Claim for false imprisonment was dismissed as premature. Claimant remains confined as a sex offender pursuant to Court Order pending a hearing or trial.
|Claimant short name:||DECAPUA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-77322, M-77403|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Steven DeCapua, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Richard B. Friedfertig, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 10, 2010|
|See also (multicaptioned case)|
Claimant, a pro se inmate, moves for a default judgment as the result of the defendant's alleged failure to respond to an "Affidavit of Proof in the Nature of Discovery" (Motion No. M-77322) and for an "Evidentiary Hearing in support of all papers filed in this court" (Motion No. M-77403). Defendant cross-moves to dismiss the claim pursuant to CPLR 3211 (a) (2) and (7) (Motion No. CM-77343).
Claimant alleges he was improperly placed in the Sex Offender Program ("SOP") on October 30, 2007 while incarcerated at the Gowanda Correctional Facility. A proceeding pursuant to CPLR article 78 was commenced on claimant's behalf in the Supreme Court and the relief requested in the petition was granted by Decision and Order dated August 5, 2008 (claim, p. 2). The penultimate paragraph of the Order states that "the order requiring [sex offender] counseling is revoked and respondent is directed to expunge all entries of these proceedings from petitioner's inmate records and to re-evaluate petitioner's good time allowance in a manner consistent with this decision" (defendant's Exhibit E). Upon receipt of the order the Time and Allowance Committee restored three months and ten days of withheld time thereby making claimant's new conditional release date October 15, 2008 and his new maximum expiration date January 25, 2009 (defendant's Exhibit D, Computation Number 021). The Department of Correctional Services notified the Office of the Attorney General and the Office of Mental Health by letter dated August 29, 2008 that the claimant may be a detained sex offender nearing his anticipated release date (defendant's Exhibit G). The State thereafter filed an order to show cause why a probable cause hearing should not be scheduled to determine whether or not the claimant was a sex offender requiring civil management under article 10 of the Mental Hygiene Law. The order to show cause, which was granted on September 23, 2008, ordered that "pending the resolution of the probable cause hearing by the Court . . . the New York State Department of Correctional Services is hereby authorized to retain [claimant] past his scheduled release date . . . (defendant's Exhibit I). Defense counsel represents, upon information and belief, that hearings and or a trial are scheduled for 2010. To date, claimant remains confined.
The claim alleges in pertinent part the following:
"On or about August 5, 2008, a decision was rendered granting the petition of the claimant, ordering him removed from the SOP and his good time restored, and that all the proceedings be expunged from his inmate records . . .
The New York State Department of Correctional services failed to follow the Court's Decision and Order and held claimant past his release date (Conditional Release) of July 15, 2008.
Claimant put the State of New York Attorney General's office on notice of the proceedings by filing an Affidavit of Proof in the Nature of Discovery and Caveat, a Commercial presentment and gave the Attorney General ten (10) days to respond, Claimant did not receive a response in the time a loted within the Affidavit, and therefore put the State of New York in default of all the terms and conditions listed within the Caveat of the Affidavit. . .
The Affidavit of Proof in the Nature of Discovery was sent by certified mail return receipt requested . . . on or about July 14, 2008, and was received on or about July 16, 2008 . . .
On or about August 12, 2008, claimant sent the State of New York Attorney General's office a Notice of Default and a Commercial Notice which is a commercial presentment by certified mail return receipt requested . . .
Claimant is being held unlawfully as of July 15, 2008, and seeks the relief requested within the Affidavit of Proof in the Nature of Discovery, and Caveat filed upon the New York State Attorney General . . .
The place where the act took place is: Gowanda Correctional Facility, Gowanda, New York on or about the 30th day of October 2007 while inappropriately placed in the SOP contrary to the Department of Correctional Services Policy and Procedures for return Parole Violator's. . .
Notice of intention to file a claim was served on the New York State Attorney General on or about July 14, 2008 by an Affidavit of Proof in the Nature of Discovery and Caveat which is a Commercial Instrument used to discover the truth and facts in the case/matter of the Article 78 presented to the . . . Hon: Thomas P. Franczyk . . .
The Affidavit and Caveat was served as legal notice of claimant's intention to filed the forementioned claim on the Attorney General well before the Article 78 was heard on July 31, 2008.
By reason of the foregoing, claimant is seeking the relief for damages as outlined in the Caveat of the Affidavit in the Amount of $100,000 per-day, and that each day after the three (3) days to cure default ends, a sum of $100,000 per-day will be paid to the claimant by the State of New York. By default, the State of New York (defendant(s) agreed to the terms set forth within the 'CAVEAT' of the 'AFFIDAVIT' filed upon them as legal notice."(1)
Claimant's motion for a default judgment is premised on the defendant's failure to respond to the "Affidavit of Proof in the Nature of Discovery." While claimant failed to submit this document in support of his motion, the defendant annexed a copy to its cross-motion as Exhibit K. The document requests items such as "Proof that Richard A. Savage, Brian Fischer and George B. Alexander, have taken an oath of office to serve, protect and uphold the constitution(s) of the STATE OF NEW YORK, and the UNITED STATES" (defendant's Exhibit K, p.1). In the event of the State's default in answering, the document demands damages for each day claimant is held beyond his conditional release date of July 15, 2008.
The Affidavit of Proof in the Nature of Discovery, which forms the basis for his motion, is not a discovery device within the contemplation of article 31 of the CPLR and the failure to comply therewith simply provides no basis for a default judgment under CPLR 3215. Claimant's motion for a default judgment is therefore denied.
In support of its cross-motion, the defendant contends, inter alia, that to the extent the claim is premised upon claimant's "alleged continued incarceration after he should have been released, there is no Court Order directing [his] release, the Court of Claims lacks jurisdiction to make that determination, and . . . the claim is, at best, premature and should be dismissed" (Affidavit of Richard B. Friedfertig, ¶ 34).
Affording claimant the benefit of every reasonable inference and accepting the allegations in the claim as true (see Alaimo v McGeorge, 69 AD3d 1032 ; Leon v Martinez, 84 NY2d 83, 87-88 ), the claim states a cause of action for false imprisonment (see Broughton v State of New York, 37 NY2d 451, 456 , cert denied sub nom. Schanbarger v Kellogg, 423 US 929 ). Since damages arising from false imprisonment are not reasonably ascertainable until release from confinement, it is on this date that a claim for false imprisonment accrues (see Charnis v Shohet, 2 AD3d 663 ; Jones v Town of Johnstown, 41 AD2d 866 ; Ramirez v State of New York, 171 Misc 2d 677 [Ct Cl 1997]). As claimant remains confined, the instant claim is premature and must be dismissed (cf. Collins v McMillan, 102 AD2d 860 ).
Based on the foregoing, claimant's motion for a default judgment (Motion No. M-77322) is denied and the defendant's cross-motion (Motion No. CM-77343) is granted and the claim is dismissed. Claimant's motion for an evidentiary hearing (Motion No. M-77403) is denied as moot.
February 10, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. The quoted paragraphs of the claim are uncorrected.