New York State Court of Claims

New York State Court of Claims

HILL v. THE STATE OF NEW YORK, #2009-041-045, Claim No. None, Motion No. M-77243


Application to file late claim alleging wrongful confinement resulting from defendant’s determination that claimant’s sentences ran consecutively rather than concurrently is denied since defendant justifiably relied on facially valid certificates of disposition prepared by Criminal Court of City of New York and no negligence cause of action lies since court employees owed claimant no special duty.

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:
December 7, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission to file a late claim. The proposed claim alleges that claimant was wrongfully confined by defendant from September 16, 2008 through October 6, 2008 at Chateaugay Correctional Facility (Chateaugay). Defendant concedes that claimant was held beyond his maximum expiration release date but argues that the proposed claim lacks merit because the defendant properly relied upon two erroneous or incomplete certificates of disposition (certificates) prepared and provided to Chateaugay by the Criminal Court of the City of New York. A Facility Parole Officer at Chateaugay reviewed the two certificates after claimant’s arrival at Chateaugay and saw that the certificates “did not specify that the two non-felony jail sentences were to be served concurrently with his parole violation time.” The Facility Parole Officer states in her affidavit that, “[b]ased on these Certificates of Disposition and upon Penal Law Section 70.25 [which required that, in the absence of specific direction from the sentencing court that the terms run concurrently, the terms would run consecutively], Mr. Hill was determined to have a maximum expiration release date of October 22, 2008.” After claimant complained that the sentencing judge had expressly stated that the sentences in question would run concurrently, rather than consecutively, defendant obtained copies of the sentence and commitment papers for the two convictions. These documents stated that the sentences were to run concurrently and claimant was released from incarceration forthwith.

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.”

The cause of action for claimant’s wrongful confinement arose upon his release from confinement on October 6, 2008 (Santiago v City of Rochester, 19 AD3d 1061, 1062 [4th Dept 2005], lv denied 5 NY3d 710 [2005]) and the application is timely pursuant to Article 2 of the CPLR, whether the action sounds in negligence or 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, “[n]othing 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 excuse for his failure to file and serve the claim within ninety days of his release from incarceration on October 6, 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 determined claimant’s maximum expiration release date 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.

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 plaintiff 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]).

With respect to whether a confinement is privileged, Holmberg v County of Albany (291 AD2d 610, 612 [3d Dept 2002], lv denied 98 NY2d 604 [2002]), instructs that: “Generally, where a facially valid order issued by a court with proper jurisdiction directs confinement, that confinement is privileged . . . and everyone connected with the matter is protected from liability for false imprisonment.”

There can be no liability for wrongful confinement based upon the acts or omissions of the defendant’s employees. They were acting under facially valid certificates of conviction and pursuant to the mandate of Penal Law 70.25 in determining that the sentences run consecutively, absent indication otherwise by the sentencing court otherwise. Once defendant obtained the sentence and commitment showing that the sentences were to run concurrently, claimant was released.

Nor can there be liability for negligence based upon the acts or omissions of the Criminal Court of the City of New York employees who prepared the erroneous or incomplete certificates of conviction. Even assuming the New York City criminal court clerks were acting as state employees (see National Westminster Bank, USA v State of New York, 76 NY2d 507 [1990]; Lapidus v State of New York, 57 AD3d 83, 92 [2d Dept 2008]), they owed no special duty to claimant as opposed to their duty to the public at large.

Preparation of the certificates of conviction is a governmental function. In McLean v City of New York (12 NY3d 194, 203 [2009]), the Court of Appeals clarified the law as to when a municipality or the state may be held liable for the negligent performance of a governmental function:
“Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general.”
A “[special] duty is born of a special relationship between the [claimant] and the governmental entity. When such a relationship is shown--and it is [claimant’s] burden to establish it--the government is under a duty to exercise reasonable care toward the [claimant]”
(Pelaez v Seide, 2 NY3d 186, 198-199 [2004])

The Pelaez opinion explains that a “special relationship can be formed in three ways: (1) when the [defendant] violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the [defendant] assumes positive direction and control in the face of a known, blatant and dangerous safety violation” (Pelaez, 2 NY3d at 199-200 [2004).

The only possible manner in which claimant could seek to show a special relationship is through the “special duty” analysis of the first prong of the Pelaez test. The Court of Appeals, in Pelaez, explained, at p. 200, that:
“To form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action. One may be fairly implied when (1) the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme . . . If one of these prerequisites is lacking, the claim will fail.”
The Pelaez decision cautioned that “[w]hile the existence of a special relationship depends on the facts, a plaintiff has a heavy burden in establishing such a relationship” and, consequently, has “dismissed most such claims as a matter of law” (Pelaez, 2 NY3d 186, 199 n 8).

Claimant has not shown the existence of “a special relationship through breach of a statutory duty” as contemplated by Pelaez. Claimant was thus owed no special duty by the court personnel who were, arguably, negligent in the ministerial preparation of the erroneous or incomplete certificates.

Based upon a balancing of the factors set forth in section 10 (6) and recognizing that “it would be futile to permit a defective claim to be filed even if the other factors . . . supported the granting of the claimant’s motion” (Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]), the application to file a late claim is denied.

December 7, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered:

  1. Claimant’s Notice of Motion, filed September 29, 2009;
  2. Affirmation of Gregory Hill, dated September 3, 2009, and annexed exhibits;
  3. Affidavit of Joan Matalavage, sworn to October 22, 2009, and annexed exhibits.