Defendant's motion to dismiss wrongful confinement claim as barred by intentional tort limitation period set forth in CPLR 215 (3) is denied where claim sounds in negligence.
|Claimant short name:||BLACK|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||JAMEL BLACK
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Michael T. Krenrich, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 18, 2020|
|See also (multicaptioned case)|
Defendant moves (M-96062) to dismiss the claimant's wrongful confinement cause of action because the one-year statute of limitations period for intentional torts (CPLR 215 ) expired prior to service of the claim on the Attorney General.
Claimant's opposition to the defendant's motion to dismiss the claim was designated as a cross-motion (CM-96194).
The claim alleges that as a result of a disciplinary hearing held on August 14, 2018 at Clinton Correctional Facility, the inmate/claimant was wrongfully confined in the Special Housing Unit for 180 days, commencing on July 21, 2018 and ending on January 13, 2019. The claim further alleges that at the disciplinary hearing claimant was denied the opportunity to present "witnesses in the form of videos/audios" that "would have proved claimant's innocences [sic] of the charges in the misbehavior Report."
Claimant's administrative appeal of the disciplinary determination was denied and claimant next challenged the disciplinary determination in an Article 78 proceeding. Defendant chose not to oppose the claimant's Article 78 petition and instead, on October 10, 2019, defendant reversed and expunged the disciplinary determination because the "HEARING OFFICER FAILED TO MAKE A FURTHER INQUIRY INTO INMATE REQUESTED VIDEO EVIDENCE."
In seeking dismissal of the claim, defendant argues that the statute of limitations applicable to claimant's wrongful confinement cause of action is governed by the one-year intentional tort period provided for in CPLR 215 (3). Defendant further contends that the limitations period commenced upon claimant's release from confinement on January 13, 2019 and expired on January 13, 2020, prior to service of the claim on September 29, 2020.
Initially, the Court takes judicial notice of its two prior Decisions and Orders in this action regarding claimant's request for permission to serve and file a late claim concerning his wrongful confinement cause of action.
In Black v State of New York, UID #2019-041-030 [Ct Cl, Milano, J., June 18, 2019, M-93816] claimant made a timely application to serve and file a late claim on or about April 22, 2019, just over ninety days after his release from confinement.
The application, though timely pursuant to Court of Claims Act 10 (6) and CPLR Article 2, was denied for lack of merit of the proposed claim because the proposed claim failed to allege "that the disciplinary determination was reversed or annulled either through administrative appeal or via CPLR Article 78."
Claimant was unable to make such an allegation because the disciplinary determination was not reversed and expunged until October 10, 2019.
On January 16, 2020, more than one year after accrual of the wrongful confinement cause of action on January 13, 2019, and after reversal and expungement of the subject disciplinary determination on October 10, 2019, claimant moved for renewal of his prior late claim application. Claimant was granted renewal of his prior timely late claim application and the Court further granted the claimant permission to serve and file a late claim (Black v State of New York, UID #2020-041-009 [Ct Cl, Milano, J., August 6, 2020, M-93816]).
Claimant thereafter served his claim within the time period set forth in the Court's Decision and Order granting leave to serve and file his late claim(Black v State of New York, UID #2020-041-009 [Ct Cl, Milano, J., August 6, 2020, M-93816]).
The statute of limitations was tolled during the period in which the claimant's initial timely late claim application was pending (see Giblin v Nassau Cty. Med. Ctr., 61 NY2d 67, 74 ): Application to file a late claim pursuant General Municipal Law 50-e  serves to "toll the running of the Statute of Limitations while a motion to file a late notice of claim is pending;" Barchet v New York City Transit Auth., 20 NY2d 1, 6 : Statute of limitations "was tolled from the time the plaintiff commenced the proceeding to obtain leave of the court to file a late notice of claim until the order of Special Term granting that relief;" Thompson v State of New York, 258 AD 758, 758 [3d Dept 1939]: Where application for permission to file late claim "was made prior to the expiration of the two year [limitations] period . . . the order should therefore be held to refer back to the date of the application;" Rydeberg v State of New York, 108 Misc 2d 362, 363 [Ct Cl 1981]: "We hold that a claim cannot become time-barred during the period in which a judge is deliberating upon a motion, timely made to permit the late filing of a claim".
Here, even though the underlying disciplinary determination was reversed and expunged on October 10, 2018, claimant failed to make his motion to renew his late claim application until January 16, 2020, after the one-year intentional tort statute of limitations had expired on January 13, 2020. Lubin v City of New York, 148 AD3d 898, 900 [2d Dept 2017], lv dismissed 32 NY3d 1218 , holds that:
"[A] motion to renew a prior timely [application] for leave to serve a late notice of claim, which renewal motion is made after the statute of limitations has expired, is untimely and does not relate back to the original [application] . . . If the relation-back doctrine were to be applied to such a motion, 'the [s]tatute of [l]imitations would have no practical effect for it would impose no time constraint on seeking renewal' (citing Matter of Rieara v City of N.Y. Dept. of Parks & Recreation, 156 AD2d 206, 207 [1st Dept 1989])."
While the one-year limitation period prescribed in CPLR 215 (3) was not tolled by the claimant's renewal motion, the Court's inquiry is not complete.
In Kairis v State of New York (113 AD3d 942 [3d Dept 2014]), the court held that:
"The applicable statute of limitations for a claim of excessive confinement in the prison disciplinary context depends on whether the claim is predicated on intentional or negligent conduct."
The claim explicitly alleges that it is for "Negligence Tort" due the "acts or omissions of the defendant." The claim makes no allegation of intentionally tortious conduct at the disciplinary hearing beyond challenging the completeness of the video evidence presented by defendant and further challenging defendant's "reasons" for denying "claimant's right to present video/audios that would have proved claimants innocences of the charges."
The defendant's motion to dismiss the claim offers nothing beyond a conclusory statement that inmate wrongful confinement claims "generally sound in intentional tort."
Claimant's wrongful confinement cause of action predicated on defendant's negligence is not barred by the one-year statute of limitations set forth in CPLR 215 (3).
The defendant's motion to dismiss the claim is denied. Claimant's cross-motion is denied as moot.
December 18, 2020
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Notice of Motion To Dismiss, filed October 27, 2020;
2. Affirmation of Michael T. Krenrich, dated October 27, 2020, and attached exhibit;
3. Affidavit of Jamel Black in Support of Claimant's Response to Defendant's Motion to Dismiss Claimant (sic) Late Claim, sworn to November 16, 2020, and attached exhibits.