10(6) motion for permission to late file a PRS claim denied for lack of appearance of merit.
|Claimant short name:||JONES|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Robert Jones, Pro Se|
|Defendant's attorney:||ANDREW M. CUOMO
Attorney General of the State of New York
By: Michael T. Krenrich, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||November 10, 2009|
|See also (multicaptioned case)|
For the reasons set forth below, the application of pro se Movant, Robert Jones, to serve and file a late Claim pursuant to Court of Claims Act § 10(6) is denied.
The proposed Claim, attached to the motion papers, asserts that, on October 7, 1999, the Suffolk County County Court sentenced Movant to a five year determinate sentence of incarceration with no period of post-release supervision (PRS) imposed. It is asserted that, upon release, the Department of Correctional Services (DOCS) ordered, without right or authority, that Movant be placed on an additional five years PRS. Movant asserts that he had to "participate [in] the H.I.P. Program after allegedly violating the terms of the illegally imposed PRS on April 7, 2004 and . . . [had] to serve four months [in] the Suffolk County jail due to the illegally imposed PRS" (Proposed Claim, ¶ 4). The proposed Claim also asserts that Movant was illegally detained and that his 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, a one-year statute of limitations) and negligence for violating Movant's constitutional rights (CPLR § 214, 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 his claim accrued on December 24, 2008 (the date upon which he asserts the period of PRS was removed from his current term of imprisonment). However, Movant also asserts that he was "subsequently released back to the illegally imposed sentence of PRS on August 16, 2004" after successfully completing the above-referenced H.I.P. program (Notice of Intention to File A Claim, ¶ 10). Thus, the Court concludes that the false imprisonment cause of action is untimely.
"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, 455 [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 asserts that the period of PRS was allegedly unlawfully imposed and Defendant allegedly improperly calculated his release date in November 1999 (id., ¶ 4). Thus, the Court, likewise, determines that the three-year statute of limitations would have expired even if the negligence branch of the proposed Claim was viable. Thus, the motion is denied.
Assuming, arguendo, that the motion was timely made, the motion would still be denied.
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 ). 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]).
Perhaps the 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., supra at 11-12).
On October 9, 2009, the Appellate Division, Fourth Department, affirmed the decision of Judge Francis T. Collins in Collins v State of New York (__ AD3d __, 2009 NY Slip Op 07295), which granted a motion to renew and, upon renewal, adhered to the Court's prior decision of denying an application to file a late claim in a PRS case. The Appellate Division stated, "[w]e agree with the court that the proposed claim did not have merit" (Slip Opinion at 3). The Court held that "the imposition of a period of PRS by [the Division of Parole] was in excess of its jurisdiction, not in the complete absence of jurisdiction, and that the act was therefore privileged" and that Claimant cannot establish a Claim for unlawful imprisonment (id. at 6).
It appears that this case accrued in Suffolk County, which is part of the Appellate Division, Second Department. The Court has been unable to find that this particular question has been addressed by either the Court of Appeals or the Second Department. The Court is mindful, however, that, in the absence of such guidance, it is constrained by the doctrine of stare decisis to follow precedents set by the Appellate Division of other departments until such time as either the Court of Appeals or the Second Department pronounces another rule (Mountain View Coach Lines, Inc. v Storms, 102 AD2d 663, 664 [2d Dept 1984]; Caleca v City of New York, 18 Misc 3d 1128[A] [Sup Ct, Kings County 2008]). At this time, the only Appellate guidance on the appearance of merit of PRS claims is the Collins case from the Fourth Department, by which this Court will be guided.
As a demonstration of the Claim's apparent merit is an essential prerequisite to the granting of the relief sought, the Court denies the motion for permission to serve and file a Claim late.
November 10, 2009
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read by the Court on Movant's motion for permission to file a late claim pursuant to Court of Claims Act § 10(6):
Motion for Permission to File a Late Claim,
Proposed Claim, Notice of Intention to
File a Claim and Exhibits attached 1
Affirmation in Opposition 2