Defendant's motion for summary judgment is granted in part and denied in part: Motion to dismiss cause of action for wrongful confinement is denied where supreme court order purportedly providing privilege to confine claimant expressly required further order of court prior to returning claimant to confinement and court which issued order subsequently ordered claimant's release upon his own recognizance after dismissal of indictment; motion to dismiss negligence cause of action for lack of special duty owed claimant is denied because defendant owed direct duty to release claimant from confinement once it was aware of order directing claimant's release upon his own recognizance; motion to dismiss constitutional rights causes of action is granted.
|Claimant short name:||REDDING|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||STOLL, GLICKMAN & BELLINA, LLP
By: Andrew B. Stoll, Esq.
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
By: Michael T. Krenrich, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 18, 2013|
|See also (multicaptioned case)|
Defendant moves for summary judgment dismissing the claim, essentially arguing that the claim fails to state a cause of action. Claimant opposes the motion.
The claim contains three causes of action: Wrongful confinement, negligence and violation of claimant's state constitutional rights, respectively. Each is based upon the assertion that defendant wrongfully confined claimant for seven (7) days after the dismissal of an indictment against claimant on November 13, 2009.
According to the claim, the claimant was "convicted in Kings County Supreme Court, and sentenced to state prison time." The claim further alleges that the conviction was reversed on appeal and, "on [or] about November 13, 2009, claimant's case was dismissed in Supreme Court . . . and claimant was ordered released from custody by a Supreme Court Justice."
Further, according to the claim, the claimant was "only in custody due to the single conviction that had been the subject of his successful appeal" and due to a "hold" placed on claimant by defendant, the claimant was wrongfully confined until November 20, 2009 despite the dismissal of the criminal charge and despite the November 13, 2009 open court order of the presiding Supreme Court Justice that claimant be released upon his own recognizance.
Defendant's motion for summary judgment is supported, in part, by the affirmation of Richard de Simone, Associate Counsel in Charge of the defendant's Office of Sentencing Review (Defendant's Counsel), who recounts claimant's criminal litigation history. Defendant's Counsel explains that on September 8, 2009, the Appellate Division, Second Department, issued a Decision and Order (9-8-09 AD Order) which reversed the conviction for which claimant had been incarcerated by defendant since 2004 and returned the case to the Kings County Supreme Court for a new trial.
Defendant's Counsel states that the defendant transferred claimant to the custody of the New York City Department of Correction (NYCDOC) on November 3, 2009 for attendance at claimant's new trial, pursuant to an Order to Produce issued by Kings County Supreme Court Justice Elizabeth A. Foley on October 26, 2009 (10-26-09 SC Order).
Defendant's Counsel next asserts that the 10-26-09 SC Order:
"[d]irected Claimant's return to [defendant] upon completion of the instant proceedings and Claimant had not served [defendant] with a court-certified copy of the September 8, 2009 appellate reversal, so [defendant] had no legal authority to discharge Claimant from the 2004 sentences at that time. Accordingly, [defendant] lodged a detainer for Claimant when he was transferred to the New York City Department of Correction pursuant to the order to produce."
On November 17, 2009, Defendant's Counsel was contacted by claimant's attorney and informed that the claimant's "retrial resulted in dismissal on November 13, 2009 and was seeking to have the . . . detainer lifted." Defendant's Counsel advised claimant's attorney to "mail [defendant] a court-certified copy of the September 8, 2009 appellate reversal."
Defendant's Counsel was thereafter advised by defendant's "Inmate Records Coordinator" that a certified copy of the 9-8-09 AD Order was "received on November 18, 2009 . . . [and] Claimant was released from the custody of [defendant] on November 20, 2009."
The standard for review of defendant's motion for summary judgment is well-established. "A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law . . . If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment" (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]).
Once the moving party has satisfied this obligation, the burden shifts and the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue (Svoboda v Our Lady of Lourdes Mem. Hosp. Inc., 31 AD3d 877 [3d Dept 2006]).
The Court "must view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference and ascertaining whether there exists any triable issue of fact" (Boston v Dunham, 274 AD2d 708, 709 [3d Dept 2000]).
To establish that he was wrongfully 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 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 ), 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."
On the other hand, where "the alleged imprisonment [is] without a warrant and therefore an extrajudicial act, the burden not only of proving, but of pleading legal justification [privilege]" is on the defendant (Parvi v City of Kingston, 41 NY2d 553, 557 ).
Defendant argues that the confinement of claimant was privileged because the "King's [sic] County Supreme Court Order to produce Claimant for trial on November 4, 2009 made no mention of the vacatur of Claimant's conviction and in fact, ordered Claimant to be returned to Woodbourne Correctional Facility at the conclusion of the November 4, 2009 trial." Defendant adds that it "did not receive a certified copy of the Appellate Division, Second Department's decision vacating Claimant's 2004 conviction until November 18, 2009" and "promptly released [claimant] from custody on November 20, 2009."
The Court finds that by reason of the foregoing recited assertions defendant has sustained its burden of a prima facie showing that the confinement of claimant was privileged.
The burden thus shifts and claimant is obliged to demonstrate by admissible evidence the existence of a factual issue sufficient to deny defendant's motion. The Court finds that claimant has done so.
The Court assumes, for the purpose of determining the motion, that the allegations of the claim, and those in the affidavit of claimant's attorney who was present in Kings County Supreme Court with claimant on November 13, 2009, are true.
Initially, the Court notes that claimant was not released until November 20, 2009, two days after defendant was served with a certified copy of the 9-8-09 AD Order. Defendant offers no explanation for why claimant remained confined for two (2) days after it had received the 9-8-09 AD Order. Defendant's motion for summary judgment dismissing claimant's wrongful confinement cause of action is properly denied if for no other reason than this.
More importantly, claimant accurately points out that the 10-26-09 SC Order upon which defendant relies stated that "at the conclusion of [the Kings County Supreme Court] proceedings and on the further order of this Court" claimant was to be returned to defendant's custody "pursuant to the original commitment" (emphasis added).
The affidavit of Ken Womble, the attorney representing claimant who was present with claimant in Kings County Supreme Court on November 13, 2009, states that:
"On the record, the People made an application to dismiss the indictment against Mr. Redding. Judge Foley, on the record, granted the People's request, dismissed Mr. Redding's case, ordered said case be sealed and ordered that Mr. Redding be released upon his own recognizance" (emphasis added).
Assuming the truth of Mr. Womble's affidavit, the proof shows that Supreme Court Justice Foley, whose 10-26-09 SC Order is relied upon by defendant to establish that claimant's confinement was privileged, issued an order in open court, on the record, directing that claimant be released upon his own recognizance after dismissal of the subject indictment.
Despite the express terms of the 10-26-09 SC Order of Justice Foley which required a "further order" before claimant was returned to defendant's custody, and despite the November 13, 2009 open court order of Justice Foley dismissing the initiating indictment and directing claimant's release upon his own recognizance, defendant continued to confine claimant until November 20, 2009.
Because the 10-26-09 SC Order upon which defendant relies as providing defendant privilege in confining claimant required the "further order" of the court prior to claimant's return to confinement, it cannot be said to be "facially valid" (Holmberg, 291 AD2d at 612) so as to shield defendant, as a matter of law, from liability.
The defendant's motion for summary judgment dismissing claimant's wrongful confinement cause of action is denied.
Defendant also seeks summary judgment dismissing claimant's negligence cause of action because defendant allegedly owed claimant no "special duty" with respect to the ministerial governmental function of issuing a detainer when it transferred custody of claimant to NYCDOC on November 3, 2009 for attendance at claimant's new trial (see McClean v City of New York, 12 NY3D 194, 199 ).
The Court notes, however, 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" (Mclaurin v State of New York, UID No. 2010-039-192 [Ct Cl, Ferreira, J., June 15, 2010]; Hall v State of New York, UID No. 2010-015-198[Ct Cl, Collins, J., Dec. 8, 2010]).
The record shows that the detainer placed by defendant included a copy of the 10-26-09 SC Order which required the "further order" of the court prior to claimant's return to confinement.
Defendant was, at a minimum, under a duty to release claimant once it had sufficient proof that the conviction underlying claimant's confinement had been vacated and the initiating indictment dismissed. Defendant further owed a duty to release claimant upon learning that claimant had been ordered released upon his own recognizance by the court which had initially directed claimant's confinement.
Whether, and to what extent, defendant's duty to claimant was breached is a question of fact.
Finally, claimant offers no opposition to defendant's motion for summary judgment dismissing claimant's state constitutional causes of action and as such, that aspect of defendant's motion is granted.
November 18, 2013
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Defendant's Notice of Motion, filed July 16, 2013;
2. Affirmation of Michael T. Krenrich, dated July 15, 2013, and annexed exhibits;
3. Affirmation of Richard de Simone, dated July 15, 2013, and annexed exhibits;
4. Affidavit of Rhonda Fox, sworn to July 15, 2013, and annexed exhibit;
5. Affirmation of Andrew B. Stoll, dated October 4, 2013;
6. Affirmation of Ken Womble, undated.