New York State Court of Claims

New York State Court of Claims
MORELAND v. THE STATE OF NEW YORK, # 2020-038-538, Claim No. 134308, Motion No. M-95424

Synopsis

Defendant's motion to dismiss the claim for failure to state a cause of action pursuant to CPLR 3211 (a) (7) granted, and the claim is dismissed. The putative class action claims are dismissed for failure to comply with the jurisdictional pleading requirements of Court of Claims Act 11 (b). Cause of action for wrongful confinement dismissed on the ground that the State is entitled to absolute immunity. Cause of action for denial of due process dismissed on the ground that the failure to adhere to DOCCS drug testing regulations does not constitute a denial of due process. Cause of action for negligence dismissed on the ground that it is not maintainable where claimant seeks damages for wrongful confinement.

Case information

UID: 2020-038-538
Claimant(s): SEAN MORELAND
Claimant short name: MORELAND
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 134308
Motion number(s): M-95424
Cross-motion number(s):
Judge: W. BROOKS DeBOW
Claimant's attorney: PHILIP M. HINES, ESQ.
Defendant's attorney: LETITIA JAMES, Attorney General
of the State of New York
By: Michael C. Rizzo, Assistant Attorney General
Third-party defendant's attorney:
Signature date: June 25, 2020
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant, an individual currently incarcerated in a State correctional facility, has filed this claim purporting to allege a class action on behalf of current and former inmates in Department of Correction and Community Supervision (DOCCS) correctional facilities regarding urinalysis testing for the opioid buprenorphine/Suboxone (buprenorphine). Defendant moves to dismiss the claim for failure to state a cause of action pursuant to CPLR 3211 (a) (7). Claimant opposes the motion.

The claim alleges that on September 1, 2018, the State entered into a contract with Microgenics Corporation and/or Thermo Fisher Scientific (hereinafter Microgenics) pursuant to which Microgenics provided certain DOCCS facilities with urinalysis testing equipment, as well as installation, repair and maintenance, and training for DOCCS staff, for use in drug testing DOCCS inmates (see Claim No. 134308, 19-23). The claim alleges that "[b]etween September 1, 2018 and September 2019, nearly 100,000 urinalysis tests were performed by DOCCS personnel on DOCCS inmates using" the urinalysis testing equipment "at various prisons across New York State" (id. at 24), but that at an unknown point during that period, the urinalysis testing equipment began producing false positives for buprenorphine "on a widespread scale," and that DOCCS inmates, including claimant and putative class members, were issued Tier III inmate misbehavior reports, found guilty of violating DOCCS's drug policy at Tier III disciplinary hearings, and punished based on the false positives produced by the urinalysis testing equipment (see id. at 25-26). The claim alleges that "in or about September 2019, DOCCS officials recognized the testing errors (false positives) and expunged the guilty verdicts rendered at these Tier III Superintendent hearings" (id. at 27).

The claim alleges that claimant voluntarily provided a urine sample for testing using the urinalysis testing equipment on May 28, 2019, while he was confined at Gouverneur Correctional Facility (CF), and that the sample tested positive for buprenorphine (see id. at 28-30). The claim alleges that claimant was issued a Tier III inmate misbehavior report (IMR) charging him with violating disciplinary rule 113.24 (drug use), and that claimant was confined to the Special Housing Unit (SHU) pending the disciplinary hearing (see id. at 31-32). The claim alleges that at the June 3, 2019 disciplinary hearing, "[r]elying exclusively on the false positive results, the DOCCS hearing officer found [claimant] 'guilty,' to the exclusion of contrary evidence that [claimant] offered or attempted to offer" (id. at 33), and that claimant was sentenced to 90 days confinement in the SHU, plus 90 days loss of packages, commissary, and telephone privileges (see id. at 34). The claim alleges that on September 14, 2019, after claimant had completed his disciplinary sentence, his administrative appeal was granted, and the charges and penalties that had been imposed were reversed and expunged from claimant's record (see id. at 35-36).

The claim, which is purportedly a class action brought on behalf of claimant "and all prisoners presently or previously confined to DOCCS custody and care who were required and did submit to urinalysis testing administered by DOCCS personnel since January 2019 and received disciplinary action based upon false positive drug test results for buprenorphine" (id. at 39), alleges that it meets the requirements of CPLR 901 for class certification (see id. at 40), and asserts causes of action sounding in negligence (see id. at 41-57), denial of due process (see id. at 58-64), and false imprisonment and loss of liberty (see id. at 65-67).

Class Action Claims

As an initial matter, the Court will address that part of defendant's motion that seeks dismissal of the alleged class action on behalf of claimant and "all prisoners presently or previously confined to DOCCS custody and care who were required and did submit to urinalysis testing administered by DOCCS personnel since January 2019 and received disciplinary action based upon false positive drug test results for buprenorphine" (Claim No. 134308, 39). Defendant argues that this purported class action must be dismissed because "in a class action brought in the Court of Claims, each class member must satisfy the substantive pleading requirements of Court of Claims Act 11 (b) and be a named claimant in a filed claim," and that "[t]he failure to name the class members and satisfy the pleading requirements of Court of Claims Act 11 (b) mandates dismissal of the class action" (Rizzo Affirmation, 29).

Claimant argues, in opposition to defendant's motion to dismiss with respect to the class action claims, that the motion should be denied as premature (see Nazryan Affirmation, 54), and that "[t]he [c]laim provides detailed allegations as to why class certification will be appropriate in this case by explaining the five requirements for a class action" (id. at 55). Claimant argues that this claim is "uniquely well-situated for class certificate and disposal," and that defendant "does not address these allegations, does not provide any evidence or affidavit as to why dismissal prior to pre-certification discovery is warranted, and does not address the requirements for class certification" (id.). Finally, claimant argues that defendant's jurisdictional argument "that each potential class member must satisfy the substantive pleading requirements of Court of Claims Act 11 (b) . . . is irrelevant because the State does not argue that a requisite number of putative class members have not satisfied the requirements of 11 (b) in order to avoid the numerosity requirement, or that they cannot or will not do so" (id.).

Contrary to claimant's argument, the requirements of Court of Claims Act 11 (b) are not "irrelevant" to these class action claims. It is well settled that a claim must set forth sufficient facts to satisfy each of the pleading requirements set forth in Court of Claims Act 11 (b) (see Kolnacki v State of New York, 8 NY3d 277, 280-281 [2007], rearg denied 8 NY3d 994 [2007]), and the failure to strictly comply with those requirements is a fatal defect in subject matter jurisdiction that requires dismissal of the claim (see Lepkowski v State of New York, 1 NY3d 201, 209 [2003]; see also Kolnacki, 8 NY3d at 281; Signature Health Ctr., LLC v State of New York, 42 AD3d 678, 679 [3d Dept 2007]). Defendant is correct that the jurisdictional requirements of Court of Claims Act 11 (b) apply equally to class actions as well as individual claims, and that "class actions brought in the Court of Claims must satisfy all of the jurisdictional requirements set forth in [Court of Claims Act 11 (b)] and . . . each member must be a named claimant in a filed claim" (Weaver v State of New York, 82 AD3d 878, 879 [2d Dept 2011], lv dismissed 17 NY3d 778 [2011], lv denied 19 NY3d 804 [2012]; see Matter of Arroyo v State of New York, 12 Misc 3d 1197[A], 2006 NY Slip Op 51606[U], *2-3 [Ct Cl 2006]).

Here, as noted above, the claim asserts that it is brought on behalf of claimant and "all prisoners presently or previously confined to DOCCS custody and care who were required and did submit to urinalysis testing administered by DOCCS personnel since January 2019 and received disciplinary action based upon false positive drug test results for buprenorphine" (Claim No. 134308, 39). However, the claim does not identify any class member other than claimant and thus has not satisfied the jurisdictional pleading requirement of Court of Claims Act 11 (b) with respect to those unnamed class members. As a result, the purported class action must be dismissed (see Sze v State of New York, UID No. 2014-039-411 [Ct Cl, Ferreira, J., May 30, 2014] ["Here, as claimant has failed to name any of the other members of the prospective class, and has otherwise failed to meet the substantive pleading requirements of Court of Claims Act 11 (b) with respect to the unnamed class members, that part of the claim which alleges a class action is dismissed for lack of jurisdiction"]; see also Batthany v State of New York, UID No. 2014-041-029 [Ct Cl, Milano, J., May 5, 2014] [denying claimant's motion to amend the claim and for certification of a claimant class on the ground that, inter alia, claimant failed to show that any of the proposed class members satisfied the substantive pleading requirements of Court of Claims Act 11 (b)]; Alexander v State of New York, UID No. 2013-010-053 [Ct Cl, Ruderman, J., Sept. 30, 2013 [granting defendant's motion to dismiss putative class action where the claim did not name any of the 83 inmates who were allegedly injured in an electrical fire at Sing Sing Correctional Facility]).

Wrongful Confinement Claim

Turning next to that branch of defendant's motion that seeks to dismiss claimant's individual claims, defendant argues that the claim fails to state a cause of action for wrongful confinement inasmuch as claimant does not allege that he was denied procedural due process during the disciplinary hearing, and thus the confinement was privileged (see Rizzo Affirmation, 9-13). Defendant further argues that a wrongful confinement cause of action cannot be based on flawed urinalysis testing because such claims, even where they allege the violation of drug testing directives, do not implicate the claimant's procedural due process right (see id. at 14-19, 21).

In opposition to the motion, claimant argues that defendant is not entitled to absolute immunity because the State's drug testing of DOCCS inmates essentially supplanted the function of a private drug testing laboratory and thus was a proprietary, and not a governmental, function (see Nazryan Affirmation, 18-22). Claimant further argues that even if the State's drug testing of DOCCS inmates was deemed to be a governmental function, the drug testing complained of here was a ministerial function - and thus not entitled to absolute immunity - because the claim arises not out of the disciplinary hearing itself but the State's drug testing program, which involved no exercise of discretion (see id. at 23-27). Claimant further argues that the State assumed a special duty to claimant because by requiring claimant "to submit to mandatory drug tests," the State "assumed an affirmative duty to [him] to perform the drug test within professional standards and in good faith" (id. at 29). Claimant argues that the State knew that inmates would be wrongfully punished for false positive drug tests, that the drug testing itself led to direct contact between claimant and the State's agents, and that claimant justifiably relied on the State to perform the mandatory drug testing (see id. at 28-31).

Claimant further argues that the claim states a cause of action for wrongful confinement because the confinement was not privileged inasmuch as the State "fail[ed] to follow its own guidelines for (a) drug testing inmates, (b) initiating a disciplinary proceeding without any factual basis, (c) conducting a disciplinary hearing, and (d) having a witness testify about the testing process and results," and that these failures "constitute due process violations that bar any claim of privilege or immunity" (id. at 40). Claimant argues that the State committed due process violations, the full scope of which can be revealed only through the discovery process, in failing to properly conduct the urinalysis drug testing and in relying exclusively on the false positive test results in issuing claimant a Tier III IMR and in finding him guilty at the disciplinary hearing despite contrary evidence claimant attempted to offer (see id. at 41-43).

On a motion to dismiss for failure to state a cause of action,

"claimant's claim is liberally construed and all facts asserted therein, as well as its submissions in opposition to defendant's motion, are accepted as true (see CPLR 3026; 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; see also Nonnon v City of New York, 9 NY3d 825, 827 [2007]; State of New York v Shaw Contract Flooring Servs., Inc., 49 AD3d 1078, 1079 [2008]). Where, as here, the motion is premised upon claimant's failure to state a claim (see CPLR 3211 [a] [7]) . . . the dispositive inquiry is whether it has a cause of action and not whether one has been stated, i.e., 'whether the facts as alleged fit within any cognizable legal theory' (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; accord Nonnon v City of New York, 9 NY3d at 827)"

(IMS Engrs.-Architects, P.C. v State of New York, 51 AD3d 1355, 1356 [3d Dept 2008], lv denied 11 NY3d 706 [2008]). "The allegations of the pleading cannot be vague and conclusory, but must contain sufficiently particularized allegations for which a cognizable cause of action reasonably could be found" (V. Groppa Pools, Inc. v Massello, 106 AD3d 722, 723 [2d Dept 2013] [internal citation omitted]).

"It is well settled that '[t]he test of the sufficiency of a [claim] is whether it gives sufficient notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments' "

(Moore v Johnson, 147 AD2d 621, 621 [2d Dept 1989], quoting Pace v Perk, 81 AD2d 444, 449 [2d Dept 1981]).

In order to plead a cause of action for unlawful confinement, a claim must allege that defendant intentionally confined claimant, that claimant was aware of and did not consent to the confinement, and that the confinement was not privileged (see Martinez v City of Schenectady, 97 NY2d 78, 85 [2001]; Broughton v State of New York, 37 NY2d 451, 456-457 [1975], cert denied sub nom. Schanbarger v Kellogg 423 US 929 [1975]; see also Nazario v State of New York, 75 AD3d 715, 718 [3d Dept 2010], lv denied 15 NY3d 712 [2010]). The confinement of an inmate is privileged if it was accomplished in accordance with DOCCS regulations (see Lee v State of New York, 124 AD2d 305, 307 [3d Dept 1986]; Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]) or where there has not been a violation of an inmate's right to due process (see Arteaga v State of New York, 72 NY2d 212, 221 [1988]).

Defendant's motion to dismiss the claim for failure to state a cause of action relies on the doctrine of absolute immunity, which provides that, in the context of the prison disciplinary process, where defendant's "employees act under the authority of and in full compliance with the governing statutes and regulations (Correction Law  112, 137; 7 NYCRR parts 250-254), their actions constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity" (Arteaga , 72 NY2d at 214). Thus, "unless the [correctional] employees exceed the scope of their authority or violate the governing statutes and regulations [relating to the prison disciplinary process], the State has absolute immunity for those actions" (Holloway v State of New York, 285 AD2d 765, 765 [3d Dept 2001]). Not all violations of DOCCS rules governing the disciplinary process will result in the abrogation of the State's absolute immunity, only those that violate an inmate's right to due process (see Arteaga, 72 NY2d at 221).

Here, the claim alleges with respect to the cause of action for negligence that the State's urinalysis testing equipment and procedures were unreliable and resulted in false positive tests for buprenorphine, and that claimant was wrongfully charged with a Tier III violation of disciplinary rule 113.24 prohibiting drug use, found guilty at the ensuing Tier III disciplinary hearing, and punished for that violation as a result of the false positive drug test (see Claim No. 134308, 47-50). The claim further alleges that defendant was negligent with respect to its use of the urinalysis testing equipment and the urinalysis testing procedures, and that defendant was negligent "in . . . predicating the inmate's guilt and designated sentence solely upon the false positive drug test to the exclusion of other evidence" and "in . . . conducting sham disciplinary hearings and predicating the inmate's guilt upon false positive drug test results" (id. at 51).

The claim alleges with respect to the denial of due process cause of action that defendant relied on the preliminary positive result for buprenorphine and did not follow up with "the more specific chemical method to confirm" the initial positive test, and that defendant relied upon the preliminary positive testing result when issuing Tier III inmate misbehavior reports, conducting the Tier III disciplinary hearings, finding claimant guilty, and sentencing him (id. at 59-61). The claim alleges that this constituted deliberate indifference to and denial of claimant's due process rights (see id. at 62-63). Finally, with respect to the wrongful confinement cause of action, the claim merely "repeats, reiterates and realleges each and every allegation set forth in the preceding paragraphs" and alleges that as a result, claimant was "subjected to false imprisonment, atypical confinement, and loss of liberty without justification" (id. at 65-66).

In sum, claimant alleges that as a result of defendant's negligence and violation of his due process rights, he was wrongfully confined for a violation of the disciplinary rule prohibiting drug use. However, as noted above, in the context of prison disciplinary proceedings, defendant is entitled to absolute immunity unless defendant's agents violated a governing statute or DOCCS regulation related to the disciplinary process, and here, the claim does not allege any violation of DOCCS regulations implicating claimant's due process rights, but merely that the State's negligence in relation to the urinalysis testing of DOCCS inmates and failure to retest urinalysis samples that tested positive for buprenorphine using a different, chemical method - which resulted in a denial of claimant's due process right - led to claimant's wrongful confinement.

As discussed in more detail below in connection with claimant's cause of action for denial of due process, 7 NYCRR 1020.4 governs the process of urinalysis drug testing of DOCCS inmates. However, this regulation is not one of the provisions identified by the Court of Appeals in Arteaga as implicating due process concerns related to the disciplinary hearing process. Thus, even to the extent the claim could be read as asserting a violation of the regulations governing urinalysis testing of DOCCS inmates, such a violation does not implicate claimant's due process rights in connection with the disciplinary hearing, and the claim fails to allege that the allegedly wrongful confinement was not privileged (see Miller v State of New York, 156 AD3d 1067, 1068 [3d Dept 2017] ["To the extent that claimant asserts that drug testing directives were violated, they do not relate to the due process concerns of the hearing and do not serve as the basis for the wrongful confinement cause of action"]; see also Ramirez v State of New York, 175 AD3d 1635, 1638 [3d Dept 2019], lv denied 35 NY3d 902 [2020] ["a wrongful confinement action cannot be based on the mishandling of a urine sample because the violation of drug testing directives does not constitute a due process violation"]; Martinez v State of New York, UID No. 2020-015-037 [Ct Cl, Collins, J., Apr. 22, 2020]; Ramos v State of New York, UID No. 2018-032-093 [Ct Cl, Hard, J., Dec. 28, 2018]). Accordingly, the Court concludes that claimant has failed to state a cause of action for wrongful confinement, and defendant's motion to dismiss with respect to the wrongful confinement claim is granted.

Due Process Claim

Defendant argues that although the claim asserts a cause of action for violation of claimant's due process rights based on defendant's "alleged failure to 'request, analyze, utilize or rely upon the more specific chemical method to confirm the analytical result as required by generally accepted protocols and procedures,' " because "mishandling a urine sample or an impropriety in the drug testing process does not constitute a due process violation . . . a due process violation is not supported by the allegations of the [c]laim" (Rizzo Affirmation, 20, quoting Claim No. 134308, 60). Claimant responds that, as argued in connection with defendant's motion to dismiss the wrongful confinement claim, "the [c]laim alleges several due process violations and absolute immunity does not apply" (Nazryan Affirmation, 53).

As discussed above, the claim alleges that defendant violated claimant's due process rights by relying solely on the "preliminary analytical test result of 'positive' for buprenorphine when issuing [the] Tier III misbehavior report[] to . . . claimant," conducting the Tier III disciplinary hearing, rendering a guilty verdict, and determining claimant's punishment without first confirming that preliminary result using "the more specific chemical method" (Claim No. 134308, 59-61 [emphasis in original]). The claim alleges that confirmation with this "more specific chemical method" is "required [by] generally accepted protocols and procedures" (id. at 60).

Even affording the claim a liberal construction, as the Court must on this motion to dismiss, and assuming that a state constitutional tort sounding in the denial of due process is recognized as a matter of law, it fails to state a cause of action for denial of due process based on defendant's alleged failure to confirm the preliminary positive test result for buprenorphine by a different testing method. The DOCCS regulations governing urinalysis drug testing of inmates provide, as relevant to this cause of action, that where a DOCCS facility has urinalysis testing equipment,

"If a positive result is obtained on the first test, the procedure followed and the results obtained shall be noted by the operator on the urinalysis procedure form. A second test shall be performed on the same sample. The results of the second test shall be noted on a second urinalysis procedure form. If a positive result is obtained from the second test, the individual performing the urinalysis testing shall cause a misbehavior report to be issued"

(7 NYCRR 1020.4 [f] [1] [iv]). The regulations do not require that a different method of testing must be used to confirm the initial urinalysis results, but merely that the specimen must be retested before an inmate misbehavior report can be issued. Here, the claim does not allege that defendant's agents failed to comply with these regulations when testing claimant's urine sample for buprenorphine, but rather that they failed to complete a different confirmatory test not contemplated by the regulations. Moreover, as discussed above, defendant's failure to adhere to the DOCCS drug testing regulations does not constitute a due process violation. Lastly, to the extent that the claim could be read as challenging the DOCCS testing regulations as violative of due process, the Court lacks jurisdiction to entertain such a claim (see Cass v State of New York, 58 NY2d 460, 463 [1983], rearg denied 60 NY2d 586 [1983]; Shelton v New York State Liq. Auth., 61 AD3d 1145, 1150-1151 [3d Dept 2008]). Accordingly, the claim fails to state a cause of action for denial of due process, and it will be dismissed.

Negligence Claim

Finally, defendant argues that the claim fails to state a cause of action for negligence because it alleges that defendant "was negligent in its investigation of whether [c]laimant was using illicit drugs and that this negligent investigation led to the issuance of a misbehavior report which ultimately resulted in false imprisonment and loss of liberty," and that "a claim for negligence may not supplant the traditional tort remedy of false imprisonment," and "a claim for negligent investigation is not actionable in New York" (Rizzo Affirmation, 24-25).

Claimant argues in opposition to the motion that the claim states a cause of action for negligence because the State had a duty to claimant act reasonably in testing his urine for drugs, the State breached that duty by employing urinalysis testing equipment that produced false positives and by failing to ensure the accuracy of the results, and that claimant sustained damages in the form of the three months of solitary confinement and loss of good time as a result of the false positive drug test (see Nazryan Affirmation, 32-35). Claimant argues that defendant has mischaracterized this cause of action as one for negligent investigation, and that the State's negligence arose in connection with the drug testing itself, prior to the disciplinary hearing and subsequent confinement, and that it does not duplicate the wrongful confinement cause of action (see id. at 36-37).

As an initial matter, while defendant is correct that "[t]he law is settled that as a matter of public policy, there is no cause of action in the State of New York for negligent . . . investigation" (Weitz v State of New York, 182 Misc 2d 320, 325 [Ct Cl 1999] [internal quotation marks omitted]; see Peterec v State of New York, 124 AD3d 858, 859 [2d Dept 2015]; Coyne v State of New York, 120 AD2d 769, 770 [3d Dept 1986]), the Court agrees with claimant that defendant has incorrectly framed the negligence cause of action as one sounding in negligent investigation. Rather, the claim alleges that defendant "owed a duty to claimant . . . to perform accurate and reliable urinalysis tests" and "to perform his . . . drug test in keeping with relevant professional standards" (Claim No. 134308, 42-43), that defendant breached that duty through its negligent operation and use of the urinalysis testing equipment and its negligent performance of claimant's urinalysis drug testing, that defendant's alleged negligence caused claimant to be falsely charged and found guilty of violating the DOCCS disciplinary rule prohibiting drug use, and that claimant was damaged as a result (see id. at 44-57).

In opposition to defendant's motion to dismiss the negligence claim, claimant relies on Landon v Kroll Laboratory Specialists, Inc. (22 NY3d 1 [2013], rearg denied 22 NY3d 1084 [2014]) to argue that "New York recognizes a cause of action for negligent drug testing" (Nazryan Affirmation, 7). However, in Landon, the Court of Appeals addressed the duty of an independent, third party laboratory that had contracted with the Orange County Parole Department to perform drug testing of samples obtained from individuals on probation to a probationer whose sample falsely tested positive for marijuana, resulting in violation of probation proceedings being commenced against that individual. In that case, the Court of Appeals held that under those circumstances, and even in the absence of a contractual relationship between the laboratory and the probationer, the laboratory "had a duty to the test subject to perform his drug test in keeping with relevant professional standards" (Landon, 22 NY3d at 6-7). In the Court's view, Landon presents very different circumstances from those present here, where claimant alleges not that a third party, private laboratory breached its duty to accurately perform urinalysis testing, but that DOCCS breached its duty to one of its inmates in the performance of urinalysis testing. The Court has been unable to identify any case law applying Landon to an inmate's claim against the State for allegedly negligent drug testing. Moreover, Landon appears particularly inapplicable here inasmuch as, as noted above, there are regulations governing how DOCCS is to perform urinalysis testing of samples produced by its inmates and here, claimant does not allege that those regulations were violated.

While claims alleging wrongful confinement resulting from the prison disciplinary process generally sound in intentional tort (see Gittens v State of New York, 132 Misc 2d 399, 407 [Ct Cl 1986]), in limited factual circumstances, claims alleging that an inmate should have been released from restrictive confinement may also sound in negligence where, for example, the claim alleges conduct that was "almost certainly unintentional," such as computation errors, or an erroneous misapplication of rules governing release (Ramirez v State of New York, 171 Misc 2d 677, 682 [Ct Cl 1997]). Here, however, the claim does not allege that claimant's confinement was unintentional, and thus does not fall within that limited category of cases that sound in negligence. Inasmuch as "a party seeking damages for an injury resulting from a wrongful [confinement] . . . is relegated to the traditional [intentional tort] remedies of [wrongful confinement]" (Higgins v City of Oneonta, 208 AD2d 1067, 1069 [3d Dept 1994], lv denied 85 NY2d 803 [1995]), the negligence claim fails to state a cause of action against defendant as a matter of law and must be dismissed (see Nazario, 75 AD3d at 718, citing Simon v State of New York, 12 AD3d 171, 171 [1st Dept 2004] [dismissing claimant's negligence claim on the ground that claimant was not permitted to recover under that theory where claimant sought damages for wrongful confinement]; see also Lorensen v State of New York, 249 AD2d 762, 763 n 2 [3d Dept 1998], lv denied 92 NY2d 807 [1998] [negligence cause of action properly dismissed where claimants sought money damages for wrongful confinement]; Green v State of New York, 39 Misc 3d 1239[A], 2013 NY Slip Op 50931[U], *9 [Ct Cl 2013] ["the law is well settled that where a negligence cause of action is asserted in the same pleading, and on the same facts, as causes of action for false arrest, imprisonment, and malicious prosecution, the negligence claim must be dismissed as a negligence cause of action may not supplant traditional tort remedies"]).

Accordingly, it is

ORDERED, that defendant's motion M-95424 is GRANTED, and claim number 134308 is hereby DISMISSED.

June 25, 2020

Saratoga Springs, New York

W. BROOKS DeBOW

Judge of the Court of Claims

Papers considered:

1. Claim No. 134308, filed January 16, 2020;

2. Verified Answer, filed March 2, 2020;

3. Notice of Motion, dated March 12, 2020;

4. Affirmation of Michael C. Rizzo, AAG, in Support of Motion to Dismiss, dated March 12, 2020, with Exhibits A-C;

5. Affirmation and Memorandum of Law of Uri Nazryan, Esq. in Opposition to Motion to Dismiss, dated June 10, 2020, with Exhibit A.