Motion to renew application to file late claim is granted based upon new evidence not available at time prior motion was made and claimant is granted permission to file and serve late claim where allegations of proposed claim provide cause to believe a valid cause of action for wrongful confinement may exist.
|Claimant short name:||BLACK|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||JAMEL BLACK
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Michael T. Krenrich, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 6, 2020|
|See also (multicaptioned case)|
Claimant moves to renew his prior motion (M-93816) for permission to file a late claim pursuant to Court of Claims Act 10 (6). Claimant's prior motion (M-93816) was denied because claimant failed to submit a proposed verified claim with his prior motion and because claimant failed to allege that the disciplinary determination underlying the proposed wrongful confinement claim had been annulled or reversed (Black v State of New York, UID# 2019-041-030, Motion No. M-93816 [Ct Cl, Milano, J., signed June 18, 2019, filed July 26, 2019).
Defendant opposes the motion.
The proposed claim alleges that as a result of a disciplinary hearing held on August 14, 2018 at Clinton Correctional Facility, the inmate/claimant was wrongfully confined in the Special Housing Unit for 180 days. The proposed claim alleges that at the disciplinary hearing claimant was denied the opportunity to present "witnesses in the form of videos/audios" that "would have proved claimant's innocences [sic] of the charges in the misbehavior Report."
Claimant's administrative appeal of the disciplinary determination was denied and claimant next challenged the disciplinary determination in an Article 78 proceeding. Defendant chose not to oppose the claimant's Article 78 petition and instead, on October 10, 2019, defendant reversed and expunged the disciplinary determination because the "HEARING OFFICER FAILED TO MAKE A FURTHER INQUIRY INTO INMATE REQUESTED VIDEO EVIDENCE."
Claimant made this motion to renew his prior motion for permission to file a late claim on January 16, 2020.
A motion to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination [and] shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e]  and ).
Claimant has provided new facts that would change the prior determination and has offered a reasonable excuse for the failure to present such facts in the prior application. The present application alleges, without contradiction, that the subject disciplinary determination was reversed and expunged on October 10, 2019, subsequent to the prior application and resulting decision and order. Additionally, claimant has provided a verified proposed claim in support of the application.
In determining the application, Court of Claims Act 10 (6) provides that:
"[T]he court shall 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."
Defendant does not dispute the allegations of the claimant's application regarding whether the delay in filing the claim is 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 failure to file or serve a timely claim resulted in substantial prejudice to the state; or whether the claimant has any other available remedy.
Defendant has not substantively challenged the merit of the proposed claim. However, Savino v State of New York (199 AD2d 254, 255 [2d Dept 1993]), reminds that "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."
Section 10 (6) requires that the proposed claim not be "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, 833-834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]).
Defendant has not offered an affidavit, nor offered any other proof, disputing the factual allegations of the proposed claim and the allegations are deemed true for purposes of this application (Schweickert v State of New York, 64 AD2d 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]).
To establish that he was wrongfully confined, claimant 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]).
The element most often contested in a prison disciplinary wrongful confinement claim is whether claimant can show that the confinement was not "otherwise privileged."
With respect to whether a confinement is privileged, Holmberg v County of Albany (291 AD2d 610, 612 [3d Dept 2002], lv denied 98 NY2d 604 ), instructs that: "Generally, where a facially valid order issued by a court with proper jurisdiction directs confinement, that confinement is privileged . . . and everyone connected with the matter is protected from liability for false imprisonment."
In the context of confinement pursuant to a prison disciplinary proceeding, such confinement is "privileged to the extent that it was under color of law or regulation, specifically in accordance with [inmate misbehavior] regulations" (Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]).
The proposed claim alleges, and defendant concedes, that claimant was essentially denied his right under the defendant's own regulations to produce exculpatory witnesses/evidence at the disciplinary hearing. The proposed claim further demonstrates that the disciplinary determination was reversed and expunged via CPLR Article 78 at defendant's request.
The proposed claim has the appearance of merit.
Based upon a balancing of the factors set forth in section 10 (6), the claimant's application to serve and file a late wrongful confinement claim is granted.
Claimant is directed to file and serve his claim in compliance with this Decision and Order and in compliance with §§ 11 and 11-a of the Court of Claims Act within sixty (60) days of the filing of this Decision and Order with the Clerk of the Court of Claims, as such date may be affected and extended by the Administrative Order of Acting Presiding Judge Richard E. Sise, dated March 16, 2020, which tolls such time limitations periods, and until such Order expires.
August 6, 2020
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Notice of Motion To Renew Motion To File A Late Claim, filed January 21, 2020;
2. Affidavits of Jamel Black, each sworn to January 13, 2020, and attached exhibits including proposed claim verified January 13, 2020;
3. Affirmation in Opposition of Michael T. Krenrich, dated February 21, 2020.