DOCS ultimately released claimant from confinement on September 2, 2008.
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
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
). Claimant’s cause of action for wrongful confinement thus arose
upon his release from confinement on September 2, 2008 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
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,
“nothing 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 ).
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 ).
Claimant has offered no legally recognized excuse for his failure to file and
serve the claim within ninety days of his release from incarceration on
September 2, 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
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.
Defendant has not offered an affidavit disputing the factual allegations of the
proposed claim 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
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]).
To establish that he was falsely confined, claimant must prove that “(1)
the defendant intended to confine him, (2) the [claimant] 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 , cert denied sub nom. Schanbarger v
Kellogg, 423 US 929; Krzyzak v Schaefer, 52 AD3d 979 [3d Dept 2008]).
The Court has previously ruled that a claim alleging wrongful confinement
directly resulting from an illegally imposed period of PRS states a cause of
action (Donald v State of New York, 2009 NY Slip Op 29113 [Ct Cl,
February 5, 2009]).
Although inartfully pled, the proposed claim, together with the attached
exhibits, states the elements of a cause of action for wrongful confinement
(see Dippolito v State of New York, 192 Misc 2d 395, 397 [Ct Cl
2002], which held that in determining a late claim application “the court
may examine the proposed causes of action, as well as all submitted papers and
Defendant argues in opposition to the motion, in essence, that it cannot be
determined whether the claim is meritorious because claimant failed to attach
the relevant exhibits to the copy of the motion papers served upon defendant.
The Court’s file shows, however, that claimant forwarded the inadvertently
omitted exhibits to defendant in sufficient time for defendant to have addressed
the merits of the claim prior to the return date of the motion, or to at least
have requested further time from the Court to address the information contained
in the exhibits. In any event, defendant may move to reargue and/or renew its
opposition to the motion, if it deems it advisable.
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.
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 and 11-a.