New York State Court of Claims

New York State Court of Claims

McBRIDE v. THE STATE OF NEW YORK, #2009-040-091, Claim No. NONE, Motion No. M-77026


Synopsis


Claimant’s motion for (1) reargument denied, (2) renewal granted, and, upon renewal, original Decision and Ordered adhered to.

Case Information

UID:
2009-040-091
Claimant(s):
DESMIN MCBRIDE
Claimant short name:
McBRIDE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-77026
Cross-motion number(s):

Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
ARNOLD E. DIJOSEPH, P.C.By: Arnold E. DiJoseph, III, Esq.
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Michael T. Krenrich, Esq., AAG
Third-party defendant’s attorney:

Signature date:
December 2, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, Movant’s motion pursuant to CPLR 2221(a), for reargument and renewal of this Court’s prior Decision and Order (McBride v State of New York, Ct Cl, Claim No. 115790, Motion Nos. M-76140, M-76190, April 27, 2009, McCarthy, J. [UID No. 2009-040-037]), is granted in part and denied in part, and, upon renewal, that prior Decision and Order is adhered to as set forth below.

The Claim, which was filed with the Clerk of the Court on September 8, 2008, alleges that Mr. McBride was sentenced under indictment number 3149/04 and was incarcerated without imposition of a period of post-release supervision (“PRS”) by the sentencing court. It is further alleged that the State wrongfully placed Mr. McBride on PRS and that, on September 15, 2006, Mr. McBride was incarcerated at Green Haven Correctional Facility in Stormville, New York for an alleged violation of that wrongfully imposed PRS period. Mr. McBride asserts that he was illegally incarcerated for a period of nine months as a result of the State’s unlawful imposition of PRS. While the Claim does not state when Mr. McBride was released from custody, the Court notes that nine months from September 15, 2006 would be sometime in mid-June 2007.

The State’s motion to dismiss the Claim as untimely served and filed was granted and Movant’s cross-motion for permission to serve and file a Claim late was denied.

The Court stated that:
“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 unlawfully imposing a period of PRS (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]). Here, based upon the information provided, the Court cannot determine if the statute of limitations has expired for the false imprisonment cause of action. Claimant asserts in his affidavit of merit that he was released from custody (and the Claim accrued) on June 6, 2007. Claimant’s counsel, Mr. Di Joseph, asserts in both his affirmations that Claimant was released from custody on June 6, 2008. If Claimant is correct, the motion is untimely; if Mr. Di Joseph is correct, the motion is timely. Claimant has not provided any documentary proof as to when he was released from custody. As the Court cannot determine whether the underlying statute of limitations has expired as to the false imprisonment cause of action, that portion of the motion is denied” (McBride v State of New York, Claim No. 115790, Motion Nos. M-76140, M-76190, April 27, 2009, McCarthy, J. [UID No. 2009-040-037]).
The Court further stated:
“ ‘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, ___ Misc 3d ___, 2009 NY Slip Op 29130 [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, Claimant fails to assert the date the PRS was allegedly unlawfully imposed, 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 were viable. Thus, that portion of the motion also is denied” (id.).
A motion for reargument, addressed to the discretion of the Court, is designed to afford a party an opportunity to establish that the Court overlooked or misapprehended the relevant facts or misapplied the controlling principle of law (Schneider v Solowey, 141 AD2d 813 [2d Dept 1988]; Foley v Roche, 68 AD2d 558, 567-568 [1st Dept 1979], appeal after remand 86 AD2d 887 [2d Dept 1982], appeal denied 56 NY2d 507 [1982]). Its purpose is not to serve as a vehicle to permit an unsuccessful party to argue once again the very questions previously decided (Fosdick v Town of Hempstead, 126 NY 651, 652 [1891]; William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1st Dept 1992]; lv dismissed in part, lv denied in part 80 NY2d 1005 [1992], rearg denied 81 NY2d 782 [1993]). If such a motion contains new proof, it is a “renewal” motion, rather than a “reargument” motion, and should be treated as such (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2221:7, at 182). An application for leave to renew should be based upon additional material facts which existed at the time the prior motion was made but which were not then known to the party seeking leave to renew, and which, therefore, were not made known to the Court (Matter of Beiny v Wynyard, 132 AD2d 190, 209-210 [1st Dept 1987], appeal dismissed 71 NY2d 994 [1988]). However, it has been held that “it is within the court’s discretion to grant renewal even upon facts that were known to the movant at the time of the original motion” (Toussaint v Noels Mkt., 280 AD2d 665, 665 [2d Dept 2001]; see Lupoli v Venus Labs., 264 AD2d 820 [2d Dept 1999]).

Movant’s application for reargument is denied as he has failed to assert, no less establish, that the Court overlooked or misapprehended the relevant facts or misapplied the controlling principle of law (Schneider v Solowey, 141 AD2d 813, supra; Foley v Roche, 68 AD2d 558, supra at 567-568.

Upon a review of Movant’s motion papers, counsel’s affirmation in support of the motion, Defense counsel’s affirmation in opposition and the Court’s decision upon the original motion, and upon due deliberation, the motion for renewal is granted and, upon such renewal, the Court adheres to its prior Decision and Order.

Mr. McBride’s counsel’s submission established that Movant was released from custody on June 6, 2008, not June 6, 2007 (see Ex. C attached to motion papers). Thus, at the time the original motion for permission to serve and file a late claim was made, the underlying one-year statute of limitations for false imprisonment actions had not yet expired (CPLR § 215[3]).

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]).

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.” 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 Claimant cannot establish a Claim for unlawful imprisonment (id.).

The Court cannot discern from the papers where the Claim accrued. The Court has been unable to find that this particular question has been addressed by either the Court of Appeals or any other Appellate 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 Department where the Claim accrued 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. Therefore, the motion for renewal is granted and, upon renewal, the Court adheres to its original determination and denies the motion for permission to serve and file a Claim late.


December 2, 2009
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read by the Court on Movant’s motion for reargument and renewal:

Papers Numbered


Notice of Motion, Affirmation
& Exhibits attached 1

Affirmation in Opposition 2