New York State Court of Claims

New York State Court of Claims

LOZADA v. THE STATE OF NEW YORK, #2009-041-028, Claim No. None, Motion No. M-76543


Synopsis

Application to file late claim alleging wrongful confinement resulting from defendant’s failure to follow its own regulations and failure to re-release claimant to parole supervision after serving delinquent time 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:
2009-041-028
Claimant(s):
FRANCISCO LOZADA
1 1.The caption is amended sua sponte to reflect the only proper defendant.
Claimant short name:
LOZADA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption is amended sua sponte to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-76543
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
FRANCISCO LOZADAPro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney General
By: Gwendolyn Hatcher, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 14, 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 approximately 140 days by not properly crediting him with all of the time he was incarcerated after violating the conditions of his parole and by failing to follow its own regulations. After pursuing article 78 relief in Bronx County Supreme Court, claimant was re-released to parole supervision on October 2, 2008. 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 January 2, 2007, claimant was incarcerated pursuant to a parole warrant issued as a result of claimant having violated the terms of his parole. On November 19, 2007, claimant was given a twenty-four month time assessment by the New York State Division of Parole, after a hearing, for violation of his parole. In computing the twenty-four month period, defendant apparently failed to credit claimant with all of the time he had spent incarcerated prior to the parole revocation hearing. The parole warrant was eventually lifted by an order of the Bronx County Supreme Court, filed on September 29, 2008, in the context of an article 78 proceeding and claimant was re-released to parole on October 2, 2008. As a result, claimant alleges that he spent more than 140 additional days wrongfully incarcerated rather than on parole supervision.

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 October 2, 2008. Claimant failed to file and serve the claim within ninety days of accrual as required by Court of Claims Act § 10.

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.”

As set forth above, claimant’s cause of action for wrongful confinement arose upon his release from confinement on October 2, 2008 and the application to file a late claim, made on April 7, 2009, is timely pursuant to CPLR § 215 [3], which provides a one year period to commence an action for false imprisonment/wrongful confinement.

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 October 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).

The defendant, as the entity which allegedly wrongfully confined claimant, and which was a party to the article 78 proceeding, 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 materials 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]).

Defendant argues in opposition to the application that defendant is immune from liability for its discretionary determination to confine claimant arising from the issuance of the parole warrant. This assertion fails to address the nature of the claim. Claimant is alleging that defendant confined him beyond the 24 month period lawfully determined at the parole revocation hearing because defendant failed to credit him with all of the time he was incarcerated prior to the parole revocation hearing and by failing to follow its own regulations requiring claimant’s re-release to parole.

In the article 78 proceeding which precipitated claimant’s release from incarceration and re-release to parole, the Bronx County Supreme Court found that defendant failed to follow its own regulations, stating that:
“Pursuant to 9 N.Y.C.R.R. § 8002.6(c)(1), a parole violator who is eligible for re-release to parole is to be “re-released to parole supervision as soon as practicable after completion of the delinquent time assessments imposed irrespective of whether [he is] in State or local custody,” unless the parole violator has: 1) violated rules of the facility in which he has been incarcerated, . . .; 2) experienced a significant change in emotional or mental state . . .; 3) been arrested or convicted of a new felony subsequent to the parole revocation hearing . . . or 4) the Board of Parole has received information which makes it reasonable to conclude that the violator is not suitable for release . . . If none of those exceptions apply, the violator must be re-released to parole supervision even if he is still in local custody; if any of those exceptions does apply, then the Board of Parole must first consider whether to re-release the violator.

Here, the Division of Parole has apparently not considered whether the petitioner falls within any of the exceptions . . . [to re-release]” (People ex rel. Lozada v New York State Division of Parole, et al., Sup Ct, Bronx County, September 29, 2008, Marcus, J., Index No. 340587-08).
The proposed claim, together with the attached exhibits, demonstrates at least the “appearance of merit” of a cause of action for wrongful confinement (see Nelson v State of New York, UID #2008-038-600, Claim No. 111704, Motion Nos. M-73828, M-73829, M-74140 DeBow, J. [June 18, 2008]); see also 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”).

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.


July 14, 2009
Albany, New York

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


Papers Considered:

  1. Claimant’s Motion, filed April 10, 2009, together with verified proposed claim and annexed exhibits;
  2. Affirmation in Opposition of Gwendolyn Hatcher, dated June 1, 2009;
  3. Affidavit of Francisco Lozada, sworn June 8, 2009, and annexed exhibits.