Claimant's motion for late claim relief denied. Motion was untimely as to cause of action for wrongful confinement, and causes of action sounding in negligence and violation of claimant's federal and state constitutional rights patently lacked merit.
|Claimant(s):||NASEAN BONIE (15-A-1872)|
|Claimant short name:||BONIE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||NASEAN BONIE, pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Heather R. Rubinstein, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 8, 2020|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, moves for permission to file and serve a late claim pursuant to Court of Claims Act § 10 (6). The proposed claim alleges that claimant was wrongfully confined based upon a false inmate misbehavior report (IMR) beginning on December 7, 2018. Defendant opposes the motion.(1)
The proposed claim alleges that claimant was served with a Tier II IMR authored by Correction Officers (COs) D. Germano and Mahon charging him with violations of various disciplinary rules, "includ[ing]: direct order; threat; interference; out of place; movement violation; and threat of violence" (Proposed Claim, ¶ 2). The proposed claim alleges that the incident upon which the IMR was based occurred on December 7, 2018 but that CO Germano and CO Mahon both "put November 5 as the date that the officer signed and reported this incident" (id. at ¶ 3). The proposed claim also alleges that "[t]here was a third officer present but his name was not included in the report" (id. at ¶ 4). The proposed claim alleges that claimant was wrongfully confined to his cell based on the allegedly false IMR, arguing that "[i]f there was a threat issued by [claimant], then one or all three officers would have pulled the emergency pin in the security radio" (id.).(2) The proposed claim further alleges that claimant filed a grievance on December 13, 2018, and that on January 15, 2019, claimant received a memorandum from Captain Norton "stating that the misbehavior report of December 7, 2018 was being dismissed and that [claimant] was released" (id. at ¶¶ 7-8). The proposed claim alleges that claimant "received no disposition from a hearing officer" and "was illegally confined to his cell constituting a violation of his due process rights and his right to not suffer cruel and unusual punishment" (id. at ¶¶ 9-10).
As an initial matter, claimant's motion for late claim relief is untimely insofar as it alleges a cause of action sounding in wrongful confinement. A motion seeking 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 [CPLR]" (Court of Claims Act § 10 ). The failure to file the motion within the prescribed time period is a jurisdictional defect which precludes the Court from granting such a motion (see Berger v State of New York, 171 AD2d 713, 716 [2d Dept 1991]; see also 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 ). A claim for wrongful confinement typically sounds in intentional tort (see Manuel v State of New York, UID No. 2018-038-561 [Ct Cl, DeBow, J., June 21, 2018]; Nanton v State of New York, UID No. 2017-038-578 [Ct Cl, DeBow, J., Oct. 12, 2017]), and accrues upon claimant's release from that confinement (see Campos v State of New York, 139 AD3d 1276, 1277 [3d Dept 2016]; Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept 2001]; Miranda v State of New York, 42 Misc 3d 1226[A], 2012 NY Slip Op 52505[U], *4 [Ct Cl 2012], affd 113 AD3d 943 [3d Dept 2014]), and it is subject to a one-year statute of limitations under CPLR 215 (3).
Here, the proposed claim alleges that this claim accrued on December 7, 2018, the date of the allegedly false IMR (see Proposed Claim, ¶ 12). However, this claim actually accrued - and the statute of limitations for the wrongful confinement cause of action began to run - on the date claimant was released from the allegedly wrongful confinement. In support of his late claim motion, claimant has provided a January 15, 2019 memorandum from Captain Norton responding to claimant's complaint regarding the December 7, 2018 IMR (see Bonie Affidavit, Exhibit 3). The memorandum explains that the IMR "was written on 12/07/18 and as a result [claimant was] placed on [p]re-hearing confinement status," and that the IMR "was dismissed at a later date and claimant [was] released as a result" (id.). Thus, although the precise date upon which claimant was released from his confinement is not reflected in claimant's submissions, the Norton memorandum reveals that claimant was released some time prior to January 15, 2019. Claimant's late claim motion was filed on January 24, 2020, over one year after claimant's release from the allegedly wrongful confinement, and thus, the late claim motion is untimely with respect to the proposed cause of action for wrongful confinement, and claimant's motion must be denied with respect to that cause of action.
Turning to the remainder of the proposed claim insofar as it appears to assert causes of action for negligence and violation of claimant's due process rights and his right to be free from cruel and unusual punishment (see Proposed Claim, ¶ 10), the Court is required to consider the following 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"
(Court of Claims Act § 10 ). 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 & Firemen's Retirement Sys., 55 NY2d 979, 981 ), and the weight accorded the various factors is a matter within the discretion of the Court. Although "[t]he movant need not satisfy every statutory element[,] . . . the burden rests with the movant to persuade the court to grant his or her late claim motion" (Frederick v State of New York, 23 Misc 3d 1008, 1011 [Ct Cl 2009]).
In support of his motion for late claim relief,(3) claimant does not directly address whether the delay in filing this claim was excusable, but he avers that he "did in fact serve on the Attorney General a *Notice of Intention*, sworn on (March 29th, 2019) & sent *Certified Mail* with the (United States Postal Service) on (3-29-29), approved by Facility Business Office on *(4-2-19)*" (Bonie Affidavit, ¶ 4). Although claimant indicates that a receipt supporting his assertion that he previously served a notice of intention on the Attorney General is attached as an exhibit to his motion papers (see id.), no such exhibit is appended to his affidavit in support of this late claim motion, and claimant has failed to otherwise account for the delay in filing this claim, and this factor weighs against granting the late claim motion.(4)
The next three factors - whether the State had notice of the essential facts constituting the claim and an opportunity to investigate the circumstances underlying the claim, and whether claimant's failure to file or serve upon the attorney general a timely claim or notice of intention resulted in substantial prejudice to the State - are closed 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 argues that because he previously filed a grievance with respect to the incident underlying this claim, "as a result of the administrative proceeding, the State had notice of the essential facts constituting the claim, . . . had an opportunity to investigate the incident and therefore was not prejudiced by the delay" (Bonie Affidavit, ¶ 5). Claimant also argues that the State was "aware of the illegal confinement" and sent him "a letter of dismissal" (id. at ¶ 6), and that "[t]he State investigated the incident [and] its employees are still available to the Attorney General" (id. at ¶ 7). Based on claimant's representations, the Court concludes that these three factors weigh in favor of granting claimant's late claim motion.
Turning next to the appearance of merit of the proposed claim, this factor is often decisive because, although Court of Claims Act § 10 (6) reflects a legislative determination that "litigants with meritorious claims [should] be afforded their day in court" (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]; see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]), the courts have recognized that a late claim application should not be granted where a claim is "legally deficient . . . [and] would be subject to immediate dismissal, even if the other factors tend to favor the granting of the request" (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 or she will prevail on the claim. Rather, a proposed claim has the 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" (Matter of Santana, 92 Misc 2d at 11).
In support of his late claim motion, claimant argues that his claim is meritorious because it "is based upon (false imprisonment/wrongful confinement) & (Intentional Negligence) on the (Defendants) constituting "Cruel & Unusual Punishment" under United States Constitution & New York State Laws" (Bonie Affidavit, ¶ 7). As an initial matter, in the heading for this second cause of action, claimant states that it is for "Intentional Negligence - malicious conduct on the part of corrections personnel" (see Proposed Claim, pg. 3; see also Bonie Affidavit, ¶ 7). However, negligent conduct cannot, by definition, be intentional, and inasmuch as the second cause of action largely reiterates allegations sounding in wrongful confinement, the Court does not construe this section of the proposed claim as asserting a cause of action sounding in negligence. In any event, even if the second cause of action did assert a cause of action sounding in negligence, it is well settled that "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 ), and cannot maintain a negligence cause of action where a cause of action for wrongful confinement is alleged (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  [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"]). Thus, even if the Court were to read the second cause of action as asserting a claim sounding in negligence, the late claim motion would be denied with respect to that cause of action as lacking in merit.
Contrary to claimant's assertions, to the extent the proposed claim alleges violations of claimant's federal constitutional rights, it patently lacks merit inasmuch as the Court of Claims lacks subject matter jurisdiction over alleged violations of a claimant's rights under the United States Constitution, which must be brought in federal or state court pursuant to 42 USC § 1983 (see Brown v State of New York, 89 NY2d 172, 185 ; Zagarella v State of New York, 149 AD2d 503, 504 [2d Dept 1989]; Ferrer v State of New York, 172 Misc 2d 1, 5 [Ct Cl 1996]). Insofar as the claim alleges violations of claimant's state constitutional rights, it also plainly lacks merit. It is well settled that a cause of action sounding in state constitutional tort may be pursued only when no other remedy is available to enforce the claimed constitutional right (see Brown 89 NY2d at 192 ; Martinez v City of Schenectady, 97 NY2d 78, 83-84 ; Oppenheimer v State of New York, 152 AD3d 1006, 1008-1009 [3d Dept 2017]), and is thus unavailable here inasmuch as the alleged violations could have been addressed through the inmate grievance process and, if necessary, a CPLR article 78 proceeding, through a 42 USC § 1983 suit in federal court, or through a timely instituted claim for wrongful confinement. The second cause of action in the proposed claim thus fails to allege any actionable claim in this Court, and the crucial factor of the appearance of merit weighs decisively against granting claimant's late claim motion.
Finally, claimant argues that "[n]o other state remedy is available to [him], by operation of Corrections Law [§] 24" (Bonie Affidavit, ¶ 8). However, as noted above, claimant could have pursued a CPLR article 78 proceeding in Supreme Court (indeed, his submissions indicate that he filed a grievance related to the allegedly false IMR), a 42 USC § 1983 claim with respect to the alleged constitutional violations, or a timely instituted claim for wrongful confinement, and therefore, this factor weighs against granting claimant's application for late claim relief.
Having considered and weighed all of the factors set forth in Court of Claims Act § 10 (6), the Court finds that although three of the six statutory factors weigh in support of granting claimant's late claim application, the crucial factor of the appearance of merit, as well as the reason for the delay in filing the claim and the availability of other remedies, weigh against granting the motion. Thus, claimant's motion to serve and file this late claim will be denied.
Accordingly, it is
ORDERED, that claimant's motion number M-95226 is DENIED.
July 8, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Notice of Motion, dated January 17, 2020;
2. Affidavit of Nasean Bonie in Support, unsworn, with Exhibits 1, 3, and A;
3. Proposed Claim, verified December 13, 2019.
1. Counsel for defendant has submitted an affirmation in opposition, with a copy of a late claim motion attached as Exhibit A, to this late claim motion. However, upon review of defendant's submission, it appears to be directed not toward the late claim motion currently before the Court, but to a different late claim motion by this claimant addressed to a separate incident (see Affirmation of Heather R. Rubinstein, AAG, in Opposition for Leave to File Late Claim, dated February 28, 2020, with Exhibit A).
2. The proposed claim also alleges that following the issuance of the allegedly false IMR, CO Germano and CO Mahon verbally harassed claimant while he was on keeplock confinement (see Proposed Claim, ¶¶ 5-6), but these allegations do not appear to be related to the causes of action asserted in the proposed claim.
3. Claimant has submitted an affidavit in support of the instant motion. The affidavit is unsworn and is appended with a "Verification When Notary Public Unavailable," which states, in pertinent part, that claimant was unable to obtain the services of a notary due to his incarceration, and that "[t]he statements made in the accompanying documents are true to the knowledge of deponent, except for those matters stated to be alleged upon information and belief, and that as to those matters, I believe them to be true" (Notice of Motion, attachments, [Verification When Notary Public Unavailable]). Claimant further states that he "understand[s] that a false statement may be punishable as a Class A misdemeanor pursuant to [Penal Law § 210.45]" and "that offering a document to a judicial officer knowing it contains a false statement is also punishable as a Class A misdemeanor pursuant to [Penal Law § 175.30]" (id.). Notwithstanding these representations, claimant's submission is lacking in evidentiary value inasmuch as it is unsworn, and claimant - who is a party - is not authorized to submit an affirmation in lieu of affidavit (see CPLR 2106; see also Discovision Assoc. v Fuji Photo Film Co., Ltd., 71 AD3d 488, 489 [1st Dept 2010] ["in New York State court . . . if (the parties) do not submit affidavits, they must comply with CPLR 2106"]; see Tafari v State of New York, UID No. 2016-038-501 [Ct Cl, DeBow, J., Jan. 14, 2016]).
4. In any event, had claimant successfully demonstrated that he properly served the Attorney General with a notice of intention with respect to this claim, this motion was be denied as premature inasmuch as, to the extent it alleges a cause of action sounding in state constitutional tort, it is subject to a three-year statute of limitations under CPLR 214 (5), and the statute of limitations on the state constitutional tort claim, which arose some time in late December 2018 or early January 2019, has not yet expired. However, as noted above, the cause of action for wrongful confinement is subject to a one-year statute of limitations, and thus, even if claimant had properly served defendant with a notice of intention, his time to file and serve a wrongful confinement claim has now expired.