Movant's motion seeking an order granting leave to file and serve a late claim upon defendant pursuant to Court of Claims Act § 10 (6) is granted.
|Claimant short name:||DALLAS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||James Dallas, Pro Se|
|Defendant's attorney:||Hon. Eric T. Schneiderman, NYS Attorney General
By: Ray A. Kyles, Assistant Attorney General,
|Third-party defendant's attorney:|
|Signature date:||January 4, 2018|
|See also (multicaptioned case)|
Movant, an inmate in the custody of the New York State Department of Corrections and Community Supervision (DOCCS), seeks permission to file and serve a late claim alleging wrongful confinement. Defendant opposes the motion.
On July 16, 2016, movant was charged in a misbehavior report with violating rule 113.24 (drug use). A Tier III hearing began on August 2, 2016, and ended on August 7, 2016. On August 7, 2016, movant was found guilty of the charge contained in the misbehavior report and sentenced to 75 days in keeplock confinement. Movant administratively appealed the hearing officer's decision. On September 16, 2016, DOCCS' Director of Special Housing/Inmate Disciplinary Program modified movant's penalty to 65 days in keeplock confinement. On November 2, 2017, the Tier III hearing was administratively reversed by DOCCS' Director of Special Housing/Inmate Disciplinary Program (Movant's Reply, Exhibit A).(1)The claim alleges that movant was wrongfully confined in keeplock status for 60 days because the hearing officer refused to allow movant to call a witness at a Tier III Hearing on August 7, 2016.(2)
Additionally, movant alleges that the urine sample which formed the basis of the misbehavior report was left unsecured in violation of 7 NYCRR 1020.4 (f) (1) (i), which mandates that inmate urine samples be kept "in a secure area at all times".
As alleged, movant's proposed causes of action accrued, at the earliest, on October 11, 2016, 65 days after movant received the penalty at the Tier III hearing.(3) Because movant failed to serve a claim or notice of intention to file a claim within 90 days of the accrual date as required by Court of Claims Act § 10 (3-b), the Court may consider the application for late claim relief only if his cause of action is timely under the statute of limitations applicable to his claim pursuant to CPLR Article 2 (Court of Claims Act § 10 ). Accordingly, because this motion seeking permission to file and serve a late claim was filed and served upon defendant on July 31, 2017, the causes of action are timely under CPLR article 2, which states that causes of action for intentional torts must be commenced within one year of the accrual date (see Court of Claims Act § 10 ; CPLR 215). Therefore, the Court must consider whether: (1) the delay in filing the claim was excusable; (2) the State had notice of the essential facts constituting the claim; (3) the State had an opportunity to investigate the circumstances underlying the claim; (4) the State was substantially prejudiced by the delay; (5) claimant has any other available remedy; and (6) the claim appears to be meritorious (see Court of Claims Act § 10 ). While the presence or absence of any one of these factors is not dispositive (see Williams v State of New York, 133 AD3d 1357 [4th Dept. 2015]), the last factor is generally the most decisive inasmuch as "'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'" (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept. 2010], affd sub nom Donald v State of New York, 17 NY3d 389 , quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept. 1993]).
As to the first factor, movant contends that his failure to timely file his claim was due to his treatment for adrenal cancer, and his lack of access to a law library. It is well-established that lack of access to a law library is not an acceptable excuse for the failure to timely file a claim (Smith v State of New York, UID No. 2016-040-042 [Ct Cl, McCarthy, J., June 9, 2016]). Additionally, movant has failed to provide the Court with any documentation from his treatment providers showing the length and nature of his alleged incapacitation (id.). Therefore, the Court finds that this factor does not weigh in movant's favor.
The next three factors - defendant's notice of the issues, opportunity to investigate, and prejudice - are interrelated and therefore frequently considered together. Movant argues that defendant has notice of the issues, the opportunity to investigate, and that it will not be prejudiced because movant filed a CPLR Article 78 proceeding in Supreme Court, and defendant had notice of the Tier III hearing. Defendant does not argue that it lacked notice, the opportunity to investigate, or that it will be substantially prejudiced by a delay in filing the claim (see Kyles Aff.). These factors, therefore, weigh in movant's favor.
The fifth factor to be considered is whether movant has another remedy available. It appears that movant does not have a possible alternate remedy.
Turning then to the final factor, in order to establish a meritorious cause of action, movant must establish that his claim is not "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, 834 [Ct Cl 2003]; see Court of Claims Act § 10 ; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). "While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require [m]ovant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit [him] to file a late claim" (Williams v State of New York, UID No. 2016-040-100 [Ct Cl, McCarthy, J., Nov. 16, 2016]; see Matter of Santana v New York State Thruway Auth., 92 Misc 2d at 11-12).
To establish a claim for a wrongful confinement, movant 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]). Formal inmate disciplinary proceedings conducted by prison officials "in full compliance with the governing statutes and regulations . . . constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity" (Arteaga v State of New York, 72 NY2d 212, 214 ; Varela v State of New York, 283 AD2d 841 [3d Dept. 2001]). Thus, it is well-established that the State cannot be held liable where there is no allegation that the prison official acted in contravention of established rules and regulations while conducting disciplinary proceedings (Holloway v State of New York, 285 AD2d 765, 766 [3d Dept. 2001].
Here, movant alleges that (1) his urine sample was not handled in accordance with 7 NYCRR 1020.4 (f) (1) (i), and (2) he was not allowed to call a witness at the disciplinary hearing. 7 NYCRR 254.5 states that an "inmate may call witnesses on his behalf provided their testimony is material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals. If permission to call a witness is denied, the hearing officer shall give the inmate a written statement stating the reasons for the denial, including the specific threat to institutional safety or correctional goals presented." Where an inmate alleges that he was not allowed to call witnesses at a disciplinary hearing, minimal due process protections are implicated and immunity afforded to prison officials may be abrogated (Michel v State of New York, UID No. 2017-041-048 [Ct Cl, Milano, J., July 10, 2017]). Furthermore, the Tier III hearing disposition was administratively reversed on November 2, 2017 (see Ford v State of New York, UID No. 2017-045-032 [Ct Cl, Lopez-Summa, J., Aug. 4, 2017]). Thus, the Court finds that movant's cause of action is not patently without merit, and, accepting his allegations to be true, provides cause to believe that the claim is meritorious.
Based upon the foregoing, it is hereby
ORDERED, that movant's motion (M-90918) is granted and movant is directed to file and serve a verified claim identical to the claim provided in support of this motion, in compliance with the Court of Claims Act, including the payment of a filing fee in accordance with section 11-a thereof, within sixty (60) days of the filing of this Decision and Order.
January 4, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion, dated July 12, 2017; and Affidavit in Support of Motion, sworn to by movant on July 11, 2017; with Proposed Claim annexed thereto.
2. Affirmation in Opposition to Claimant's Motion to File a Late Claim, signed by Ray A. Kyles, AAG on August 30, 2017, with Exhibits A through D annexed thereto.
3. Reply to Defendant's Opposition to Claimant's Motion to File Late Claim, signed by movant on November 22, 2017, with Exhibit A annexed thereto.
1. Pursuant to 7 NYCRR 254.8, the DOCCS Commissioner or his designee may affirm, modify, or reverse a Tier III hearing disposition if an inmate appeals the hearing officer's decision. An inmate must submit the appeal within 30 days following his or her receipt of the disposition. The decision to affirm, modify, or reverse a Tier III hearing must be issued no more than 60 days after an inmate appeals. The Court notes that the record does not show why movant's hearing disposition was reversed more than a year after movant appealed.
2. The Court notes that movant alleges that he received 60 days of keeplock confinement (Proposed Claim, ¶ 6), but defendant alleges that movant received 75 days of keeplock confinement (Kyles Aff., ¶ 12), and the penalty was later reduced to 65 days of keeplock confinement after movant appealed. Exhibit D attached to the affirmation of Ray A. Kyles, AAG is a document signed by the DOCCS Director of Special Housing/Inmate Disciplinary Program modifying movant's original penalty to 65 days in keeplock confinement.
3 The Court will use the 65 day penalty in determining the accrual date, for the reasons set forth in footnote 2, supra.