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 prior to October 5, 1999, claimant was convicted, by guilty
plea, to “various robbery and attempted robbery counts” in Queens
County Supreme Court. On October 5, 1999, claimant was sentenced to a
determinate term of five (5) years based upon those convictions. The sentencing
court did not impose a term of PRS as part of the sentence. Claimant completed
serving his judicially imposed sentence of incarceration in or about November
2003. On or about November 15, 2003, defendant administratively imposed a period
of PRS upon claimant.
Claimant was thereafter re-incarcerated and released to PRS several times,
based upon alleged violations of the administratively imposed PRS term, until
his ultimate release, on June 30, 2008, from both incarceration and the
administratively imposed PRS term by order of the Queens County Supreme Court.
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 June 30, 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 admissible proof of a legally recognized excuse for his
failure to file and serve the claim within ninety days of his release from
incarceration on June 30, 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
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
Defendant concedes that claimant can show the first three elements but argues
that the confinement was privileged or that defendant is shielded from liability
by governmental immunity.
This Court has previously considered whether defendant, in confining similarly
situated claimants, was entitled to protection from liability under a theory of
either privilege or governmental immunity. In rejecting those arguments, the
Court 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, 24 Misc 3d 329 [Ct Cl, February 5, 2009]; Burch v State of
New York, 2009 NY Slip Op 51847 (U), UID # 2009-041-031 [Ct Cl, July 24,
2009, Milano, J.]; Standsblack v State of New York, UID # 2009-041-033
[Ct Cl, August 24, 2009, Milano, J.]).
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”).
The claimant’s cause of action seeking recovery for violation of his
state constitutional rights lacks merit. Although the Court of Appeals has
recognized, under certain circumstances, a cause of action for a state
“constitutional tort” in the Court of Claims (Brown v State of
New York, 89 NY2d 172 ), it also acknowledged that a constitutional
tort remedy will not be implied when an adequate alternative remedy exists
(Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv
denied 91 NY2d 814 ). Claimant’s wrongful confinement cause of
action provides such a remedy.
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.