New York State Court of Claims

New York State Court of Claims
JOHNS v. THE STATE OF NEW YORK, # 2017-040-083, Claim No. 127051, Motion No. M-90120, Cross-Motion No. CM-90290

Synopsis

Claimant's Motion for Summary Judgment denied and State's Cross-Motion for Summary Judgment dismissing the Claim granted.

Case information

UID: 2017-040-083
Claimant(s): RICHARD JOHNS
Claimant short name: JOHNS
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) : Caption amended to reflect the State of New York as the proper defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 127051
Motion number(s): M-90120
Cross-motion number(s): CM-90290
Judge: CHRISTOPHER J. McCARTHY
Claimant's attorney: Theodore M. Herlich, Esq.
Defendant's attorney: ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Elizabeth A. Gavin, Esq., AAG
Third-party defendant's attorney:
Signature date: July 7, 2017
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

For the reasons set forth below, Claimant's Motion for summary judgment in his favor, pursuant to CPLR 3212(a), is denied and Defendant's Cross-Motion for summary judgment dismissing the Claim is granted.

The Claim, which was filed in the office of the Clerk of the Court on November 16, 2015, alleges that, on August 9, 2012, Claimant was arrested for assault-2nd degree and related charges. On or about August 10, 2012, Claimant was arraigned in Criminal Court, New York County, on those charges. Claimant entered a plea of not guilty. Bail was set and the matter was adjourned for grand jury action. On August 15, 2012, a certificate of affirmative grand jury action was filed by the prosecutor. The matter was adjourned for arraignment on the indictment in Supreme Court, New York County. On September 26, 2012, Claimant was arraigned in New York County. He entered a plea of not guilty (Claim, 9-12).

In May 2013, Claimant was found to be unfit to proceed pursuant to the evaluations of two forensic psychiatrists which had been ordered pursuant to Criminal Procedure Law (hereinafter, "CPL") Article 730. Claimant was remanded to the custody of the New York State Commissioner of Mental Health at the Kirby Forensic Psychiatric Center. In September 2013, Claimant was returned to Supreme Court as fit to proceed and his criminal case continued. Subsequently, in March 2014, Claimant was again found to be unfit to proceed pursuant to the evaluations of two forensic psychiatrists which had been ordered pursuant to CPL Article 730. Claimant once again was remanded to the custody of the New York State Commissioner of Mental Health at the Kirby Forensic Psychiatric Center. In September 2014, Claimant was returned to Supreme Court as fit to proceed and his criminal case continued (Claim, 13-16).

On March 17, 2015, Claimant entered a plea of guilty to assault-2nd degree, Penal Law 120.05(3). Claimant was promised a sentence of two years in prison and two years post-release supervision (hereinafter, "PRS"). On April 1, 2015, Supreme Court sentenced Claimant to two years in prison and two years PRS (Claim, 17, 18).

On May 14, 2015, Claimant was received into the custody of the New York State Department of Corrections and Community Supervision (hereinafter, "DOCCS") at Downstate Correctional Facility (hereinafter, "Downstate"). Claimant asserts that, as of May 14, 2015, he had been incarcerated for two years, nine months, five days, a period of incarceration well in excess of the maximum jail component of Claimant's sentence of two years in prison and two years PRS. On June 2, 2015, Claimant signed the Certificate of Release to PRS, which enumerated the conditions of his release. Petitioner was informed at the time he signed this document at Downstate that he was to be paroled to a residential drug treatment facility (Claim, 19, 20; Affirmation in Support of Theodore M. Herlich, Esq., pp. 2, 3). On June 2, 2015, after Claimant signed the Certificate of Release to PRS, he was not paroled to a residential drug treatment facility. Rather, he was transferred from Downstate to Fishkill Correctional Facility (hereinafter, "Fishkill") (Claim, 21).

At some point in time between June 2 and July 30, 2015, Claimant apparently was evaluated by two psychiatrists at Fishkill, who determined that he required psychiatric hospitalization. On July 30, 2015, Claimant was "paroled" by DOCCS to South Beach Psychiatric Hospital in Staten Island, New York (Claim, 23, 24). Claimant alleges he was wrongfully confined or imprisoned from May 14, 2015 through July 30, 2015 (Claim, 27).

Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). CPLR 3212(b) requires that a motion for summary judgment be supported by a copy of the pleadings (Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338 [1974]). In support of his motion, Claimant did not submit a copy of the Claim or the Verified Answer. The failure to include all the pleadings in support of a motion for summary judgment requires that the motion be denied, regardless of the merits of the motion (Davis v State of New York, _AD3d_ [3d Dept 2017], 2017 WL 2674276; Senor v State of New York, 23 AD3d 851 [3d Dept 2005]; Bonded Concrete, Inc. v Town of Saugerties, 3 AD3d 729 [3d Dept 2004], lv dismissed 2 NY3d 793 [2004]; Deer Park Assocs. v Robbins Store, 243 AD2d 443 [2d Dept 1997]; CPLR 3212[b]).

Therefore, Claimant's Motion for summary judgment is denied.

The Court now turns to Defendant's Cross-Motion for summary judgment seeking dismissal of the Claim. Here, there is no question of fact, as the parties agree on the facts of this matter. In support of its motion, the State has submitted, inter alia, the Affirmation of Assistant Attorney General Elizabeth A. Gavin, Esq. (hereinafter, "Gavin Affirmation"), and the Affidavit of Anne Marie McGrath., an Assistant Commissioner at DOCCS, who is familiar with the management and classification of inmates within DOCCS (Ex. 3 attached to Gavin Affirmation, hereinafter, "McGrath Affidavit").

According to Commissioner McGrath, when Claimant entered the custody and care of DOCCS on May 15, 2015, he already was past the maximum expiration date on his two-year determinate sentence and already was serving his PRS by operation of law (McGrath Affidavit, 3).

Upon entering DOCCS' custody, Claimant was evaluated and classified as an Office of Mental Health (hereinafter, "OMH") level 1, which indicates that he had the highest level of mental illness and greatest need for services. As Claimant's needs were so great, he required an OMH discharge plan and an investigation to develop a suitable residence and supervision plan. Because Claimant was undomiciled and was unable to either propose or develop a suitable residence in the community that parole staff could approve, parole staff requested that the Board of Parole impose a special condition, "SC 37," as part of Claimant's PRS conditions that directed his placement into a residential treatment facility (hereinafter, "RTF") to serve as an interim residence (McGrath Affidavit, 4; Ex. E attached).

On May 22, 2015, Parole Board Commissioner Hernandez imposed the requested special condition, and Claimant was transferred to the RTF at Fishkill. It was later discovered that the special condition was erroneously entered into the "system" as an "RTF 220," which is a condition used to place offenders in an RTF setting when they are subject to the Sexual Assault Reform Act (hereinafter, "SARA") and are unable to identify a SARA compliant residence in the community. The correct special condition was the "SC 37," which is used for placing offenders in an RTF for reasons other than SARA. That error subsequently was corrected (McGrath Affidavit, 5; Ex. F attached). In July 2015, upon an application by OMH, Claimant was transferred out of the RTF at Fishkill to the South Beach Psychiatric Center (id., 6).

To establish a cause of action for wrongful confinement which is a form of false imprisonment, a Claimant must establish that: (1) Defendant intended to confine him; (2) Claimant was conscious of the confinement; (3) 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 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]; Middleton v State of New York, 54 AD2d 450, 451 [3d Dept 1976], affd 43 NY 2d 678 [1977]). It is not disputed that Claimant was confined, was conscious of the confinement, and did not consent. Thus, the issue is whether the confinement was not otherwise privileged.

It appears that Claimant is asserting that his confinement from May 14, 2015 through July 30, 2015 was not privileged because Fishkill is not an RTF and because the services he received while housed in Fishkill were not sufficient to meet the standards set forth in the Correction Law and DOCCS' regulations.

7 NYCRR 1.5(m) provides:

Residential treatment facility means a correctional facility consisting of a community-based residence in or near a community where employment, educational and training opportunities are readily available for persons who are on parole or conditional release and for persons who are or who will soon be eligible for release on parole who intend to reside in or near that community when released.

(see also Correction Law 2[6])

Claimant asserts he was transferred to Fishkill on June 2, 2015, held in general population, and did not receive any therapeutic programming or mental health treatment (Affirmation of Theodore M. Herlich, Esq., in Opposition to Defendant's Summary Judgment Motion, 11). However, 7 NYCRR 100.90(c)(3) provides "Fishkill Correctional Facility shall be classified as a medium security correctional facility, to be used for the following functions residential treatment facility." Moreover, Correction Law 73(1) and (10) and Penal Law 70.45(3) authorize DOCCS to transfer inmates nearing the completion of their sentences to an RTF.

The determination to transfer an inmate to an RTF is a discretionary one, as made clear from the plain language of the statutes. Penal Law 70.45(3) states "the board of parole may impose as a condition of [PRS]" that an individual "be transferred to and participate in the programs of [an RTF]" (emphasis added). Likewise, Correction Law 73(1) states that "[t]he commissioner may transfer an inmate to [an RTF]" (emphasis added) (Alejandro v State of New York, UID No. 2016-015-130 [Ct Cl, Collins, J., May 13, 2016]). In its Verified Answer, Defendant raised as its Second and Third Affirmative Defenses, that discretionary determinations of government officials are immune from liability.

The appropriate vehicle to challenge Claimant's placement at the Fishkill RTF is a proceeding pursuant to CPLR article 70 or 78 (see People ex rel. Johnson v Superintendent, Fishkill Corr. Facility, 47 Misc 3d 984 [Sup Ct, Dutchess County 2015]; People ex rel. White v Superintendent, Woodbourne Corr. Facility, 45 Misc 3d 1202 [A] ]Sup Ct, Sullivan Co. 2014]; Alejandro v State of New York, supra). " 'Regardless of how a [C]laim is characterized, one that requires, as a threshold matter, the review of an administrative agency's determination falls outside the subject matter jurisdiction of the Court of Claims' " (Polanco v State of New York, 130 AD3d 1494, 1495 [4th Dept 2015], quoting Green v State of New York, 90 AD3d 1577, 1578 [4th Dept 2011], lv dismissed in part and denied in part 18 NY3d 901 [2012]; Buonanotte v New York State Off. of Alcoholism & Substance Abuse Servs., 60 AD3d 1142, 1143-1144 [3d Dept 2009], lv denied 12 NY3d 712 [2009]). Here, in order to award Claimant a money judgment, the Court would have to review and overturn or annul DOCCS' determination to place Claimant in Fishkill's RTF. Any review of Claimant's contention that Fishkill's RTF does not offer programming opportunities in compliance with the statute should be pursued in Supreme Court (see Alcantara v Annucci, 55 Misc 3d 1216[A] [Sup Ct Albany County, 2017]; Gonzalez v Annucci, 149 AD3d 256 [3d Dept 2017]). To the extent such review is required, therefore, this Court lacks subject matter jurisdiction.

Moreover, aside from the jurisdictional limitations of the Court of Claims, the law is clear that the State is immune from liability from discretionary conduct "even if resulting from negligence or malice" (Tango v Tulevech, 61 NY2d 34, 40 [1983]; see also Arteaga v State of New York, 72 NY2d 212, 216 [1988]). Discretionary conduct involves the "exercise of reasoned judgment" (Lauer v City of New York, 95 NY2d 95, 99 [2000]; Tango v Tulevech, supra at 41), including even erroneous judgments by State officials as to the scope of their own authority (Donald v State of New York, 17 NY3d 389, 396 [2011]; Hudson v State of New York, 115 AD3d 1020, 1023 [3d Dept 2014], lv denied 23 NY3d 907 [2014]; Alejandro v State of New York, supra).

Here, State officials were confronted with the dilemma of releasing Claimant without an approved residence, or placing him in a designated RTF such as the one at Fishkill until an appropriate residence could be located. DOCCS was statutorily authorized, as a matter of discretion, to place Claimant in an RTF, which it did. For such discretionary determinations, the State is immune from liability even if the determination was negligently made. In light of this immunity, the State's Cross-Motion for summary judgment seeking dismissal of the Claimant's false imprisonment cause of action, which arises from his placement at Fishkill, is granted.

Claimant also asserts causes of action for intentional tort and respondeat superior. The Claim asserts that the unlawful detention of Claimant beyond his maximum jail sentence constituted an intentional tort (Claim, 32). There is no separate "intentional tort" cause of action. The cause of action Claimant is asserting is false imprisonment which is a type of intentional tort (CPLR 215[3]). Therefore, the cause of action for intentional tort is dismissed. Moreover, the detention complained of here cannot, at the same time, be an intentional tort and an act of negligence. Therefore, the cause of action for negligence (Claim, 34) is dismissed.

The doctrine of respondeat superior makes an employer vicariously liable for the torts committed by its employees acting within the scope of his/her employment (Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 [1999]). Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, as long as the employee's tortious conduct is generally foreseeable and a natural incident of the employment (id.; Riviello v Waldron, 47 NY2d 297, 304 [1979]). Actions in the Court of Claims are brought against the State for the negligence and or intentional torts of its employees (Court of Claims Act 10[3] and [3-b]). The State has assumed responsibility for the actions of its employees while acting within the scope of their employment. There is no need for a separate respondeat superior cause of action. Therefore, this cause of action is also dismissed.

Therefore, based upon the foregoing, the Claim is dismissed.

July 7, 2017

Albany, New York

CHRISTOPHER J. McCARTHY

Judge of the Court of Claims

The following papers were read and considered by the Court on Claimant's Motion for summary judgment pursuant to CPLR 3212 and Defendant's Cross-Motion for summary judgment dismissing the Claim :

Papers Numbered

Notice of Motion, Affirmation

in Support & Exhibits Attached 1

Notice of Cross-Motion, Affirmation

in Support & Exhibits Attached 2

Claimant's Affirmation in Opposition to

Defendant's Cross-Motion 3

Papers Filed: Claim, Answer