New York State Court of Claims

New York State Court of Claims

PETTIS v. THE STATE OF NEW YORK, #2009-041-010, Claim No. 115791, Motion Nos. M-76106, M-76138


Synopsis

Application to file late claim alleging wrongful confinement resulting from illegally imposed post-release supervision is granted, despite lack of reasonable excuse for delay in filing claim, where claim appears potentially meritorious and defendant will suffer no prejudice.

Case Information

UID:
2009-041-010
Claimant(s):
WILLIAM PETTIS
Claimant short name:
PETTIS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115791
Motion number(s):
M-76106, M-76138
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
ARNOLD E. DIJOSEPH, P.C.By: Arnold E. DiJoseph, III, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney General
By: Michael T. Krenrich, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 30, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant moves for permission to file a late claim. Defendant opposes that motion and has made its own motion to dismiss claim 115791 (a claim previously filed by claimant on the same matter for which claimant now seeks late claim relief) on the ground that it was not filed and served in a timely manner. The proposed claim alleges that claimant was wrongfully confined by defendant from November 28, 2006 through March 20, 2008 as a result of defendant illegally imposing an administrative sentence of post-release supervision (PRS) upon claimant following a period of incarceration properly imposed by the sentencing court. After administrative imposition of the PRS term, at the conclusion of claimant’s lawfully imposed criminal court sentence of incarceration, claimant allegedly violated the PRS provisions, leading to his further incarceration until March 20, 2008.

The Court will first consider defendant’s motion to dismiss claim 115791. Claimant has not opposed the defendant’s motion to dismiss.

Pursuant to Court of Claims Act § 10 (3):
“A claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim. . . .”
Court of Claims Act § 10 (3-b) provides that:
“A claim to recover damages for injuries to property or for personal injuries caused by the intentional tort of an officer or employee of the state while acting as such officer or employee, . . . shall be filed and served upon the attorney general within ninety days after the accrual of such claim . . . .”
Whether the alleged wrongful confinement was intentional or unintentional, the claim was required to be served and filed within ninety (90) days of its accrual. A claim for wrongful confinement accrues on “the date on which [claimant’s] confinement terminated” (Santiago v City of Rochester, 19 AD3d 1061, 1062 [4th Dept 2005], lv denied 5 NY3d 710 [2005]).

The cause of action for claimant’s wrongful confinement thus accrued upon his release from confinement on March 20, 2008. The claim was not filed until September 8, 2008, and not served until December 15, 2008, both beyond the ninety day period.

Courts have consistently held that “[a]s a condition of the State’s limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim” (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 [2005]; Roberts v State of New York, 11 AD3d 1000, 1001 [4th Dept 2004]; Pristell v State of New York, 40 AD3d 1198 [3d Dept 2007]).

The defendant’s motion to dismiss claim 115791, unopposed, is granted.

Court of Claims Act § 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim “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.”

The cause of action for claimant’s wrongful confinement arose upon his release from confinement on March 20, 2008 (Santiago, 19 AD3d at 1062) and the application is timely pursuant to Article 2 of the CPLR, whether the action is described as sounding in intentional tort or negligence.

In determining the application, Court of Claims Act § 10 (6) provides that:
“[T]he court shall 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.”
In reviewing a late claim application, “the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10 (6), no one factor being controlling” (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, “[n]othing in the statute makes the presence or absence of any one factor determinative” (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]).

Further, “it is well settled that the Court of Claims’ broad discretion in this area should be disturbed only in the face of clear abuse” (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991]), lv denied 78 NY2d 852 [1991].

Claimant has offered no excuse for his failure to file and serve the claim within ninety days of his release from incarceration on March 20, 2008. Although claimant has failed to offer a reasonable excuse for his failure to timely file and serve the claim, “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, Inc., 55 NY2d at 981).

Claimant has no available alternative remedy to this action for money damages resulting from his alleged wrongful confinement by defendant.

The defendant, as the entity which allegedly imposed the illegal period of PRS and wrongfully confined claimant, had timely “notice of the essential facts constituting the claim” and “an opportunity to investigate the circumstances underlying the claim.” Consequently, claimant’s failure to file or serve a timely claim did not result in substantial prejudice to the defendant.

To establish that he was falsely confined, claimant must prove that “(1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged” (Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929; Krzyzak v Schaefer, 52 AD3d 979 [3d Dept 2008]).

Defendant has not offered an affidavit disputing the factual allegations of the proposed claim (incomplete as they are), and supporting affidavits and the allegations are deemed true for purposes of this application (Schweickert v State of New York, 64 AD2d 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]).

Defendant argues in opposition to the motion that the claim lacks merit in that the confinement of claimant was privileged as having been imposed under “color of law” (Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]).

Defendant’s contention that confinement resulting from administrative imposition of a term of PRS is privileged has been previously considered and rejected by this Court (Donald v State of New York, 2009 NY Slip Op 29113 [Ct Cl, February 5, 2009]).

In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]), the court noted that a proposed claim offered in a section 10 (6) application need only have “the appearance of merit.” Section 10 (6) requires that the proposed claim not be “patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists” (Rizzo v State of New York, 2 Misc 3d 829, 833-834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). Accordingly, minimally pled as they are, the allegations have the appearance of merit, are not patently groundless, frivolous or legally defective, and give cause to believe that a valid cause of action exists.

Upon balancing all of the factors in Court of Claims Act § 10 (6), the Court grants the motion to file and serve a late claim.

Defendant’s motion to dismiss claim 115791 is granted. Claimant’s motion to file and serve a late claim is granted.

Claimant is directed to file and serve the proposed claim within forty-five (45) days of the filing of this decision and order, in compliance with Court of Claims Act § 11 (b).


March 30, 2009
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Claimant’s Notice of Motion, filed January 7, 2009;
  2. Affirmation of Arnold E. DiJoseph, III, dated January 7, 2009, and annexed exhibits;
  3. Affidavit of William Pettis, sworn to December 11, 2008;
  4. Defendant’s Notice of Motion, filed January 21, 2009;
  5. Affirmation of Michael T. Krenrich in support of defendant’s motion, dated January 20, 2009, and annexed exhibits;
  6. Affirmation of Michael T. Krenrich in opposition to claimant’s motion, dated January 20, 2009, and annexed exhibits;
  7. Affirmation of Arnold E. DiJoseph, III, in opposition to defendant’s motion and in reply to defendant’s opposition to claimant’s motion, dated February 20, 2009;
  8. Letter of Arnold E. DiJoseph, III, dated February 20, 2009.