Motion for permission to file a late claim is granted.
|Claimant short name:||DAVIS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Lavar Davis, Pro Se|
|Defendant's attorney:||Hon. Eric T. Schneiderman, NYS Attorney General
By: Michael T. Krenrich, Assistant Attorney General,
|Third-party defendant's attorney:|
|Signature date:||March 23, 2018|
|See also (multicaptioned case)|
Movant, an inmate in the custody of the New York State Department of Corrections and Community Supervision (DOCCS), seeks permission to file and serve a late claim alleging wrongful confinement. Movant alleges that he was wrongfully confined to the SHU as the result of a sentence that was reversed and expunged, and that the Supreme Court, Albany County determined that the SHU sentence imposed on movant was invalid. Defendant opposes the motion on the ground that it is untimely under CPLR 215 (3). For the reasons stated below, the Court grants movant's motion to file a late claim.
On May 10, 2015, movant received a Tier III misbehavior report charging him with a violation of Rule 116.10 for damaging state property (Proposed Claim ¶ 1).(1) On June 5, 2015, DOCCS Deputy Superintendent of Administration Farnham found movant guilty of violating Rule 116.10 and sentenced claimant to 90 days in the Special Housing Unit (SHU). However, the sentence was "suspended and deferred" for 180 days (Proposed Claim ¶ 2). That same day, movant received a Tier III misbehavior report charging him with violations of Rule 104.13 (Disturbance) and 106.10 (Disobeying a Direct Order). On June 16, 2015, movant was found guilty of violating rules 104.13 and 106.10. The hearing officer sentenced movant to 30 of the 90 days of SHU time that was suspended from the June 5, 2015 hearing determination. The June 5, 2015 determination was later reversed and expunged on July 23, 2015 by the Acting Director of SHU. Following the reversal and expungement of the June 5, 2015 determination, movant appealed his SHU sentence on the ground that it was improperly based on a hearing determination that was since expunged. According to the claim, a Lieutenant Gantert responded that the SHU sentence was still viable because the suspended sentence was still viable on the date that the 30-day SHU sentence was imposed (Proposed Claim ¶ 6).
On September 11, 2015, movant filed an Article 78 petition in Supreme Court, Albany County arguing that his 30-day SHU sentence should be reversed because it derived from a 90-day suspended sentence that was reversed and expunged. On June 17, 2016, the Supreme Court, Albany County modified and remanded his sentence, finding that "DOCCS is not permitted to impose any time based upon the first infraction which was reversed and expunged" (Proposed Claim ¶ 8). At the time of the Supreme Court's decision, movant was scheduled to be released from the SHU on December 4, 2016.(2) Sometime during August or September 2016, movant realized that the 30-day SHU sentence that was reversed by the Supreme Court was still appearing on his record. When he inquired about the mistake, he was told that the 30-day sentence would not be removed because DOCCS appealed the Supreme Court's decision. On September 21, 2016, movant received a 21-day time cut from his SHU sentence and was released from the SHU on November 13, 2016.
LAW AND ANALYSIS
As alleged, movant's proposed cause of action alleging wrongful confinement for the period of June 16, 2015 through November 13, 2016 accrued on November 13, 2016, the date that he was released from the SHU (Campos v State of New York, 139 AD3d 1276, 1277 [3d Dept. 2016]). Because movant failed to serve a claim or notice of intention to file a claim within 90 days of the accrual date as required by Court of Claims Act § 10 (3-b), the Court may consider the application for late claim relief only if his cause of action is timely under the statute of limitations applicable to his claim pursuant to CPLR Article 2 (Court of Claims Act § 10 ). Accordingly, because this motion seeking permission to file and serve a late claim was filed with the Court on November 13, 2017, and the Affidavit of Service indicates that the motion was sent to the Attorney General on October 30, 2017, the cause of action is timely under CPLR article 2 (see Turner v City of New York, 94 AD3d 635, 636 [1st Dept. 2012] [finding that a one-year statute of limitations leads to the anniversary date of the accident]; see also Martin v J.C. Penney Co., Inc., 274 AD2d 910, 910 [4th Dept. 2000]), which states that causes of action for intentional torts must be commenced within one year of the accrual date (see Court of Claims Act § 10 ; CPLR 215).(3) Therefore, the Court must consider whether: (1) the delay in filing the claim was excusable; (2) the State had notice of the essential facts constituting the claim; (3) the State had an opportunity to investigate the circumstances underlying the claim; (4) the State was substantially prejudiced by the delay; (5) claimant has any other available remedy; and (6) the claim appears to be meritorious (see Court of Claims Act § 10 ). While the presence or absence of any one of these factors is not dispositive (see Williams v State of New York, 133 AD3d 1357 [4th Dept. 2015]), the last factor is generally the most decisive inasmuch as "'it would be futile to permit a defective claim to be filed even if the other factors . . . supported the granting of the claimant's motion'" (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept. 2010], affd sub nom Donald v State of New York, 17 NY3d 389 , quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept. 1993]).
As to the first factor, movant contends that his failure to timely file his claim was due to his ignorance of the time limitations set forth in Court of Claims Act § 10. However, it is well-established that ignorance of the law is not a valid excuse for failure to timely file a claim (Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept. 2002], lv denied 99 NY2d 589 ). Therefore, the Court finds that this factor does not weigh in movant's favor.
The next three factors--defendant's notice of the issues, opportunity to investigate, and prejudice--are interrelated and therefore frequently considered together. Movant argues that defendant has notice of the issues, the opportunity to investigate, and that it will not be prejudiced because movant filed a CPLR Article 78 proceeding in Supreme Court, and defendant had notice of the Tier III hearing and movant's subsequent SHU sentence. Defendant does not argue that it lacked notice, the opportunity to investigate, or that it will be substantially prejudiced by a delay in filing the claim. These factors, therefore, weigh in movant's favor.
The fifth factor to be considered is whether movant has another remedy available. It appears that movant does not have a possible alternate remedy.
Turning then to the final factor, in order to establish a meritorious cause of action, movant must establish that his claim is not "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 Court of Claims Act § 10 ; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). "While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require [m]ovant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit [him] to file a late claim" (Williams v State of New York, UID No. 2016-040-100 [Ct Cl, McCarthy, J., Nov. 16, 2016]; see Matter of Santana v New York State Thruway Auth., 92 Misc 2d at 11-12).
To establish a claim for a wrongful confinement, movant 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 , cert denied sub nom. Schanbarger v Kellogg, 423 US 929 ; Krzyzak v Schaefer, 52 AD3d 979 [3d Dept. 2008]). Formal inmate disciplinary proceedings conducted by prison officials "in full compliance with the governing statutes and regulations . . . 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 ; Varela v State of New York, 283 AD2d 841 [3d Dept. 2001]). Thus, it is well-established that the State cannot be held liable where there is no allegation that the prison official acted in contravention of established rules and regulations while conducting disciplinary proceedings (Holloway v State of New York, 285 AD2d 765, 766 [3d Dept. 2001]). As the first three element's of movant's wrongful confinement cause of action are not in dispute, the Court must determine whether movant has established that his confinement was not privileged.
"Where a finding of misbehavior is reversed after an administrative appeal or Article 78 proceeding, and there is no other regulatory authority to hold an inmate in restrictive confinement, discretionary conduct is not involved and continued confinement is not privileged" (Porter v State of New York, UID No. 2017-018-816 [Ct Cl, Fitzpatrick, J., May 4, 2017]). The burden is on defendant to come forward with the reason for the delay (see Minieri v State of New York, 204 AD2d 982 [4th Dept. 1994]; see also Davidson v State of New York, UID No. 2015-018-649 [Ct Cl, Fitzpatrick, J., Oct. 13, 2015]; Ruggiero v State of New York, UID No. 2010-015-187 [Ct Cl, Collins, J., Nov. 1, 2010]). Here, movant alleges that he was confined to the SHU based on a hearing disposition that was reversed and expunged, and that the Supreme Court, Albany County determined that the SHU sentence was invalid. Even though the Supreme Court remitted the matter to DOCCS for a redetermination of movant's sentence, movant alleges that he never received a new sentence as directed by the Supreme Court. Thus, there was no "rule or regulation authorizing [movant's] continued confinement in the SHU" following the Supreme Court's decision (Davidson v State of New York, UID No. 2015-018-649 [Ct Cl, Fitzpatrick, J., Oct. 13, 2015]). Accordingly, the Court finds that movant's cause of action is not patently without merit, and, accepting his allegations to be true, provides cause to believe that a valid cause of action exists.
Based upon the foregoing, it is hereby
ORDERED, that movant's motion (M-91408) is granted and movant is directed to file and serve a verified claim identical to the claim provided in support of this motion, with the exhibits referenced within the proposed claim, in compliance with the Court of Claims Act, including the payment of a filing fee in accordance with section 11-a thereof, within sixty (60) days of the filing of this Decision and Order.
March 23, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion, dated September 11, 2017; and Affidavit in Support of Motion, sworn to by movant on October 11, 2017; with Proposed Claim annexed thereto.
2. Affirmation in Opposition to Movant's Motion to File a Late Claim, affirmed by Michael T. Krenrich, AAG on January 11, 2018.
1. The Court notes that movant references exhibits throughout his proposed claim. However, the referenced exhibits are not attached to the proposed claim filed with movant's motion papers.
2. Movant does not explain why he spent nearly one and a half years in the SHU even though the SHU sentence at issue in this claim consisted of only 30 days. Nevertheless, the accrual date for a wrongful confinement cause of action "accrues when the restrictive confinement ends" (Campos v State of New York, 139 AD3d 1276, 1277 [3d Dept. 2016]).
3. The Court notes that defendant opposes claimant's motion on the ground that it is untimely under CPLR 215 (3) because claimant was released from the SHU on September 21, 2016. However, defendant's argument is premised on a misreading of the proposed claim. Paragraph 13 of claimant's proposed claim states that, on September 21, 2016, he received good time credit that moved up his SHU release date from December 4, 2016, to November 13, 2016. Thus, November 13, 2016 is the proper accrual date for the claim.