Pro se incarcerated person's motion for leave to file a late claim for alleged wrongful confinement and negligence is denied. The Court finds that the wrongful confinement cause of action is time barred. As to the negligence cause of action, the factors in Court of Claims Act 10 (6) weigh against a grant of discretionary relief.
|Claimant short name:||MANISCALCO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||ANTHONY MANISCALCO, Pro Se|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Tamara B. Christie, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 23, 2021|
|See also (multicaptioned case)|
Pro se incarcerated individual, Anthony Maniscalco, seeks leave to file a late claim to recover for an alleged wrongful confinement at Groveland Correctional Facility between August 7, 2019 and September 6, 2019. On August 1, 2019, Mr. Maniscalco submitted a urine sample that tested positive for Buprenorphine. An Inmate Misbehavior Report was issued that charged claimant with violating the rules governing inmate conduct.(1) At a Superintendent's hearing on August 7, 2019, Mr. Maniscalco was found guilty of the charges. Claimant was sentenced to 45 days confinement in the Special Housing Unit (SHU) and a loss of privileges. Mr. Maniscalco was released from SHU confinement early on September 6, 2019. On or about September 18, 2019, claimant received a letter indicating that his guilty finding had been administratively reversed. According to Mr. Maniscalco, also on or about September 18, 2019, the Department of Corrections and Community Supervision (DOCCS) issued a memorandum indicating that the machine that had been used to test urine samples was determined to be unreliable in detecting the presence of Buprenorphine, which had created a number of false positive test results.
On June 3, 2021, claimant filed this motion for late claim relief. The proposed claim seeks to recover for wrongful confinement and negligence. Defendant argues that the claim is untimely and that it lacks merit. For reasons stated below, the Court agrees.
Causes of action for wrongful confinement generally sound in intentional tort (see Ramirez v State of New York, 171 Misc2d 677 ).(2) Court of Claims Act § 10 (3-b) requires that claims for personal injuries caused by the intentional torts of State employees be filed and served within 90 days of accrual, unless a notice of intention to file a claim is served within that time frame, in which case a claimant has one year from accrual to file and serve an intentional tort claim. A wrongful confinement cause of action accrues on the date the confinement ends (see Davis v State of New York, 89 AD3d 1287 [3d Dept 2011]). Mr. Maniscalco was released from confinement on September 6, 2019.
The Court cannot grant late claim relief once the underlying cause of action would be time-barred by the applicable CPLR statute of limitations (Court of Claims Act § 10 ; Marine Midland Bank v State of New York, 195 AD2d 871, 872 [3d Dept 1993], lv denied 82 NY2d 661 ). The statute of limitations for intentional torts is one year from accrual (see CPLR 215 ). The Court finds that claimant's September 6, 2020 deadline to move for late claim relief for intentional tort causes of action was extended 170 days pursuant to Executive Orders issued by the Governor during the pandemic to April 22, 2021.(3) However, Mr. Maniscalco did not serve his motion on or before April 22, 2021. As such, the Court may not grant late claim relief for the untimely wrongful confinement cause of action.
The proposed claim also seeks recovery based upon DOCCS' alleged negligence. Specifically, Mr. Maniscalco alleges that DOCCS failed to exercise due diligence to ensure the reliability of the testing apparatus. Claimant alleges further that DOCCS knew or should have known that the testing apparatus was returning high rates of false positives before his hearing and that DOCCS erred in prosecuting him, and relying upon and punishing him for a false positive test result. Unlike the wrongful confinement cause of action, the negligence cause of action is not time-barred.(4) As such, the Court will examine whether to exercise its discretion to grant the motion for leave to file a late claim alleging negligence.
Discretionary relief from the failure to comply with the time constraints in the Court of Claims Act is authorized under § 10 (6), which identifies six factors among those to be weighed in reviewing such an application. Those factors consist of the following: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file and serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has any other available remedy.
The Court will first address the question of merit, which has been characterized as the most decisive factor, since it would be futile to permit a meritless claim to proceed (see Dippolito v State of New York, 192 Misc2d 395, 396-397 ; Matter of Santana v New York State Thruway Auth., 92 Misc2d 1 ). To meet that burden a movant must establish: that the proposed claim is not patently groundless, frivolous or legally defective; and that from a review of the entire record there is reasonable cause to believe that a valid claim exists (see Dippolito, supra at 396-397; Matter of Santana, supra at 11-12). For reasons set forth below, the Court finds that the negligence cause of action lacks merit.
The Court finds that claimant is attempting to recast his wrongful confinement cause of action as a negligence-based cause of action with wrongful confinement as the injury resulting from defendant's alleged negligence in relying upon the urinalysis test results. It is well established that a negligence cause of action may not supplant a wrongful confinement cause of action, and that a claimant is limited to an intentional tort remedy where negligence and wrongful confinement causes of action are based upon the same facts (see Simon v State of New York, 12 AD3d 171 [1st Dept 2004]; Green v State of New York, 39 Misc 3d 1239 [A], *9 ; Bickel v State of New York, UID No. 2020-053-544 [Ct Cl, Sampson, J., Nov. 19, 2020]; Dissottle v State of New York, UID No. 2020-053-543 [Ct Cl, Sampson, J., Nov. 16, 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]).(5) The Court finds that the two causes of action are based upon the same facts. As such, the negligence cause of action lacks merit.
The Court will briefly address the remaining section 10 (6) factors. Mr. Maniscalco alleges that his failure to timely file and serve a claim should be excused because he is incarcerated and he is a layperson. It is well settled that neither incarceration nor ignorance of the law are acceptable excuses (see Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002]; Matter of E.K. v State of New York, 235 AD2d 540, 541 [2d Dept 1997], lv denied 89 NY2d 815 ). As such, the Court finds the excuses proffered by Mr. Maniscalco to be deficient. The excuse factor weighs in defendant's favor.
The three interrelated section 10 (6) factors of notice, opportunity to investigate and prejudice are often considered together (see Brewer v State of New York, 176 Misc2d 337 ). Claimant alleges that the State was on notice of his allegations of wrongdoing based upon DOCCS' sua sponte administrative reversal of his guilty findings and that it will not be prejudiced if he is granted late claim relief. The Court finds that because the reversal was sua sponte, and less than two weeks after claimant's release from SHU confinement, DOCCS was on notice of and conducted at least a perfunctory investigation as to the circumstances surrounding Mr. Maniscalco's test results and guilty findings during the first 90 days after his claim accrued. Moreover, there is no evidence that DOCCS will be prejudiced by granting claimant leave to file and serve a late claim. As a result, the Court finds that these factors weigh in claimant's favor.
Lastly, claimant alleges that he does not have an alternate remedy. However, as defendant argues in opposition to the motion, a class action lawsuit against the distributor of the testing apparatus was commenced in federal court on behalf of New York State prison incarcerated individuals who tested positive for Buprenorphine in 2019. Thus, an alternate remedy does exist. This factor weighs in defendant's favor.
With regard to the negligence cause of action, the Court finds that, on balance, the section 10 (6) factors, and most notably the factor of merit, weigh against a grant of discretionary relief.
Based upon the above, it is hereby
ORDERED, that the motion for late claim relief is denied.
September 23, 2021
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered:
1. Notice of Motion to File Late Claim, undated, filed June 3, 2021;
2. Affidavit of Anthony Maniscalco, with attachments, including proposed claim, sworn to April 30, 2021;
3. Affirmation in Opposition of Tamara B. Christie, dated June 30, 2021, with attached exhibit.
1. As set forth within 7 NYCRR 270.2 (B), titled Standards of Inmate Behavior.
2. An exception is for wrongful excessive confinement, which generally involves a holdover confinement and is a negligence-based cause of action (see Ramirez, supra).
3. Executive Order 202.8 tolled the deadline for commencing actions and the service of motions beginning on March 20, 2020. That toll was continued monthly by subsequent Executive Orders (see Executive Orders 202.14, 202.28, 202.38, 202.48, 202.55.1, 202.60, 202.67, 202.72). One hundred seventy days elapsed between March 20, 2020 and claimant's September 6, 2020 deadline, which is added to the date the toll ceased to be in effect, November 3, 2020, to establish claimant's new deadline for filing a motion for late claim relief, April 22, 2021.
4.The statute of limitations for unintentional torts is three years from accrual (see CPLR 214 ).
5. Unpublished decision and orders may be found on the Court's website at