New York State Court of Claims

New York State Court of Claims
TOMON v. STATE OF NEW YORK, # 2020-051-033, Claim No. NONE, Motion No. M-95330

Synopsis

Movant filed a motion for permission to file a late claim alleging wrongful confinement, due process and negligence causes of action stemming from DOCCS's utilization of a new urinalysis drug test that allegedly caused a false positive result.

Case information

UID: 2020-051-033
Claimant(s): WALTER TOMON
Claimant short name: TOMON
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): NONE
Motion number(s): M-95330
Cross-motion number(s):
Judge: DEBRA A. MARTIN
Claimant's attorney: PHILIP M. HINES, ESQ.
Defendant's attorney: HON. LETICIA JAMES
New York State Attorney General
BY: BERNARD F. SHEEHAN, ESQ.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 11, 2020
City: Rochester
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The following papers were read on movant's motion to file a late claim:

1. Notice of Petition with Petition and Affirmation of Philip M. Hines, Esq. with attached exhibits, filed February 10, 2020;

2. Affirmation of Bernard F. Sheehan, AAG, with attached exhibits, dated August 11, 2020;

3. Reply Affirmation of Uri Nazryan, Esq., with attached exhibits, dated August 18, 2020.

Movant,(1) an individual incarcerated in a State correctional facility, moves pursuant to Court of Claims Act 10 (6) for permission to file and serve a late claim stemming from the use by the Department of Corrections and Community Supervision's (DOCCS) of urinalysis test equipment to detect the presence of buprenorphine, an opioid medication. The proposed claim alleges that movant was subjected to a urinalysis on March 11, 2019, that the test resulted in a false positive, and that he was wrongfully confined to disciplinary confinement in the special housing unit (SHU) at Wyoming Correctional Facility after being found guilty of violating Rule 113.24 (drug use). The basis for this motion is that on September 14, 2019, the Director of Special Housing/Inmate Discipline reversed movant's guilty finding and ordered his disciplinary record expunged because "IT HAS COME TO THE DEPARTMENT'S ATTENTION THAT A CROSS REACTIVITY ISSUE MAY HAVE EXISTED REGARDING THE BUPRENORPHINE II ASSAY USED IN TESTING, THEREFORE, IN THE INTEREST OF FAIRNESS THE HEARING HAS BEEN REVERSED AND EXPUNGED."(2) The State opposes the motion contending that movant has not demonstrated a valid excuse for not timely filing a claim, the proposed claim lacks merit, and he has alternative remedies. For the reasons set forth below, the Court concurs with the State's arguments, and finds that the statutory factors do not weigh in favor of granting claimant permission to file a late claim.

The proposed claim alleges that on March 11, 2019, the State tested movant's urine for illegal drugs using equipment and materials supplied by Microgenics/ Corporation and/ Thermo Fisher Scientific, Inc with a false positive result. Movant was issued a misbehavior report alleging violation of Rule 113.24 illegal drug use and was transferred to SHU.(3) Movant was found guilty after a Tier III hearing held on March 22, 2019 and penalties were imposed including some form of disciplinary confinement.(4) Movant's proposed claim alleges the following three causes of action: negligence in using a defective drug test and failing to confirm the reliability of the test materials; denial of due process because State relied upon a "preliminary test" rather than a more specific test; and false imprisonment and loss of liberty. Movant alleged that he "has endured pain and suffering, psychological and emotional distress, loss of liberty and privileges, atypical confinement, denial and/or dely of prison programing, denial and/or delay of parole release, and was otherwise harmed and injured." (affirmation of movant's attorney, exhibit C at 62.)

Court of Claims Act 10 (6) grants this court discretion to allow the filing of a late claim upon consideration of certain factors enumerated in the statute, but provides that the application must be made "at any time 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." Therefore, this Court must first decide whether it has authority to allow a late claim based on applicable statute of limitations set forth in Article 2 of the CPLR. As movant's motion was filed on February 10, 2020, less then one year after the testing and issuance of the misbehavior report on March 11, 2019, the March 22, 2019 hearing, and his unknown date of release from disciplinary confinement, it is presumed that the motion is timely. (Maniscalco v State of New York, UID No. 2020-053-527 [Ct Cl, Sampson, J., July 16, 2020].)

Court of Claims Act 10 (6) sets forth, at a minimum, six factors to be weighed when deciding whether to grant an application to file a late claim:

"[A]mong other 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."

In applying these criteria, it is important to note that no one factor is more important because the presence or absence of any one factor is not controlling. (Cabrera v State of New York, UID No. 2011-039-220 [Ct Cl, Ferreira, J., Mar. 16, 2011].)

In reviewing the motion papers, the first factor regarding whether the delay in filing the claim was excusable must go against the movant. He bases his time calculation from the date he learned of the reversal and expungement of the positive drug test, September 14, 2019, and argues that his claim or notice of intention to file a claim (NI) was due 90 days thereafter, or December 13, 2019. His NI was served on December 18, 2019 and received by the Office of the Attorney General on December 23, 2019. Therefore, he concludes, his NI was only 3 days late, which, he infers, is de minimus. This motion to file a late claim was then filed upon retaining counsel, on February 10, 2020.

The Court rejects movant's alleged accrual date. A wrongful confinement cause of action accrues once an inmate is released from the alleged wrongful confinement irregardless to when he was notified by the Director of Special Housing/Inmate Discipline that the hearing officer's finding of movant's guilt was reversed and expunged from his record. (Steele v State, 145 AD3d 1363, 1363 [3d Dept 2016]; Green v State, 65 Misc3d 543, 544 [Ct Cl 2019].) The discovery rule in the context of prison discipline was rejected in Conner v State of New York, 268 AD2d 706, 707 [3d Dept 2000].) Likewise, any claim based on negligence would accrue when the positive test result occurred because, if he had not ingested the drug, movant would have known at that time it was erroneous. (see generally Pizarro v State, 19 AD3d 891 [3d Dept 2005].) The due process cause of action accrued on March 22, 2019, the date he was found guilty after the hearing.

Significantly, movant fails to allege the date that he was released from disciplinary confinement, so this Court is unable to assess the timeliness of his motion and whether he has met the pleading requirements in Court of Claims Act 11 (b). (see Israel v State of New York, UID No. 2019-028-570 [Ct Cl, Sise, P.J., Aug. 16, 2019].) Scrutinizing the movant's submissions, the most detailed description the Court could find as to the specific penalties imposed was made by movant in his pro se, unsworn NI. There, he alleged "[a] penalty of 90 day [sic] keeplock, 90 days loss of packages, Commissary and telephone was imposed." (affirmation of movant's attorney, exhibit A.)

Setting aside the problem of calculating the accrual of the causes of action, movant's unsupported allegations are that his delay in filing a timely claim is excusable because his access to send and receive mail, and to make and receive telephone calls were restricted, which caused delays in his ability to timely communicate with counsel, and he had limited access to a Notary Public. There is no support in the record for movant's attorney's claim that while he spent "six months in solitary confinement, the State denied Petitioner complete access to everything." (reply affirmation of movant's attorney at 4.) However, it has long been held that access to counsel or disciplinary confinement are not valid excuses in timely filing a claim because "[t]he filing requirements of the Court of Claims are not so burdensome that a layperson cannot prepare adequate pleadings." (Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]; see also Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002]; Simpson by Buck v State of New York, 96 AD2d 646, 646 [3d Dept 1983]; and Barrett v State of New York, UID No. 2000-001-036 [Ct Cl, Read, J. June 30, 2000].) Accordingly, this factor weighs against the movant.

The three factors regarding whether the State had notice of the essential facts, had an opportunity to investigate, or would be prejudiced by the granting of this motion, are "intertwined and may be considered together. (See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998)." (Benedit v State of New York, UID No. 2011-016-058 [Ct Cl, Marin, J., Dec. 12, 2011].) As to these three factors, the movant alleged that they should be weighed in his favor since the State conducted its own timely investigation and would not be prejudiced by the filing of a late claim. The State did not address these factors, and the lack of any argument from the State as to these factors weighs in favor of granting the relief. (Curry v State of New York, UID No. 2018-038-507 [Ct Cl, DeBow, J., Jan. 10, 2018].)

It has been held that the appearance of merit factor should be weighed most heavily since it would be futile to permit the filing of a deficient claim. (Clark v State of New York, UID No. 2013-028-507 [Ct Cl, Sise, P.J., Apr. 19, 2013].) This factor is evaluated using the two prong test set forth in Matter of Santana v New York State Thruway Auth., (92 Misc 2d 1 [Ct Cl, 1977]). Movant's proposed claim "must not be patently groundless, frivolous, or legally defective," and his record as a whole, including the proposed claim and any affidavits or exhibits, must give "reasonable cause to believe that a valid cause of action exists" (id. at 11). The burden of demonstrating merit rests with the movant, which he has not sustained for the reasons set forth below. (Frederick v State of New York, 23 Misc 3d 1008, 1012 [Ct Cl, 2009].)

Movant's proposed claim alleges the following three causes of action: negligence, denial of due process; and false imprisonment. It is worth noting that the proposed claim is identical in all pertinent respects to the claims presented by two other inmates represented by movant's counsel; one was a claim proposed in a motion to late file that was denied (Francischelli v State of New York, UID No. 2020-038-544 [Ct Cl, DeBow, J., July 10, 2020]), and the other claim was dismissed on motion of the defendant. (Moreland v State of New York, UID No. 2020-038-538 [Ct Cl, DeBow, J., June 25, 2020](5) .) In both cases, the court analyzed these three causes of action and found no basis for any of them. In addition, in a pro se case involving the same facts, a motion to late file was denied and a motion to dismiss was granted. (Bickel v State of New York, UID No. 2020-053-544 [Ct Cl, Sampson, J., Nov. 19, 2020].) This Court finds no reason to depart from the conclusions reached in these decision, as discussed at length below.

False imprisonment (wrongful confinement)

To state a cause of action for wrongful confinement, movant must allege that: "(1) the defendant intended to confine him, (2) the [movant] was conscious of the confinement, (3) the [movant] did not consent to the confinement and (4) the confinement was not otherwise privileged . . ." (Ruggiero v State of New York, UID No. 2010-015-187 [Ct Cl, Collins, J., Nov. 1, 2010] [internal quotation marks and citations omitted]). Here, movant, as with most movants alleging wrongful confinement in a prison setting, has met the first three prongs of the test, however, "it is the last factor, the issue of privilege, which poses the most difficulty." (id.) Movant's proposed claim fails to allege all the essential elements of a wrongful confinement claim and, therefore, he has not demonstrated it has merit. (Donald v State, 17 NY3d 389, 394-395 [2011].)

Absolute immunity attached to the State when confinement was imposed after a disciplinary hearing as long as the underlying proceeding complied with the applicable governing rules and regulations (Arteaga v State of New York, 72 NY2d 212, 218-220 [1988]). However, this immunity arising from inmate disciplinary matters is lost where prison personnel exceeded their scope of authority or violated applicable rules. (Id.) Even where this is demonstrated, it does not automatically result in liability of the State for wrongful confinement, even if there was a reversal of the disciplinary decision. (Lamage v State of New York, UID No. 2009-044-527 [Ct Cl, Schaewe, J., June 1, 2009].) Movant must allege that the violation caused an actual injury. (Rivera v State of New York, UID No. 2006-028-008 [Ct Cl, Sise, P.J., Feb. 8, 2006].) Meaning that movant had to allege but for the hearing officer's exceeding his authority, violating a rule or regulation or committing a due process violation, he would not have been found guilty and sanctioned. (Wigfall v State of New York, UID No. 2013-032-015 [Ct Cl, Hard, J., May 6, 2013].)

Here, movant did not identify nor explain the manner in which the State violated a rule or regulation or committed a due process violation that would be sufficient to abrogate the State's absolute immunity. (see Robinson v State of New York, UID No. 2019-038-522 [Ct Cl, Apr. 11, 2019].) Neither were there any specific allegations as to the defenses or objections raised by the movant at the hearing. Movant's papers did not include a copy of the misbehavior report, the transcript of the proceedings, the hearing officer's decision or the appeal, if one was made. The proposed claim generally asserts "[r]elying on the false positive results yielded by the defendants' bench top urinalysis analyzer, the DOCCS hearing officer found Tomon 'guilty,' to the exclusion of contrary evidence that Tomon offered or attempted to offer." (affirmation of movant's attorney, exhibit C 28.) These allegations are insufficient to demonstrate that the State violated a rule or regulations or committed a due process violation that would warrant the loss of immunity.

Movant's reliance on the mere fact that defendant subsequently administratively reversed and expunged all charges arising from his March 22, 2019 hearing is misplaced. It has repeatedly been held that it is not enough for an inmate to merely establish that his convictions were administratively reversed and expunged. (see Shannon v State of New York, 111 AD3d 1077, 1077-1078 [3d Dept 2013]; Gittens v State of New York, 132 Misc 2d 399, 406 [Ct Cl 1986]; Orraca v State of New York, UID No. 2018-053-531 [Ct Cl, Sampson, J., June 12, 2018]; Campbell v State of New York, UID No. 2017-053-573 [Ct Cl, Sampson, J., Nov. 30, 2017].)

A fundamental flaw in movant's analysis is his presumption that his urinalysis test was a false positive. Critically, the State did not admit that all urinalysis tests resulted in false positives. Rather, out of an abundance of caution, the State expressly decided to reverse its disciplinary action for all inmates who tested positive using the new urinalysis test even though it would include inmates who had consumed an opioid and correctly tested positive. It is doubtful that movant's urine sample was preserved for retesting, and therefore, it is doubtful movant can ultimately establish his innocence. Nevertheless, movant did not provide any allegations as to his innocence. He did not provide the circumstances under which he was selected to be tested. Moreover, his motion papers did not contain a denial of drug use, nor did he provide a copy of his disciplinary history or any evidence to support the conclusion that the urinalysis test was in fact a false positive.

In addition, it has repeatedly been held that a finding of guilt based on false or

unfounded information does not by itself state a cause of action for wrongful confinement because an "allegation that defendant's agents acted in bad faith does not defeat absolute immunity absent an allegation of a violation of a specific due process safeguard (see Johnson v State of New York, UID No. 2018-015-112 [Ct Cl, Collins, J., Mar. 7, 2018], citing Arteaga)."

(Robinson v State of New York, UID No. 2019-038-522 [Ct Cl, Apr. 11, 2019].) The selection of a new urinalysis test to test inmates and the testing of inmates pursuant to 7 NYCRR Part 1020 "fell within the formidable tasks of maintaining order and security in correctional facilities and protecting the safety of inmates and employees." (Holloway v State, 285 AD2d 765, 766 [3d Dept 2001] quoting Arteaga v State of New York, 72 NY2d 212, 214, 218-220 [1988]. The selection process resulted in DOCCS making a discretionary decision "in furtherance of general policies and purposes where the exercise of reasoned judgment can produce different acceptable results." (Arteaga at 291) Therefore, the State had absolute immunity as to the selection and use of the test at least until it had sufficient notice and data that there was a problem with the urinalysis test selected.

Movant's conclusory allegations that DOCCS improperly conducted the urinalysis tests are equally inadequate to support a wrongful confinement cause of action. How a urinalysis tested is conducted in a New York Correctional Institution is governed by 7 NYCRR 1020.4 entitled Procedure. It has repeatedly been held that a violation of this regulation "does not relate to the due process concerns of the hearing and do not serve as a basis for the wrongful confinement cause of action." (see Miller v State of New York, 156 AD 3d 1067, 1068 [3d Dept 2017]; see also Ramirez v State of New York, 175 AD3d 1635, 1638 [3d Dept 2019]; Martinez v State of New York, UID No. 2020-015-037 [Ct Cl, Collins, J., Apr. 22, 2020]; Griffin v State of New York, UID No. 2020-040-024 [Ct Cl, McCarthy, J., May 4, 2020; Perez v State of New York, UID No. 2020-015-070 [Ct Cl, Collins, J., Aug. 26, 2020]; Francischelli v State of New York, UID No. 2020-038-544 [Ct Cl, DeBow, J., July 10, 2020]; Moreland v State of New York, UID No. 2020-038-538 [Ct Cl, DeBow, J., June 25, 2020]; Ramos v State of New York, UID No. 2018-032-093 [Ct Cl, Hard, J., Dec. 28, 2018]; Haddock v State of New York, UID No. 2018-054-015 [Ct Cl, Rivera, J., Mar. 27, 2018; and Claudio v State of New York, UID No. 2018-054-016 [Ct Cl, Rivera, J., Mar. 22, 2018].)

This Court has no authority to disregard Miller v State of New York (156 AD 3d 1067 [3d Dept 2017]) as movant urges; when only a single department of the Appellate Division has ruled on a legal principle, its opinion is binding authority statewide because the Appellate Division of the Supreme Court is "a single State-wide court divided into departments for administrative convenience." (Mtn. View Coach Lines, Inc. v Storms, 102 AD2d 663, 664 [2d Dept 1984].)

Critically, movant's proposed claim and motion papers did not address the fourth prong of the test - that the confinement was not otherwise privileged. Movant made no allegation, nor provided any evidence that he would not have been found guilty if the hearing officer had not violated a rule of procedure, and/or had missing evidence been admitted, and, consequently, he would not have been sentenced to SHU or Keeplock. Without such allegations, movant failed to demonstrate that his proposed cause of action for wrongful confinement has the appearance of merit. (Williams v State of New York, UID No. 2019-038-557 [Ct Cl, DeBow, J., June 21, 2019]; see Herion v State of New York, UID No. 2019-044-003 [Ct Cl, Schaewe, J., Mar. 25, 2019].)

Denial of Due Process

In light of the above, movant's general allegation that his disciplinary confinement violated his due process rights also lacks merit. (See Griffin v State of New York, UID No. 2020-040-024 [Ct Cl, McCarthy, J., May 4, 2020]; see also Johnson v State of New York, UID No. 2018-015-112 [Ct Cl, Collins, J., Mar. 7, 2018].) Movant does not argue that DOCCS failed to comply with 7 NYCRR 1020.4, the rule governing urinalysis testing in correctional facilities. Movant merely alleged that the State was negligent in how it selected the testing methodology, administered the testing, and monitored its testing of inmates for buprenorphine. Specifically, movant contended that the State should not have relied on a "preliminary analytical test" and should have utilized "the more specific chemical method to confirm the analytical result . . . . [and were therefore] deliberately indifferent to the claimant's due process rights." (affirmation of movant's attorney, exhibit C 56 and 57.) Given that the Court of Claims is a court of limited jurisdiction and can only review claims for money damages, it has no authority to review the propriety of DOCCS' selection and use of a new urinalysis drug test. (See Green v State of New York, 90 AD3d 1577, 1578-1579 [4th Dept 2011]. New York Courts have repeatedly held that regardless how a movant characterizes his claim, if the adjudication of that claim requires review of the underlying administrative determination, the Court of Claims has no jurisdiction to review because the jurisdiction squarely rests in the Supreme Court pursuant to Article 78 of the CPLR. (Id; see Logan v State of New York, UID No. 2019-015-176 [Ct Cl, Collins, J., July 24, 2019]; see also Rivera v State of New York, UID No. 2015-018-653 [Ct Cl, Fitzpatrick, J., Nov. 4, 2015].) The Court of Claims equally lacks jurisdiction to declare DOCCS testing regulations violates movant's due process rights. Cass v State of New York, 58 NY2d 460, 463 [1983]; see Francischelli v State of New York, UID No. 2020-038-544 [Ct Cl, DeBow, J., July 20, 2020].)

To the extent that movant's proposed claim can be read to allege violations of either the Federal or the New York State Constitutions is equally meritless on its face. "[F]ederal constitutional claims may not be asserted in the Court of Claims" and New York State is not amendable to suit under 42 USC 1983." Jones v State of New York, 171 AD3d 1362, 1364 [3d Dept 2019] citing Oppenheimer v State of New York, 152 AD3d 1006, 1008 [3d Dept 2017]; see Matter v State of New York, UID No. 2020-053-011 [Ct Cl, Sampson, J., Sept. 3, 2020].) Likewise, claims of due process violations and wrongful confinement claims alleging violations of the State Constitution are barred because, as set forth below, alternative remedies are available to protect movant's constitutional rights (Anselmo v State of New York, UID No. 2019-015-142 [Collins, J., May 15, 2019]); (see Martinez v City of Schenectady, 97 NY2d 78, 83-84 [2001].)

Negligence

Movant's proposed negligence claim is also without merit because it is based upon the same facts as his proposed wrongful confinement cause of action. (Simon v State of New York, 12 AD3d 171, 171 [1st Dept 2004].) New York Courts, citing Boose v City of Rochester, have repeatedly held that a party claiming wrongful confinement may not recover under general negligence principles because "recovery must be determined by established rules defining the torts of false arrest and imprisonment and malicious prosecution, rules which permit damages only under circumstances in which the law regards the imprisonment or prosecution as improper and unjustified (71 AD2d 59, 62 [1979])." (Ferguson v Dollar Rent A Car, Inc., 102 AD3d 600, 601 [1st Dept 2013]; Ray v County of Nassau, 100 AD3d 854 [2d Dept 2012]; Simon v State of New York, 12 AD3d 171, 171 [1st Dept 2004]; and Nazario v State of New York, 24 Misc 3d 443, 455 [Ct Cl 2009].) The rational for this is that generally intentional acts serve as the basis for wrongful confinement, and therefore, negligence principles are inapposite.

Nevertheless, in limited circumstances where the alleged acts causing injuries were squarely unintentional, a negligence cause of action may sound. (Cumberland v State of New York, UID No. 2018-038-570 [Ct Cl, DeBow, J., July 30, 2018]; see Ramirez v State, 171 Misc 2d 677, 682 [Ct Cl 1997].) To the extent that movant is contending that DOCCS unintentionally caused his injuries, the Court finds that his allegations do not adequately demonstrate merit.(6) The Court of Appeals reasoned in Metz v State of New York that since "the State is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public," the Court of Appeals opined that a Court must first determine whether movant sufficiently alleged the existence of a special duty that was owed to him by the State, "before it becomes necessary to address whether the State can rely upon the defense of governmental immunity . . . " (20 NY3d 175, 179; internal quotation marks and citations omitted). This is so even if a claimant was injured as a result of the State's negligent or malicious acts. (see Kovit v Estate of Hallums, 4 NY3d 499, 506 abrogated on other grounds McLean v City of New York, 12 NY3d 194 [2009]; see also Abraham v City of New York, 39 AD3d 21 [2007].) Accordingly, it was the movant's burden to allege sufficient facts to demonstrate that DOCCS owed him a special duty, which he has failed to meet.

A governmental entity will only be found to owe a special duty to an individual if one of the following conditions is found:

"(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation."

(McLean v City of New York, 12 NY3d 194, 199 [2009] [internal quotation marks and citations omitted].) The Court of Appeals in Pelaez v Seide cautioned that "a plaintiff has a heavy burden in establishing" a special relationship and that Court has "dismissed most such claims as a matter of law" (2 NY3d 186, 199, n. 8 [2004] abrogated on other grounds McLean v City of New York, 12 NY3d 194 [2009]). Movant has not alleged sufficient facts to meet any of the aforementioned criteria to establish a special duty existed between DOCCS and himself arising from the drug testing.

Movant does not cite to any violation of a statute that authorizes a private right of action without which he may not assert a special relationship based on a claimed violation of statutory duty. (Pelaez v Seide, 2 NY3d 186, 200 [2004]; see Abraham v City of New York, 39 AD3d 21, 26 [2d Dept 2007]). Likewise, the allegations presented by movant are void of any dangerous safety violation. Leaving only the second prong-that of the assumption of a duty to movant beyond that owed to the general public, which is termed a "special relationship". There are four elements to establish a special relationship:

"(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking"

(Cuffy v City of New York, 69 NY2d 255, 260 [1987].) Movant is unable to establish each of the required elements to demonstrate a special relationship. Movant does not allege any promises or actions by DOCCS that would show that it took an affirmative duty to movant. Instituting a new urinalysis test and using it was not for the specific benefit of movant. (Metz v State, 20 NY3d 175, 180 [2012]; see Reynolds v Krebs, 143 AD3d 1256, 1257 [4th Dept 2016].) The laws and regulations pertaining to management and discipline in state correctional institutions were enacted to protect all inmates and employees and "not a particular class of persons." (Muckova v State, 103 AD3d 1187, 1188 [4th Dept 2013].) The Court rejects movant's analysis that urinalysis drug testing is akin to medical testing and therefore a proprietary function. This analogy complete ignores the purpose of the testing. Movant was not tested because of a medical condition but in the context of managing the safety of the general population, employees, and visitors to Wyoming Correctional Facility.

Neither has movant alleged, nor can he prove, that he justifiably relied on DOCCS' alleged affirmative undertaking in instituting a new test and testing him. The Court of Appeals held in Cuffy v City of New York:

"The injured party's reliance is as critical in establishing the existence of a 'special relationship' as is the municipality's voluntary affirmative undertaking of a duty to act. That element provides the essential causative link between the "special duty" assumed by the municipality and the alleged injury. Indeed, at the heart of most of these 'special duty' cases is the unfairness that the courts have perceived in precluding recovery when a municipality's voluntary undertaking has lulled the injured party into a false sense of security and has thereby induced him either to relax his own vigilance or to forego other available avenues of protection (see, De Long v. County of Erie, supra, 60 N.Y.2d p. 305, 469 N.Y.S.2d 611, 457 N.E.2d 717; Florence v. Goldberg, supra, 44 N.Y.2d p. 197, 404 N.Y.S.2d 583, 375 N.E.2d 763). On the other hand, when the reliance element is either not present at all or, if present, is not causally related to the ultimate harm, this underlying concern is inapplicable, and the invocation of the "special duty" exception is then no longer justified."

(69 NY2d 255, 261 [1987].) DOCCS' adoption of a new urinalysis drug test and the testing of movant did not induce him "to relax his own vigilance or to forego other available avenues of protection." (id.) Given the lack of duty to movant, the Court need not address the remaining elements of negligence.

Likewise, the scenario presented by movant is not one where the legal doctrine of res ipsa loquitur applies. (Molina v State, 46 AD3d 642, 643 [2d Dept 2007].) Movant has not demonstrated that inmates being found guilty of prison infractions by hearing officers do not occur in the absence of someone's negligence. In addition, the testing equipment and materials were provided by Microgenics/ Corporation and/ Thermo Fisher Scientific, Inc, and therefore, not in the exclusive control of DOCCS. Last, whether movant's actions can be found to have contributed to the incident cannot be assessed because he did not provide any facts surrounding DOCCS testing him for drugs. In light of the above, movant fails to allege facts to demonstrate a legal duty of care running from DOCCS to him. Accordingly, movant has not demonstrated his proposed negligence cause of action has merit.

In light of the above, the Court concludes that the movant has not made sufficient allegations to demonstrate that he has any viable causes of action. Accordingly, this factor weighs against granting movant leave to file a late claim.

With respect to the final factor of alternative remedies, the Court notes that movant did and does have alternative remedies available to him. Movant could have commenced a hybrid declaratory judgment action and Article 78 proceeding to challenge the efficacy of the urinalysis test, whether the process in selecting the new urinalysis test was arbitrary and capricious, and whether the testing methodology selected by DOCCS and the manner the test was conducted constituted substantial evidence. (see Matter of Lahey v Kelly, 71 NY2d 135, 138 [1987]; Matter of Cushman v Venettozzi, 186 AD3d 1041 [4th Dept 2020]; Matter of Wade v Venettozzi, 153 AD3d 1649, 1650 [4th Dept 2017]; Matter of Robinson v Herbert, 269 AD2d 807, 807 [4th Dept 2000].) Presently, there is one federal class action lawsuit and two individual lawsuits pending in the federal court by inmates in New York State correctional facilities against Microgenics Corporation and Thermo Fisher Scientific stemming from the use of the new urinalysis test. (see Nadezda Steele-Warrick, individually and on behalf of all others situated, against Microgenics Corporation and Thermo Fisher Scientific, Inc., 19-cv-06558, USDC EDNY; see also Wilmer v Microgenics Corporation, Thermo Fisher Scientfic, Inc. and DOCCS, 20-cv-00230 USDC NDNY and Velez v Microgenics Corporation and Thermo Fisher Scientific, Inc., 20-cv-00387 USDC WDNY.) Moreover, as acknowledged by the movant in his papers, the Court of Appeals has recognized a duty flowing from a drug testing company to a testee "where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launche[s] a force or instrument of harm." (Landon v Kroll Lab. Specialists, Inc., 22 NY3d 1, 6 [2013][internal quotation marks and citation omitted].) It does appear from the facts submitted that Landon might be apropos to the matter at hand.

Accordingly, the Court finds that the balancing of the statutory factors do not weigh in favor of the movant. On the limited papers submitted by the movant, the Court declines to exercise its discretion and the motion for permission to file a late claim (M-95330) is denied, without prejudice.

December 11, 2020

Rochester, New York

DEBRA A. MARTIN

Judge of the Court of Claims


1.

The Court declines to treat movant's application as one seeking class action status since it fails to address the statutory requirements for such. ( Court of Claims Act 11 [b], Weaver v State of New York, 82 AD3d 878, 879 [2d Dept 2011]; see Article 9 of the CPLR entitled Class Actions; see also Maddicks v Big City Properties, LLC, 34 NY3d 116, 126 [2019]; Moreland v State of New York, UID No. 2020-038-538 [Ct Cl, DeBow, J., June 25, 2020].) Moreover, such examination and determination is premature. (Id.)

2.

After concerns were raised regarding questionable results, DOCCS conducted an investigation. It decided "out of abundance of caution" to treat all buprenorphine positive tests results based solely on the new buprenorphine test as false positives. In doing so, DOCCS acknowledged that this policy was over inclusive - meaning that everyone was determined to be drug free regardless of whether they were. DOCCS voluntarily adopted the following curative measures: (1) released any inmate from disciplinary confinement who was confined because of a positive test result for only buprenorphine; (2) expunged all records of charges; (3) arranged for de novo consideration by the Parole Board; (4) reviewed and reversed where appropriate any loss of good time; and (5) restored or offered to restore potentially affected individuals to preferred work assignments, housing educational or other programming. (affirmation of movant's attorney, exhibit D.)

3. It is unclear what type of disciplinary confinement movant received. The movant's motion papers refer to both SHU and Keeplock and different periods have also been alleged.

4. Movant did not allege the specific sanctions imposed, nor did he include the hearing transcript, the decision, or his appeal, if one was filed. Also critically missing from the application was the date of his release from disciplinary confinement.

5. Claimant in Moreland case has filed a Notice of Appeal.

6. Although the State did not expressly raise governmental immunity as to the proposed negligence cause of action, DOCCS did generally assert immunity as a defense. The Court also notes that movant only raised governmental immunity for the first time in its reply papers arguing that because drug testing is a proprietary function involving ministerial functions, DOCCS was not entitled to governmental immunity. Accordingly, it is appropriate for the Court to address this issue on a pre-answer motion for permission to file a late claim and does so in the interest of efficiency and preserving judicial resources. (See Calverley v State, - AD3d -, 2020 NY Slip Op 06177 [3d Dept 2020].)