Following a trial, the Court dismissed claimant's failure to protect cause of action as untimely, as the notice of intention to file a claim was served more than 90 days past the accrual date. Claimant's cause of action alleging wrongful confinement was also dismissed as defendant established that the confinement was privileged.
|Claimant(s):||PHILLIP P. BATTEASE|
|Claimant short name:||BATTEASE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Phillip P. Battease, Pro Se|
|Defendant's attorney:||Hon. Eric T. Schneiderman, NYS Attorney General
By: Ray A. Kyles, Assistant Attorney General,
|Third-party defendant's attorney:|
|Signature date:||February 23, 2018|
|See also (multicaptioned case)|
Claimant, an inmate proceeding pro se, filed the instant claim on October 24, 2011, alleging that he was wrongfully confined in keeplock for a period of 15 days, and that the correction staff at Five Points Correctional Facility (FPCF) failed to protect him from an assault by his bunkmate.
Claimant testified at trial that in October 2010, he was assigned to share a cell with another inmate, Frank Delessandro. The two men did not get along, and claimant wrote a letter to Sergeant Walawender requesting to be moved to a different cell. Sergeant Walawender denied claimant's request.
On November 3, 2010, Delessandro "sucker punched" claimant while the two men were in line leaving the mess hall. Claimant sustained injuries to his neck and had a bump on his head.
Following the assault, claimant spoke to Sergeant Walawender, and told him that he should have been moved out of the cell he shared with Delessandro prior to the assault. Sergeant Walawender told claimant that Delessandro punched him because of the crimes claimant was accused of committing. Claimant testified that he disagreed with Sergeant Walawender's assessment of Delessandro's motivation for the assault.
Claimant was placed in Involuntary Protective Custody (IPC) following the assault. He testified that he objected to his placement in IPC. Following an IPC hearing, the Hearing Officer found that claimant's placement in IPC was necessary, and he remained in IPC until he was transferred to Elmira Correctional Facility.
LAW AND ANALYSIS
Failure to Protect
At trial, defendant moved to dismiss claimant's cause of action based on defendant's failure to protect claimant from Delessandro's assault on the ground that claimant failed to timely serve a notice of intention to file a claim regarding the failure to protect cause of action. The Court reserved judgment on defendant's motion. The Court now grants defendant's motion and dismisses the failure to protect cause of action for lack of subject matter jurisdiction.
"A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Court of Claims Act § 10 , [3-b]). Court of Claims Act § 11 (a) (i) provides that a "notice of intention shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for service upon the attorney general. Service by certified mail, return receipt requested, upon the attorney general shall not be complete until the . . . notice of intention is received in the office of the attorney general." "[A]s suits against defendant are permitted only by virtue of its waiver of sovereign immunity and are in derogation of the common law, the failure to strictly comply with the filing or service provisions of the Court of Claims Act divests the court of subject matter jurisdiction and compels dismissal of the claim" (Caci v State of New York, 107 AD3d 1121, 1122 [3d Dept 2013] [internal quotation marks and citations omitted]; see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 ; Rodriguez v State of New York, 307 AD2d 657, 657 [3d Dept 2003]). Once challenged, the burden is upon the claimant to establish proper service by a preponderance of the credible evidence (see Caci v State of New York, 107 AD3d at 1124; Boudreau v Ivanov, 154 AD2d 638, 639 [2d Dept 1989]; Aquila v Aquila, 129 AD2d 544, 545 [2d Dept 1987]).
Claimant's cause of action based on defendant's failure to protect him from Delessandro's assault accrued on November 3, 2010--the day of the assault (see Faulkner v State of New York, UID No. 2017-041-037 [Ct Cl, Milano, J., June 1, 2017]). Thus, claimant was required to serve a claim or a notice of intention to file a claim by February 1, 2011. Here, claimant served upon the Attorney General a notice of intention to file a claim on January 11, 2011. The notice was rejected as a nullity due to claimant's failure to verify the notice. Claimant served a second notice of intention to file a claim on January 28, 2011. The second notice was again rejected as a nullity due to claimant's failure to verify the notice. The Court (Minarik, J.) determined that claimant served a verified notice of intention to file a claim on or about February 18, 2011 (Battease v State of New York, Motion No. M-81406 [Ct Cl, Minarik, J., Aug. 16, 2012]). Indeed, the return receipt for the notice of intention to file a claim indicates that the Attorney General's office received the notice on February 18, 2011. Because the verified notice of intention to file a claim was served 17 days past February 1, 2011, the Court lacks subject matter jurisdiction over claimant's cause of action alleging defendant's failure to protect him from Delessandro's assault, and this cause of action is dismissed.
With respect to his claim of wrongful confinement, "claimant was required to show that (1) defendant intended to confine him, (2) he was conscious of the confinement, (3) he did not consent to the confinement, and (4) such confinement was not otherwise privileged" (Cass v State of New York, 134 AD3d 1207, 1208 [3d Dept 2015], lv dismissed 27 NY3d 972  [internal quotation marks and citations omitted]; accord Miller v State of New York, 124 AD3d 997, 998 [3d Dept 2015]). As the first three elements of this cause of action are not disputed, defendant's liability in this case turns upon whether or not its confinement of claimant in IPC was privileged.
As relevant here, "[d]efendant's confinement of claimant . . . is privileged if it was in accordance with the regulations of the Department of Corrections and Community Supervision" (hereinafter DOCCS) (Hernandez v State of New York, 48 Misc 3d 218, 220 [Ct Cl 2015]; see Lee v State of New York, 124 AD2d 305, 307 [3d Dept 1986]; see also Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]). Thus, so long as defendant's confinement of claimant was "under the authority of and in full compliance with the governing statutes and regulations, [its] 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  [citations omitted]; see generally Tarter v State of New York, 68 NY2d 511, 518-519 ). "Notably, '[i]t is defendant and not claimant who bears the burden of proving that confinement was privileged' " (Ifill v State of New York, 46 Misc 3d 1228[A], *7 [Ct Cl 2013], quoting Nelson v State of New York, 20 Misc 3d 1125[A], *2 [Ct Cl 2008], affd 67 AD3d 1142 [3d Dept 2009]; see also Gonzalez v State of New York, 110 AD2d 810, 812 [2d Dept 1985], appeal dismissed 67 NY2d 647 ; Sanabria v State of New York, 29 Misc 3d 988, 991-992 [Ct Cl 2010]). Claimant, however, bears the burden of establishing "that a violation of the rules and regulations proximately caused him injury or damage" (James v State of New York, UID No. 2016-018-736 [Ct Cl, Fitzpatrick, J., Oct. 14, 2016]; see Ruggiero v State of New York, UID No. 2010-015-187 [Ct Cl, Collins, J., Nov. 1, 2010]; Rivera v State of New York, UID No. 2006-028-008 [Ct Cl, Sise, P.J., Feb. 8, 2006]).
The Court finds that defendant has met its burden of establishing privilege with respect to claimant's IPC confinement. 7 NYCRR 330.3 (b) (1) provides that an inmate in IPC status "shall have a hearing, conducted within 14 days in accordance with the provisions of Part 254 [which governs Tier III Disciplinary Hearings] . . . to determine the need for protective custody admission." Following Delessandro's assault of claimant, he was placed in IPC on Sergeant Walawender's recommendation. The recommendation stated that "[claimant] . . . has been having problems with his cellmate because of his crime. Due to the nature of the crime, [claimant] for his safety and the safety and security of this facility . . . is placed in IPC" (Claimant's Exhibit 5). Following a hearing regarding claimant's IPC status, the Hearing Officer determined that claimant's placement in IPC was necessary to protect him (Claimant's Exhibit 4). Defendant's only witness, David Gleason, a Corrections Captain at FPCF, testified that when two inmates engage in a fight, the non-aggressor may be placed in IPC against his will. Claimant does not assert that the hearing, or the process of placing him in IPC, was untimely or conducted in violation of established rules and regulations. He only asserts that he never stated that Delessandro assaulted him because of his crimes. Because defendant has established that the confinement was privileged, and claimant has not asserted or proved that any rules or regulations were violated, the wrongful confinement cause of action is dismissed.
Based on the foregoing, claim number 120512 is dismissed in its entirety. All motions and applications not previously determined are hereby denied as moot. The Clerk of the Court is directed to enter judgment accordingly.
February 23, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims