Pro se inmate's late claim application was denied as he failed to allege the essential elements of a cause of action for wrongful confinement or a date of accrual.
|Claimant short name:||DEVAUGHN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Alex Devaughn, Pro Se|
|Defendant's attorney:||Honorable Barbara D. Underwood, Attorney General
By: Michael T. Krenrich, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 25, 2018|
|See also (multicaptioned case)|
Movant, an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), alleges he was wrongfully confined to an observation cell for five days. He further alleges he was wrongfully confined to the Special Housing Unit for an additional 135 days following a prison disciplinary hearing in which he was found guilty of possessing a weapon. The proposed claim for wrongful confinement is premised on the contention that DOCCS violated movant's constitutional and regulatory rights in the conduct of the hearing. The proposed claim does not specify the nature of the rights allegedly violated, but instead references the petition attached to the proposed claim as Exhibit B for additional detail. Review of the petition reflects movant sought judicial review of the administrative determination based primarily on the contention that he was deprived of adequate assistance in preparing a defense. He also contends he was denied, without explanation, his right to call certain witnesses to testify on his behalf. The Supreme Court annulled the determination on the ground the hearing transcript could not be provided and expunged the matter from movant's institutional record.
CPLR 2214 (b) and (c) require that the motion papers filed with the Court be served on all parties (see also 22 NYCRR 206.9). Here, it is clear that the motion papers filed with the Clerk, including the petition filed in the Supreme Court as well as the Decision and Order granting it, were not served on the Attorney General (see State's Exhibit A). In addition, although the proposed claim purports to "adopt" the allegations in the petition "as the body of this claim"(proposed claim, ¶ 6), the failure to attach the petition to the papers served upon the State deprived the respondent of the opportunity to address the substantive allegations that form the basis for the proposed claim. Furthermore, although a notice of intention to file a claim was included as a part of the instant motion, and was allegedly served on the Attorney General on May 25, 2018, it does not appear that the notice of intention was included in the motion papers served on the State.(1)
Lastly, the proposed claim does not set forth the date the claim accrued or the basis for the contention that a due process safeguard was violated. At the very least, movant was required to plead the date his confinement terminated (Davis v State of New York, 89 AD3d 1287 [3d Dept 2011]; Court of Claims Act § 11 [b]) and that the administrative hearing determination was reversed or annulled (see Green v State of New York, 90 AD3d 1577 [4th Dept 2011], rearg denied 92 AD3d 1269 [4th Dept2012], lv dismissed 18 NY3d 901 ) based upon a violation of a due process safeguard (Arteaga v State of New York, 72 NY2d 212, 221 ). Moreover, even where a violation of a due process safeguard results in reversal or annulment of a hearing determination, movant must still establish that the outcome of the hearing would have been different had there been no such violation (Bottom v State of New York, 142 AD3d 1314 [4th Dept 2016], appeal dismissed 28 NY3d 1314 [4th Dept 2016] Moustakos v State of New York, 133 AD3d 1268 [4th Dept 2015]). The proposed claim here fails to allege these essential facts.
Accordingly, the motion is denied.
September 25, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. If the notice of intention to file a claim satisfied the pleading requirements of Court of Claims Act § 11 (b) and was timely and properly served, late claim relief appears to be unnecessary.