Late claim relief was denied as untimely with respect to claimant's intentional tort causes of action and granted with respect to the cause of action for ministerial neglect arising from defendant's alleged failure to timely release claimant from prison.
|Claimant short name:||HALL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption is amended sua sponte to reflect the only properly named defendant.|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Law Offices of Brett J. Harrison, P.C.
By: Brett J. Harrison, Esquire
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 8, 2010|
|See also (multicaptioned case)|
Movant seeks leave to file a late claim pursuant to Court of Claims Act § 10 (6) alleging various causes of action arising from the improper administrative imposition of postrelease supervision (PRS) and the State's alleged failure to timely release him from confinement after he was resentenced without any term of PRS. The State contends in opposition to the motion that late claim relief is foreclosed by the one-year statute of limitations applicable to claims for intentional torts, citing CPLR 215 (3).
Movant was sentenced on December 13, 2001 to a three-year determinate prison term for assault in the second degree in violation of Penal Law 120.05 (2) (movant's Exhibit B). The amended commitment reflects that this sentence was to run concurrently with another undischarged sentence, but fails to impose a PRS term (id.). Movant avers in his affidavit that he was released from prison in early 2005 (affidavit of Robert Hall, ¶ 6), and submits a proposed claim in which he alleges the following:
"Subsequently, defendant Corrections [Department of Correctional Services] and co-defendant New York State Division of Parole (defendant 'Parole') unilaterally imposed upon Claimant a five (5) year post release supervision sentence. Said imposition was unlawful, unconstitutional and without legal authority and, as a result of same, Claimant was caused to live in 'half-way houses' and be subjected to restraints of his liberties and violations of his constitutional rights. Said defendants ultimately 'violated' the Claimant on pre-textual grounds alleging violations of the illegal post release supervision sentence and again detained him first at Riker's Island and, then, at Bellevue Hospital where he was compelled to undergo inpatient psychiatric and drug treatment under lock and key for over one year.
Finally, on December 12, 2008, Judge John Latella signed an order notifying the defendants that Claimant was not sentenced to post release supervision and that his original sentence (i.e., determinate) remained in effect. Judge Latella's order notwithstanding, and for reasons known only to the defendants, Claimant was not granted his liberty from defendant's post release supervision custody and jurisdiction until February 5, 2009, nearly three months later."
Movant also submits in support of the instant application an Order dated December 12, 2008 in which he was resentenced pursuant to Penal Law § 70.85 "to the originally imposed determinate sentence without any term of post-release supervision" (movant's Exhibit D). While this Order directed the Clerk to immediately provide a copy of the Order "to the [New York State Department of Correctional Services or Division of Parole], and also forward a copy to the District Attorney and the defendant and his or her counsel", it did not direct the movant's release from confinement. On what legal authority, if any, movant was confined until February 5, 2009 is unknown.
Subdivision 6 of Section 10 requires that a motion to file a late claim be made "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." Thus, before evaluating the factors necessary to warrant late claim relief, the timeliness of the motion must be determined.
Whether the one-year statute of limitations for intentional torts or the three-year statute of limitations for negligence actions applies depends upon the nature of the cause of action asserted (McLaurin v State of New York, UID # 2010-039-192, Motion No. M-77918 [Ct Cl, June 15, 2010] Ferreira, J.; Sudler v State of New York, UID # 2009-038-546, Motion No. M-76072 [Ct Cl, June 3, 2009] Debow, J.; O'Neal v State of New York, UID # 2007-015-145, Claim No. 112354 [Ct Cl, January 9, 2007] Collins, J.). Claimant's arrest and confinement for violation of an improperly imposed period of PRS, being the product of intentional conduct, clearly invokes the shorter statutory limitations period of CPLR 215 (3) (see e.g. Gillette v State of New York, UID # 2009-032-171, Claim No. 116752, [Ct Cl, January 5, 2010] Hard, J.; Ferretti v State of New York, UID # 2009-015-228, Motion No. M-77103 [Ct Cl, 2009] Collins, J.). Inasmuch as a cause of action accrues when damages are reasonably ascertainable (Prisco v State of New York, 62 AD3d 978 , lv denied 13 NY3d 706 ; Conner v State of New York, 268 AD2d 706 ; Collins v McMillan, 102 AD2d 860 ; Ramirez v State of New York, 171 Misc 2d 677 ), movant's intentional tort causes of action, which include false imprisonment, accrued no later than his release from confinement on February 5, 2009. The instant motion having been served and filed more than one year after the confinement terminated is therefore untimely with respect to movant's intentional tort causes of action.(2)
A different result is reached with respect to the cause of action premised upon the State's alleged failure to release the movant from confinement following issuance of the December 12, 2008 Court Order. It has been recognized that a cause of action for wrongful excessive confinement in the prison setting may be the result of ministerial neglect thereby warranting application of the longer statute of limitations applicable to negligence actions (McLaurin v State of New York, supra; Sudler v State of New York, supra; O'Neal v State of New York, supra). As the Court explained in Ramirez v State of New York (171 Misc 2d at 682):
"While [wrongful excessive confinement] may legitimately be considered a 'species' of false imprisonment (Gittens v State of New York, 132 Misc 2d 399, 407 ), it is quite different in one critical respect. While a defendant's intention to confine the injured party is an essential element of the tort of false imprisonment (supra, at 402; see also, Broughton v State of New York, 37 NY2d 451, 456, cert denied sub nom. Schanbarger v Kellogg, 423 US 929), a correction official's failure to release a prisoner from no-longer-justified confinement is a violation of the governing rules and regulations whether or not the failure was intentional. Indeed, most of the cases in which there has been recovery for wrongful confinement have involved conduct almost certainly unintentional: unexplained or inadvertent mistakes in counting days."
While the proposed claim in the instant matter alleges no violations of prison rules or regulations, the alleged failure to promptly release the movant from incarceration following issuance of Judge Latella's Order resentencing the movant without any PRS term may give rise to a meritorious cause of action for ministerial neglect. Application of the three-year statute of limitations (CPLR 214) is therefore appropriate. That being the case, movant's application for late claim relief is timely with respect to the negligence cause of action asserted in the proposed claim. The threshold issue of timeliness being resolved, the Court will address the statutory factors considered on a late claim motion. Subdivision 6 of section 10 of the Court of Claims Act permits this Court to allow the filing of a late claim upon consideration of the following 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."
Movant asserts by way of excuse that he hired an attorney in February or March 2009 upon his release from confinement. The attorney thereafter became "less available and more evasive" (Affidavit of Robert Hall, ¶ 13) causing movant to retain his current counsel in March 2010. In late May or early June 2010 movant's counsel informed him that although his previous attorney had filed a notice of claim against the City of New York, she had failed to either serve a notice of intention or serve and file a claim against the State of New York in the Court of Claims.
Prior counsel's failure to serve the proper entity appears to have been the result of law office failure which is not a reasonable excuse for the failure to timely serve and file a claim (Langner v State of New York, 65 AD3d 780, 783 ). However, the absence of an acceptable excuse for the delay, standing alone, is not fatal to movant's application (Matter of Soto v New York City Hous. Auth. 180 AD2d 570 ).
The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. The State appears to concede that it had notice and an opportunity to investigate the claim and puts forth no argument that it would be prejudiced in the event late claim relief is granted. These factors therefore weigh in favor of movant.
With respect to the required showing of merit, the claim is sufficiently established if the movant demonstrates that the proposed claim is not patently groundless, frivolous, or legally defective and there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 ; Fowx v State of New York, 12 Misc 3d 1184 ). As indicated previously, movant's allegation that the State failed to timely release him from confinement following the issuance of the Court Order resentencing him to his original determinate prison term without PRS sets forth a potentially meritorious negligence cause of action. While the Court of Appeals in McLean v City of New York (12 NY3d 194 ) recently clarified that ministerial actions by government officials may form the basis for liability "only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general" (Id. at 203), this Court agrees with the conclusion reached by Judge Ferreira in McLaurin v State of New York (supra) that "the timely release of inmates is a duty owed to inmates by prison and parole officials distinguishable from any duty they might owe to the general public." Although the possibility remains that movant's continued confinement was pursuant to some valid legal process, movant's allegations sufficiently demonstrate the potential merit of the claim for purposes of the instant application.
Lastly, the Court of Claims lacks jurisdiction over claims alleging violations of the United States Constitution, as a State is not a "person" amenable to suit under 42 USC § 1983 (Brown v State of New York, 89 NY2d 172 ; Will v Michigan Dept. of State Police, 491 US 58 ). To the extent the proposed claim asserts such a cause of action it lacks merit.
As to the final factor to be considered, it appears no alternative remedy is available to the movant.
Upon balancing all of the factors enumerated in Court of Claims Act § 10 (6), movant's application to serve and file a late claim asserting a negligence cause of action arising from the State's alleged failure to timely release the movant from confinement is granted, as limited herein. Movant is directed to serve and file his claim in accordance with Court of Claims Act § § 11 and 11-a within 45 days of the date the instant Decision and Order is filed.
December 8, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
2. Were the Court to reach the merits of the intentional tort causes of action, late claim relief would be denied for the reasons set forth in Standsblack v State of New York, (___AD3d ___ , 2010 NY Slip Op 08843); Eanes v State of New York (___AD3d ___, 2010 NY Slip Op 07853); Vazquez v State of New York (77 AD3d 1229 ); Carollo v State of New York (75 AD3d 736 ); Nazario v State of New York (75 AD3d 715, 718 , lv denied 15 NY3d 712 [October 21, 2010]), Donald v State of New York (73 AD3d 1465 , lv denied 77 AD3d 1458 ; Collins v State of New York (69 AD3d 46 ).