New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2009-041-032, Claim No. 115967, Motion Nos. M-76696, CM-76877


Defendant’s cross-motion to dismiss is granted where claim was served more than ninety days after accrual of claim; claimant’s application to file non-meritorious late claim is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
Defendant’s attorney:
New York State Attorney GeneralBy: Joan Matalavage, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 10, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for summary judgment on his wrongful confinement claim. Defendant cross-moves to dismiss the claim, asserting that claimant failed to serve either the notice of intention to file a claim, or the claim, in a timely manner upon the Attorney General. Claimant essentially concedes that the notice of intention to file a claim and the claim were not timely served and asks that the Court permit filing and service of a late claim.

The claim alleges that defendant wrongfully confined claimant in a Special Housing Unit (SHU), from approximately September 17, 2007 through December 14, 2007, as a result of a disciplinary hearing determination. The disciplinary hearing determination was later annulled by the Wyoming County Supreme Court, in an article 78 proceeding, based upon defendant’s admitted inability to furnish a complete transcript of the disciplinary hearing.

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 wrongful confinement claim thus accrued on or about December 14, 2007. The notice of intention to file a claim was served on September 18, 2008 and the claim was served on October 18, 2008, each more than ninety days after the accrual of the wrongful confinement cause of action. Accordingly, the claim is dismissed (Court of Claims Act § 10 [3]).

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.”

Claimant’s cause of action for wrongful confinement arose upon his release from SHU on December 14, 2007 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 SHU on December 14, 2007. 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 SHU term and allegedly 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 affidavit 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 finds that claimant has not, and cannot, show that the confinement was “not otherwise privileged.” Where employees of the Department of Correctional Services, in commencing and conducting formal inmate disciplinary proceedings, “act under the authority of and in full compliance with the governing statutes and regulations . . . their actions constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity” (Arteaga v State of New York, 72 NY2d 212, 214 [1988]; Varela v State of New York, 283 AD2d 841 [3d Dept 2001]; Davis v State of New York, 262 AD2d 887 [3d Dept 1999], lv denied 93 NY2d 819 [1999]). This immunity attaches even if the conviction is later reversed administratively or as the result of a successful article 78 proceeding (Holloway v State of New York, 285 AD2d 765, 766 [3d Dept 2001]).

Here, the administrative determination was annulled on a procedural ground (failure to provide a hearing transcript to the article 78 court) and the claim sets forth no allegations which would overcome the quasi-judicial immunity conferred in prison disciplinary proceedings. The claim states that the article 78 proceeding was based upon an alleged lack of substantial evidence presented at the administrative level and does not allege that defendant did not comply with “the governing statutes and regulations” (72 NY2d at 214).

Upon balancing all of the factors in Court of Claims Act § 10 (6), the Court denies the claimant’s application to file and serve a late claim.

In view of the claimant’s failure to timely serve the claim, the defendant’s cross-motion to dismiss is granted. The claim is dismissed. Claimant’s motion to file a late claim is denied.

August 10, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered:

  1. Claimant’s Notice of Motion, filed May 15, 2009;
  2. Affidavit of James Johnson, sworn May 12, 2009, and annexed exhibits;
  3. Defendant’s Notice of Cross-Motion, filed June 24, 2009;
  4. Affidavit of Joan Matalavage, sworn June 24, 2009, and annexed exhibits.