Defendant's motion to dismiss wrongful confinement claim on the ground that claimant's confinement pursuant to parole revocation warrant was privileged is denied on the following grounds: Defendant failed to satisfy its initial summary judgment burden of proof by failing to submit the parole revocation warrant on which its motion is based; the claimant is entitled to a deposition of the defendant pursuant to CPLR 3212 (f) to determine why defendant delayed releasing claimant from confinement for nineteen (19) days after proof of the criminal charge dismissal which was the basis of the parole revocation warrant was provided to defendant; an issue of fact is raised as to why claimant remained confined for 19 days after defendant was notified, and acknowledged in writing, that the mistaken and unfounded criminal charge which was the sole basis of the Parole Revocation Warrant had been dismissed.
|Claimant(s):||MARK N. BARDIN|
|Claimant short name:||BARDIN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||BRENNAN & WHITE, LLP
By: Joseph R. Brennan, Esq.
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
By: Christina Calabrese, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 30, 2017|
|See also (multicaptioned case)|
Defendant moves pursuant to CPLR 3211 (a) (7) and 3212 to dismiss the claim for failure to state a cause of action. Claimant opposes the defendant's motion.
The claimant, via the claim and the affirmation and exhibits submitted by his attorney, alleges that the defendant caused the claimant/parolee to be wrongfully confined at the Washington County Correctional Facility from May 8, 2015 to May 27, 2015 based upon a Parole Revocation Warrant which had been issued after claimant was charged with Criminal Possession of Stolen Property in the Fourth Degree. The claimant alleges that he should have been promptly released from confinement after the defendant was notified that the criminal charge, which was the sole basis of the Parole Revocation Warrant, had been dismissed by the local criminal court on May 8, 2015, because the criminal charge against claimant was the result of a computer error of the Washington County Department of Social Services.
Defendant argues that the claim fails to state a cause of action for wrongful confinement of claimant at the Washington County Correctional Facility until May 27, 2015 as the confinement was "privileged" because defendant was acting pursuant to a "facially valid warrant."
"A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law. If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment" (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]; Svoboda v Our Lady of Lourdes Mem. Hosp., Inc., 31 AD3d 877 [3d Dept 2006]).
To state a cause of action for wrongful confinement, claimant must allege, and ultimately 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]).
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."
The defendant has failed to meet its initial burden on its summary judgment motion because it has failed to submit competent admissible evidence showing that claimant has not, and cannot, state a cause of action for wrongful confinement, as a matter of law. In particular, defendant has not offered as proof a copy of the Parole Revocation Warrant which allegedly proves, as a matter of law, that the confinement was "privileged" because defendant was acting pursuant to a "facially valid warrant."
Even if defendant had satisfied its initial burden, the motion would be denied. Claimant has argued that he is entitled to denial, or a continuance, of the defendant's motion to dismiss because claimant has not had an opportunity to depose a representative of defendant as to the crucial issue why defendant delayed 19 days in vacating the Parole Revocation Warrant and before releasing claimant from confinement.
With respect to a summary judgment motion, CPLR 3212 (f) provides as follows:
"Facts unavailable to opposing party. Should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had and may make such other order as may be just."
CPLR 3211 (d) provides for relief similar to that of CPLR 3212 (f) in the case of a motion to dismiss made pursuant to CPLR 3211 (a).
The Court finds that claimant has made a satisfactory showing that the failure to conduct a deposition of a representative of defendant with knowledge of the relevant facts and circumstances was not caused by any delay attributable to claimant, and has also shown that completion of further discovery is likely to yield material and relevant evidence (see Zinter Handling, Inc. v Britton, 46 AD3D 998 [3d Dept 2007]; Fleischman v Peacock Water Company, Inc., 51 AD3D 1203 [3d Dept 2008]).
Beyond the foregoing, the record shows that the criminal charge was based upon claimant's alleged use of another individual's Washington County Department of Social Services benefit card. The Parole Revocation Specialist handling the claimant's parole supervision file for defendant, in his "Supplementary Parole Revocation Specialist Recommendation," dated May 11, 2015, stated that:
"The sole basis for the violation is [claimant's] alleged involvement in the criminal case. On 5/7/15, the Washington County District Attorney's office notified this writer that the criminal charges were being dismissed. The basis for the dismissal was that the Department of Social Services made an error in their computer entry, causing Mr. Bardin to obtain another person's benefits. The criminal case has been dismissed by the Honorable Roger Forando on 5/8/15."
The defendant's "Bureau Chief" also signed the "Supplementary Parole Revocation Specialist Recommendation" on May 11, 2015.
Claimant's attorney provided a copy of the local court order dismissing the criminal charge against claimant to the New York State Division of Parole, by fax and cover letter, on May 8, 2015. Despite actual knowledge, as early as May 8, 2015 and as late as May 11, 2015, that the mistaken and unfounded criminal charge which was the sole basis of the Parole Revocation Warrant had been dismissed, defendant caused claimant to remain confined until May 27, 2015 at the Washington County Correctional Facility.
There is, at a minimum, a question of fact requiring a trial to determine why claimant remained confined for nearly three weeks after defendant was notified, and acknowledged in writing, that the mistaken and unfounded criminal charge which was the sole basis of the Parole Revocation Warrant had been dismissed.
The defendant's motion for summary judgment dismissing the claim and its companion CPLR 3211 motion to dismiss, each requesting dismissal of the claim for failure to state a cause of action, are denied.
October 30, 2017
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Defendant's Notice of Motion, filed August 9, 2017;
2. Affirmation of Christina Calabrese, dated August 9, 2017, and annexed exhibits, including unsigned "affirmation" of Jarrod Sanford, dated August 8, 2017;
3. Affidavit in Opposition of Joseph R. Brennan, sworn to September 3, 2017, and annexed exhibits.