New York State Court of Claims

New York State Court of Claims
MICHEL v. THE STATE OF NEW YORK, # 2017-041-048, Claim No. NONE, Motion No. M-90240


Application to file late claim is granted in part and denied in part as allegations provide cause to believe a valid cause of action for wrongful confinement may exist.

Case information

UID: 2017-041-048
Claimant(s): DONALD MICHEL
Claimant short name: MICHEL
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): NONE
Motion number(s): M-90240
Cross-motion number(s):
Claimant's attorney: DONALD MICHEL
Pro Se
Defendant's attorney: HON. ERIC T. SCHEIDERMAN
New York State Attorney General
By: Paul F. Cagino, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: July 10, 2017
City: Albany
Official citation:
Appellate results:
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, an inmate at Clinton Correctional Facility (Clinton), was wrongfully confined to keeplock and suffered loss of privileges and other damages as a result of an October 5, 2016 inmate misbehavior report and ensuing disciplinary hearing and determination. The misbehavior report charged the claimant with fighting, violent conduct and disturbance, arising from an alleged fight with a fellow inmate on October 3, 2016.

Claimant was found guilty of the disciplinary charges after a hearing and, on October 7, 2016, was sentenced to thirty (30) days keeplock, among other penalties. The hearing determination was administratively reversed on October 14, 2016 and the claimant was released from keeplock on October 17, 2016.

Claimant alleges that the disciplinary determination was "reversed, due to witness denial," in violation of 7 NYCRR 254.5, because the hearing officer denied claimant's request to call an inmate witness (the inmate claimant allegedly fought with) who would have provided "relevant" and "exculpatory" testimony. The Court notes that the record is silent, aside from claimant's allegations, as to why the disciplinary determination was reversed and the disciplinary charges dismissed. The Court is thus constrained, on this application, to accept the proposed claim's allegations as true.

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 [1982]).

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 [1991]).

Claimant's excuse for failing to timely file and serve a claim is that Clinton employees failed to mail claimant's notice of intention to file a claim and/or claim, by certified mail, return receipt requested, as directed by claimant and instead mailed the document by regular mail. Claimant's inmate grievance regarding this issue was apparently denied. 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 there was a limited period of time which elapsed between the accrual date of the cause of action alleging wrongful confinement (October 17, 2016, claimant's release date from confinement) and service of the application to file a late claim on or about April 5, 2017. 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 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929; Krzyzak v Schaefer, 52 AD3d 979 [3d Dept 2008]).

Defendant argues that the claimant's confinement was privileged and immune from liability.

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 [2002]), 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 [1988]; 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 one of the rules or regulations governing such disciplinary hearings, absolute immunity is lost and liability may be imposed if it is proven that the regulatory violation caused actual injury to the inmate (Rivera v State of New York, UID No. 2006-028-008, Claim No. 102781 [Ct Cl, Feb. 8, 2006 Sise, P.J.], citing Vasquez v State of New York, 10 AD3d 825 [3d Dept 2004] and Henderson v Coughlin, 163 Misc 2d 20 [Ct Cl 1994]).

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 Court finds that claimant's uncontradicted allegation that he was denied the opportunity to call a relevant witness at his disciplinary hearing and that the hearing determination was thereafter reversed because claimant was denied the opportunity to call a relevant witness, 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 and that claimant was wrongfully confined as a direct result of defendant's failure, 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.

Claimant's proposed negligence cause of action lacks merit because it is well-settled that "[p]ublic entities remain immune from negligence claims arising out of the performance of their governmental functions" (Miller v State of New York 62 NY2d 506, 510 [1984]). Further, "[a] public employee's discretionary acts--meaning conduct involving the exercise of reasoned judgment--may not result in the municipality's liability even when the conduct is negligent" (Lauer v City of New York, 95 NY2d 95, 99 [2000]). Defendant's investigation and administrative adjudication of claimant's conduct is a governmental discretionary function for which defendant may not be subjected to liability for negligence.

With respect to the allegation that claimant's federal constitutional "Fourteenth Amendment" rights were violated, the law is settled that "claims for damages against the State based on alleged deprivations of rights under the US Constitution are beyond the jurisdiction of the Court of Claims" (Shelton, 61 AD3d at 1151; see Matter of Gable Transport, Inc. v State of New York, 29 AD3d 1125 [3d Dept 2006]; Welch v State of New York, 286 AD2d 496, 498 [2d Dept 2001]; Zagarella v State of New York, 149 AD2d 503 [2d Dept 1989]; Davis v State of New York, 124 AD2d 420, 423 [3d Dept 1986]).

Claimant's allegation that his federal constitutional rights were violated fails to state a meritorious cause of action.

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 and denies the application with respect to the remaining proposed causes of action.

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.

July 10, 2017

Albany, New York


Judge of the Court of Claims

Papers Considered:

1. Claimant's Motion For Permission to File a Late Claim, filed April 5, 2017;

2. Affidavit of Donald Michel, sworn to March 23, 2017, and attached exhibits;

3. Affirmation of Paul F. Cagino, dated May 5, 2017, and attached exhibits.