Motion for late claim relief denied. Cause of action for intentional tort of wrongful confinement untimely and thus the motion was jurisdictionally defective. To that extent that the proposed claim included a State constitutional tort, the claim lacked the appearance of merit because claimant had other remedies available to vindicate the alleged constitutional violations.
|Claimant(s):||ROBERT CUMBERLAND #04A1829|
|Claimant short name:||CUMBERLAND|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||ROBERT CUMBERLAND, Pro se|
|Defendant's attorney:||BARBARA D. UNDERWOOD, Attorney General
of the State of New York
By: J. Gardner Ryan, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 30, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, moves pursuant to Court of Claims Act § 10 (6) for permission to file and serve a late claim. The proposed claim alleges that claimant was wrongfully confined in a Special Housing Unit (SHU) at Green Haven Correctional Facility (CF) from March 18 to September 1, 2016. Defendant opposes the motion solely on the ground that the Court lacks jurisdiction because the motion was filed after the expiration of the applicable statute of limitations.(1)
A motion for late claim relief must be filed "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" (Court of Claims Act § 10 ). The failure to file the motion within the prescribed time period is a jurisdictional defect that precludes the court from granting such a motion (see Matter of Miller v State of New York, 283 AD2d 830, 831 [3d Dept 2001]; Bergmann v State of New York, 281 AD2d 731, 733-734 [3d Dept 2001]; Williams v State of New York, 235 AD2d 776, 777 [3d Dept 1997], lv denied 90 NY2d 806 ).
The proposed claim alleges that claimant was confined to the SHU at Green Haven CF and issued an inmate misbehavior report (IMR) on March 18, 2016 charging claimant with possession of an altered item and a weapon. The proposed claim alleges that a Tier 3 Superintendent's Hearing was commenced on March 25, 2016, at which the Hearing Officer (HO) denied claimant's request for a witness and found claimant guilty over claimant's objections to the lack of detail in the IMR and the denial of the witness. The claim alleges that the HO sentenced claimant to six months in SHU, six months of loss of privileges and three months of loss of good time and that claimant was released from SHU on September 1, 2016. The proposed claim states that claimant appealed the HO's determination administratively and filed a CPLR article 78 petition in Supreme Court, Dutchess County in June 2016 seeking to annul and expunge the HO's determination, which was granted by the Appellate Division, Second Department on May 9, 2018. The proposed claim asserts that it is for "wrongful/excessive confinement, ministerial negligence, violation due process . . . and equal protection of the law under the Constitution of the State of New York, and for personal injury" (Cumberland Affidavit, Proposed Claim, ¶ 2; see also id., ¶¶ 27-31).
Claims alleging wrongful confinement in the context of incarceration in a correctional facility generally sound in intentional tort (see Gittens v State of New York, 132 Misc2d 399, 407 [Ct Cl 1986]) because the factual allegations in such claims usually state the elements of a cause of action for false imprisonment (see Martinez v City of Schenectady, 97 NY2d 78, 85  [defendant intended to confine plaintiff, who was conscious of the confinement and did not consent to it, and the confinement was not otherwise privileged]). In limited factual circumstances, such a claim may also sound in negligence (see Ramirez v State of New York, 171 Misc2d 677, 682 [Ct Cl 1997]), where, for example, the claim alleges conduct that was "almost certainly unintentional," such as computation errors, or an erroneous misapplication of rules governing release (see id., at 683). The periods of limitations for institutional wrongful confinement will depend upon "whether the claim is predicated on intentional or negligent conduct" (Kairis v State of New York, 113 AD3d 942, 942 [3d Dept 2014]), and a court that is evaluating a cause of action for purposes of determining the applicable limitations period is not bound by a party's characterization of the nature of the cause of action, but must examine and determine the true gravamen of the cause of action (see Western Elec. Co. v Brenner, 41 NY2d 291, 293 ; Gold v New York State Bus. Group, 255 AD2d 628, 630 n [3d Dept 1998]; Marine Midland Bank v Jerry Hamam, Inc., 96 AD2d 1137, 1138 [4th Dept 1983]).
Here, although the proposed claim asserts that it is for ministerial negligence, it does not allege any conduct by defendant's agents in the nature of failing to release claimant from confinement for which the authorization has expired, in violation of correctional rules and regulations (see Ramirez v State of New York, 171 Misc2d at 683). Rather, the proposed claim alleges that claimant served a disciplinary sanction of six months in the SHU, and that he was confined in SHU from March 18 through September 1, 2016, a period of less than six months. The proposed claim contains no allegation that defendant's agents were required to release claimant before September 1, 2016 or that he was held in SHU for more than 6 months. Thus, the proposed claim fairly sounds in the intentional tort of wrongful confinement, and not negligence. The allegation that claimant was wrongfully confined is thus subject to a one year statute of limitations (see CPLR 215 ), and accrues when the claimant is released from that confinement (see Davis v State of New York, 89 AD3d 1287 [3d Dept 2011]; Santiago v City of Rochester, 19 AD3d 1061, 1062 [4th Dept 2005], lv denied 5 NY3d 710 ). The proposed claim alleges an accrual date of September 1, 2016, which is well more than a year before the instant motion was filed on June 13, 2018. Thus the motion is untimely and must be denied with regard to a claim of wrongful confinement. However, the claim may also be construed as asserting a claim sounding in State constitutional tort for alleged violations of the state constitutional guarantees of due process and equal protection, which is subject to a three-year statute of limitations under CPLR 214 (5) (see Weimer v Lake, 268 AD2d 741, 742 , lv denied 95 NY2d 755 ; Brown v State of New York, 250 AD2d 314, 318 [3d Dept 1998]; CPLR 214 ). As this motion was filed less than three years following the September 1, 2015 accrual date, it is timely with regard to a cause of action sounding in State constitutional tort,(2) and the motion will be considered as such.
In deciding a motion to file a late claim, Court of Claims Act § 10 (6) requires the Court to 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." The presence or absence of any particular factor is not controlling (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 981 ), and the weight accorded the various factors is a matter within the discretion of the Court.
Claimant acknowledges that he is required to offer an excuse for the delay in filing the claim, but he offers no excuse other than that he does not know when the claim accrued. Thus, claimant's lack of an acceptable excuse for the failure to timely file the claim weighs against his application for late claim relief.(3)
Whether the State had notice of the essential facts constituting the claim and had an opportunity to investigate the circumstances underlying the claim, and 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 are closely related, and may be considered together (see Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]; Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). Claimant essentially argues that defendant had an opportunity to investigate the claim because he appealed the HO's determination administratively and sought judicial review and that defendant has access to documents and employees and will not be prejudiced if the motion is granted. Defendant does not dispute these contentions, and it appearing that defendant had notice and an opportunity to investigate and that granting the motion would not result in substantial prejudice to defendant, these three factors weigh in favor of the application.
The appearance of merit to a proposed claim is perhaps the most significant factor for the Court to consider because Court of Claims Act § 10 (6) reflects a legislative determination that the Court of Claims should permit a potential litigant to have his or her day in court (see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]), yet a litigant should not be subjected to the futility of pursuing a meritless claim (see Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In general, a party seeking to establish the merit of a proposed late claim need not demonstrate a likelihood that he will prevail on his claim. Rather, a proposed claim has an appearance of merit within the meaning of Court of Claims Act § 10 (6) if: (1) the proposed claim is not patently groundless, frivolous or legally defective; and (2) all of the evidence submitted on the motion establishes reasonable cause to believe that a valid cause of action exists (see Matter of Santana v New York State Thruway Auth., supra at 11).
A cause of action sounding in State constitutional tort is maintainable only when no other remedy is available to enforce the claimed constitutional right (see Brown v State of New York, 89 NY2d 172, 191-192 ; Martinez v City of Schenectady, 97 NY2d 78, 83-84 ; Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; Bullard v State of New York, 307 AD2d 676, 678 [3d Dept 2003]). Here, the proposed claim alleges that claimant appealed the HO's determination administratively and successfully sought judicial review, and therefore claimant had an alternative remedy and did indeed vindicate the claimed constitutional rights. Thus, given the availability of other remedies, claimant's state constitutional tort cause of action is not legally actionable and the crucial factor of the appearance of merit weighs heavily against claimant's motion.
Claimant's contention that Correction Law § 24 precludes any other remedy is not persuasive, as he had an equitable remedy pursuant to CPLR article 78, and may have also sought to vindicate his rights under the parallel provision of the federal constitution in federal court. Therefore, this factor weighs against the granting of the application.
Having considered and weighed all of the factors set forth in Court of Claims Act § 10 (6), the Court finds that three of the six statutory factors, including the crucial factor of appearance of merit, weigh against granting the motion for late claim relief on the proposed State constitutional tort claim. Thus, the motion to serve and file this proposed late claim will denied.
Accordingly, it is
ORDERED, that claimant's motion number M-92410 is DENIED.
July 30, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Notice of Motion for Leave to File a Late Claim, filed June 13, 2018;
(2) Affidavit of Robert Cumberland in Support of Motion to File a Late Claim, sworn to June 5,
2018, with Proposed Verified Claim, with Exhibits A-H;
(3) Affirmation of J. Gardner Ryan, AAG, dated July 12, 2018.
1. Defendant's opposition papers were filed one week after the return date of the motion, with counsel for defendant averring that the Court's letter scheduling the return date "either was not received, or was not forwarded for appropriate response" (Ryan Affirmation, ¶ 3). Claimant has submitted no opposition to the Court's consideration of defendant's papers, and in the absence of any apparent prejudice to claimant and in the interests of deciding this motion on the merits, the Court considered defendant's papers on the motion.
2. Although the proposed claim asserts that it is for "personal injury" (Cumberland Affidavit, Proposed Claim, ¶ 2; see CPLR 214  [actions to recover damages for "personal injury" subject to three-year statute of limitations]), any claim for "personal injury" flows either from the intentional tort of wrongful confinement, which is barred by the statute of limitations, or constitutional tort, which is timely.
3. The cause of action sounding in constitutional tort accrued on September 1, 2016, and would have been timely had the claim been filed and served within 90 days after accrual, or on or before November 30, 2016 (see Court of Claims Act § 10 ). The instant motion was filed more than 18 months thereafter.