New York State Court of Claims

New York State Court of Claims

COLON v. THE STATE OF NEW YORK, #2009-041-015, Claim No. None, Motion No. M-76356


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:
2009-041-015
Claimant(s):
CHRISTOPHER COLON
Claimant short name:
COLON
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-76356
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
DAVID P. FELDMAN, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Michael C. Rizzo, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 23, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant moves for permission to file a late claim alleging that defendant wrongfully confined him for violating an illegally imposed period of post-release supervision (PRS). Defendant opposes the motion on the grounds that claimant has not offered a reasonable excuse for his failure to timely file and serve the claim and that the claim does not appear meritorious. The proposed claim alleges that on November 8, 1999, claimant was sentenced to a determinate term of six (6) years for a felony conviction of Sodomy in the 1st Degree. Exhibits B, C and F attached to the claimant’s motion papers demonstrate that the sentencing court did not impose a term of PRS as part of the sentence. Exhibit D attached to the motion papers indicates that defendant imposed a period of PRS of five (5) years upon claimant’s release from incarceration on February 4, 2005.

Claimant states in his affidavit that on April 6, 2007 he “was ‘violated’ by the New York State Division of Parole” and again incarcerated. On July 25, 2008, the original sentencing court, in ruling on a re-sentencing application by defendant, determined that the New York State Department of Correctional Services (DOCS):
“[I]s hereby ordered to calculate the term of imprisonment . . . without post-release supervision; that if the inmate is not subject to any other term of imprisonment, hold or detainer, the DOCS shall release the inmate forthwith . . . without any further supervision by the Division of Parole.”
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 and rules.”

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]). 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 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, “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 [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 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 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.

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 1978]).

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 [1975], 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 exhibits”).

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.


April 23, 2009
Albany, New York

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


Papers Considered:

  1. Claimant’s Notice of Motion, filed March 5, 2009;
  2. Affidavit of David P. Feldman, sworn to February 26, 2009, and annexed exhibits;
  3. Affidavit of Christopher Colon, sworn to February 26, 2009, and annexed exhibits;
  4. Affidavit of Michael C. Rizzo, sworn to April 1, 2009.