. Swerling, Esq., in support of the motion (as Ex. A) asserts that, on or about October 28, 2003, Movant was sentenced in New York County, New York to a five-year determinate sentence of incarceration with no period of post- release supervision (PRS) imposed, nor did the commitment sheet contain a reference to PRS. Subsequently, on February 11, 2004, Movant was sentenced in Kings County, New York to a one- to-three-year term of incarceration. It is asserted his maximum expiration date was March 14, 2008 and that Movant was released on June 22, 2007 (Proposed Claim, ¶¶ 4 & 7) and that, upon release, Defendant ordered, without right or authority, that Movant be placed on an additional five years PRS. It is further alleged that, on or about August 27, 2008, the New York State Division of Parole issued a warrant charging Movant with various alleged violations of his PRS and took him into custody and incarcerated him at Rikers Island. Movant was found to be in violation of the conditions of his release and remained incarcerated until November 26, 2008. On October 29, 2008, Justice Carol Berkman, Supreme Court, New York County, who originally sentenced Movant, held a re-sentencing proceeding. Justice Berkman re-sentenced Movant, nunc pro tunc to October 28, 2003, to a term of five years with five years of PRS. Movant asserts that the “resentencing proceeding determined that the PRS administratively added to [Movant’s] sentence by DOCS was null and void” (Proposed Claim, ¶ 10). The proposed Claim also asserts that Movant was falsely imprisoned and that his State and Federal Constitutional rights were violated.

Pursuant to Court of Claims Act § 10(6), it is within the Court’s discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. The proposed Claim appears to assert causes of action for the intentional tort of false imprisonment (CPLR § 215[3], a one-year statute of limitations) and negligence for violating Movant’s constitutional rights (CPLR § 214[5], a three-year statute of limitations). A cause of action for false imprisonment accrues when the person is released from custody (Nunez v City of New York, 307 AD2d 218, 219 [1st Dept 2003]). Movant asserts that he was released on November 26, 2008. Thus, the false imprisonment cause of action is timely.

“To the extent claimant alleges a negligence cause of action, it must be dismissed as a claim for negligence may not supplant the traditional tort remedies of false imprisonment” (Nazario v State of New York, 24 Misc 3d 443 [Ct Cl 2009]; see Santoro v Town of Smithtown, 40 AD3d 736, 738 [2d Dept 2007]; Simon v State of New York, 12 AD3d 171 [1st Dept 2004]; Boose v City of Rochester, 71 AD2d 59, 62 [4th Dept 1979]). Moreover, Movant fails to assert the date the PRS was allegedly unlawfully imposed and Defendant allegedly improperly calculated his release date, so the Court would be unable to determine if the three-year statute of limitations had expired even if the negligence branch of the proposed Claim was viable. Thus, that portion of the motion is denied.

Furthermore, “claims for damages against the State based on alleged deprivations of rights under the US Constitution are beyond the jurisdiction of the Court of Claims” (Shelton v New York State Liq. Auth., 61 AD3d 1145, 1151 [3d Dept 2009]). Claims in connection with alleged State constitutional violations only are permitted in limited circumstances where no other remedy is feasible to provide citizens with an avenue of redress (see Martinez v City of Schenectady, 97 NY2d 78 [2001]). In this instance, Movant has failed to establish that no other cause of action is available as an avenue of redress. Thus, that portion of the motion is denied.

Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).

The first factor to be considered is whether the delay in filing the claim was excusable. Movant has failed to offer an excuse for the delay. However, the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, supra at 981).

The next three factors to be addressed – whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant – are interrelated and will be considered together. Defendant concedes that it had notice of the essential facts and it had an opportunity to investigate. The State does not argue that it will be substantially prejudiced by a delay in filing a claim (see Affirmation of Michael T. Krenrich, Esq., ¶ 13). Those factors, therefore, weigh in Movant’s favor.

The fifth factor to be considered is whether Movant has another remedy available. It appears that Movant does not have any alternate remedy.

The sixth, final and perhaps most important factor to be considered is whether the proposed claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Rosenhack v State of New York, 112 Misc 2d 967, 968 [Ct Cl 1982]; Flaherty Corp. v State of New York [New York State Parks & Recreation Div.], 102 Misc 2d 438, 440 [Ct Cl 1979]). It is Movant’s burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, supra at 11-12).

This Court recently determined that any confinement arising from an improperly imposed period of PRS is privileged and that an unlawful imprisonment claim in such a case is therefore meritless (Frederick v State of New York, 23 Misc 3d 1008 [Ct Cl 2009]). While the Court continues to adhere to its opinion in Frederick that such confinement is privileged, it also is cognizant that a number of subsequent decisions have been rendered which articulate a range of opinions with respect to the merits of false imprisonment claims premised upon the unlawful imposition of a period of PRS (see, e.g., Mickens v State of New York, Ct Cl, Claim No. 114719, Motion Nos. M-75311, CM-75564, May 18, 2009, Hard, J. [UID No. 2009-032-114]; Nazario v State of New York, 24 Misc 3d 443, supra [Ct Cl 2009]; Donald v State of New York, 24 Misc 3d 329 [Ct Cl 2009]; Hallett v State of New York, Ct Cl, Claim No. 115220, Motion No. M-75701, March 3, 2009, DeBow, J. [UID No. 2009-038-519]; Vazquez v State of New York, 23 Misc 3d 1101[A] [Ct Cl 2009]). It is the Court’s understanding that notices of appeal have been filed in connection with several of the above-referenced decisions. In light of the decisions to date, as well as the prospect of forthcoming appellate guidance, the Court cannot conclude, at this time, that the proposed Claim is patently groundless, frivolous or legally defective. Thus, the Court further determines that, under these circumstances, there is sufficient merit to warrant filing of this late Claim.

In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movant’s favor regarding the alleged tort of false imprisonment. The mix of circumstances presented by this case falls well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (L 1976, ch 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicating a strong concern that litigants with meritorious claims be afforded their day in Court (Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, supra). Movant has provided sufficient basis for a favorable exercise of this Court’s discretion to grant him leave to file a late claim against the State. Therefore, within forty-five (45) days of the date of filing of this Decision and Order, Movant shall file with the Clerk of the Court his proposed Claim against the State with respect to the intentional tort of false imprisonment cause of action only and serve a copy of the proposed Claim, as so amended, upon the Attorney General by personal service or certified mail, return receipt requested. In serving and filing the Claim, Movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.

July 10, 2009
Albany, New York

Judge of the Court of Claims

The following papers were read and considered by the Court on Movant’s motion for permission to serve and file a claim late:

Papers Numbered

Notice of Motion, Affirmation
and Exhibit Attached 1

Affirmation in Opposition 2