Motion for permission to serve and file a late Claim pursuant to Court of Claims Act § 10(6) denied
|Claimant short name:||BEVEL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CATHERINE E. LEAHY-SCOTT|
|Claimant's attorney:||Jeffrey Bevel, Pro Se|
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Christopher J. Kalil, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 13, 2019|
|See also (multicaptioned case)|
Pro se Movant Jeffrey Bevel seeks permission to serve and file a late claim for wrongful and excessive confinement. Movant's proposed claim is premised upon the reversal of his prison disciplinary determination based upon the Hearing Officer's failure to indicate how confidential testimony from the Office of Mental Health ("OMH") affected the disposition of the disciplinary determination. The proposed claim alleges, in conclusory fashion, that Movant was denied the right to call witnesses or submit questions to be answered by witnesses questioned outside of his presence (see Notice of Mot, Proposed Claim ¶ 2). Defendant opposes the motion.
The Court has discretion to permit the filing of a late claim pursuant to Court of Claims §10 (6) provided that the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. The proposed claim alleges a cause of action sounding in wrongful confinement, which accrues on "the date on which [claimant's] confinement terminated" (Santiago v City of Rochester, 19 AD3d 1061, 1062 [4th Dept 2005], lv denied 5 NY3d 710 ; see Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept 2011]) and carries a one-year statute of limitations under CPLR 215 (3). Because it is undisputed that the proposed claim accrued on November 15, 2018 and the instant application was made on June 13, 2019, the proposed claim is timely.
Upon satisfaction that the proposed claim is timely, the Court will consider six statutory factors set forth in Court of Claims Act § 10 (6) as well as other relevant factors in determining whether to grant the late claim (see Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Although Movant need not satisfy every statutory factor enumerated in Court of Claims Act § 10 (6) (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 ), the ultimate the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797, 800-801 [Ct Cl 1977]).
The first factor to be considered is whether the delay in filing the claim was excusable. Movant contends that the late filing of his claim is excusable because he was transferred to other correctional facilities, had limited access to the law library, was ignorant of the "complex rules of the Court of Claims," and has "mental disabilities that make it impossible to complete this process without counsel being assigned" (Bevel Response to State ¶ 2[a]).(1) It is well settled that a movant's ignorance of the law and confinement in a correctional facility are not compelling excuses for the late filing of a claim (see Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]; Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002] ["conclusory allegations that one is incarcerated and without access to legal references have also been rejected as a reasonable explanation" for filing a late claim], lv dismissed 99 NY2d 589 ; Matter of Thomas v State of New York, 272 AD2d 650, 651 [3d Dept 2000] [same]). Moreover, the circumstances caused by movant's incarceration, including his transfers between facilities, are not an adequate excuse for his delay in timely serving a notice of intention or timely filing and serving a claim (see Lathrop v State of New York, UID No. 2018-044-552 [Ct Cl, Schaewe, J., Aug. 14, 2018]). To the extent that Movant asserts that the delay in filing his claim arose from his mental health issues, his contention is devoid of any factual specificity to support such claim and fails to demonstrate how such instability precluded him from consulting with an attorney within the 90-day statutory period for filing a claim (see Musto v State of New York, 156 AD2d 962, 963 [4th Dept 1989]; Brown v State of New York, UID No. 2013-038-507 [Ct Cl, DeBow, J., Jan. 22, 2013]). Accordingly, Movant fails to proffer a reasonable excuse for the delay in filing his claim. Nevertheless, "the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief" (Bay Terrace Coop. Section IV, 55 NY2d at 981).
The next three factors to be addressed--whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant--are interrelated and will be considered together. Defendant does not argue lack of notice of the essential facts or lack of opportunity to investigate. Nor does Defendant assert that it will be substantially prejudiced by a delay in filing a claim. Consequently, these factors weigh in favor of Movant.
The fifth factor to be considered is whether Movant has another remedy available. In addition to his claim for wrongful confinement, Movant claims violations of his due process rights under the State and Federal Constitutions (see Notice of Mot, Proposed Claim ¶ 2; Bevel Response to State ¶ 2[d]). It well settled that this Court lacks subject matter jurisdiction over a claim under the Federal Constitution which must be brought in federal court pursuant to 42 USC § 1983 (see Brown v State of New York, 89 NY2d 172, 185 ; Shelton v New York State Liq. Auth., 61 AD3d 1145, 1151 [3d Dept 2009]). Moreover, the availability of a federal constitutional due process claim forecloses a State constitutional tort claim (see Waxter v State of New York, 33 AD3d 1181, 1181-1182 [3d Dept 2006]; Rodriguez v State of New York, UID No. 2013-038-555 [Ct Cl, DeBow, J., Sept. 17, 2013] ["claimant's state constitutional right to due process is parallel to the federal constitutional right, which may be enforced in a federal action pursuant to 42 USC § 1983, and the availability of this alternative remedy forecloses a state constitutional tort claim"]). Thus, to the extent that Movant asserts constitutional violations, his remedy lies elsewhere.
The last and perhaps most important factor to be considered is whether the proposed Claim has the appearance of merit, for "it would be futile to permit a defective claim to be filed even if the other factors in Court of Claims Act § 10 (6) 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  [internal quotation marks and citation omitted]). It is Movant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists (see Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). Although this standard places a heavier burden upon a party who has filed late, it does not require a movant to establish the merit of the claim or to overcome all legal objections before the Court will permit the filing of a late claim (see Matter of Santana, 92 Misc 2d at 11-12).
It is well settled that actions of correctional facility employees taken in furtherance of authorized disciplinary measures are quasi-judicial in nature and entitled to absolute immunity unless the employees exceed their authority or violated governing statutes and regulations (see Arteaga v State of New York, 72 NY2d 212, 214 ; Davidson v State of New York, 66 AD3d 1089, 1090 [3d Dept 2009]). However, "not all disciplinary hearing procedural rules and regulations, if violated, form a basis to abrogate the immunity afforded to employees of the Department of Corrections and Community Supervision in commencing and conducting formal inmate disciplinary proceedings. The rule or regulation must implicate minimal due process protections" (Amato v State of New York, UID No. 2014-041-038 [Ct Cl, Milano, J., June 26, 2014]).
Here, Movant's disciplinary determination was reversed on the ground that the Hearing Officer failed to indicate how the confidential OMH testimony affected the disposition as required under 7 NYCRR 254.6 (f). This Court has determined that such a violation "amounts to an administrative error and does not show that claimant was denied any substantive due process rights" (Smith v State of New York, 57 Misc 3d 1201 [A], 2017 NY Slip Op 51168[U], at *3 [Ct Cl 2017]). Moreover, to the extent Movant contends that the Hearing Officer violated his right to call witnesses under 7 NYCRR 254.5 or submit written questions to witnesses, his conclusory allegations are insufficient to establish that the Hearing Officer acted in excess of authority or violated a statute or regulation (see Loret v State of New York, 106 AD3d 1159, 1159 [3d Dept 2013]; McGee v State of New York, UID No. 2004-031-076 [Ct Cl, Minarik, J., June 21, 2004]). Specifically, with respect to his right to call witnesses, Movant failed to set forth any facts that identify the witnesses and demonstrate how the witnesses' testimony was relevant, material, and not redundant. Similarly, Movant has failed to specify what written questions he was prevented from asking and how those questions were relevant and material to the hearing. Consequently, because Defendant is entitled to absolute immunity, Movant's proposed claim is without merit.
Therefore, in accordance with the foregoing, the Motion seeking permission to serve and file a Claim late pursuant to Court of Claims Act § 10 (6) is denied.
September 13, 2019
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
1) Notice of Motion, dated April 19, 2019, and Attachments.
2) Affirmation of Christopher J. Kalil, Esquire, Assistant Attorney General, in Opposition to the Motion, dated June 13, 2019.
4) Response of Jeffrey Bevel to the Affirmation in Opposition to the Motion, dated June 26, 2019.
1Movant improperly raises arguments relating to the enumerated factors in Court of Claims Act § 10 (6) for the first time in his reply. Nevertheless, the Court has considered Movant's reply and determines that each of these arguments plainly lack merit (see generally Eujoy Realty Corp. v Van Wagner Communications, LLC, 22 NY3d 413, 422  [noting that lower courts are not prohibited from considering arguments raised for the first time on reply]).