Application to serve and file late inmate wrongful confinement claim is granted where allegations show that underlying disciplinary determination was reversed and expunged by judgment in Article 78 proceeding which found that defendant violated inmate's regulatory and constitutional right to call witnesses at disciplinary hearing and, consequently, there is cause to believe a valid cause of action for wrongful confinement may exist.
|Claimant short name:||VIDAL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||JOSEPH VIDAL
|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:||January 4, 2021|
|See also (multicaptioned case)|
Claimant moves for permission to file a late claim pursuant to Court of Claims Act 10 (6). Defendant opposes the motion.
The proposed claim alleges that claimant, formerly an inmate at Clinton Correctional Facility (Clinton), was wrongfully confined to keeplock and suffered loss of privileges and other damages as a result of a disciplinary hearing determination, issued on October 21, 2019, which found claimant guilty of violent conduct, creating a disturbance and fighting, all arising from an alleged fight involving claimant and two fellow inmates on October 3, 2019.
Claimant administratively appealed the disciplinary determination, alleging that he was denied his regulatory and constitutional right to call witnesses at the hearing. The disciplinary hearing determination was administratively affirmed on November 18, 2019. Claimant was released from keeplock on December 2, 2019.
Claimant commenced an Article 78 proceeding on February 17, 2020 to reverse and expunge the disciplinary determination, again alleging that he was denied his regulatory and constitutional right to call witnesses at the hearing.
The Court takes judicial notice that on May 26, 2020, more than ninety days after accrual of his wrongful confinement cause of action, claimant served a claim on the Attorney General (Claim No. 134856) based upon the same acts and occurrences set forth in the claimant's instant late claim application (see Court of Claims Act 10 [3 and 3-b]; Santiago v City of Rochester, 19 AD3d 1061, 1062 [4th Dept 2005], lv denied 5 NY3d 710 : Wrongful confinement claim accrues on "the date on which [claimant's] confinement terminated"). Claim No. 134856 was filed with the Clerk of the Court of Claims on June 1, 2020.
The Court takes further judicial notice that on August 5, 2020, the disciplinary determination underlying the claimant's wrongful confinement cause of action was reversed and expunged pursuant to a Judgment of the Albany County Supreme Court (Vidal v Annucci, Index No. 9164-19, [Supreme Court, Albany County, W. Brooks DeBow, Acting Supreme Court Justice, August 5, 2020]).
Defendant served an answer to Claim No. 134856 on September 17, 2020, setting forth an affirmative defense, among others, stating that Claim No. 134856 was "untimely in that neither the Claim nor a Notice of Intention was served within ninety (90) days of the accrual of the Claim as required by the Court of Claims Act."
On October 28, 2020, claimant made the instant application for permission to serve and file a late claim.
Court of Claims Act 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim "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."
Defendant does not challenge the timeliness of the claimant's application.
In determining the application, Court of Claims Act 10 (6) provides that:
"[T]he court shall consider, among 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 reviewing a late claim application, "the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10 (6), no one factor being controlling" (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement Sys, 55 NY2d 979, 981 ).
Further, "it is well settled that the Court of Claims' broad discretion in this area should be disturbed only in the face of clear abuse" (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 ).
Claimant's excuse for failing to timely file and serve a claim is that Department of Correction and Community Supervision (DOCCS) employees failed to mail claimant's notice of intention to file a claim by certified mail, return receipt requested, as directed by claimant. Claimant further offers as an excuse that he "sought remedy in another proceeding in which claimant was successful" and that his placement in Involuntary Protective Custody on December 15, 2019 limited his access to legal references and legal assistance from DOCCS employees.
The claimant admits, however, that during period in which he could have lawfully served a timely claim or notice of intention to file a claim he was able "to conduct his research . . . to appeal the Superintendent Tier III disposition and prepare his article 78 petition."
Claimant has failed to offer a reasonable excuse for his failure to timely file and serve the claim. However, "the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief" (Bay Terrace Coop. Section IV, Inc., 55 NY2d at 981).
The Court finds that a limited period of time elapsed between the accrual date of the cause of action alleging wrongful confinement (December 2, 2019), service of Claim No. 134856 on May 26, 2020 and service of claimant's application to file a late claim on October 28, 2020. This, together with the proposed claim's specificity and the existence of easily identifiable disciplinary hearing records, provide defendant ample opportunity to timely investigate the claim as the "delay was minimal and the respondent was not prejudiced thereby" (Hughes v State of New York, 25 AD3d 800 [2d Dept 2006]). In this regard, it is generally recognized that prejudice is more likely to result where a proposed claim involves conditions (such as ice or snow) which are "transitory in nature" Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]). The proposed claim does not arise from a transitory condition.
With respect to the merit of the proposed claim, section 10 (6) requires that it not be "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 Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]), the court noted that a proposed claim offered in a section 10 (6) application need only have "the appearance of merit."
Defendant has not offered an affidavit, nor has it offered any other admissible proof, disputing the factual allegations of the proposed claim and the allegations are deemed true for purposes of this application (Schweickert v State of New York, 64 AD2d 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]).
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]).
Defendant essentially argues that the claimant's confinement was privileged and immune from liability, and makes no argument of prejudice.
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." In the context of confinement pursuant to a prison disciplinary proceeding, such confinement is "privileged to the extent that it was under color of law or regulation, specifically in accordance with [inmate misbehavior] regulations" (Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]).
Similarly, with respect to immunity, where employees of the Department of Correctional and Community Services, in commencing and conducting formal inmate disciplinary proceedings, "act under the authority of and in full compliance with the governing statutes and regulations . . . their actions 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]).
This immunity attaches even if the determination is later reversed administratively or as the result of a successful article 78 proceeding (see Arteaga, 72 NY2d at 215).
If, however, prison officials fail to comply with a rule or regulation governing such disciplinary hearings, absolute immunity may be lost and liability for money damages may be imposed if it is proven that the regulatory violation caused actual prejudice or injury to the inmate (see Davidson v State of New York, 66 AD3d 1089, 1089 [3d Dept 2009]; Vasquez v State of New York, 10 AD3d 825 [3d Dept 2004]).
Importantly, not all disciplinary hearing procedural rules and regulations, if violated, form a basis to abrogate the immunity afforded to employees of the Department of Corrections and Community Supervision in commencing and conducting formal inmate disciplinary proceedings. The rule or regulation must implicate minimal due process protections:
"Notably, there is no right to counsel or to confrontation at prison disciplinary hearings. . . Nevertheless, an inmate is entitled to advance written notice of the charges against him; a hearing affording him a reasonable opportunity to call witnesses and present documentary evidence; a fair and impartial hearing officer; and a written statement of the disposition, including the evidence relied upon and the reasons for the disciplinary actions taken" (Sira v Morton, 380 F3d 57, 69 [2d Cir 2004]).
Claimant alleges that defendant violated 7 NYCRR 254.5:
"(a) The 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.
The Judgment of the Supreme Court in claimant's successful CPLR Article 78 proceeding against defendant challenging the disciplinary hearing determination (Vidal v Annucci, Index No. 9164-19, [Supreme Court, Albany County, W. Brooks DeBow, Acting Supreme Court Justice, August 5, 2020]) held that:
"[P]etitioners regulatory rights under 7 NYCRR 254.5 (a) were violated inasmuch as HO Crandall failed to give petitioner a written statement stating the reasons for the denial of inmate Sheppard as a witness . . . Moreover, and contrary to respondent's contentions, the Court concludes that petitioner's constitutional right to call witnesses at the Superintendent Hearing was violated."
The Albany County Supreme Court Judgment, together with claimant's uncontradicted allegation that he was denied the opportunity to call relevant witnesses at his disciplinary hearing, implicates minimal standards of due process sufficient to support a potential wrongful confinement cause of action.
Accordingly, the Court finds that the proposed claim, alleging that defendant failed to comply with its own regulations or with constitutional due process requirements and further alleging that claimant was wrongfully confined as a direct result of defendant's failures, is not patently without merit and, accepting the claim's allegations as true, provides cause to believe that a cause of action for wrongful confinement may exist.
Based upon a balancing of the factors set forth in Court of Claims Act 10 (6), the Court grants the claimant's application with respect to the proposed claim's cause of action for wrongful confinement.
Claimant is directed to file and serve his claim in compliance with this Decision and Order with the Clerk of the Court of Claims and in compliance with sections 11 and 11-a of the Court of Claims Act within sixty (60) days of the filing of this Decision and Order.
January 4, 2021
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Notice of Motion to File Late Claim, filed October 30, 2020;
2. Affidavit of Joseph Vidal, sworn to October 28, 2020, and attached exhibits;
3. Claim No. 134856, served May 26, 2020 and filed June 1, 2020;
4. Defendant's Answer, served and filed September 17, 2020;
5. Judgment of Honorable W. Brooks DeBow, Index No. 9164-19, Albany County Supreme Court, August 5, 2020;
6. Affirmation in Opposition of Michael T. Krenrich, dated December 8, 2020, and attached exhibits;
7. Reply "Afidavit" (sic) of Joseph Vidal, verified December 22, 20202 (sic).